Patna High Court
Narain Hazam vs Ramdhari Singh And Ors. on 16 March, 1953
Equivalent citations: AIR1954PAT145
JUDGMENT Das, J.
1. This application in revision raises an interesting question of some importance. The question is if a Magistrate vested with powers under Section 30, Criminal P. C., can award compensation to the accused person under the provisions of Section 250, Criminal P. C., when the offence he tries is an offence which is triable by the Court of session under the eighth column of Schedule II, Criminal P. C.
2. The material facts are the following. On 29-4-1951, the petitioner Narain Hazam lodged a first information at Dhanwar Police Station against four persons, opposite parties before us, in which the accused Ramdhari Singh, opposite party No. 1, of having set fire to his house and Mahabir Singh, Suba Singh and Mathura Singh, opposite parties 2 to 4, with having abetted Ramdhari Singh in the commission of the offence of arson. On the basis of the first information, the local police made an investigation and submitted a charge-sheet against the opposife party.
Ramdhari Singh was charged with an offence under Section 436, Penal Code, and Mahabir Singh, Suba Singh and Mathura Singh were charged with abetment of the said offence. Mr. S. F. Azam, a magistrate vested with powers under Section 30, Criminal P. C., tried the opposite party. He found, on a consideration of the evidence, that the accusation against the opposite party was false and frivolous. He acquitted the four members of the opposite party, and asked the petitioner to show cause why he should not be directed to pay compensation to the accused persons. The petitioner showed cause. The learned magistrate was not satisfied with it, and made an order under the provisions of Section 250, Criminal P. C., that the petitioner should pay a sum of Rs. 50/- to each of the four members of the opposite party. Against the order of the learned Magistrate there was an appeal to the learned Sessions Judge of Hazaribagh. The learned Sessions Judge upheld the order of the learned Magistrate and dismissed the appeal.
3. We have heard learned Counsel for the petitioner. It is unfortunate that the opposite party did not enter appearance; and in spite of notice to the Deputy Commissioner, the State has not been represented before us.
4. The only question which has been agitated before us is that the offence under Section 436, Penal Code, and abetment thereof being offences not triable by a magistrate under the eighth column of Schedule II, Criminal P. C., Section 250, Criminal P. C., did not apply, and the learned Magistrate vested with powers under Section 30, Criminal P. C., had no jurisdiction to pass an order of compensation against the petitioner.
Before I refer to the case law on the subject, it is necessary to read some of the sections in the Code of Criminal Procedure bearing on the question at issue. Section 250, Criminal P. C., is headed, "Frivolous Accusations in Summons and Warrant Cases", and the relevant portion of the section is in these terms:
"Section 250(1). If in any case instituted upon complaint or upon information given to a police officer or to a Magistrate, one or more persons is or are accused before a Magistrate of any offence triable by a Magistrate, the Magistrate by whom the case is heard discharges or acquits all or any of the accused, and is of opinion that the accusation against them or any of them was false and either frivolous or vexatious, 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 etc."
Sub-section (2) of the section lays down that if, after considering any cause which is shown by the complainant, the Magistrate is satisfied that the accusation was false and either fri-volous or vexatious, he may, for reasons to be recorded, direct that compensation to such amount not exceeding Rs. 100/- be paid by such complainant. Sub-section (1) of Section 250, which I have quoted above in extenso, can be divided into three parts. The part with which we are concerned in the present case is the second part which includes the clause "of any offence triable by a Magistrate". The question is what that clause means. Learned Counsel for the petitioner has contended before us that the clause "triable by a Magistrate" is a qualifying clause which relates to the offence of which a person before the Magistrate is accused. He has referred us to Sections 28 and 29, Criminal P.C., which occur in Chapter III and the heading of which is -- "Description of Offences cognisable by each Court".
Section 28 is in these terms:
"Subject to the other provisions of this Code any offence under the Indian Penal Code may be tried-
(a) by the High Court, or
(b) by the Court of Session, or
(c) by any other Court by which such offence is shown in the eighth column of the second schedule to be triable."
Section 29 states :
"Subject to the other provisions of this Code, any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court."
It is not necessary to refer to Sub-section (2) of Section 29 in the context in which we are considering the provisions of that section.
The argument of learned Counsel for the petitioner is that the clause "triable by a Magistrate" has reference to Clause (c) of Section 28 and, therefore, takes one to the eighth column of Schedule II, Criminal P. C. The view which the learned Counsel for the petitioner has canvassed before us has the support of several decisions of the Lahore High. Court. So far as we have been able to ascertain, the earliest decision on the subject is -- 'The Crown v. Hamir Chand', 14 Pun Re Cr. 1902 at p. 39 (A). The judgment of Reid C. J. in that case was very short one and merely stated that the offence charged was under Section 477, Penal Code, which was not triable by a Magistrate under the eighth column of the second schedule, Criminal P. C., and was, therefore, not an offence which came within the terms of Section 250 of the Code.
