DHANUKODI ASARI Vs. MUTHUSWAMY AIYAR

JUDGEMENT

(1.) MR. Seshachariar has raised two points against the order of the Magistrate directing compensation to be paid by his client. The first is that the order is contained in a separate proceeding and it, therefore, contravenes Section 250, Criminal Procedure Code. What happened is this. On the day the accused was discharged, in the same order discharging the accused, the Magistrate made a note to the effect that the complainant will be called upon to show cause why he should not pay compensation. This was read out to the complainant and the complainant asked for three days time to answer the charge. On the 3rd day, on hearing the complainant the Magistrate came to the conclusion that he should be directed to pay compensation. It is argued that as this proceeding directing compensation is contained in a separate order, it is illegal. In In the matter of the complaint of Safdar Husain 25 A. 315 MR. Justice Banerjee points out that the order awarding compensation must be part of the original judgment directing the discharge of the accused. I am entirely at one with him when the learned Judge says that before the order of discharge is read out, the Magistrate should make up his mind to call upon the complainant to pay compensation. But if the judgment is intended to lay down that the levy of compensation subsequently to the judgment is opposed to Section 250 unless the reasons for taking such a step are recorded in the judgment of discharge, then with all respect, I am unable to agree with the learned Judge. There is nothing in the section to show that the levy cannot be made after the order of discharge. I think there is another ground on which the lower Court s order can be justified. Following Ghurbin v. Emperor 22 Ind. Cas. 977 : 36 A. 132 : 12 A.L.J. 143 : 15 Cr, L.J. 193 and Lalit Mohan Singha Roy v. Kunja Behari Ghose 22 Ind. Cas. 726 : 18 C.W.N. 702 : 15 Cr. L.J. 150 I hold that even if the separate order contravenes Section 250, the defect is cured by Section 537. Not embodying this separate order in the original judgment is an irregularity, but the irregularity did not prejudice the accused in the least. In these circumstances, I do not think that the first objection is well-founded.

(2.) THE second objection taken to the order is that the order awarding compensation provides for imprisonment in default of the payment of fine. I think Mr. Seshachariar is right in his contention that the order should not contain an alternative direction awarding imprisonment. THE section itself does not give any power to the Magistrate to do so. Proviso 2 to the section says that if the fine cannot be recovered, the imprisonment to be awarded shall be simple. That is to say, steps must be taken to recover the arrears and it is only on the failure of the attempt to recover, that the Magistrate can pass an order directing the imprisonment of the complainant. THE provisional order for imprisonment is, therefore, beyond the jurisdiction of the Magistrate. THE decisions in Lal Mahmud Shaik v. Satcowri Biswas 28 C. 164 and In the matter of Byravalu Naidu 26 M. 127 : 2 Weir 321 are in point on this question. As the learned Public Prosecutor has pointed out, the fine has been paid and apart from directing the Magistrate to omit this sentence, nothing further has to be done. I order that the portion of the order which directs the imprisonment of the complainant in default of the payment of line be deleted from the order. In other respects, the order of the Magistrate is confirmed.