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Criminal Revision No. 88 of 1960, decided on 11th November 1900
, Ss. 107 & 250 Section 250 applicable to proceedings under S. 107‑Words "Accused of an offence" in S. 250 (1)‑Implication.
In the present case it was contended that section 250 of the Criminal Procedure Code, 1898 specifically mentioned that compensation could be granted to a person who was "accused of an offence" and a person against whom proceedings under section 107 of the Code were taken was not such a person and, therefore, order for payment of compensation under section 250 of the Code could not be passed in favour of a person against whom proceedings which are found to be false, frivolous and vexatious had been taken under section 101 of the Code:
Held, that the law did not prohibit the grant of compensation under section 250 of the Criminal Procedure Code, 1898 to a person against whom proceedings which are found to be false, frivolous and vexatious had been taken under section 107 of the Code.
The words "accused of an offence" which occur in sub section (1) of section 250 of the Code are not used in a restricted sense. Those words have been used to make it clear that it is only those cases in which the offence about which proceedings were taken were triable by a Magistrate that section 250 of the Code can be brought into play. This means that if the Magistrate is dealing with a case triable by the Court of Session, he cannot act under sub‑section (1) of section 250 of the Code even if he comes to the conclusion that the allegations against the accused person were false, frivolous and vexatious.
Crown v. Kaura and Lahori 33 P. R 1902 (Cr.) and Rohel v. Kaura and others A I R 1935 Lah. 2) considered.
S. 107‑Person proceeded against‑Whether accused person‑(Quaere).
Sarfraz Ahmad for Petitioners.
S. A. Karim for Respondent.
Asghar Ali for the State.
Date of hearing : 10th October 1960.
Ghulam Qadir put in an application before a Magistrate with a view to having action under section 10 7 of the Code of Criminal Procedure taken against Fazal Din and four others. The matter was dealt with by Mirza Azim Beg, Magistrate 1st Class, Sialkot, who, by his order dated the 24th of September, 1959, held that the allegations against Fazal Din etc., were false, frivolous and vexatious and he dismissed the application of Ghulam Qadir. The learned Magistrate further directed that Ghulam Qadir shall pay Rs. 100 as compensation, to each of the five persons against whom he had initiated proceedings. In passing this order the learned Magistrate invoked section 250 of the Code of Criminal Procedure. Ghulam Qadir brought an appeal‑a right of appeal against an order of award of compensation under section 250 of the Code of Criminal Procedure is given by subsection (3) of that section itself‑which was heard by Mr. Muhammad Sultan Khan, Sessions Judge, Sialkot, who, by his order dated the 18th of December 1959 vacated the order of the learned Magistrate with regard to grant of compensation on the ground that an order for payment of compensation under section 250 of the Code of Criminal Procedure could not be passed against a person who had merely initiated proceedings under section 107 of the Code of Criminal Procedure as distinguished from a person who had set the law in motion by alleging the commission of a crime. Against this order of the learned Sessions Judge, Fazal Din etc. have presented this petition for revision.
2. Section 250 of the Code of Criminal Procedure, which occurs in Chapter XX of that Code is in the following terms :‑---
"(1) If, any case instituted upon complaint or upon informa tion 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, if such person is not present direct the issue of a summons to him to appear and show as aforesaid. ,
(2) The Magistrate shall record and consider any cause which such complainant or informant may show, and if he is satisfied that the accusation was false and either frivolous or vexatious may, for reasons to be recorded, direct that compensation to such an amount not exceeding one hundred rupees or, if the Magistrate is a Magistrate of the third class, not exceeding fifty rupees, as he may determine, be paid by such complainant or informant to the accused or to each or any of them.
(2‑A) The Magistrate may, by the order directing payment of the compensation under subsection (2), farther order that, in default of payment, the person ordered to pay such compensa tion shall suffer simple imprisonment for a period not exceeding thirty days.
(2‑B) When any person is imprisoned under subsection (2‑A), the provisions of sections 68 and 69 of the Pakistan Penal Code shall so far as may be, apply.
