ORDER
H.N. Sarma, J.
1. This revision petition is directed against the judgment and order passed by the learned Sessions Judge, Morigaon in Crl. Misc. Case No. 17/2002 dated 27-11-2002 arising out of Sessions Case No. 79/2001. By the aforesaid order, the learned Sessions Judge directed the petitioner to pay a sum of Rs. 1000/- to each of the accused persons, failing which to suffer rigorous imprisonment for l(one) month in exercise of power under Section 250, Cr. P.C.
2. I have heard Mr. J. M. Choudhury, learned Senior Counsel appearing for the petitioner and Mr. P.C. Gayan, learned Addl. P.P. for the Respondent State.
3. The necessary facts relevant for the purpose of disposal of this petition may be stated as follows : the petitioner is a Sub-Inspector of Police of the Assam Police and during the year 1998 the petitioner was posted at Nallie Police Outpost under the Jagiroad Police Station in the Morigaon District where he was in charge of the Nallie Police Outpost. On the basis of an FIR lodged by the petitioner with the officer-in-charge, Jagiroad Police Station on 22-9-1998 corresponding to Nallie Police Outpost G.D.E. No. 476 dated 22-9-1998 the Jagiroad P.S. Case No. 139/1998 (G.R. Case No. 577/98) was registered. In the aforesaid FIR it is alleged inter alia, that on 22-9-1998 at about 4.30 p.m. acting on a tip off information, the petitioner as in-charge of the Nellie Police Outpost along with other staff searched the house and premises of accused Gopi Das. During the search accused (1) Gopi Das and (2) Pradip Das were arrested while they along with others assembled there for preparation of committing on the National Highway. During the search one hand-made pistol, two nos of L.G. live cartridges were recovered from the illegal possession of the accused Gopi Das. During the course of investigation of the case, the Investigating, Officer i.e. the petitioner, examined witnesses and recorded their statements under Section 164, Cr. P.C. and sent the seized arms for chemical examination. But, before submission of the charge-sheet the petitioner was transferred from the said Police Outpost and accordingly he handed over the case diary to his successor. After completion of the investigation the successor officer of the petitioner submitted charge sheet under Section 399, IPC; read with Section 25(1)(a)/27 of the Arms Act against the accused Gopi Das and Pradip Das. The offence alleged being a sessions triable, the case was committed by the learned Magistrate to the Court of the learned Sessions Judge, Morigaon and accordingly the Sessions Case No. 79/2001 was registered.
4. The learned Sessions Judge after hearing the parties framed charges against the accused person under the aforesaid section of law and proceeded with the trial. During the course of trial the prosecution examined as many as 5 witnesses whereas the defence examined none. The learned Sessions Judge after conclusion of the trial and on meticulous examination of the statement of the prosecution witnesses and other materials on record acquitted both the accused persons vide judgment and order dated 5-10-2002. While acquitting the accused persons, the learned Sessions Judge also observed that the informant/petitioner in collusion with high ranking officer prepared the false charge against both the accused persons of committing offence under Section 399, IPC read with Section 25(1)(a)/27 of the Arms Act and accordingly thought it fit to pass a compensatory order as according to the learned Sessions Judge by filing the ejahar the petitioner has compelled both the accused to defend themselves in false charge before the Court from 22-9-1998 to till the date of their acquittal. By the said order a Miscellaneous Case under Section 250, Cr. P.C. was registered and show cause notice was issued to the petitioner to explain as to why a compensatory order should not be passed against him.
5. On the basis of the aforesaid order, the case being Criminal Misc. Case No. 179/ 2002 was separately registered., The petitioner pursuant to the notice issued to him, submitted his reply to the show cause notice. The learned Sessions Judge vide judgment and order dated 27-11-1992, upon consideration of the materials on record and after hearing the parties, held the petitioner liable to pay compensation to the accused person Rs. 1000/- each, in default, to undergo rigorous imprisonment for one month. The aforesaid order has been challenged in this revision petition.
6. Mr. J. M. Choudhury, learned Senior Counsel appearing for the petitioner has submitted that the impugned judgment and order having been passed in total non-compliance of Section 250, Cr. P.C. by not considering the reply to the show cause notice and without considering his defence is bad in law and is liable to be set aside.
7. Returning the aforesaid submission Mr. P. C. Gayan, learned Addl. Public Prosecutor, Assam submitted that although there is no specific mention of consideration of the reply to the show cause notice filed by the petitioner, the learned Sessions Judge in fact considered the entire matter both for and against the petitioner and no prejudice has been caused to him and accordingly no illegality has been caused in passing the impugned order.
8. I have carefully considered the rival submissions of respective parties. In the light of the aforesaid submissions of the parties, the question now arises as to whether the learned Sessions Judge has complied with the provisions of Section 250, Cr. P.C. in passing the impugned order or not. For the sake of convenience, we may quote the provisions of Section 250, Cr. P.C. which reads as under ”
“250. Compensation for accusation without reasonable case –
(1) If, in any case instituted upon complaint or upon information given to a police officer or to Magistrate, one or more persons is or are accused before a Magistrate or 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 there was no reasonable ground for making the accusation against them or any of them, 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 cause as aforesaid.
