Damodaran Pillai v. State — 1954 DIGILAW 87 (KER)

Judgment :- 1. The complainant in P.E. No. 16/51 on the file of the Additional Sub-Divisional Magistrate's Court at Trivandrum is the petitioner. At the close of the preliminary inquiry in the case, the learned Magistrate discharged the two accused under S. 209 of the Criminal Procedure Code. By a separate order the Magistrate directed the complainant to pay Rs. 50 each to the two accused by way of compensation. The appeal preferred by the complainant against that order proved unsuccessful and he has therefore come up in revision, questioning the legality of the order passed by the Magistrate directing payment of compensation to the two accused. That order is challenged mainly on two grounds viz., (1) that in passing the order the Magistrate was acting without jurisdiction and (2) that the order is bad in so far as it does not satisfy the requirements of sub-s. 2 of S. 250 of the Code. On hearing the learned advocates appearing on both sides, I am satisfied that both these grounds are well-founded and have to prevail. Before stating my reasons in support of that conclusion, the facts which formed the basis of the enquiry before the learned Magistrate may briefly be stated. 2. The 2nd accused in the case is the eldest son of the complainant and the latter's friend and associate is the 1st accused. Besides the 2nd accused, the complainant has two other children, Jagadamma and Sasidharan, aged 15 and 12 respectively at the time of the complaint in this case. After the death of the mother of these children, the complainant married another lady who has been examined as PW. 8 in the case. The two minor children were living with the complainant and his second wife. According to the complainant, when he was away from the house the 2nd accused together with the 1st accused decoyed the two children from the house at about 7.30 PM on 31.1.1951 and kept them in secret confinement with the object of misappropriating the jewels worn by these children. On these allegations the complaint was preferred against the two accused for having committed the offences punishable under Ss. 366, 368 and 403 of the Penal Code. On these allegations the complaint was preferred against the two accused for having committed the offences punishable under Ss. 366, 368 and 403 of the Penal Code. Since the offence of kidnapping punishable under S. 366 is one exclusively triable by the Sessions Judge, the Magistrate took the case on to his file as P.E. case and proceeded with the inquiry for finding out whether there is a case justifying an order committing the accused for trial before a Sessions Court. At the close of such an inquiry the Magistrate came to the conclusion that no such case was made out by the evidence adduced by the complainant and accordingly passed an order under S. 209 of the Code of Criminal Procedure discharging both the accused. The complainant was then called upon to show cause why compensation should not be ordered to be paid to the accused and after recording his statement, the Magistrate passed the order which is impugned in this revision petition. 3. It is obvious from sub-s.1 of S. 250 that the jurisdiction conferred on the Magistrate to direct the complainant to pay compensation to the accused person who are either discharged or acquitted, is confined to cases involving offences triable by him. This is made clear by the opening portion of the sub-s.1 which states as follows: "If, 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, and 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 or to each or any of such accused when there are more than one, of, if such person is not present direct the issue of a summons to him to appear and show cause as aforesaid". In the present case the main offence alleged against the accused was one of kidnapping punishable under S. 366 of the Penal Code, the other two offences being subsidiary one following from the main offence. The Magistrate was not empowered to try the main offence. In fact he did not embark upon a procedure as if he was himself trying the case. On the other hand he was proceeding only under Chapter XVIII of the Code dealing with preliminary inquiry into cases triable by the court of Sessions or the High Court. Consistent with this position, the order of discharge was also passed under S. 209 occurring in the same Chapter. If the Magistrate was really proceeding with the trial of the case under Chapter XXI dealing with trial of warrant cases by Magistrates, the order of discharge would have been under S. 253 of the Code. It is thus clear that the Magistrate, who is dealing with the preliminary enquiry in a case triable by the Court of Sessions, has no jurisdiction to pass an order against the complainant under S. 250 directing payment of compensation to the accused who had been discharged under S. 209 of the Code. This position is well settled. The rulings in ILR 40 All. 615, Het Ram v. Ganga Sahai; 23 Crl.L.J. 319, Sarup Sonar v. Ramsundar Thakurain, 37 Crl.L.J. 773, Ma Sin v. Maung Maungloy and 41 Crl.L.J. 506 Ma Pu v. Maung Un Pe are in support of this position. On behalf of the accused reliance is placed on the decisions in ILR 45 Madras 29, Venkatrayar v. Venkatrayar and AIR 1930 Lahore 482 Amin Lal v. Emperor to support the order of compensation passed by the Magistrate. All that was decided in the first of these cases is that where the Magistrate tries an accused for an offence under a less serious section of the Penal Code, even though the offence falls under a more serious section which is beyond the Magistrate's