NATESA UDAYAR Vs. KANAGASABAI UDAYAR

JUDGEMENT

(1.) This is a criminal revision case which has been filed against the order of compensation made by the Stationary Sub Magistrate of Perambalur in C. C. No. 1224 of 1951 and confirmed in C. A. No. 6 of 1952 by the Additional First Class Magistrate of Tiruchirapalli.

(2.) The facts are: Natesa Udayar, the petitioner before us, of Melamathur filed a complaint against Kanakasabai Udayar and four others alleging that on 23-9-1051 at about 10 a.m., he was assaulted by the accused when he went with the process server of the Ariyalur District Munsif's court to serve summons on the accused. The complaint was taken on file under Section 355, I. P. C., against accused 1 and 5 and under Section 323, I. P. C., against accused 2. 3 and 4. In support of his case this Natesa Udayar examined himself and three others, viz., P. Ws. 2 and 3, eyewitnesses, and P. W. 4, the process server. The case for the accused persons was that on account of enmity arising out of civil suit and in which the process was issued, they have been falsely implicated and that they did not commit the offence. The Sub Magistrate holding that a 'prima facie' case had been made out, framed a charge under 8. 355, I. P. C., against accused 1 and 5 and under Section 323, I. P. C., against accused 2, 3 and 4. The accused pleaded not guilty and further cross-examined the P. Ws. I need not point out that there were lengthy intervals of time between the date of complaint, examination of P. Ws. in the first instance, the framing of the charge, and the further cross-examination of the P. Ws. In the stage which began with the further cross-examination, P. W. 4, the process server, went behind his evidence and managed to throw considerable doubts on the original testimony recorded in court, before the framing of the charge. The accused persons had nothing to add to their previous statements and they examined three D. Ws. the substance of whose evidence was that there was service of summons on accused 2, that there was a wordy quarrel between P. W. 1 and accused 2 and there was an assault and that accused 1 and 3 to 6 were not at all present at that time. The Sub Magistrate holding that the case had not been brought home to the accused acquitted them and called upon the complainant P. W. 1 to show cause why he should not be ordered to pay compensation for instituting a false and vexatious complaint. The complainant stated that the case was true and that the process server had been won over and deposed falsely after receiving illegal gratification from the opposite side. The Sub Magistrate found as follows:

(3.) It is no doubt a very salutary provision of law that is embodied in this section. It is meant to serve as a check on propensities to rush to court recklessly or to level accusations against innocent people knowing or having reason to believe that they are innocent. It was, however, not to be indiscriminately used as to be a check on legitimate complaints which may be difficult of proof owing to some reason for which the complainant may not be responsible. Indiscriminate use of the provisions of this section might often deter a timid person from approaching the portals of law courts for fear that if per chance his witnesses turned round or somehow did not inspire confidence in the courts he may be mulcted in fine: -' Emperor v. Boloch Daryakhan', AIR 1934 Sind 18 (N). It has been held time and again that the powers are to be exercised only in fit and proper cases and not indiscriminately in every case in which the accused is discharged since the virtual effect of an order of compensation is that it amounts to a summary conviction of the complainant; --'AIR 1932 Sind 156 (C)'. Experience in the High Court shows that there is a good deal of abuse in this country of the criminal law. People with civil disputes frequently attempt to harass their opponents or force them to compromise by starting criminal proceedings. A dispute as to boundaries is made into a criminal trespass; a dispute between partners is stated to be one of criminal misappropriation or breach of trust: where there is a perfectly plain case in which criminal proceedings are started not really 'bona fide' but with a view to bring pressure to bear against the opponent in a civil dispute, the magistrate will be abundantly justified in proceeding against the complainant under this section: --'Dahyabhal Nathabhai v. Tanganio Machi', AIR 1933 Bom 233 (O).