Venkatarama Aiyar and Others vs Krishna Iyer

Spencer, J.—The question raised at the hearing of the Revision Petition is whether the order of the Sub-Divisional Magistrate setting aside

the award of compensation to the accused by the Kumbakonum Bench of Magistrates was bad for want of notice to the accused.

It was argued in the first place that Chapter XXI of the Criminal Procedure Code does not apply to appeals against orders u/s 250 and

therefore that Section 422 which directs that notice of appeals should merely be given to the officer appointed by Government to receive notices of

appeals does not govern the case; in the second place, that in the absence of any provision for notice the maxim '' Audi alteram partem '' should

govern the proceedings.

The first argument will not in my opinion hold good, for the reason that Section 250 does not declare what the powers of an appellate Court are

in disposing of appeals under Clause 3 of the section and it is necessary to invoke the aid of Section 423 for this purpose. Section 439 illustrates

the difference in this respect between Sections 250 & 195, which has been held to be a self-contained section.

On the second point I agree with the observation of Sir Subramania Aiyar J. in The Emperor v. Palaniappa Velan ILR (1906) M. 187 that the

accused should have notice of the appeal in order that they may have an opportunity of supporting the order passed in their favour.

It seems to be an anomaly which might be cured when the Criminal. Procedure Code is amended that no provision should be made for notice to

the person most interested in the order being upheld in the case of an appeal being preferred against an order of compensation passed by a 2nd or

3rd Class Magistrate, but that if such an order is passed by a 1st Class Magistrate and the matter is taken to the High Court for revision of his

order. Section 439 (2), strictly construed, will make it imperative that notice should go to the accused.

A Bench of two learned Judges of this Court have held that notice to the accused is not imperative in the case of appeals u/s 250,

(Ambakkagari Nagi Reddy v. Basappa (1909) 19 M.L.J. 130 and this probably is what was meant by another Bench in Guruswami Naiken and

Others Vs. Tirumurthi Chetty, when they declared that the accused have no right of audience in such an appeal.

In the former case the Court declined to interfere in revision on the ground that there was no illegality and I consider that I am bound by that

decision, although I am aware that in respect of orders passed under other sections of the Code which do not contain a direction for notice to be

given, Courts have sometimes interfered in revision with orders that are merely improper but not illegal for want of notice, following the general rule

that an order should not be made to a person''s prejudice without giving him an opportunity of being heard e. g. Alagiriswami Naidu v. Balakri

stnaswami Mudaliar ILR (1903) M. 41 Imperatrix v. Sedhasin ILR (1898) B. 549. In the matter of the petition of Umrao Singh v. Fakir Chand

ILR (1881) A. 749 and in the matter of the petition of Tea Gotta Shekdan ILR (1832) C. 393.

Here the Sub-Divisional Magistrate''s order, besides being improper for want of notice to the accused, requires to be set aside for another

reason. He says he finds it difficult to conclude that the complainant''s story must necessarily have been false. The Bench held that it was vexatious.

No doubt an accusation may be false as well as frivolous and vexatious (Beni Mahdhub Kurmi v. ""Kumud Kumar Biswas ILR (1902) C. 123but it

is necessary to find whether it is or is not frivolous or vaxatious. As the appellate Court has not decided this, and as the Public Prosecutor says that

he does not wish to support the order, I would direct the appellate Court to rehear the appeal after giving notice to the accused.

Seshagiri Aiyar, J.

The Bench Magistrate of Kumbakonum directed the complainant to pay compensation to the accused on the ground ""That the complainant only

wanted to vex and annoy the accused. "" On appeal, the Sub-Divisional Magistrate reversed this order because he was unable "" to conclude from

the records that it (the complaint) must necessarily have been false."" This Judgment is wrong, As was pointed out in Emperor v. Bindesri Prasad

ILR (1904) A. 512 Section 250 not only refers to false complaints, but to frivolous and vexatious complaints as well. It is open to doubt whether

the view taken in Rama Singh v. Mathura ILR (1912) A. 354 that the section does not deal with false accusations but only with vexatious

complaints...is correct. However as the. appellate Magistrate has not found that the complaint was not vexatious, his order must be reversed.

