Syed Golam Rasul vs S.K. Arshed

P.N. Mookerjee, J.—This Rule arises out of a proceeding u/s 250 of the Code of Criminal Procedure.

The original case was started for inter alia criminal house-trespass (Section 448 of the Indian Penal Code) and rioting (Section 147 of the Indian Penal Code) against the present opposite parties. That case ended in an acquittal. The present Petitioner was the informant (complainant), on whose information the said original case was started. The learned Magistrate, while acquitting the accused who are the opposite parties before me, recorded a finding that the case was "entirely false, malicious and vexatious" and, accordingly, he issued a "notice" upon the present Petitioner to show cause why action should not be taken against him u/s 250 of the Code of Criminal Procedure. After the cause had been shown the learned Magistrate re-affirmed his earlier finding that the original prosecution case was "entirely false, malicious "and vexatious" in the following words, namely, "I am still of ''"opinion that the case is maliciously false, frivolous and "vexatious", and he directed the present Petitioner to pay compensation of Rs. 50 to each of the accused opposite parties. This order was upheld by the learned Sessions Judge on appeal subject to this modification that the compensation, payable to the opposite parties, was reduced to Rs. 25 each. Thereafter, the present Rule was obtained by the Petitioner.

Before dealing with the case on the merits, I shall dispose of two technical points, urged in support of this Rule.

It was first urged by Mr. Dutta that no action could be taken against the Petitioner u/s 250 of the Code as he was merely the informant in the First Information Report. I am unable to accept this argument. The section (Section 250) expressly refers to the "informant" or "the person upon whose information the "accusation was made" or "the case was instituted" and this is sufficient to bring the Petitioner, who was the informant in the First Information Report (which mentions some of the opposite parties as accused) and was also named as the "complainant or "informant" in the ultimate charge-sheet which was submitted by the police against all the opposite parties, within the mischief of Section 250 of the Code. I, accordingly, overrule this contention of Mr. Dutta.

It was urged next that the learned Magistrate''s approach was wrong and, in support of this, two passages from his present order u/s 250(2) were particularly relied upon, namely,-

(1) I am not required under law to come to a finding afresh if the case is maliciously false, frivolous or vexatious. This is the definite ringing in my judgment of the original case. What I am required to do now is if, after hearing the cause shown, I am still satisfied that the case is maliciously false and vexatious and if I can pass order for compensation to all the accused persons under Sub-Section 2 of Section 250, Code of Criminal Procedure.

and

(2) I find nothing to modify my judgment. I am still of opinion that the case is maliciously false, frivolous and vexatious. I am therefore of opinion that the cause shown by the petition of complainant is unsatisfactory and not acceptable. He is therefore ordered and directed u/s 250, Code of Criminal Procedure, to pay Rs. 50 (fifty) only, etc. etc.

There is some force in this contention and the words quoted, particularly those, underlined above, are not quite happy. As, however, I have myself re-examined the whole matter. I need not take any more notice of this point beyond stating that, u/s 250(2). Code of Criminal Procedure, the Magistrate ought to re-examine all the elements necessary for taking final action under the section in the light of all the materials on record and should not confine himself only to the cause shown and examine its satisfactory and unsatisfactory nature. While starting the proceedings u/s 250(1), the learned Magistrate has certainly to arrive at a finding that the "accusation" was "false and "either frivolous or vexatious" and the words "is of opinion" in the section do not, in my view, mean anything less or justify any different conclusion but the finding then arrived at, is only provisional and strictly limited to the first Sub-section, and it is liable to be reopened on further consideration and, indeed, the whole matter ought to be considered afresh, at the stage of Section 250(2) in the light of all the materials on record. The penal character of the provision sufficiently justifies this view of the law. In the present case, however, as I have already said, I have myself re-examined the whole matter and, accordingly, the defect, if any, in the learned Magistrate''s order, or, in the judgment of the learned Sessions Judge, would not be of much consequence. I do not, therefore, propose to give this contention of Mr. Dutta any practical effect in the present case.

