Gujarat High Court

Kiranbhai Morarbhai Patel vs State Of Gujarat on 8 September, 2023

Bench: M. K. Thakker

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL REVISION APPLICATION NO. 184 of 2015


FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE M. K. THAKKER

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                        KIRANBHAI MORARBHAI PATEL
                                  Versus
                        STATE OF GUJARAT & 4 other(s)
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Appearance:
MR APURVA R KAPADIA(5012) for the Applicant(s) No. 1
MS VRUNDA SHAH APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2,3,4,5
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    CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                              Date : 08/09/2023

                              ORAL JUDGMENT

1. This Revision is filed under Section 397 read with Section

401 of the Code of Criminal Procedure, challenging the order

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passed by learned Principal District and Sessions Judge, Narmada

dated 31.1.2015 in Criminal Appeal No.9 /2014 whereby learned

Sessions Judge was pleased to acquit the accused No.2 to 5

herein and further imposed the fine of Rs.1000/- for filing the

false complaint for which the accused had undergone agony of

trial.

2. Being aggrieved and dissatisfied with the aforesaid

impugned order to the effect that, learned Sessions Judge has

imposed fine of Rs.1000/- to the petitioner, present revision

application came to be filed.

3. Brief facts arising from the present revision are as under:

3.1 On 28.7.2009, the complaint came to be lodged by the

present petitioner for the offence punishable under Sections

294(A), 504,506(2) of IPC and Section 135 of the Bombay Police

Act against the respondent Nos.2 to 5 before the Rajpipla Police

Station, being II-C.R.No.149 of 2009. After conclusion of the

investigation, the charge-sheet came to be submitted before the

competent Court for the alleged sections. Same was registered

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as Criminal Case No.2197 of 2009 and after recording evidence

and considering the submissions, learned trial Judge was pleased

to pass an order on 19.6.2014 acquitting respondent Nos.2 to 5

herein by giving benefit of doubt for the alleged sections.

4. Being aggrieved and dissatisfied with the order passed by

the learned Chief Judicial Magistrate dated 19.6.2014,

respondent Nos.2 to 5 - original accused preferred the Criminal

Appeal No.9 of 2014 and prayed that instead of giving benefit of

doubt, the clean acquittal is required to be given and appropriate

fine is required to be imposed for filing a false complainant.

Learned District and Sessions Judge, vide an order dated

31.1.2015, was pleased to modify the order passed by learned

Chief Judicial Magistrate dated 19.6.2014 and given clean

acquittal to the respondent Nos.2 to 5 - original accused and

imposed fine of Rs.1000/- for filing the false prosecution.

Imposing of fine of Rs.1000/- is the subject matter of this

revision.

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5. Heard learned advocate Mr.Apurva Kapadia, for the

applicant and Mr.Jigneshkumar Mistri party in person,

Respondent No.4. As the competency certificate was denied by

the authority, party in person had submitted written submissions

with regard to the case, which is ordered to be taken on record.

Other respondents, namely, 2,3 and 5, though served, have

chosen not to appear before this Court.

6. Learned advocate Mr.Kapadia, draws the attention of this

Court with regard to the provisions of Cr.P.C. i.e. Section 250 and

submitted that the requirement of issuance of show cause notice

before ordering compensation was not followed by the learned

appellate Court while imposing the fine. By not following the

mandatory provision, learned appellate Court had not only

committed an error in imposing fine but has also not followed the

principal of natural justice, required under Article 19 and 14 of

the Constitution of India. Learned advocate Mr.Kapadia, relies on

the decision rendered by this Court in the case of Shah

Chandulal Gokaldas V/s. Patel Bladevbhai Ranchhodbhai

reported in 1979 (1) GLR 821 and in the case of Lathia

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Jechand Jadvaji V/s. State of Gujarat reported in 1979

GLHEL_HC 223355 and submitted that in absence of providing

hearing, which is mandatory in nature under section 250 sub-

section (1) imposing fine is dehors the provision and therefore,

prayed to allow this revision and quash the order of imposing

fine of Rs.1000/-.

7. On the other hand, Mr. Jigneshkumar Tank, party in person

submitted that because of the false prosecution the rigors of the

trial was faced and after considering the evidence on record,

learned appellate Court had rightly given the clear acquittal and

imposed the fine of Rs.1000/-, which ultimately ordered to

transfer with the Legal Aid Authority. Mr.Jigneshkumar Tank,

party in person stated in his written submissions that as there is

no apparent error of law or the facts, the learned appellate Court

had rightly imposed the fine of Rs.1000/- for which no

interference is required.

8. Considering the submissions, it is undisputed fact that

benefit of doubt was given by the learned trial Court after giving

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the detailed reasons. The learned appellate Court while giving

clear acquittal had reiterated the reasons given by the learned

trial Court while acquitting and giving the benefit of doubt, but

there is no any specific reasons, which is mentioned with regard

to giving the clear acquittal and imposing the fine of Rs.1000/-.

The judgment relied upon by Mr.Kapadia in which it is held that

before imposing fine, opportunity of hearing by giving the show

cause notice against the proposed order should be given and

then the order of imposing fine is to be passed. It is not only

requirement of Section 250 but it is a principal of natural justice

i.e. before passing any adverse order, opportunity of hearing is

must, which is to be complied with.

9. Section 250 provides as under;

Section 250. Compensation for accusation without reasonable cause.

(1) If, in any case instituted upon complaint or upon information 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 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

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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 (45 of 1860) 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 appeal under sub-section (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

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the expiration of one month from the date of the order.

(8) (8) The provisions of this section apply to summons-cases as well as to warrant-cases.

