Judgment:
ORDER
Kulkarni, J.
1. This is a revision by C.W.1 Bathla, against the order dated August 29, 1987, passed by the Special Judge, Metropolitan Area, Bangalore, In C.C.No. 1 of 1987 issuing a notice to him under Section 250(1) Cr.P.C. to show cause as to why he should not be ordered to pay compensation to the accused.
2. The parties have been referred to with reference to their position before the Special Judge.
3. A-1 is a Company registered under the Companies Act and has got its Head Office at Calcutta and Branch Offices at Bangalore, Nagpur, New Delhi and Hyderabad. A 1 has been carrying on the business of manufacturing aluminium pipes and sprinkler equipment. It also deals in stocking, supplying, distributing and selling Thin Walled Mild Steel Galvanised Pipes manufactured by A-8 at its factory at Secunderabad. A-8 is also a Company registered under the Companies Act and promoted by A-1 Company. It is manufacturing Galvanised Pipes for sprinkler irrigation equipment under Industrial Licence No. 225 (82) dated 29-11-1982 issued by the Department of Industrial Development, Ministry of Industry, New Delhi, at their factory at Pattancheru, Medak District, Andhra Pradesh.
4. According to the prosecution, during 1985-86, A-1 to A-10 entered into a criminal conspiracy at Bangalore, Calcutta and Secunderabad to contravene the terms of the above mentioned licence dated 29-11-1982 by supplying Galvanised Pipes for conveying drinking water. They agreed to supply the said pipes to A-5 at the instance of A-1 represented by A-2 to A-4, for the purpose of using the said pipes for conveying drinking water. A-5 agreed to receive the said pipes for the purpose of sale to the prospective customers. A-6 and A-7 agreed to canvass the sale of aforesaid pipes to the prospective customers knowing that the pipes are being laid for conveying drinking water. A-7 and A-8 agreed to prepare project report also. A-2 to A-4, A-9 and A-10 got printed, published and distributed leaf lets canvassing for the sale of Galvanised Pipes for conveying drinking water among other uses, manufactured by A-8 on behalf of A-1. Thus, all the accused conspired to commit offences punishable under Section 7(2) of the Essential Commodities Act, 1955 read with clause 3 of Mild Steel Tubes (excluding Seamless Tubes and Tubes according to API Specifications (Quality Control) Order, 1978 and Section 24(1)(iv) of the Industrial Development Regulation Act, 1951 read with Rules 15(2) and 16 of the Registration and Licensing of Industrial Undertakings Rules, 1952 read with Section 120B I.P.C.
In pursuance of the said conspiracy, A-2, A-4, A-9 and A-10 being in charge of and responsible for the conduct of the business of A-8 Company contravened the Industrial Licence (I.L) No. 225(82) by supplying/distributing/selling the aforesaid Galvanised Pipes for conveying drinking water instead of using the pipes for sprinkler irrigation equipment.
In pursuance of the said criminal conspiracy, A-5 secured the pipes manufactured by A-8 through A-1 and sold them knowingly that the Galvanised Pipes were not within the prescribed standards of clause 3 of the Order inasmuch as the Galvanised Pipes so supplied by A-1 and A-8 Companies for the purpose of sale to A-4 were below the prescribed standards mentioned in Table I to IS-1239 (Part I), 1979 Specification for Mild Steel Tubes, Tublers and Wrought Steel Fittings. Further A-2 to A-4 representing A-1 and A-8 in collusion with A-5 to A-7 published leaflets canvassing and promoting the use of the aforesaid non-standard pipes for use in conveying drinking water. Further, in pursuance of the said conspiracy, A-6 and A-7 prepared during July 1985 a project report for drawing water from Honnammanahalla through Hydrams and supply of the same to Chickmagalur town for drinking purposes through Galvanised Pipes.
5. The present revision petitioner C.W. 1 filed a private complaint in the Court of the Special Judge enumerating all the said facts and requested the Special Judge to refer the matter to C.B.I. under Section 156 Cr.P.C. The Special Judge referred the matter to the C.B.I. for investigation under Section 156 Cr.P.C.
6. The C.B.I. on carrying out an investigation into the complaint referred to it under Section 156(3) Cr.P.C., laid a charge sheet against the present accused for the said various offences.
7. All the accused appeared before the Special Judge, Metropolitan Area, Bangalore City. I.A.Nos. 17 to 19 were filed under Section 205 Cr.P.C. for exemption of Accused Nos.2 to 4 and 9 and 10. I.A. No. 26 was filed by the Counsel for A-2 and A-3 seeking permission to raise additional grounds in support of their application filed under Section 205 Cr.P.C.
