Deo Narain Mahto vs Chhatoo Raut and others

Jwala Prasad, J.—This is an application against an order of the Magistrate, dated the 9th August, 1921, directing that the complainant should pay compensation of Rs. 10 to each of the seven accused, u/s 250 of the Code of Criminal Procedure. The order was upheld by the District Magistrate on the 17th of September, 1921.

The petitioner impugns the validity of both the orders of the trial Court as well as of the lower appellate Court. The order of the trial Court is assailed on the ground that the Magistrate did not record and consider the objection urged by the complainant to his making the direction to pay compensation to the accused. While acquitting the accused, the Magistrate called upon the complainant to show cause why he should not pay Rs. 10 as compensation to each accused person.

Cause was shown by the complainant by means of a written petition. The Magistrate did not state in his order what the objection of the complainant was, nor does he appear to have considered the objection. He simply says that, "the complainant filed a petition showing cause and the cause shown is not reasonable at all."

The petition has been read to me and the complainant has urged therein a number of objections. None of these objections set forth in the petition seem to have been considered by the Magistrate nor have they been recorded by him. Proviso (a) to Section 250 of the Code clearly states that-

"the Magistrate shall record and consider any objection which the complainant or informant may urge against the making of the direction."

The direction in the said proviso is mandatory, the non compliance whereof has vitiated the order of the Magistrate directing compensation to be paid by the complainant. This was the view taken in the case of Shekh Janab Ali v. Hira Lall Pasban (1906) 11 C. W. N. 62 N, as well as by Hayward, J, C., in the case of Minhomal Lilaram v Emperor (1914) 8 S. L. R. 25=25 I. C. 994.

The order of the lower appellate Court is assailed upon the ground that the judgment written by the District Magistrate disposing of the appeal of the complainant is not in accordance with law. This ground appears to be substantial. The learned District Magistrate has simply stated that there was trouble between the complainant and the accused, Gokhul, and that after reading the judgment and evidence he considered that the decision of the lower Court was correct and the compensation was rightly awarded.

This is not disposing of the objection of the complainant as to the order of the Magistrate directing compensation to be paid by the complainant. The judgment of the District Magistrate has failed to comply with the directions contained in Section 367 of the Code of Criminal Procedure, which applies by reason of Section 424 to an appellate judgment also.

It has, however, been contended that both these Sections 367 and 424, of the Code do not apply to a judgment passed by an appellate Court in an appeal from an order directing the complainant to pay compensation. There is no substance in this contention. Section 250, Clause (3) expressly provides for an appeal to the District Magistrate from an order of a Magistrate of the 2nd or 3rd Class to pay compensation to an accused person. The appeal to the District Magistrate was, therefore, presented under Chapter XXXI, which lays down the procedure for an appeal "from any judgment or order of a Criminal Court"; (vide Section 404 of the Code). Section 423 lays down the power of an appellate Court in dealing with an appeal from a judgment as well as from an order.

Section 424 relates to a judgment passed by an appellate Court dealing with either an appeal from acquittal or conviction or an appeal from an order, such as the one in question. The District Magistrate was, therefore, bound to record a proper judgment, setting forth the points for determination, the objections of the appellant, his decision thereon, and the reasons for his decision. The judgment of the lower appellate Court in the present case lacks in all the aforesaid details and is, therefore, not in accordance with law.

Therefore, the orders of both the Courts below are bad in law and must be set aside, and the case sent back to the trial Court to be disposed of in accordance with law, as was done in the case of Minhomal Lilaram v. Emperor (1914) 8 S. L. R. 25=25 I. C. 994, referred to above.