MARIASOOSAI Vs. AROKKIAM

JUDGEMENT

(1.) The accused in C.C. No. 2448 of 1940 on the file of the Second Class Magistrate of Nilakottai were convicted by that Magistrate and sentenced to pay a fine. Out of the proceeds of the fine compensation under Section 545 of the Code of Criminal Procedure was ordered to the complainant.

(2.) In appeal, notice went as required under Section 422 of the Code of Criminal Procedure to the Public Prosecutor; and the conviction was set aside. Consequently, the petitioner, who was the complainant, was unable to realise the compensation ordered to be paid to him by the Second Class Magistrate. He has filed this revision petition in this Court against the order of acquittal, one of his grounds being that notice should have gone to him. He also urged that as the case was originally taken on the file of the First Class City Magistrate, Madura, the District Magistrate had no jurisdiction to transfer it to the Second Class Magistrate; because the charge-sheet revealed an offence punishable only by a First Class Magistrate. He had also raised a number of other objections which it is unnecessary to set out, because they would afford no ground for interference in revision.

(3.) On the first point, there is some conflict of authority as to the circumstances under which an order should be set aside because notice was not given to some person affected by the order. Originally, no provision was made in the Criminal Procedure Code for giving notice to accused persons in applications to set aside an order of discharge; but a Full Bench of this Court, Alagirisamy Naidu v. Balakrishnasami (1902) I.L.R. 26 Mad. 41 (F.B.), while refusing to lay down a general rule that notice was absolutely necessary, thought that notice of the application against the order of discharge should have gone to the accused on the general principle that an order should not be made to a man's prejudice without giving him an opportunity of being heard. Section 250 of the Code of Criminal Procedure, which permits of an order for compensation to be paid to the accused where the complaint is false and frivolous or vexatious, permits of an appeal, but does not require notice to the person affected; namely, the accused. In Nagi Reddi V/s. Basappa (1908) 19 M.L.J. 130: I.L.R. 33 Mad. 89, the learned Judges, while expressing the opinion that it was desirable to give notice to the person primarily affected, refused to interfere because no illegality had been committed. There would be no more reason for interfering with an order setting aside an order under Section 545 of the Criminal Procedure Code for want of notice to the complainant by the appellate Court. Such an order would be automatically set aside upon an order of acquittal in appeal by the accused against his conviction. In such an appeal, the case of the complainant, upon which would depend the compensation as well as the conviction, is supported, if notice goes as is required under Section 422 of the Criminal P. C., by the Public Prosecutor; and so the appeal is not heard ex parte as it would be in the case of an appeal against an order under Section 250 of the Criminal P. C. if notice did not go to the person directly affected. Even where the Magistrate took cognizance of the case on a private complaint, notice of an appeal by the accused goes to the Crown and not to the private party, although if one applied the principle I have been asked to apply here, notice ought to go to the complainant. As in an ordinary appeal the Legislature intends that notice should go to the representative of the Crown and not to any other party, it is difficult to see how there can be any irregularity--much less illegality--in not giving notice to the complainant merely because he was awarded compensation under Section 545 of the Code.