SHAH CHANDULAL GOKALDAS Vs. PATEL BALDEVBHAI RANCHHODDAS
LAWS(GJH)-1979-2-21
HIGH COURT OF GUJARAT
Decided on February 08,1979

SHAH CHANDULAL GOKALDAS Appellant
VERSUS
PATEL BALDEVBHAI RANCHHODDAS Respondents

JUDGEMENT

B.J.DIVAN - (1.) In this Revision Application the petitioners are the original accused Nos. 1 to 4; the first respondent is the original complainant and the second respondent is the State of Gujarat. On a complaint filed by the complainant the first respondent herein with the police authorities a case was launched against the four accused in the Court of the learned Judicial Magistrate First Class Vijapur. That case was Criminal Case No. 172 of 1977. The learned Magistrate came to the conclusion that the case was a false case and that the police authorities had acted contrary to law at the instance of the complainant. He directed that notices should issue against some of the witnesses for the prosecution to show cause why prosecution should not be initiated against them for giving false evidence on oath. He also directed that all the accused should be acquitted and at the same time he passed an order under sec. 358 of the Code of Criminal Procedure 1973 directing that the complainant should pay a sum of Rs. 50.00 to each of the four accused persons and if he failed to pay the compensation then under sec. 358(3) of the Code of Criminal Procedure he should be sentenced to twenty days simple imprisonment. Against the order awarding compensation to the four accused the complainant filed Revision Application before the Sessions Court Mehsana and the Revision Application was disposed of by the learned Additional Sessions Judge Mehsana. The learned Additional Sessions Judge came to the conclusion that implicit in the provisions of sec. 358 was the requirement that opportunity of showing cause against the order proposed to be passed should be given to the person against whom the order for compensation is to be passed and since in this case no such opportunity was given the order for compensation was set aside and to that extent the Revision Application was allowed. The rest of the grievances of the complainant regarding the order passed by the learned Judicial Magistrate First Class were not entertained and the Revision Application in that behalf was dismissed.
(2.) It is true as Mr. M. M. Shah for the petitioners in the Criminal Revision Application points out that under sec. 358 of the Code of Criminal Procedure which deals with compensation to persons who have been arrested without sufficient ground an order can be passed if the Magistrate who hears the case holds that there was no sufficient ground for causing such arrest. Sec. 250 deals with compensation for accusation without reasonable cause. In the procedure laid down in sec. 250 it has been provided that if the person against whom the order is proposed to be passed is present in Court he can be heard 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 the Court has to direct the issue of a summons to him to appear and show cause. Such opportunity of showing cause before the order contemplated by sec. 250 Criminal Procedure Code is not to be found in specific terms in sec. 358. It must be borne in mind that under sub-sec. (3) of sec. 358 all compensation awarded under sec. 358 may be recovered as if it were a fine and if it cannot be so recovered the person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding thirty days as the Magistrate directs unless such sum is sooner paid. Looking to the consequences which are likely to follow from the order of payment of compensation and looking to the fact that the Magistrate has to come to the conclusion that there was no sufficient ground for causing such arrest principles of natural justice which must be read into all such sections and provisions of law require that an opportunity of showing cause and trying to satisfy the Magistrate that there was sufficient ground for causing the arrest should be given to the complainant or the person who caused the alleged wrongful arrest to be made. To that extent the order passed by the learned Additional Sessions Judge is correct. It may be pointed out that if this requirement based on principles of natural justice is not to be read into the provisions of sec. 358 of the Code of Criminal Procedure it is likely that the section may be struck down on the ground of violation of reasonable procedural requirement contemplated by Arts. 14 and 19 of the Constitution. Rule of law which is the basis of the procedural requirements of Articles 14 and 19 of the Constitution presupposes the underlying basis of principles of natural justice and hence by reading down sec. 358 the requirement that principles of natural justice have to be adhered to must be read into sec. 358.
(3.) Under these circumstances the proper course which the learned Additional Sessions Judge should have adopted was to send the matter back to the learned Magistrate who heard the case so that after giving proper opportunity of showing cause the question whether there was sufficient ground for causing the arrest of the accused may be decided by the learned Magistrate who heard the case. Sec. 358 contemplates that the order for compensation has to be passed by the Magistrate by whom the case is heard and at present I understand Mr. N. L. Patel the learned Magistrate who heard the case at Vijapur has been transferred away from Vijapur and at present he is working as Judicial Magistrate First Class at Rajpipla in Bharuch District. Under these circumstances no useful purpose will be served in sending the matter back to the Court of the learned Judicial Magistrate First Class Vijapur because whoever is the successor to Mr. N. L. Patel in the office of Judicial Magistrate First Class Vijapur cannot dispose of the matter by passing the appropriate order under sec. 358 after comPlying with the requirements of rules of natural justice. Because of the new factor which is now emerging namely that Mr. N. L. Patel the learned Magistrate has been transferred away from Vijapur no useful purpose will be served by sending the matter back to the Court of the Judicial Magistrate First Class Vijapur.;


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