competence, the proceedings will not be deemed to be illegal and that an award for compensation passed by him under S. 250 of the Code of Criminal Procedure will not be bad for want of jurisdiction. It is clear from this decision also that emphasis is laid on the fact that there must have been a trial by the Magistrate and the same must have been in respect of an offence triable by him. It is also pointed out in the same case that where the Magistrate is acting under Chapter XVIII of the Code he will have no jurisdiction to order compensation after discharging the accused under S. 209 of the Code. In the second case the view taken by the Lahore High Court is that where the Magistrate was dealing with several offences some of which he is competent to try, an order for compensation may be justified if the compensation is separately awarded in respect of the offence triable by him. There again it is pointed out that where the order for compensation cannot be separated the order will be bad for want of jurisdiction. 4. The observation made in the Magistrate's order that the evidence on record was such as to make out only the offence of kidnapping punishable under S. 363 of the Penal Code is relied on by the learned advocate appearing for the accused in support of the contention that the Magistrate's order for compensation would be deemed to have been passed with jurisdiction. The argument is that the offence under S. 363 of the Penal Code was one triable by the Magistrate himself. But there is no apparent fallacy in this argument. The Magistrate was proceeding with preliminary inquiry into the alleged offence under S. 366. If the Magistrate was of the view that the evidence on record was sufficient to make out a prima facie case at least in respect of an offence under S. 363, he could not have discharged the accused. On the other hand he should have adopted either of the two courses open to him viz., (1) to commit the accused to stand the trial before the Sessions Court or (2) to convert the case into a warrant case, and proceed to try the case himself for the offence under S. 363. If he had himself proceeded with the trial of the case and had ultimately passed an order discharging the accused under S. 253 of this Code, he would have been acting with jurisdiction in awarding compensation under S. 250. If he had himself proceeded with the trial of the case and had ultimately passed an order discharging the accused under S. 253 of this Code, he would have been acting with jurisdiction in awarding compensation under S. 250. But what he really did was to proceed with the preliminary inquiry right up to the very end and to pass an order of discharge under S. 209 of the Code. After having done so, he cannot act under S. 250 by stating at best the prosecution evidence, even if accepted, could only make out an offence punishable under S. 363 of the Code. To do so would be merely usurping a jurisdiction which he had not, while he was dealing with a preliminary inquiry. Thus in any view of the matter it is clear that the Magistrate's order in this case directing payment of compensation to the accused is one passed without jurisdiction and as such it has to be quashed. 5. The Magistrate's order does not also satisfy the requirements of sub-s. 2 of S.250 of the Code of Criminal Procedure. It is not enough if the Magistrate is satisfied that the accusation against the accused is false. He must also be satisfied that the accusation was frivolous or vexatious. Sub-s. 2 of S. 250 requires that the Magistrate should record a finding that the accusation was frivolous or vexatious and must record his reasons in support of such a finding. These requirements are not satisfied by the impugned order wherein the Magistrate has merely stated as follows: "I consider that in a serious case like the case in question it would be quite proper if I order the complainant to pay to each of the accused a sum of fifty rupees by way of compensation; and I order accordingly". The reasons stated in support of the order discharging the accused cannot be read as supplementing the order for compensation in view of the mandatory provisions contained in sub-s. 2 of S. 250 that before ordering compensation the Magistrate is to be satisfied that the accusation was false and is also frivolous or vexatious and that he shall record his reasons in support of such a conclusion. This position has been emphasised in the rulings in 23 Crl.L.J. 261, Deonarain Mahto v. Chhatoo and AIR 1941 Madras 241, Namberumal v. Muthukalathi. This position has been emphasised in the rulings in 23 Crl.L.J. 261, Deonarain Mahto v. Chhatoo and AIR 1941 Madras 241, Namberumal v. Muthukalathi. If the Magistrate had proceeded to record the reasons as contemplated by sub-s. 2 of S. 250 it is very doubtful whether it could have been said that the complaint was frivolous or vexatious in view of the definite evidence given by PW. 2 the minor son of the complainant who is one of the victims of the alleged kidnapping, to the effect that himself and his sister Jagadamma had been taken away from the house of the complainant in a car brought by the accused at a time when the complainant was away. Apart from this aspect of the matter, the impugned order is bad for the reason that it does not satisfy the requirements of sub-s. 2 of S. 250 of the Code of Criminal Procedure. 6. In the result this revision petition is allowed and the order passed by the Magistrate directing the complainant to pay compensation to each of the accused is set aside. The amount if realised will be refunded to the complainant. Allowed.