8. While hearing the said applications, it appears that a submission was made to the Special Judge that there were no grounds at all to put accusations to the accused and that the accused were entitled to be discharged under Section 258 Cr.P.C. The Special Judge thought that before he could make any order on I.A.Nos. 17 to 19 and 26 and 51 it would be better if the prosecution case as available from the material on record, was considered. He was of the opinion that the consideration of the material was necessary in order to find out whether there were any reasonable grounds to put accusations to the accused. Hence he posted the case for hearing the accused as well as the prosecution regarding that aspect of the matter. As can be seen from the material on record, the C.B.I. prosecutor was assisted by Shri Devadas. At that stage, I. A. No. 51 was also filed by Shri Devadas filing written arguments.
9. The Court below by its detailed order dated 29-8-1987 found that no prima facie case had been made out by the prosecution and that there was want of good faith on the part of the prosecution for prosecuting the accused persons. So taking that view, it passed an order under Section 258 Cr.P.C. releasing the accused persons and thereby discharged the accused persons. While so doing, it also thought that there was want of good faith on the part of the prosecution in prosecuting the accused and that there was no prima facie case made out by the prosecution. Taking that view, it issued a show cause notice under Section 250(1) Cr.P.C. to C.W.1 Bathala to show cause as to why he should not be ordered to pay compensation to the accused persons.
10. The Court below under the said circumstances, thought that it was not necessary to pass any specific orders on I.A.Nos. 17 to 19 and dismissed the same.
11. The present revision petitioner being aggrieved by the order of issuing show cause notice under Section 250(1) Cr.P.C. has approached this Court with the present revision.
12. The office had raised an objection that as the accused persons had not been made parties to the present revision, the revision was incompetent. Shri Devadas at that stage referred me to a decision in RASHEED MUHAMMAD KHAN AND ANOTHER v. CROWN, AIR 1927 - Lahore 357. It was held in the said case that the question as to whether compensation should be awarded or not was a matter between the Court and the complainant and therefore the accused persons were not necessary parties to the proceedings initiated under Section 250(1) Cr.P.C. Shri Devadas relying on the said case submitted that the present accused persons need not be made parties to the revision. After hearing his arguments and after looking into the said Lahore case, the office objection was over ruled by me. The matter had been posted for final hearing after securing papers and after issuing notice to the Central Government Standing Counsel.
13. At this stage, A-2, A-3 and A-4 filed an application to implead them and seeking permission to participate in the present revision itself. A-2, A-3 and A-4 have been represented by Shri N.K. Potdar of Calcutta High Court. A-1, A-5, A-6 and A-7 filed similar applications through Shri S. Gopala Rao. A-8, A-9 and A-10 filed similar applications through their Counsel Shri M.T. Nanaiah. So these three petitions I.A.Nos.ll to IV have been filed by all the 10 accused persons to implead them and seeking permission to participate in the present revision itself.
14. Extensive arguments were addressed by the learned Counsel Shri Potdar, Gopal Rao and Nanaiah. Shri Devadas appearing for the revision petitioner seriously objected to the said petitions and contended that the accused persons had no right to be impleaded and to participate in the present revision proceedings.
15. The Central Government Standing Counsel Shri Shivappa also submitted that under Section 250(1) Cr.P.C. the only person that could be proceeded against was the person who filed the complaint and that the C.B.I. cannot be ordered to pay compensation under Section 250(1) Cr.P.C. According to Shri Shivappa, the accused persons had not got a right to participate in the present proceedings at this stage.
16. Section 250 Cr.P.C. reads as:-
'(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 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 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 the expiration of one month from the date of the order.
(8) The provisions of this Section apply to summons-cases as well as to warrant-cases.'
17. The conditions for calling upon the complainant or the informant to show cause under Section 250(1) Cr.P.C. are:-
(1) A case must be instituted upon complaint or upon information given to a police officer or to a Magistrate.
(2) The offence must be triable by a Magistrate.
(3) 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 against the accused or any of them.
The learned author Shri Durga Das Basu in his Criminal Procedure Code, 1973, (1979 Edition) has stated also on pages 625 and 626 as:-
'1. The conditions for calling upon the complainant or informant to show cause under the sub-section are -
(i) The parent case must have been instituted (a) on complaint, or (b) on information given to a police officer or a Magistrate.
It applies to 'any' such case, whether tried under the summons or warrant procedure (sub-section (8), and even when tried summarily (Basava (1887) 11 Madras 142) under Chapter XXI.
