QAZI FARIDUDDIN Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision from an order directing the complainant to pay compensation of Rs. 100 each to three accused and Rs. 20 to the fourth accused.

(2.) The applicant filed a complaint under Section 380 of the Indian Penal Code in the Court of a first Class Magistrate. The Magistrate did not treat this application as a mere information under Section 190(c) and did not proceed as required by Section 191. He treated it as a complaint and sent this complaint to the police for enquiry under Section 202. "When the police investigated the case, they came to the conclusion that the case was true, but they did not merely send up a report in favour of the complainant, but dealt with the case under Secs.454 and 411 and added one more accused, Mahomedan Idris, in the list. The prosecution evidence was tendered and several witnesses were examined. It appears that the Magistrate allowed the present applicant to engage a vakil to look after the case and he also made him take part in the conduct of the proceedings and in fast allowed him to file several applications from time to time. In the course of his order ultimately discharging the accused persons the Magistrate has treated the applicant as a complainant and not a mere informer. The vakil engaged by the applicant was acting in conjunction with the Prosecuting Inspector. On the 13 of July 1925, after the evidence of the witnesses mentioned in the list sent up by the police was closed, a further application was made for summoning more witnesses which was not allowed and a second application made by the complainant that a previous Sub-Inspector should be examined was considered unnecessary. After arguments were heard as to whether a charge should or should not be made, the Court postponed the case till the next day. On the 14 July 1925 the applicant presented an application before the Magistrate under Section 526 intimating to him that the case should be adjourned in order to give him an opportunity to apply for a transfer. At this stage the Magistrate took the view that the case was proceeding on a charge-sheet submitted by the police after enquiry and the present applicant was not the complainant. He asked the Prosecuting Inspector whether he wanted an adjournment or not and after the Prosecuting Inspector had stated that he did not want to apply for transfer, the learned Magistrate did not grant the application. After this the accused persons were discharged and the order directing compensation to be paid was passed. The present applicant went before the Sessions Judge in appeal, but he declined to interfere. No final order dismissing the complaint originally filed by the complainant has been passed separately by the Magistrate, but every one seems to have understood that complaint has been dismissed. There seems to have been some confusion in the procedure in view of the fact that a complaint which had been treated as such by the Court was pending and the police also sent up a charge-sheet. If the applicant was really the complainant in the proceedings, as he has been described in the judgment, then his application for adjournment was bound to be granted even though it was made at the last moment. It is however not necessary in this case to decide definitely whether the applicant was in the position of a complainant so as to make Section 526(8) applicable. The legality of the order discharging the accused is not in question in this revision. Even if the applicant was not the complainant it was open to the Magistrate under Section 250, Criminal P.C., to pass an order directing him to pay compensation as such an order can be passed against a person upon whose complaint or information given to a police officer or to a Magistrate the proceedings have been started. The accused therefore cannot get rid of the order merely because he was a mere informer and not a real complainant.

(3.) On the merits of the case however it seems that the findings of the Magistrate amount to this: the complainant alleged that a number of utensils had been taken away from his house by Muhammad Idris along with other goods which belonged to him and which they recovered subsequently from the house of Muhammad Idris. The case for the defence seems to be that some of these utensils belonged originally to the complainant, but about two years ago he had given them to the mother of Muhammad Idris who handed them over to the latter. The learned Magistrate has pointed out that litigation has been going on for a number of years between the complainant and Muhammad Idris. He has also remarked, so a sort of civil dispute does exist between the two over the subject of this case. Then it is not to be forgotten that Idris had voluntarily given up all but one utensil and the complainant had not show that all these belonged to him. The findings of the Magistrate themselves are not very clear. If really there was some dispute of a civil nature about these untesils then the case might not have been wholly groundless and frivolous. The learned Magistrate has certainly disbelieved the prosecution witnesses, who were eight in number, but has nowhere recorded a distinct finding that there was no trouble on the day when the occurrence is alleged to have taken place nor is there any clear finding that the accused did not enter the complainant's house. Under the circumstances I am of opinion that this was not a fit case in which compensation should have been ordered in the criminal proceedings. The accused persons have a remedy to sue for malicious prosecution if they make out a case in the civil Court.