(2) The Magistrate shall record and consider any cause which such complainant or informant may show, and if he is satisfied that there was no reasonable ground for making the accusation, may, for reasons to be recorded, make an order that compensation to such amount, not exceeding the amount of fine he is empowered to impose, as he may determine, be paid by such complainant or informant to the accused or to each or any of them.
(3) The Magistrate may, by the order directing payment of the compensation under sub-section (2), further order that, in default of payment, the person ordered to pay such compensation shall undergo simple imprisonment for a period not exceeding thirty days.
(4) When any person is imprisoned under sub-section (3) the provisions of Sections 68 and 69 of the Indian Penal Code, shall, so far as may be, apply.
(5) 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.
(6) A complainant or informant who has been ordered under sub-section (2) by a Magistrate of the second class to pay compensation exceeding one hundred rupees, may appeal from the order, as if such complainant or informant had been convicted on a trial held by such Magistrate.
(7) When an order for payment of compensation to an accused person is made in a case, which is subject to appear under subsection (6), 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.
(8) The provisions of this section apply to summon cases as well as to warrant cases.
9. A reading of the afore-quoted Section 250, Cr. P.C. indicates that existence of the following conditions are necessary before passing an order of compensation against a person.
(a) a case must be instituted upon a complaint or upon information given to a Police Office or to a Magistrate;
(b) the Court must be satisfied that there was no reasonable ground for making accusation;
(c) the action must be taken simultaneously with the discharge or acquittal of the accused by calling upon the complainant forthwith to show cause as to why compensation should not be awarded. (d) before the, compensation can be granted, sufficient time should be allowed to the person to show cause and the final order of acquittal or discharge should show that the prosecution case was clearly false and vexatious. The enquiry contemplated under Section 250 Cr. P.C. is summary in nature.
10. Mr. Choudhury, learned counsel appearing for the petitioner has strenuously urged that although by order dated 5-10-2002 show cause notice was issued to the petitioner as to why he should not be imposed compensation under Section 250 Cr. P.C. and although the petitioner duly submitted his reply on 16-11-2002, the learned Sessions Judge did not take note of the same and passed the impugned order without considering the defence of the petitioner.
11. I have perused the connected records. The record disclose that on 16-11-2002 the petitioner submitted his reply to the show cause notice issued to him under Section 250, Cr. P.C. and the said application contains the endorsement of the learned Sessions Judge, but the impugned order dated 27-11-2002 does not disclose that the said reply of the petitioner was at all considered by the learned Judge. In fact, the defence of the petitioner has not been taken into consideration and the impugned order was passed without taking note of the reply filed by the petitioner. From the provisions of law, alluded hereinabove, there is no doubt that the learned Court is required to record and consider the cause shown by the petitioner before awarding the order of compensation. The aforesaid requirement of law contained in Section 250(2) Cr. P.C. is mandatory in nature. In fact the said provision is in consonance with the fair procedure to be adopted against a person found to be guilty in such a case. The requirement of Section 250(2) involves consideration of the materials placed before the Court to satisfy him whether there was any reasonable ground to make accusation and that can be done after recording and considering the statement in reply filed by the complainant or informant to the show cause notice issued to him. The aforesaid provisions being related to penal statute is to be strictly construed. According to Maxwell the strict construction of penal statute seems to manifest itself in four ways :
(a) in the requirement of express thing for the creation of an offence; (b) in interpreting strictly words setting out element of offence; (c) in requirement of fulfilment of the later statutory condition precedent to the infliction of punishment; and (d) in insisting on the strict observance of the technical provisions concerning criminal procedure and jurisdiction.
(Maxwell on Interpretation of Statutes – 12th Edn. page 239-240)
12. The language of Section 250, Cr. P.C. leaves no room for doubt that the issuance of show cause notice to the person against whom the proceeding for compensation is initiated and consideration of the reply submitted by him is a condition precedent for awarding compensation. From a bare perusal of the impugned order, I find the learned Sessions Judge in passing the impugned order has not followed the aforesaid condition precedent.
13. In view of the aforesaid discussion and provisions of law noted above, I have no hesitation to hold that the impugned order suffers from fundamental defect of non-consideration of the reply submitted by the petitioner, thereby violating the necessary condition precedent for awarding compensation for accusation without reasonable cause under Section 250, Cr. P.C. Further, non-consideration of the said reply while passing the impugned order, also amount to violation of the basic principles of natural justice and fair play, which is inherent in the Code. Accordingly, the impugned order is not sustainable in law and is set aside and quashed.
The matter is remanded back to the learned Sessions Judge, Marigaon who shall pass appropriate order afresh in accordance with law and taking note of the reply submitted by the petitioner on 16-11-2002. The petitioner will appear before the learned Sessions Judge on 17-3-2005 for getting necessary instructions.
The revision petition stands allowed and the Registry is directed to send down the lower Court record forthwith.