(1.) This is a reference made by the Additional Sessions Judge of Hooghly, under Section 438, Criminal P.C. recommending that an order passed against the complainant Rajaram Majhi under Section 250, Criminal P.C. should be set aside and the said complainant should be summoned and an opportunity given to him to show cause why compensation should not be ordered.
(2.) In order to appreciate the confusion that has arisen and in consequence of which this reference has been made it is necessary to state the facts quite shortly. Rajaram Majhi was the complainant in a case which be had instituted against one Panchanan Ghose for an offence under Section 420, I.P.C. On 21 July 1928 which was a Saturday, the accused Panchanan was acquitted and if anything is clear in this case it is this that on the acquittal of Panchanan as aforesaid the trial Magistrate Mr. Basanta Kumar Banerji recorded an order which ran in these words: Complainant to show cause why he should not pay the accused the sum of Rupees one hundred as compensation under Section 250 Criminal P.C.
(3.) What happened immediately after this order was recorded is a matter of some dispute. But in a matter of such controversial character it is preferable always to go upon the statement of the Magistrate if in point of fact there is nothing in the record to contradict such a statement. In the explanation which the learned Magistrate submitted in answer to the rule that was issued by the Sessions Judge it was made clear by him that immediately after he had recorded this order,--and it was an order by which he wanted the complainant to show cause then and there for he had not fixed any date in the order by which the cause was to be shown- -he received some intimation of some sudden illness in his family which compelled him to leave the Court. He said in that explanation that at the time when he left the Court immediately after recording the aforesaid order he gave verbal orders that cause might be shown on 23 July 1928. He did not say, however, that he himself told the complainant that the latter was to appear on 23 July and show cause in pursuance of the said order. According to the explanation what happened afterwards was as follows: On 23 July 1928 when he came to the Court what he did was that he sent for the complainant and then his pleader Babu Bhaghwan Das Chatterjee. The complainant, of course, was not to be found, but the pleader appeared and represented to him that in his absence his Bench Clerk had fixed the date for showing cause as 2 August, 1928. The Magistrate made an enquiry of the Bench Clerk as to whether he had done so and told Babu Bhagawan Das that the Bench Clerk had no power to allow any time as he himself fixed 23 July 1928. The Bench Clerk denied having fixed the date for 2 August, 1928. Babu Bhagawan Das, as far as can be made out from the Magistrate's explanation, then asked the Magistrate to give time till 2 August, 1928. On being asked by the Magistrate to file a petition, Babu Bhagawan Das did so, with the result that the Magistrate made an order allowing time till 24 July 1928. On 24 July 1928 the complainant did not appear and the learned Magistrate then recorded the following order: On 23-7-1928 complainant wanted time to show cause and he was granted one day's time. No cause has ever been shown today. He is not found even after calls. The order to pay compensation of Rs. 50 to the accused is therefore made absolute.