BASUDEB PATNAIK Vs. LAKANANIDHI DINGARAJ DAS AND ANR.

JUDGEMENT

(1.) THIS is a petition in revision against the appellate judgment of the Additional Sessions Judge, Berhampur, maintaining the order of a First Class Magistrate of Berhampur, directing the Petitioner to pay compensation of Rs. 30/ - under Section 250(5) Code of Criminal Procedure to each of the accused persons (opposite party) against whom he had brought a case of theft.

(2.) ON 10 -12 -1956 The Petitioner filed a complaint before the Sub -Divisional Magistrate of Berhampur, against the two members of the opposite party alleging that on 5 -12 -1956 they cut and carried away paddy crops from 2 acres 14 cents of land in village Kumarada, which according to the Petitioner (complainant) were in his possession since 1951. In due course the accused persons were placed on trial and the Petitioner examined himself and two other witnesses, viz., P.Ws. 2 and 3 to prove his case. The defence taken by the accused persons was that the entire case was false and was instituted mainly with a view to compel them to give up possession of the disputed property which was all along in their possession. The learned Magistrate accepted the defence version and acquitted the accused persons by his order dated 12 -12 -1958 observing that the prosecution case was false, frivolous and vexatious. He then called upon the Petitioner (complainant) to show cause should not be directed to pay compensation under Section 250 Code of Criminal Procedure to the accused persons; and after hearing the show cause petition he passed orders on 29 -12 -1958 directing him to pay Rs. 30/ - as compensation to the opposite party. Though in this order he did not expressly reiterate his previous finding that the case was false, frivolous and vexatious he has impliedly said so by concluding that compensation to the opposite party was fully justified, after rejecting the various contentions put forward by the Petitioner. The lower appellate Court has committed a minor mistake in observing that the trial court did not find the case to be 'false'. Apparently, the lower appellate Court is under the wrong impression that even if a case is not proved to be false the complainant may be directed to pay compensation under Section 250 Code of Criminal Procedure if it is found to be frivolous or vexatious. The language of Section 250 Code of Criminal Procedure does not justify an inference. That section clearly says that unless the Magistrate is of opinion that the accusation against the accused is "false and either frivolous or vexatious" a Magistrate cannot take action under that section for awarding compensation to the accused. The case should therefore, first be pronounced to be false. Every false case need not necessarily be either frivolous or vexatious. The section therefore contemplates that the Magistrate must come to a finding (i) that the case is false and (ii) that it is frivolous or vexatious. The trial court has clearly a said so in its judgment and the lower appellate Court should nor -have committed this mistake while construing that judgement.

(3.) HAVING thus failed in his objection before the executing Court the complainant has been trying several other methods to obtain possession of the property. He filed this criminal case on 10 -12 -1936 and also another case under Section 144 Code of Criminal Procedure which was dismissed.