10. In the case of Lathia Jechand Jadavji V/s. State of

Gujarat order passed in Criminal Revision Application

No.516 of 1977 dated May 11, 1979 (Gujarat High Court), the

relevant para of the judgment relied by the learned advocate for

the applicant reproduced herein below:

3. Sub-section (1) and (2) of Section 250, with which we are concerned in the present application, read as under: "(1) If, in any case instituted upon complaint or upon information 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 there was no reasonable ground for making the accusations against them or any of them, the Magistrate by his order of discharge or acquittal, if the person upon his compliant 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 summons to him to appear and show cause as

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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". The principle object of this section is to discourage and deter persons from levelling accusations against others without reasonable ground. Without depriving the Magistrate of his power to initiate proceedings under section 340 of the Code, and without precluding the accused from taking action for malicious prosecution, this section empowers the MAGISTRATE, by whom the case is heard, to award compensation in a summary manner if he is satisfied that the compliant was lodged without reasonable ground, albiet the amount paid by way of compensation under this section has to be taken into any subsequent civil suit while fixing the amount of damages payable to such person.

Broadly speaking, the object of the section is two fold ; (i) to discourage and deter criminal proceedings against innocent persons without reasonable ground and, (ii) should such a, case arise, the Magistrate should exercise the power to compensate the victim there and then. In order that a Magistrate may exercise power under this section, the following conditions must exist: (a) the case must be instituted upon complaint or upon information given to a police officer or to a Magistrate (b) the offence must be triable by a Magistrate (c) the Magistrate, by whom the case is heard, is at the time of discharging or acquitting the accused, of the opinion that there was no reasonable ground for making the accusation and

(d) the person making the accusation is given an

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opportunity to show cause why he should not be ordered to pay compensation to the accused. If any of these conditions is not satisfied, the Magistrate's order awarding compensation under section 250 (2) of the Code would be unsustainable. It therefore becomes obvious that before a Magistrate callas upon the complainant to show cause why he should not be directed to pay to compensation to the accused, he must be of the opinion that the accusation levelled against the latter was without reasonable cause or ground, if he does not reach this tentative conclusion, he cannot call upon the complainant to show cause. At that stage, it is merely his 'opinion' that the accusation was without reasonable ground. But after cause is shown, he records his 'satisfaction' that there was no reasonable ground for levelling the said accusation was without reasonable ground. But after the cause is shown, he records his 'satisfaction' that there was no reasonable ground for levelling the said accusation and it is only after he is so satisfied that he can order payment of compensation to the accused. In the backdrop of this requirements of sub-section (1) of section 260 of the Code, I must examine the order of compensation passed by the learned Magistrate, which has been reversed by the learned Additional Sessions Judge is legally sustainable.

4....

5. The power under this provisions must be exercised with great care and in fit cases only and not in a light hearted manner as it entails penal consequences, non payment of compensation being punishable with imprisonment under Sub- Section (3) of Section 250 of the Code. Where a statue confers power, particularly one which entails penal consequences, Courts will confine the

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exercise of the powers to the strict letter of the statue. In order that a Magistrate may proceed under this section the formation of the opinion that the complainant had no reasonable ground for lodging the action is a condition precedent and if this sine-qua-non is not satisfied, no show cause notice can be issued. It must, therefore, appear from the record that the learned Magistrate had formed such an opinion before he decided to issue a show cause notice. To argue the fact that such a notice was issued implies the formation of the necessary opinion, is to place the cart before horse. There is no guarantee that the Magistrate had applied his mind and had formed the necessary opinion before issuing the show cause notice for the possibility of the Magistrate having passed such an order mechanically on the application of the accused cannot be ruled out. The parliament in its wisdom has left the decision whether or not to take action under this provision to the judicious discretion of the trial Magistrate who must independently of the request of the accused apply his mind to the question and act only if he is of the opinion that the accusation was made without reasonable ground, but not otherwise. If he acts without application of mind in a mechanical manner or reject of an application from the accused, he clearly acts in contravention of sub-section (1) of section 250 and commits a breach of trust reposed in him by parliament. What then is guarantee that he has applied his mind to the problem if we are to infer the same from the mere fact of the issuance of a notice? The guarantee of his having applied his mind before issuing the show cause notice is the information of opinion that the accusation was without reasonable ground. The formation of such an opinion must appear on the face of the record and cannot be left to inference. I am therefore, of the opinion that the trial Magistrate must - while discharging or

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acquitting the accused, expressed in unmistakable terms that in his opinion the accusation was levlled without reasonable ground before calling upon the complainant to show cause. In the instant case, the facts stated earlier clearly indicate that the learned Magistrate had no desire whatsoever to issue a show cause notice under under sub-section (1) of Section 250 of the Code but he did so merely on receipt of the application from the accused persons. I am therefore, of the opinion that the learned Additional Sessions Judge was right in reaching the conclusion that the learned Magistrate had failed to show the requirements of Sub-Section (1) of Section 250 before issuing the summons to show cause why the complainant - first opponent herein, should not be directed to pay the compensation to the accused persons.

11. This Court is of the opinion that before penalizing the

person, fair and reasonable opportunity is required to be given

imposing the fine is also one of the penal action. Therefore,

learned appellate Court committed grave error in imposing fine

without giving show cause notice and without providing the fair

and reasonable opportunity to explain the cause mentioned in

the notice. Therefore, the same is required to be quashed.

12. In view of the above, the order passed by learned appellate

Court imposing fine of Rs.1000/- is required to be quashed.

Hence, this Revision is allowed. Rule made absolute.

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