This decision was followed in -- 'Crown v. Qadu', 26 Pun Re Cr. 1902 p. 74 (B) where Reid C. J. again expressed the view that the words "triable by a Magistrate" occurring in Section 250 meant triable under Section 28 of the Code by a Magistrate, and that the cases provided for by Section 250 were those specified in the eighth column of the schedule as triable by a Magistrate.
This decision was followed in -- 'Muhammad Hayat v. Bhola', AIR 1919 Lah 192 (C). A Division Bench of the Lahore High Court accepted that view in -- 'Amin Lal v. Emperor', AIR 1930 Lah 482 (D). Referring to the argument that Section 250, Criminal P. C., makes no distinction between a Magistrate empowered under Section 30 and one not so empowered and that an offence shown in column 8 of Schedule II, Criminal P. C., as triable by a Court of Session should be deemed to be triable by a Magistrate for purposes of Section 250 where it has actually been tried by a Magistrate with powers under Section 30 of the Code, his Lordship Zafar All J. expressed himself as follows :
"This argument is seemingly plausible, because the term 'Magistrate' in the expression 'an offence triable by a Magistrate' which occurs in Section 250, would seem to be applicable to any Magistrate whether empowered under Section 30 or not. But in the light of the phraseology of Schedule 2, it appears repugnant to the general sense of that expression to interpret the word 'Magistrate' there in its wider significance, and it has never been so interpreted."
A discordant note was, however, struck in the same High Court in -- 'Mt. Daropti v. Paras Ram', AIR 1941 Lah 19 (E). Skemp J. referred to the earlier Bench decision in -- 'AIR 1930 Lah 482 (D)' and then to a Bench decision of the Rangoon High Court in -- 'Ma Sin v, Maung Maung Lay', AIR 1936 Rang, 230 (F). He said that the view which Baguley, J. expressed in the Rangoon case was the view which he would have followed. Baguley J. expressed the following view in the matter. He pointed out that Section 28, Criminal P. C. expressly stated that it was subject to the other provisions of the Code; therefore; it was subject to Section 30. Section 30 states, 'inter alia, that in certain States in which there are Deputy Commissioners or Assistant Commissioners the State Government may notwithstanding anything contained in Section 28 or Section 29 invest the District Magistrate or any Magistrate of the first class with power to try as a Magistrate all offences not punishable with death.
Baguley J. thought that the earlier rulings with regard to the interpretation of Section 250, Criminal P.C. overlooked the opening clause of Section 28 which made the section subject to the other provisions of the Code including the provisions in Section 30. He then expressed, himself as follows :
"I can see no point of principle involved. Why a man who charges another with being a petty thief, can be made liable to pay compensation, whereas, if he charges him with being a dacoit, he should be free from all lia-. bility, I entirely fail to understand. The principle which I deduce from Section 250 is that the Magistrate can only pass the order if he is able to dispose of the case himself personally; in other words, if he is able to end the case by passing an order which operates to the detriment of the accused, then he is equally able to end the case by passing an order which is to the detriment of the complainant."
From the point of view of logic there is, perhaps, much to be said in favour of the view expressed by Baguley, J.; but law is not always logic, and the question before us is giving the relevant words in Section 250, Criminal P. C. their plain meaning. There can be no doubt that the words 'triable by a Magistrate" occurring in Section 250, Criminal P. C. are important words. If those words were not there, then a Magistrate who discharges an accused person in an enquiry under Chapter 18 of the Cede of Criminal Procedure would be entitled to award compensation.
It is, however, well settled that Section 250, Criminal P. C. does not authorise the Sessions Judge to pass an order of compensation when Re acquits the accused persons. One obvious reason for the exclusion of the Sessions Judge may be that a case comes to the court of Session only after it has been committed by a Magistrate on an enquiry conducted in. accordance with the provisions in Chapter 18 of the Code. It is also well settled and is now beyond doubt that Section 250, Criminal P. C. does not authorise a Magistrate discharging an accused person under Section 209, Criminal P. C. in an enquiry under Chapter 18 of the Code, to award compensation to the accused person. This exclusion of a Magistrate who merely holds an enquiry and does not try the accused person is clearly referable to the clause "of any offence triable by a Magistrate" occurring in the section. When a Magistrate enquires into a case which is triable by the court of session, the person before him is not accused of an offence triable by a Magistrate; on the contrary the person before him is accused of an offence triable by a court of Session. When an offence is characterised as "triable by a Magistrate" or "triable by the court of Session", such characterisation can have reference only to Section 28 of the Code and the eighth column of the second schedule.
