DAHYABHAI NATHABHAI Vs. TANGANIO MACHHI

JUDGEMENT

(1.) This is a reference by the Sessions Judge of Surat tinder Section 438 of the Criminal Procedure Code in which he asks us to set aside an order made by the First Class Magistrate of Mandvi by which he ordered the complainant to pay compensation of Rs. 30 and in default to suffer simple imprisonment for fifteen days under Section 250 of the Criminal Procedure Code. He recommends that we should set that order aside. The complaint in question was for offences under Section 447 of the Indian Penal Code, that is to say, charging the two accused with criminal trespass. According to the learned Magistrate's judgment the case came on for hearing on July 20, 1932, when the complainant's examination-in-chief was completed and the cross-examination was reserved. There were then various adjournments, and ultimately on August 26, the complainant made an application stating that the matter had been entrusted for arbitration and asking for a long adjournment with view to the case being compounded at the end of the arbitration. The learned Magistrate refused that application and acquitted the accused. He came to the conclusion that in view of the evidence of the complainant, which showed that accused No. 1 had been in possession of the land in question for several years, and in view of the application to refer the matter to arbitration, it was clear that the dispute between the parties was really of a civil nature and that there was no justification whatever for making a charge of criminal trespass against the accused. Accordingly he called upon the complainant, under Section 250 of the Criminal Procedure Code, to show cause why he should not be made to pay compensation to the accused for his false and vexatious complaint, and he then inflicted the sentence on the complainant which I have referred to.

(2.) The learned Sessions Judge in his letter of reference says that the view of the learned Magistrate that the case was of a civil nature and that the complainant should not have come to the criminal Court is no justification for the conclusion that the complaint was false and vexatious. I entirely disagree with that view of the learned Sessions Judge. Experience in this Court shows that there is a great deal of abuse in this country of the criminal law. People with civil disputes, in my experience, frequently attempt to harass their opponents, or force them to compromise, by starting criminal proceedings. When there is a dispute as to boundaries, one party charges the other with criminal trespass; when there is dispute between partners, one party charges the other with criminal misappropriation or breach of trust. Of course it may well be in some cases that civil and criminal proceedings arising out of the same matter may be prosecuted simultaneously, and it may sometimes happen that civil proceedings are started with a view to stifle criminal proceedings. But where you have a perfectly plain case of criminal proceedings started, not really bona fide, but with a view to bringing pressure to bear against an opponent in a civil dispute, I think that the Magistrate is abundantly justified in proceeding against the complainant under Section 250 of the Criminal Procedure Code. In this case I see no reason whatever to doubt that the view which the learned Magistrate took was correct. The accused having been in possession for several years, it is inconceivable that the complainant could have established a case of criminal trespass, and the fact that he was willing to refer the dispute to arbitration shows, as the learned Magistrate says, that the case was of a civil nature. That being so, I think the course which the learned Magistrate adopted was correct, and that this reference should be refused. Murphy, J.

(3.) I agree.