T. C. Mathew vs C. J. Aliesha and another

M.M. Pareed Pillay, J.—Revision petitioner is the Executive Officer of Chengamanad Panchayat. He filed a complaint against the, first respondent alleging offence punishable u/s 74 of the Kerala Panchayat Act read with Rule 26 of the Kerala Panchayat (Taxation and Appeal) Rules 1963. The learned Magistrate acquitted the accused and held that the complaint was without any bonafides and reasonable grounds. Though proceedings u/s 250 of the Code of Criminal Procedure were initiated by the Magistrate who tried the case the Order awarding compensation was passed by another Magistrate. Revision petitioner challenges the order on the ground that it was passed by a Magistrate who has no competency to do so. Revision petitioner contends that the Magistrate who heard, the case and acquitted the accused atone is competent to order compensation, u/s 250 of the Cr. P. C. and his successor has no such power. Admittedly the case was tried and the accused was acquitted by the predecessor of the Magistrate who passed the order u/s 250.

Section 250 of the Code of Criminal Procedure enacts that the Magistrate by whom the case is heard discharges or acquits all or any of the accused, and is of opinion that there was no reasonable ground for making the accusation against them or any of them, the Magistrate may, by his order of discharge or acquittal, if the person upon whose complaint or information the accusation was made is present, call upon him forthwith to show cause why he should not pay compensation to such accused or to each or any of such accused when there are more than one; or, if such person is not present, direct the issue of a summons to him to appear and show cause as aforesaid. The plain meaning of the section is that the Magistrate, who is to order the payment of compensation must be the one who heard the case and discharged or acquitted the accused. Successor of the Magistrate who had tried the criminal case is not competent to grant the compensation. It is also relevant to note that the Section empowers the Magistrate to call upon the person who made the complaint without.

reasonable ground to show cause forthwith. In Rajaram Manjhi v. Panchanan Ghosh (1930 Cr. L. J. 828) the Calcutta High Court held as follows :

In enacting section 250, Criminal Procedure Code, the Legislature never intended that one Magistrate should deal with the case and make the order calling upon the complainant to show cause and that another Magistrate may make the order for compensation.

Same view is taken by other High Courts. (See AIR 1953 Punjab 212, AIR 1924 All. 224, and AIR 1939 Sind 321). Recent decision of the Calcutta High Court in Amulya Pal v. Bhupen Sarkar (1988 Crl. L. J. 85) has followed the earlier Calcutta decision. As the impugned order was passed by the successor Magistrate it cannot be sustained. The order is set aside. Criminal Revision Petition stands allowed.