(2‑C) No person who has been directed to pay compensation under this section shall, by reason of such order, be exempted from any civil or criminal liability in respect of the complaint made or information given by him
Provided that any amount paid to an accused person under this section shall be taken into account in awarding compensation to such person in any subsequent civil suit relating to the same matter.
(3) A complainant or informant who has been ordered under "subsection (2)" by a Magistrate of the second or third class to pay compensation or has been so ordered by any other Magistrate to pay compensation exceeding fifty rupees, may appeal from the order, in so far as the order relates to the payment of the compensation, as if such complainant or informant had been convicted on a trial held by such Magistrate.
(4) when an order for payment of compensation to an accused person is made in a case which is subject of appeal under subsection (3), the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or, if an appeal is presented, before the appeal has been decided and where such order is made in a case which is not so subject to appeal, the compensation shall not be paid before the expiration of one month from the date of the order."
It appears to me on the plain reading of the language of sub section (3) of this section that if the finding of the learned Sessions Judge that section 250 of the Code of Criminal Procedure did not apply to proceedings under section 107 of the Code of Criminal Procedure was correct, his order directing the reversal of the direction of the Magistrate with regard to payment of compensa tion would be without jurisdiction. My reason far this view is that if the order of the learned Magistrate did not fall under sub section (1) of section 250 of the Code of Criminal Procedure‑and the learned Sessions Judge held that it did not‑no appeal against that order would lie and the remedy of the person aggrieved by that order would be by a petition for revision which could not have been disposed of by the learned Sessions Judge, as the only' order he could have passed thereon was to report the case to the High Court under section 438 of the Code of Criminal Procedure and final orders could be passed by the High Court alone.
3. The question whether or not the view of the learned Sessions Judge that section 250 of the Code of Criminal Procedure was not applicable to proceedings under section 107 of that Code was correct may now be taken up. The learned Sessions Judge relied on a decision of the Punjab Chief Court [Crown v. Kaura and Lahori (33 Pb. R 1902 (Cri.))] and one of the Lahore High Court [Rohel v. Kaura and others (A I R 1935 Lah. 29)]. In both these decisions, a brief order of acceptance was passed on recommendations of Sessions Judges to the effect that section 250 of the Code of Criminal Procedure had no application to cases under section 107 of that Code and that the order of grant of compensation to person such proceedings against whom had been held to be false, frivolous and vexatious should be vacated. As the learned Sessions Judge followed these two decisions for passing his order, his order cannot on the face of it be held open to any objection except the one which has already been mentioned, namely, that he should have made a report to this Court under section 438 of the Code of Criminal Procedure and not disposed of the matter himself. The question that really arises is whether the two decisions relied upon by the learned Sessions Judge had laid down the law correctly.
4. Both these decisions, as I have already mentioned, did not contain any reasons of the learned Judges who passed the final orders. One has, therefore, to go by the reports of the Sessions Judges which had been acted upon by the Courts which had ultimate jurisdiction in the matter in the country at the relevant times. It was contended by the learned counsel for the petitioner and this contention was not controverted by the learned counsel who appeared for the respondent nor by the one who appeared for the State, that for the purposes of the Code of Criminal Procedure a person who is proceeded against under section 107 of that Code could be deemed to be an accused person and there is some authority to support this view. It was, however, contended by the learned counsel for the respondent and the learned counsel for the State supported him that though a person against whom proceedings were taken under section 107 of the Code of Criminal Procedure could be said to be an accused person he was not a person accused of any offence, and, therefore, section 250 of the Code of Criminal Procedure could not be invoked in his favour by a Magistrate. I am doubtful of the correctness of the view that a person proceeded against under section 107 of the Code of Criminal Procedure is an accused person for the purposes of that case, but as the question does not arise in this case I will say nothing more about it.
5. The learned counsel for the petitioners, who expressed his contentions with precision and clarity, placed reliance on subsection (2) of section 117 of the Code of Criminal Procedure wherein procedure to be followed in cases of the present type is given. This subsection reads as follows:
"Such inquiry shall be made, as nearly as may be practicable where the order requires security for keeping the peace, in the manner hereinafter prescribed for conducting trials and recording evidence in summons cases ; and where the order requires security for good behaviour in the manner hereinafter prescribed for conducting trial and recording evidence in warrant cases, except that no charge need be framed."
