SYED WAHIB ALI Vs. MOHD SHARIF
HIGH COURT OF ANDHRA PRADESH
Syed Wahib Ali
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MOHAMED MIRZA, J. -
(1.) THIS reference is made fry the learned Chief City Magistrate -cum -Additional Sessions Judge, Hyderabad, recommending that the order of the VIII City Magistrate refusing to take action on the petition of the accused, who was acquitted, may be set aside and she may be ordered to enquire into the matter dand novo and ascertain whether the petitioner (accused) is entitled to compensation.
(2.) THE facts which give rise to this revision may shortly be stated. The 1st respondent before the Sessions Judge filed a private complaint against the petitioner before him under Sections 323, 448 and 504, I.P.C. The case was taken on file as C. C. No. 164 of 1962. The complainant and two of his witnesses were examined. On the next date of hearing, i.e., 21.2.1962, it appears that the complainant was absent and the counsel reported no instructions. Therefore, the learned VIII City Magistrate dismissed the complaint and acquitted the accused under Section 247 Criminal Procedure Code After this order of acquittal was passed, the petitioner (accused) filed a petition, Cri. M. P. No. 27 of 1962 under Section 250 Criminal Procedure Code praying that a compensation of Rs. 500/ - may be awarded to him on the ground that the complainant had intentionally and deliberately absented himself to shield the accused in another case, which was pending before the Juvenile Court. The accused in that case was one Dawood Khan and he figured as a prosecution witness in this case. The Magistrate, on the basis of this petition, issued a show -cause notice to the complainant, and after he had filed a counter, he arguments were heard and the Magistrate decided that after having passed the order of acquittal, she had become functus officio and therefore had no jurisdiction to take any action under Section 250 Criminal Procedure Code This order has given rise to this reference as stated earlier.
(3.) THE referring Judge is of the opinion that even after the order of acquittal or discharge is passed, the Magistrate can enquire into a petition filed under Section 250, Criminal Procedure Code As there is no ruling directly on the point, he has referred the case to this Court for decision. In this connection, Section 250(1) Criminal Procedure Code may be considered, which reads as follows : -
"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, 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, or, to such person is not present direct the issue of a summons to him to appear and show cause as aforesaid."
This section postulates that the Magistrate by whom the case was heard at the time when he passes an order of discharge or acquittal may at the time of making that order call upon the complainant to show cause why he should not pay compensation to the accused. It is for the Magistrate to feel that the accusation was frivolous or vexatious, and for this he has to come to his own conclusion on whatever record is before him.
Once the order of acquittal or discharge is made, in my opinion, he becomes functus officio and the proceedings cannot be re -started at the instance of the accused. The words in the section "call upon him forthwith to show cause" indicate that if the complainant is present in Court, he should at once be called upon to offer an explanation if he can, or if he is absent, in that case the Magistrate should direct the issue of a summons to him to appear and show cause. In these circumstances, the intention of the section appears to be that at the time when the order of discharge or acquittal is passed, then alone the Magistrate is competent to call upon the complainant to show cause why compensation should not be awarded and once he passes a final order the accused cannot move the Court at a later stags to consider the question of compensation, because even in the absence of an order by the Magistrate with regard to compensation the accused is free to resort to any of the remedies open to him by law if he thinks that the accusation was false, vexatious or frivolous. I therefore disallow the reference and uphold the order of the Magistrate.
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