The question now arises whether in rehearing the appeal, the Sub-Divisional Magistrate should not give notice to the accused. I feel no doubt

that even though failure to give notice may not render the proceedings of the Court illegal, it would certainly affect their propriety. u/s 435 of the

Code of Criminal Procedure the Superior Courts are invested with powers not only to set aside incorrect or illegal orders of the Courts below, but

also to examine the propriety of any finding, sentence or order. This language has been deliberately used to enable the higher authorities to see that

no violation of natural justice takes place and that no order to his prejudice is passed behind the back of a person who is interested in upholding it.

It was on this principle that a Full Bench of this High Court in Alagiri Sami Naidu v. Balakrishnaswami Mudaliar ILR (1903) M. 41 interfered with

an order of discharge. Sir S. Subramania Aiyar in Emperor v. Palaniappa Velan ILR (1906) M. 187 based his decision upon the ground that

justice requires that a party to be affacted by an order should have an audience before it is vacated to his prejudice.

A great deal of the argument before us was directed towards showing that chapter XXXI of the Code of Criminal Procedure relating to criminal

appeals is not applicable to appeals in compensation cases. I am not convinced that this contention is sound. The learned Vakil for the petitioner

argued that the use of the word in Section 250, Clause (3) ""as if such complainant had been convicted,"" would not import the provisions of the

appeal chapter. The powers of the Appellate Court to grant redress have to be gathered so far as I am, able to see from Section 423. Section 250

is not self-contained as are sections relating to the grant of sanction and to convictions for contempt (Sections 195 and 486). I am not prepared to

hold that chapter XXXI does not apply to compensation appeals.

The learned Public Prosecutor argued that as Section 422 only provides fora notice of appeal to the officer appointed by the Local

Government, it negatives the contention that notice should go to any other person. This section does not say that others are not to have notice. It

imposes a necessary condition. It does not override the principles of natural justice and of jurisprudence.

If an order for compensation is passed by a First Class Magistrate, the injured party can seek redress only under the revisional power of the

High Court. When a petition from a complainant is entertained, notice under Clause (2) of Section 439 must go to the accused. I cannot accede to

the contention of Mr. Grant, that the term accused in that subscription will not include an accused who had been acquitted and to whom

compensation has been'' awarded. If in passing orders on revision, an accused to whom compensation has been given has to be heard, it does not

stand to reason to hold that he is not entitled to a hearing when an appeal is preferred by the complainant. Section 422 does; not, in my opinion,

compel us to introduce any such anamoly. I respectfully agree with the observation of Sir Arnold White, C.J. in In the matter of Bejnavalu Naidu

ILR (1903) M. 127 that the principle of giving compensation is to recompense by way of damages the party who has been vexatiously dragged

before a Criminal Court. Clause (5) of Section 250 supports this view. If this is correct, it would be improper to deprive a man of what has been

awarded to him without giving him an opportunity of supporting the decision in his favour.

The decision in Ambakkagari Nagi Reddy v. Basappa ILR (1909) M. 89 does not disapprove of the dictum of Sir S. Subramania Aiyar in the

earlier, case. In Gurusami Naicken v. Tirumurthi Chetty 27 M.L.J. 629 the only question was whether the Public Prosecutor should have had

notice. I do not take these decisions to lay down as a rule of law that the accused to whom compensation has been awarded is riot entitled to

notice before the order in his favour is set aside. It may be that the Legislature should provide specifically for notice. But as the law at present

stands. I am unable to agree with the contentions of the learned Public Prosecutor that the accused is not entitled to be heard in the appellate

Court. The First Class Magistrate should give notice to the accused before disposing of the appeal.