The argument of the learned counsel for the petitioner was that as the provisions of tte Code of Criminal Procedure relating to trials of summons cases were, as nearly as may be practicable, applicable to cases falling under section 107 of the Code of Criminal Procedure and an order of compensation under section 250 of that Code could be passed in favour of an accused who stood his trial for an offence, there was no reason why such an order could not be passed in favour of a person who had been dragged to Court on a frivolous charge being made against him which results in proceeding under section 107 of the Code of Criminal Procedure.
6. On principle, there does not appear to be any difference in this regard between the case of a person accused of an offence and of a person proceeded against under section 107 of the Code of Criminal Procedure. If the allegations against a person are false, frivolous and vexatious, he would suffer the same harm if the proceedings were under section 107 of the Code of Criminal Procedure as he would if it was an allegation of his having committed an offence. It would, therefore, appear that the legislature would not fail to provide for the grant of compensation in a case of false, frivolous and vexatious allegations about acts which attract section 107 of the Code of Criminal Procedure when they had provided for such accusation in relation to an offence. On principle, therefore, the contention of the learned counsel for the petitioners that section 250 of the Code of Criminal Procedure was applicable to proceedings under section 107 of that Code cannot be met with on any cogent ground. But, contended the learned counsel for the respondent, section 250 of the Code of Criminal Procedure specifically mentioned that compensation could be granted to a person who was accused of an offence and a person against whom proceedings under section 107, Criminal Procedure Code, were taken was admittedly not such a person. The words "accused of an offence" which occur in subsection (1) of section 250 of the Code of Criminal Procedure have not that restricting purpose which the learned counsel for the respondent and the learned counsel who appeared for the State would have me attach to them. Those words have been used to make it clear that it is only those cases in which the offence about which, proceedings were taken was triable by a Magistrate that section 250 of the Code of Criminal Procedure can be brought into play. This means that if the Magistrate is dealing with a case triable by the Court of Session, he cannot act under sub section (1) of section 250 of the Code of Criminal Procedure even if he comes to the conclusion that the allegations against the accused person were false, frivolous and vexatious.
7. In view of what I have said, it follows that on principle the contention of the learned counsel for the petitioners is open to ng objection nor does the language employed in section 250 of the Code of Criminal Procedure necessarily exclude the application of that section to a person who makes allegations before a Magistrate which result in proceedings under section 107 of the Code of Criminal Procedure being taken against some other person. It is true that all that subsection (2) of section 117 of the Code of Criminal Procedure says is that procedure provided by that Code with regard to trial in summons cases shall be followed in proceed ings under section 107 of that Code, but that does not mean that section 250 of the Code of Criminal Procedure which can come into play only after the proceedings have terminated was not intended to be made applicable to such proceedings. Unless one attaches undue importance to each word used by the Legislature in subsection (2) of section 117 of the Code of Criminal Procedure, it becomes clear that all that could be done by a Magistrate under Chapter XX of the Code of Criminal Procedure if he were trying an accused person for an offence could be done by him in a case in which be takes proceedings under section 107 of the Code of Criminal Procedure unless the law specifically created some difference between the two classes of cases. I would, therefore, hold that the law did not prohibit the grant of compensation under section 250 of the Code of Criminal Procedure to a person against whom proceedings which are found to be false, frivolous and vexatious had been taken under section 107 of that Code.
8. This brings me to the question whether or not the order of the Magistrate granting compensation was justified. The learned counsel for the respondents addressed no arguments on this question, but his omission to do so has not been taken by me as an admission that the proceedings were based on allegations which were false, frivolous and vexatious. There is ample material on the record in support of the view of the learned trial Magistrate that proceedings were false, frivolous and rexatious and as the compensation awarded is, in the circumstances, by no means high, I would accept the petition and restore the order passed by the learned Magistrate.
K.B.A Petition accepted.
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