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Criminal Revision No. 783 of 1960, decided on 29th August 1961.

Ss. 3 (54), 330 & 501‑Second Class Magistrate not "Magistrate" within meaning of S. 3 (54)‑Order passed by such Magistrate under S. 330 read with S. 501‑Without jurisdiction.

Chairman, Tollyganj Municipality v. M. Maslah Ahmed A I R 1942 Cal. 288 ref.

S. 250‑Only formal complainant or informant can be proceeded against under section Person, on basis of whose information formal complaint or infor mation was made‑Not liable.

Emperor v. Sumar and others 481 C 980 approved.

Muhammad Hashim v. Emperor A I R 1940 Sind 134 ref.

Emperor v. Bahawal Singh I L R 40 All. 79 dissented from.

Badrul Haider Choudhury for Petitioner.

Syed Mohsin Ali for the State.

K. A. Bakr for the Opposite‑Party.

This revisional application by Abdul Quddus, an Overseer of the Khulna Municipality, is directed against the order of Mr. J. Abedin, Magistrate, Khulna, by which he directed the petitioner to pay a sum of Rs. 50 as compensation for making a false, and vaxatious report against the opposite‑party Hiranbala Nandi.

2. The facts of the case may be shortly stated as follows:

Abdus Quddus made a report to the Administrator, Khulna Municipality that the opposite‑party, Hiranbala Nandi, had erected an un-authorised Golpata Shed on her holding No. 8, Munshipara 3rd Lane, within Khulna Municipality. The Administrator thereupon filed a written complaint against the opposite‑party charging her with an defence under section 330 read with section 501 of the Bengal Municipal Act.

3. On trial, the charge against Biranbala Nandi turned out to be false and she was acquitted. The learned Magistrate, thereafter, asked Abdul Kuddus to show cause under section 250, subsection (A I R 1942 Cal. 288) of the Code of Criminal Procedure as to why he should not pay compensation to Hiranbala Nandi.

4. The petitioner showed cause but the learned Magistrate was not satisfied. He, therefore, directed him to pay a sum of Rs. 50 to Hiranbala Nandi for making false and frivolous allegations.

5. The points that have been raised in this revision case are two. It is, firstly, contended by Mr. Badrul Haider Chow dhury, the learned counsel for the petitioner, that the learned Magistrate, Mr. Jainal Abedin, had no jurisdiction to try the case against the opposite‑party under section 330 read with section 501 of the Bengal Municipality Act. It is pointed out that, under section 3 (54) of the Bengal Municipal Act, "Magis trate" includes the District Magistrate, the Magistrate in charge of a Division of the district in which division a Municipality is constituted, and every Magistrate of the first class subordinate to the District Magistrate to whom the District Magistrate may have made aver any duties under this Act. As Mr. Jainal Abedin was a second class Magistrate at the relevant time, it is contended that he bad no jurisdiction to try the case against Hiranbala Nandi and therefore the order passed by him asking the present petitioner to show cause why he should not be made liable for compensation under section 250, Cr. P. C. is without jurisdiction.

6. In support of this contention, the learned counsel has relied on the decision in the case of Chairman, Tollyganj Munici pality v. M. Masiah Ahmed (1). In this case it has been heia that the definition of a Magistrate in section 3 (54) of the Bengal Municipal Act is exhaustive, and therefore an order under section 330 passed by a Magistrate to whom the District Magis trate had not made over any duties under the Act is without jurisdiction and must be set aside. It was found that in this case that the Magistrate who dealt with the case, though a Magistrate of the first class, had not been authorised by the District Magis trate to deal with case under the Bengal Municipal Act. In the present case, Mr. Jainal Abedin was not even a first class Magistrate when he dealt with the case under section 330 read with section 501 against Hiranbala Nandi.

7. Mr. Mohsin Ali, who appears for the State, however, contends that, in view of the provisions in the Second Schedule to the Code of Criminal Procedure, the learned Magistrate had jurisdiction to deal with the case. The argument is that, as under section 501 of the Bengal Municipal Act the maximum punish ment provided is Rs. 500, the learned Magistrate had jurisdic tion to deal with this case. The Second Schedule to the Criminal Procedure Code provides that, with regard to offences against laws other than the Pakistan Penal Code, if any offence is punishable with imprisonment for less than a year or with fine only, the case with regard to such offence can be tried by any Magistrate. This argument, in m3 view; obviously does not take note of the clear provisions of subsection (2) of section 5 of the Code of Criminal Procedure which provides that all offences under any law other than the Penal Code shall be investigated, enquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure, but subject to any enactment for the time being in force, regulating the manner or place of investigating, enquiring into, trying, or otherwise dealing with such offences. Since under the Bengal Municipal Act second class Magistrate are not Magistrates within the meaning f of that Act, trials held by such Magistrates, in my view, are without jurisdiction. Having regard to this fact, the order of the] learned Magistrate cannot be sustained.

