J.C.Mishra - (1.) -This appeal has been preferred by the complainant against the judgment and order dated 31.3.1980, passed by Special Judicial Magistrate, Varanasi, acquitting the accused-respondents for offence punishable under Section 471, I.P.C. and awarding Rs. 100 each to the accused as compensation.
(2.) THE leave to appeal was granted after recording the statement of the learned counsel for the appellant that the appeal will be confined to the order of the Magistrate directing payment of compensation. Despite the list being revised, none appeared for the appellant or the opposite parties-accused. In the memo of appeal it has been stated that there is no provision in the Code of Criminal Procedure entitling the Court to award compensation. This contention is not correct. Section 250 introduced in the Code of Criminal Procedure, 1973, empowered the Magistrate to award compensation to the accused if he is of the opinion that there was no reasonable ground for making the accusation. In view of this provision the Court had power to award compensation for accusation without reasonable cause. However, despite this power the order of the Magistrate awarding compensation cannot be maintained. Firstly the Magistrate could award compensation after recording a finding that the complainant had made accusation without reasonable cause. It is true that the evidence of the witnesses examined by the complainant was not believed and the complainant failed to prove its case but the Magistrate has not recorded finding that the complaint was filed without any reasonable cause. Secondly, before awarding compensation the Magistrate was required to call upon the complainant to show cause why he should not be directed to pay compensation to the accused. Sub-section (2) of Section 250, Cr. P.C. requires the Magistrate to record and consider any cause which such complainant may show and if he is satisfied that there is no reasonable ground for making the accusation, he may for the reasons to be recorded make an order that the compensation determined by him be paid by the complainant to the accused or any of them. The Magistrate, thus, committed illegality in awarding compensation without giving opportunity to show cause and without recording finding that the accusation was without any reasonable cause. Therefore, the order deserves to be quashed.
(3.) THE appeal is partly allowed. THE acquittal of the accused is maintained. THE order awarding compensation by the complainant to the accused is set aside. THE fine, if deposited may be returned.;