5. Learned Counsel for the petitioner has submitted, rightly in my opinion, that there is a distinction between the words "triable by a Magistrate" and such words as "tried by a Magistrate". The expression "triable by a Magistrate" must, I think, be taken as qualifying the word "offence" and in that view it must refer to the classification of offences given in the eighth column of Schedule II, read with Section 28, of the Code. It is worthy of note that Section 30, Criminal P. C. does not change the nature of the offence; the very words of Section 30, Criminal P. C. show that it merely enables the State Government to invest the District Magistrate or any Magistrate of the first class with power to try as a Magistrate all offences not punishable with death. The nature of the offence remains the same; only a particular Magistrate gets enhanced powers to try certain offences.
This is clear from the further fact that in an area where there is a Magistrate vested with powers under Section 30, Criminal P. C., it is still open to the Magistrate concerned to resort to a commitment proceeding in respect of an offence triable by the Court of Session; and if an offence triable by the Court of Session is committed to that Court, the Sessions Judge can try the accused of that offence. In other words, the offence still remains an offence triable by the Court of Session, though a Magistrate vested with powers under Section 30 can try that offence. My view, therefore, is that the Code itself recognises a distinction between, an offence "triable by a Magistrate" and an offence "triable by the court of session" but actually tried by a Magistrate vested with powers under Section 30, Criminal P. C.
6. If the intention were to make Section 250 applicable to any & every offence actually tried by a Magistrate, whether the Magistrate be an ordinary first class Magistrate or a Magistrate vested with powers under Section 30, Criminal P. C. nothing could have been easier than to draft Sub-section (1) of Section 250 so as to read that the Magistrate by whom the case is tried can award compensation to the accused person when the Magistrate discharges or acquits him. The section is not, however, drafted in those terms; on the contrary, it is drafted in such a way as to make the words "triable by a Magistrate" an adjective phrase qualifying the word offence going before it. If any anomalous result follows from the use of those adjectival words in the section that anomaly is the result of the section as it has been drafted. It may be that the Legislature advisedly omitted graver offences, ordinarily tried by the court of session, from the purview of Section 250. I have looked into the course of legislation on this subject, with reference to Act 10 of 1872 & Act 10 of 1882. The correspond-
ing section in those Acts confined it to complaint cases or summons only. The section was greately restricted in scope and was gradually enlarged to include other cases. However we are not concerned with the ultimate intention or purpose of the Legislature, but with the intention as expressed in the words in the section.
7. With very great respect, it seems to me that the principle to which Baguley, J. has referred is open to the following objection. If the principle is that a Magistrate who is able to dispose of the case himself is also authorised to pass an order of compensation, then there is no reason why a Magistrate who discharges an accused person under Section 209, Criminal P. C. in an enquiry under Chapter 18 of the Code should not be authorised to pass an order of compensation. So far as the case before the Magistrate is concerned, the order of discharge terminates the case.
It is well settled, however, that a Magistrate discharging an accused person in an enquiry into a case triable by the court of session or by the High Court is not empowered under Section 250 of the Code of Criminal Procedure to pass an order of compensation. There is long line of decisions in support of this view, and the only reason that can be given in, support of the view is that the . words "triable by a Magistrate" occurring in Sub-section (1) of Section 250 relate to an offence which is triable by a Magistrate in accordance with Section 28 read with column 8 of Schedule II, Criminal P. C.
8. For the reasons given above, I am of the view, that when a Magistrate vested with powers under Section 30, Criminal P. C. tries an accused person of an offence which is triable by the court of session under column 8 of Schedule II, Criminal P. C. he is not empowered under Section 250, Criminal P. C. to pass an order of compensation. The learned Magistrate who acquitted the accused persons in the case under our consideration was, no doubt, a Magistrate vested with powers under Section 30, Criminal P. C. & he was competent to try an offence under Section 438 Penal Code, as a Magistrate; but the offence was not an offence triable by a Magistrate within the meaning of Section 28 read with column 8 of the second schedule of Cri. P. C.; therefore, the offence was not "triable by a Magistrate" within the meaning of Section 250, Criminal P. C. The result, therefore, is that the application in revision is allowed, the rule is made absolute and the order of the learned Magistrate directing the payment of compensation by the petitioner is set aside.
Sinha, J.
9. I agree.