8. The second argument which the learned counsel for the petitioner has advanced is that, since the petitioner was not the formal complainant, the order against him under section 250 of the Code of Criminal Procedure cannot be justified. It is argued that the order contemplated by section 250 of the Code of Criminal Procedure can be passed against only the formal com plainant or the informant, and any other person on the basis of whose information the formal complaint or information was made, cannot be proceeded against under this section. In support of this contention, the learned counsel has relied upon the deci sion of the Sind Judicial Commissioner's Court in case of Emperor v. Sumar and others (48 I C 980). It has been held in this case that section 250 of the Criminal Procedure Code does not warrant an order to pay compensation against a person who only instigates the giving of false information but who does not himself B make the complaint or give the information to the Police. The view taken in this case also receives support in the case of Muhammad Hashim v. Emperor (A I R 1940 Sind 134). In this case the Full Bench which was considering the question whether section 250,1 Criminal Procedure Code, could apply to a case which was instituted on a Police report or an information given by a police officer, made the following observations:

"In this case the proceedings appear to have been based upon a complaint made by a Sub‑Inspector not as a police officer in charge of a police‑station within the meaning of section 154, Criminal P. C., but as the official superior of the head constable, and though if the Magistrate had found the Sub‑Inspector had made a false or vexatious or frivolous complaint, section 250, Criminal P. C. would apply, it is not the Sub‑Inspector who has been ordered to pay compensation, but the head constable. To justify the order so far as he is concerned, the "complainant" within the meaning of section 250, Criminal P. C., must be read as the real as apart from the formal complainant but though this interpretation can be found in one case 40 All. 79, it is not found in other cases, and the Division Bench will presumably follow in its actual decision of the case, 11 S L R 55, 12 S L R 76, 13 S L R 166 & 14 S L R 168. It is not for us, however, to decide the actual case. Section 250, Criminal P. C., does not appear susceptible of a complete and logical application to all false and frivolous or vexatious cases. It will not apply, for instance, to punish the real complainant as against the formal complainant, but this remedy provided is a summary remedy and does not contemplate an inquiry which might be a long inquiry into a chain of informants to ascertain who is the real as against the formal complainant. Other remedies must be used in such cases."

9. Mr. Mohsin, however, has relied upon the decision in the case of Emperor v. Bahawal Singh (I L R 40 All. 79). This is the case which was mentioned to have taken a contrary view in the observations of the Full Bench referred to above. In this case, a learned Judge of the Allahabad High Court has taken the view, that it is not necessary for the person against whom an order for com pensation under section 250 of the Code of Criminal Procedure is made that he should be the person who himself gives infor mation to a Magistrate in consequence of which another is accused of an offence provided that he is not the person upon whose information an accusation is made. The learned Judge seems to have taken the view that since section 250 of the Code of Criminal Procedure says that "the person upon whose com plaint or information the accusation was made" can be made liable for compensation there is no bar in passing an order against a person who is not the complainant or informant. On a careful reading of section 250, I, however, am unable to agree with the view taken by this learned Judge of the Allahabad High Court. It is true that in cases where the complainants or informants acted on the basis of informations received from other persons, it will be hard to award compensation against such complainants or informants, but I think the hardship can be avoided as pointed out in the case of Emperor v. Sumar and others. In such a case, if it is found that the formal complainant or informant did not know that his accusations were false, he should not be made liable under section 250, but from that it does not follow that the person really responsible for giving the false information to the formal complainant or informant can be made liable under section 250. Section 250 of the Code of Criminal Procedure contemplates a summary procedure and it is not accepted that in such a summary proceeding a detailed investigation as to who was really responsible for bringing about the false accusations can be enquired into. I therefore agree with the view taken by the Judicial Commissioner of the Sind Chief Court in the cases mentioned above and I am unable to agree with the decision of the Allababad High Court referred to before. So this Rule should be made absolute on both the grounds urged on behalf of the petitioner.

The result, therefore, is that this Rule is made absolute. The order of the learned Magistrate directing the petitioner to pay compensation of Rs. 50 is set aside.

K. B. A.

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