JUDGMENT
Mukerji, J.
1. This rule has been issued to show cause why an order passed by Mr. S.C. Guha, Magistrate, 2nd Class, of Munshiganj, on the petitioner to pay Rs. 50 as compensation to the accused in a case in which the petitioner was the complainant should not be set aside upon ground 1 stated in the petition. Ground 1 in the petition is in these words: For that in the absence of any finding to the effect that the case was a false and frivolous or vexatious one recorded by the trying Magistrate after reviewing the cause shown, the order under Section 250, Criminal P.C, is not warranted in law and it is liable to be set aside.
2. The facts are these: The Magistrate in the last paragraph of his judgment by which he discharged the accused, persons and made the order complained of in this rule observed as follows:
Considering the whole facts and circumstances of the case and the evidence adduced I find that the case is false and it is vexatious at the same time. I accordingly find that there are no materials for a charge and I accordingly discharge the accused under Section 253, Criminal P.C. and call upon the complainant to show cause why he should not pay compensation to the accused under Section 250, Criminal P.C. The complainant has shown cause and he has traversed the points in his explanation which have been discussed in detail above. I have nothing more to add to show that his case is not a true one as alleged by him. I accordingly direct that the complainant should pay Rs. 50 as compensation to the accused under Section 250, Criminal P.C. in default to suffer simple imprisonment for two weeks.
3. The order complained of, it may be conceded at once, is quite in form being a combination of two orders by which the accused was ordered to be discharged and the petitioner was ordered to pay compensation. From the order, however, it appears that what the learned Magistrate did was that when he made up his mind to discharge the accused being of opinion that the case against him was false and vexatious, he called upon the petitioner to show cause why compensation should not be ordered. On that the complainant showed cause and the Magistrate took the cause that was shown into consideration and then wrote out his entire judgment in the last paragraph of which, quoted above, he discharged the accused and ordered the complainant to pay compensation. That is quite clear from the words in the passage quoted above, namely:
The complainant has shown cause and he has traversed the points in his explanation which have been discussed in detail above. I have nothing more to add to show that his case is not a true one as alleged by him.
4. What the law contemplates under Sub-section (1), Section 250, is that when the Magistrate makes an order of discharge and is of opinion that the accusation against the accused is false and either frivolous or vexatious, he by his order of discharge, may call upon the complainant forthwith to show cause why he should not pay compensation to the accused. The law, therefore, under Sub-section (1) contemplates an order of discharge simultaneously with which may be passed an order calling upon the complainant forthwith to show cause. Sub-section (2), Section 250, Criminal P.C. then says:
The Magistrate shall record and consider any cause which the complainant may show and if he is satisfied that the accusation was false and either frivolous or vexatious may direct that compensation should be paid and should he make such an order he has to record his reasons for passing it.
5. Under these two sub-sections therefore the law contemplates two different orders, but in practice what often happens is that the order of discharge is not written out until after the Magistrate has given the complainant an opportunity to show cause. This is exactly what has taken place in the present case.
6. It has been argued on behalf of the petitioner that the provisions of this section are mandatory and these provisions have got to be strictly complied with. This proposition cannot be disputed. But what is to be seen is whether all that the law enjoins the Magistrate to do as a matter of substance has been done in the present case. The law evidently contemplates firstly that the Magistrate at the time when he makes up his mind to discharge the accused, should also be of opinion that the case is a false one and is also either frivolous or vexatious and that it is a case in which he should proceed further for the purpose of awarding compensation; and secondly that when cause is shown by the complainant he has got to take that cause into consideration and then on consideration of the cause that is shown he has to ask himself again as to whether the case is really a false one and at the same time either frivolous or vexatious, and if he still sticks to that opinion then he can under the law make an order directing compensation. In the present case the passage from the judgment quoted above shows that the Magistrate was clearly of opinion that the case was false and vexatious. He says in the order that he has taken the explanation which the complainant offered that the case was a true one into consideration. He has then said that he has nothing more to add to show that the case was not a true one as was alleged in the explanation. He then proceeded to direct the complainant to pay compensation to the accused. Under these circumstances although, strictly speaking, two orders ought to have been recorded, one under Sub-section (1) and the other under Sub-section (2), I am unable to find that any of the requisites was wanting on the part of the learned Magistrate.
7. My attention has been drawn to three reported decisions to which I shall presently refer. One of them is the case of Sekh Jonah Ali v Hira Lal Pasban [1907] 11 C.W.N. 62 S.N. What happened in that case was that the provisions of Clause (a), Section 250, as it stood in the Code before the amendment of 1923 were overlooked by the Magistrate. The Magistrate after calling upon the complainant to show cause why he should not be ordered to pay compensation and on receiving the cause thus shown, merely stated that in his opinion the cause’ shown by the complainant was unsatisfactory and he did not place on the record what was the cause shown as he was bound to do under the law. In the present case the Magistrate has recorded in the order the substance of the cause that was shown, namely that the case was a true one. He has taken that fact into consideration and notwithstanding the cause thus shown he has adhered to the opinion which he previously formed, namely, that the case was a false and vexatious one.
8. The next case referred to, on behalf of the petitioner is the case of Thadiappun v. Veeraperumal Thevan . In that case as far as can be made out from the order of the Magistrate that is quoted in the judgment of the High Court, the Magistrate did not, when discharging the accused state that the case was a false and frivolous or vexatious one. He stated that as no case was made out against any of the accused he discharged them. He next added that two of the accused had been falsely added as accused persons without making any reference to the other element that is absolutely necessary to justify an order under Section 250, Criminal P. C, namely that the case was a frivolous or vexatious one; and when cause was shown he merely stated that the complainant had no sufficient cause to show. Upon these materials the Magistrate made an order under Section 250. In that case the High Court observed that the recording of the reasons for ordering compensation is almost a condition precedent to the proper exercise of the power under the section. That case bears no analogy to the case now before me.
9. Lastly, reliance has ‘been placed upon a decision of the Patna High Court in the case of Deo Narain Mahatav. Chhatoo Raut a report of which will be found in A.I.R. 1922 Pat. 157 in which it is said that the direction contained in proviso (a), Section 250 of the Code (as it stood before this amendment of 1923; which was to the effect that the Magistrate shall record any objection which the complainant or informant may urge against the making of the direction is mandatory and the non-compliance of which vitiates the order. To the proposition of law as laid down in that case no exception can possibly be taken. But the facts of that case were that the Magistrate did not state in his order what the objection of the complainant was, nor was there anything in his order to show that he had considered such objection. He simply said in his judgment that the complainant filed a petition showing cause and that the cause shown was not reasonable at all. The case therefore stands on a widely different footing from the case which I have now to deal with.
10. I am of opinion upon the materials which the order of the Magistrate discloses and the reasons which he has given and recorded in that order, it cannot be said that the formal defect that there exists in the recording of the order has substantially contravened the provisions of the law. The Rule therefore, in my opinion, should be discharged and I order accordingly.