Turning now to the merits, it appears sufficiently clear from the original judgment of the learned trying Magistrate that he discarded the entire prosecution evidence practically on the only ground that none of the prosecution witnesses appeared to him to be disinterested. There was some reference no doubt to the non-mention of three of the principal accused Mahammad Muxed, Md. Mahaboob and Munshi Reazuddin alias Reajuddi, opposite parties Nos. 11, 12, and 13 of the present Rule, in the original information or the First Information Report and also to the non-examination of some of the witnesses, named in the said First Information Report, but it is perfectly clear that there was no discussion of the prosecution evidence on the merits by the learned Magistrate. The reasons given by him, might have been good reasons for an order of acquittal in that no prosecution could be successfully maintained on the evidence which was adduced by the prosecution. But it would not necessarily follow from the said defective character of the prosecution evidence that the prosecution case was "entirely false, malicious and vexatious" so as to bring the informant or the complainant within the mischief of Section 250 of the Code of Criminal Procedure. In his order, recorded in the proceeding u/s 250 of the Code of Criminal Procedure, the learned Magistrate has no doubt considered some other aspects which were raised in the "show ''''cause" petition, filed by the Petitioner, but, considering the matter as a whole, it does not appear to me that there has been full proper or sufficient consideration of the relevant evidence to justify a positive finding that the prosecution case was "entirely false, malicious and vexatious". I cannot, therefore, uphold the order of the learned Magistrate in its entirety as a proper order u/s 250 of the Code of Criminal Procedure. The appellate judgment of the learned Sessions Judge also does not contain sufficient discussion of the prosecution evidence to warrant a positive finding that the prosecution case, that is, the prosecution case in its entirety, was "maliciously false, "frivolous and vexatious". In this state of the records I have myself examined the prosecution evidence in the light of the other materials on record and it seems to me that, save as regards the three accused, Md. Muxed, Md. Mahaboob and Munshi Reazuddi, who are opposite parties Nos. 11, 12 and 13 of the present Rule, the prosecution case cannot be definitely said to be "false, malicious, frivolous and/or vexatious" and, although the order of acquittal, so far as the other accused, namely, opposite parties Nos. 1 to 10, are concerned, may well be justified, it will be unsafe to pass any penal order of compensation against the Petitioner u/s 250 of the Code of Criminal Procedure, so far as those opposite parties Nos. 1 to 10 are concerned. The Rule, therefore, must succeed as against these opposite parties Nos. 1 to 10 and it is made absolute to that extent. So far, however, as the three remaining opposite parties Nos. 11 to 13 are concerned, the records sufficiently show that their names were dragged in at a later stage of the original proceedings and, in their case, I am not prepared, on the present materials before me, to set aside the ultimate finding of the two courts below that the prosecution case was "false, malicious, "frivolous and/or vexatious". Those materials, as they stand now, disclose sufficient basis for such a finding, so far as these opposite parties Nos. 11 to 13 are concerned, and, as the compensation which the Petitioner has been directed to pay to them by the learned Sessions Judge does not appear to me to be in any way excessive, the Rule against these opposite parties must fail. I must make it clear, however, that the above finding in the case of opposite parties Nos. 11 to 13 is entirely based on the present materials on record and is strictly limited to those materials and for purposes of the present case.

In the result, therefore, the Rule is made absolute in part. It is made absolute, so far as opposite parties Nos. 1 to 10 are concerned, but it is discharged as against the other opposite parties Nos. 11 to 13. The order for payment of compensation, so far as opposite parties Nos. 1 to 10 are concerned, is set aside, but that in favour of the remaining opposite parties Nos. 11 to 13 as passed by the lower appellate court, namely, of Rs. 25 to each of the said opposite parties Nos. 11 to 13, is maintained. The compensation, if already paid to opposite parties Nos. 1 to 10 or to any of them, is ordered to be refunded.