D.D. Thakur, J.
1. The learned Sessions Judge, Kathua, has made this reference recommending that the order of the Munsiff, Judicial Magistrate 1st Class, Hiranagar, dated 28-12-1973 whereby he directed that the complainant should pay a sum of Rs. 20/- as compensation under Section 250(2) for having brought a false and vexatious complaint against the accused may be set aside. The facts of the case lie in narrow compass and may be stated thus:
The complainant, Bansi Lal, lodged a report in the Police Station, Hiranagar, that some person had stolen away his wooden door frame worth Rs. 75/-. It was further stated in the F. I. R. that accused, Dharam Chand, was seen roaming about in suspicious circumstances near his house. Another fact stated in the F. I. R. was that one Chandu carpenter had told the complainant that Dharam Chand accused had got one door frame fitted in his wall by him. On this report the Police registered a case under Section 457/380, R. P. C. and after completing the investigation presented a charge-sheet against the accused in the court of Munsiff Judicial Magistrate, Hiranagar. On the. conclusion of the trial the Judicial Magistrate found that no doubt the accused had got a door fitted in his wall but the same had been brought by the accused from that part of Pakistan which was at that time in the occupation of the Indian Armed Forces. He further found that the report was false and vexatious and that the complainant had managed to implicate the accused with the help of the police machinery. While recording a finding of falsity of the complaint the Magistrate called upon the complainant who was present in the court to show cause why he may not be directed to pay a sum of Rs. 40/- as compensation to the accused under Section 250 of the Criminal P. C. The complainant in reply submitted that the F. I. R. was true but the prosecution witnesses had conspired with the accused and made statements against the prosecution. This explanation of the complainant did not appeal to the Magistrate with the result that he ultimately ordered the complainant to pay a sum of Rs. 20/- as compensation to the accused and in default to undergo simple imprisonment for one week.
2. Against this order of the learned Magistrate the complainant brought a revision before the learned Sessions Judge, Kathua, who, as stated earlier, has recommended that the order be set aside as the same is bad in law, the provisions of Section 250 of the Criminal P. C. not having been strictly complied with.
3. After hearing the counsel for the parties in this reference I reserved judgment as I found that there was some conflict between various High Courts in regard to the true scope of Section 250 of the Criminal P. C. At the time of dictating the judgment I examined the whole evidence recorded by the Magistrate although it was not necessary for me to do so. After perusing the evidence in this case I am of the opinion that regardless of the question as to whether the procedure provided by Section 250 of the Criminal P. C. was or was not complied with, it was not a case where the Magistrate should have taken action under Section 250 of the Criminal P. C. From the tenor of the judgment it appears that the Magistrate has not tried to appreciate the evidence dispassionately. It is true that some of the prosecution witnesses have not supported the prosecution case but that by itself does not suggest that the prosecution story was false, vexatious or frivolous. There is a lot of difference between the failure of the prosecution to prove a case and a finding that a report or complaint is false. The falsity or vexatiousness of a case have something to do with the state of the mind of the complainant. The motivating force for a false or a vexatious complaint must emerge from a malicious or a mala fide mind. The prosecution on the basis of insufficient evidence resulting in the discharge or the acquittal of the accused does not necessarily point to the malicious or vexatious mind of the complainant.
4. The falsity of the complaint which can be made a basis for award of compensation under Section 250 of the Criminal P. C. must be accompanied by an ulterior motive of harassing or inconveniencing the accused. It must be the off-shoot of an inimical background tainted with a sense of revenge and retribution. An honest and bona fide prosecution howsoever infirm and insufficient its basis may be, does not and cannot call for an action under Section 250 of the Criminal P. C.
5. It has to be remembered that a citizen has a right to redress his grievance by resort to legal proceedings. The application of Section 250, Criminal P. C. cannot be attracted so as to discourage resort to legal proceedings honestly launched. The provision is intended to serve as a weapon only to prevent abuse of the process and discourage frivolous, flimsy and false litigation. The nature of an order under that section is more or less penal. The degree of certainty of falsehood of the complaint or its vexatious character must necessarily be very high almost as high as the certainty of a person being guilty of an offence. The exercise of the power therefore under that section must be accompanied by circumspection, caution and care.
6. Applying these principles to the facts of the present case it will appear that the Magistrate has found that the accused had fitted a wooden door frame in his wall. He has further found that the accused had got the wooden frame from a place in Pakistan then in the occupation of the Indian Armed Forces. It is not proved beyond doubt that the complainant had not lost his wooden door frame. The mere fact that a witness denies having informed the complainant about a wooden door frame having been fitted by the accused in his wall and the fact that the carpenter is unable to identify the wooden door frame in the court does not conclusively suggest that the complaint was false. Apart from that the complainant did not categorically report to the police that the accused was the thief of the Wooden doorframe. If in the course of the investigation the police collects evidence which ultimately does not stand in good stead with it, it does not point to the falsity of the report made by the complainant but is at best a case of Jaek of proof so as to warrant conviction.
7. In cross-examination of the complainant no question has been put by the accused to elicit any enmity existing between the accused and the complainant. There is no history of any strained relations between the complainant and the accused during the period preceding the date of the report. It it extremely difficult therefore to infer that the complainant has made a false report with an intention to harm and harass the accused.
8. It is well to remember again that the courts have to distinguish between a case of failure of prosecution due to insufficient evidence and a case of false and vexatious prosecution.
9. The Magistrate appears to have been very much influenced by the fact that the witnesses even when they refused to support the complainant's version were not declared hostile. That also in my opinion does not make much of difference. To declare or not to declare a witness hostile is a matter depending upon the approach of the counsel appearing in a case and not at all dependent upon the state of mind of the complainant.
10. Under these circumstances therefore regardless of the question as to whether the Magistrate did or did not follow the procedure given in Section 250 of the Criminal P. C. I am of the opinion that the very act of issuing a notice to the complainant asking him to show cause why he may not pay compensation to the accused, in the circumstances of the case referred to above, was not at all warranted and is required to be set aside. In this view of the matter it is unnecessary to examine the authorities cited by the counsel for the parties in regard to the true scope of Sub-section (2) of Section 250, Criminal P. C.
11. The reference is therefore accepted though not on the grounds mentioned by the learned Sessions Judge in his order of reference. The order passed by the Magistrate directing the complainant to pay compensation is set aside.