Mariasoosai vs Arokkiam and Another

Horwill, J.—The accused in C.C. No. 2448 of 1940 on the file of the Second Class Magistrate of Nilakottai were convicted by that

Magistrate and sentenced to pay a fine. Out of the proceeds of the fine compensation u/s 545 of the Code of Criminal Procedure was ordered to

the complainant.

In appeal, notice went as required u/s 422 of the Code of Criminal Procedure to the Public Prosecutor; and the conviction was set aside.

Consequently, the petitioner, who was the complainant, was unable to realise the compensation ordered to be paid to him by the Second Class

Magistrate. He has filed this revision petition in this Court against the order of acquittal, one of his grounds being that notice should have gone to

him. He also urged that as the case was originally taken on the file of the First Class City Magistrate, Madura, the District Magistrate had no

jurisdiction to transfer it to the Second Class Magistrate; because the charge-sheet revealed an offence punishable only by a First Class

Magistrate. He had also raised a number of other objections which it is unnecessary to set out, because they would afford no ground for

interference in revision.

On the first point, there is some conflict of authority as to the circumstances under which an order should be set aside because notice was not

given to some person affected by the order. Originally, no provision was made in the Criminal Procedure Code for giving notice to accused

persons in applications to set aside an order of discharge; but a Full Bench of this Court, Alagirisamy Naidu v. Balakrishnasami I.L.R.(1902) Mad.

41 (F.B.) while refusing to lay down a general rule that notice was absolutely necessary, thought that notice of the application against the order of

discharge should have gone to the accused on the general principle that an order should not be made to a man''s prejudice without giving him an

opportunity of being heard. Section 250 of the Code of Criminal Procedure, which permits of an order for compensation to be paid to the accused

where the complaint is false and frivolous or vexatious, permits of an appeal, but does not require notice to the person affected; namely, the

accused. In Nagi Reddi v. Basappa (1908) 19 M.L.J. 130: ILR Mad. 89 the learned Judges, while expressing the opinion that it was desirable to

give notice to the person primarily affected, refused to interfere because no illegality had been committed. There would be no more reason for

interfering with an order setting aside an order u/s 545 of the Criminal Procedure Code for want of notice to the complainant by the appellate

Court. Such an order would be automatically set aside upon an order of acquittal in appeal by the accused against his conviction. In such an

appeal, the case of the complainant, upon which would depend the compensation as well as the conviction, is supported, if notice goes as is

required u/s 422 of the Code of Criminal Procedure, by the Public Prosecutor; and so the appeal is not heard ex parte as it would be in the case of

an appeal against an order u/s 250 of the Code of Criminal Procedure if notice did not go to the person directly affected. Even where the

Magistrate took cognizance of the case on a private complaint, notice of an appeal by the accused goes to the Crown and not to the private party,

although if one applied the principle I have been asked to apply here, notice ought to go to the complainant. As in an ordinary appeal the

Legislature intends that notice should go to the representative of the Crown and not to any other party, it is difficult to see how there can be any

irregularity--much less illegality--in not giving notice to the complainant merely because he was awarded compensation u/s 545 of the Code.

Pakenham Walsh, J., in Peria Kalathi Mudali v. Venkatesa Mudali (1932) M.W.N. 722 has pointed out that whereas the Legislature thought fit

to amend Section 436 of the Criminal Procedure Code so as to give the accused a right to be heard where there was an application to set aside his

discharge, it did not think fit to amend Section 250, Criminal Procedure Code to permit of the appearance of the party interested or the

appearance of the person receiving compensation u/s 545, Criminal Procedure Code. The learned Judge therefore refused to interfere. A few

months later, however, Burn, J., in Venkatavarada Aiyangar v. Vengai Servai (1933) M.W.N. 729 expressed the opinion that notice should ; have

gone to the complainant in that case; but it is clear that Burn; J., was very much influenced by the peculiar facts of that case. He said that the

procedure that had been adopted by the Joint Magistrate was grossly unfair. The judgment of that Magistrate seems to have been most

unsatisfactory. It appeared that the appeal was about to be dismissed when the Prosecuting Inspector made certain representations to, the Court

and the accused''s pleader was heard long after the case had been finished. I do not think that the learned Judge intended to lay down a general

principle applicable to all cases that if notice did not go to the complainant where he had been awarded compensation, this Court should always

interfere in revision. Jackson, J. in Cr.R. C. No. 431 of 1933 followed the above decision without comment. It seems to me that in a

straightforward case like the present, where the matter has been fairly heard after notice to the Crown and after hearing the Public Prosecutor, and

when a proper judgment has been written, it would be grossly unfair to require an accused who had been acquitted, to go through a fresh ordeal

because the appellate Judge had heard only the Public Prosecutor, which is all that is required u/s 422 of the Code of Criminal Procedure) and not

the complainant''s vakil also.

Another objection raised by the petitioner is that since the charge-sheet was filed u/s 326, Indian Penal Code, the District Magistrate had no

jurisdiction to transfer the case to the, file of the Sub-Magistrate, who could not dispose of a case under that section. The District Magistrate

exercised his powers u/s 192 of the Code of Criminal Procedure, which empowers him to direct a Magistrate of the first class who has taken

cognizance of any case, to transfer it for inquiry to any other specified Magistrate who is competent to try the case. This case was referred to the

District Magistrate because it was pretty clear to all concerned--including the prosecution--that the complaint contained an exaggeration of the

facts and that the offense was one punishable u/s 325, Indian Penal Code and not u/s 326. In these circumstances, I do not think it can be said that

the District Magistrate exceeded his jurisdiction in ordering this case to be transferred to the Sub-Magistrate.

The petition is dismissed.