GHURBIN KOERI Vs. KHALIL KHAN

JUDGEMENT

(1.) This is a reference by the Sessions Judge of Azamgarh recommending the interference of this Court in the exercise of its revisional jurisdiction with an order passed by a first class magistrate of that district, One of the questions raised by the order of reference we are content to pass over briefly, with the remark that in our opinion the trying Magistrate was well within his jurisdiction in declining to proceed further with the application before him to have certain persona bound over to keep the peace. The other question raised is, whether the Magistrate s order directing the complainant Ghurbin to pay Rs. 50 compensation to the opposite party under the provisions o? Section 250 of the Code of Criminal Procedure, for having brought a frivolous and vexatious complaint against them, was or was not passed without jurisdiction? The complaint was one under Section 506 of the Indian Penal Code. The trial came to an end on the 2nd of August, 1913. After hearing all the evidence for the prosecution and examining the accused, the Magistrate formed the opinion that the alleged offence was not proved and that the complaint appeared to have been a frivolous and vexatious one. If he had followed strictly the procedure laid down by law, he would then and there have informed the complainant of this, and have asked him if he had any representations to make against an order directing him to pay compensation under the provisions of Section 250 of the Code of Criminal Procedure. Proceedings under this section are intended to be of a summary nature, as is sufficiently indicated by the direction that the order awarding compensation is to form part of the order of discharge or acquittal. The court is bound to offer a complainant, against whom it proposes to pass such an order, an opportunity of submitting any representations he may desire to make against the passing of the said order, and it must record and consider such representations, All this should be done before the passing of the final order of discharge or acquittal and it was clearly not the intention of the Legislature that a complainant should be entitled to an adjournment in order to enable him "to show cause," much less to an opportunity of producing further evidence, after all the evidence tendered by him in support of the allegations made in his complaint has been already taken at the trial of the case itself. The difficulty which Magistrates seem to feel about applying the provisions of this simple and useful section is largely due to a tendency to substitute elaborate forms of procedure for the plain directions contained in the section itself. In the case now before us the trying Magistrate incorporated in his order of discharge an order directing the complainant to show cause why compensation should not he paid to the accused persons. He then adjourned the proceedings, and after recording and considering the representations made by the complainant finally passed his order for the payment of compensation on the 6th of August, 1913, the order of discharge having been signed and delivered four days previously. In support of the Sessions Judge s reference it is contended that this order of the 6th of August, 1913, was wholly without jurisdiction, the Magistrate having become functus officio, so far as this matter was concerned, when he finally passed the order of discharge.

(2.) There is a considerable amount of case-law on the point. We are content to refer to three cases as sufficient to explain the decision at which we have arrived. The first is Safdar Husain s case (1903) I. L. R., 25 All., 315 which is relied on by the Sessions Judge. The peculiar feature of the case, the record of which we have called for and examined, is that the trying Magistrate, in what was, no doubt, a well intentioned endeavour to comply with the provisions of the law as he understood them, had involved himself in remarkable complications. In his order of discharge he placed on record his intention to direct compensation to be paid and his reasons for this direction. He then started a separate proceeding, beginning with an order calling on the complainant to show cause against the order for payment of compensation and fixing a subsequent date for hearing the complainant s objections. On the date thus fixed, the complainant at once objected that the order embodied in the order of discharge was illegal, because passed before the complainant s representation had been heard or considered, and further that the Magistrate had now no jurisdiction to pass any other order. Nevertheless the Magistrate proceeded with the matter and passed a final order making absolute his previous order on the subject of compensation. On a reference by the Sessions Judge it was held by a Judge of this Court that the proceedings subsequent to the order of discharge were without jurisdiction, and that there had been no legal order under Section 250 of the Code of Criminal Procedure.

(3.) The second case is one which clearly illustrates the point, that a failure to comply strictly with the letter of Section 250, of the Code of Criminal Procedure, may amount to nothing more than an irregularity of procedure. It is the case of Emperor v. Punamchand Hirachand . There the trying Magistrate signed and dated his order of discharge, then recorded an order calling on the complainant to show cause why he should not be directed to pay compensation, recorded and considered the complainant s objections, and at once proceeded to pass an order that compensation should be paid. The entire proceedings followed one another on one and the same date, and it would certainly be difficult to contend that the mere interposition of the Magistrate s signature in one or more places before his signature at the foot of the final order, or the mere fact that the order for payment of compensation as finally recorded was not endorsed on the same sheet of paper as the order of discharge, would oust the jurisdiction of the court. The learned Judges of the Bombay High Court held that there had been a substantial compliance with the provisions of Section 250, of the Code of Criminal Procedure, or almost an irregularity cured by Section 537 of the same Code. It was in fact held that under the circumstances stated, the order for payment of compensation was substantially incorporated in and made a part of the order of discharge.