(ii) Upon such complaint or information, a person or persons is accused before a Magistrate of an offence triable by a Magistrate.
For 'offence triable by a Magistrate', we have to refer to column 6 of the First Schedule, post.
It follows that the Section is not applicable to (i) an offence exclusively triable by a Court of Session; (ii) a proceeding under Section 107, ante (Ram v. Janki, (1923) 45 All. 363; Govind, (1900) 25 Bom. 48).
(iii) The Magistrate by whom such case is heard discharges or acquits all or any of the accused.
The Section has no application unless there is an order of acquittal or discharge after a hearing of the case, e.g -
(1) Where the complaint is dismissed under Section 203 (Bhagwan v. Harmukh, (1906) 29 All. 137).
(2) Where the offence is compounded (Harkishandas, (1901) 3 Bom. L.R. 1056).
(3) Where a petition under Section 97, for issue of search-warrant on the allegation of illegal confinement, is eventually dismissed on the basis of the lawyer's endorsement that he does not press for it. (Sreedharan v. State of Kerala, (1971) K.L.R. 332).
(iv) While discharging or acquitting the accused, the Magistrate forms the opinion that there was no reasonable ground for making the accusation.
Wherefore, therefore, the Magistrate's consideration of the prosecution evidence gave no indication that he entirely disbelieved the prosecution case, proceeding under Section 250 was unwarranted. (Bijoy v. State : AIR1958Cal121 ).
(v) If the foregoing conditions are satisfied, it is that Magistrate who had discharged or acquitted the accused, who may issue a show cause notice under sub-section (1), and after considering such cause shown, order payment of compensation, under sub-section (2).
An Appellate or Revisional Court cannot make an order under this Section, as an original Court. (Narain, : AIR1954Pat145 ; Mehi v. Mungal, (1911) 39 Cal. 157 F.B.).
(vi) Such Magistrate must, in his very order of discharge, record his opinion that 'there was no reasonable ground for making the accusation' (Ramsagar v. Chandrika : AIR1961Pat364 ) and his order to issue notice to show cause on the complainant or informant must also be made along with that order of discharge or acquittal, so that an independent proceeding under Section 250 shall not be valid (Safdar, (1903) 25 All. 315).'
18. Therefore it becomes clear that the Magistrate after finding that there was no reasonable ground for making accusations against the accused or any one of them may while acquitting or discharging the accused persons, issue a show cause notice to the complainant to show cause as to why he should not be ordered to pay compensation. The wordings used in Section 250(1) Cr.P.C., no doubt, in my opinion, show that the act of issuing show cause notice by the Magistrate to the complainant is only for the purpose of ascertaining from the complainant as to whether he has any cause to show as to why he should not be ordered to pay compensation. Therefore at the stage of issuing show cause notice and even at the stage of considering the cause shown by the person to whom the notice is issued the only person that is entitled to be heard is the complainant or informant to whom the notice is ordered. The accused do not come into picture at the time of issuing show cause notice or at the time of considering the cause. The accused comes into picture only after the complainant files objections to the show cause notice and shows the cause and after the complainant is heard and after the Court passes an order awarding compensation. Once the compensation is awarded under Section 250(1) Cr.P.C. then the accused persons would have a right to get the amount and it is only at that stage that the accused persons would be having interest in the matter. So long as the amount of compensation is not determined, it cannot be said by any stretch of imagination that the accused persons have got any interest in the proceedings.
19. The learned Counsel Shri Potdar submitted that the accused persons had got a right to evince interest and participate in the proceedings because ultimately it is the accused persons that would be entitled to get compensation. The matter of issuing show cause notice and hearing the cause that might be shown, is entirely between the Magistrate and the person to whom notice is issued. The Magistrate after hearing the cause, might discharge the notice while hearing the cause, it is not open to the accused to participate in the proceedings. He has no right to claim that he too should be heard at that stage. As already stated above, the accused persons have no right to make any submission till the amount of compensation is awarded. They have no interest till the determination of the compensation amount. Once the amount of compensation is determined, the accused persons would have interest in the matter and it is only from that stage onwards that the accused persons would be entitled to put in appearance to receive the amount of the compensation. Till then the accused persons, in my opinion, would not have any right to participate in the proceedings filed under Section 250(1) Cr.P.C. or till the determination of the compensation amount
20. The learned Counsel Shri Potdar for A-2, A-3 and A-4 submitted that the accused persons also should be heard not only at the stage immediately after the issue of show cause notice but also even before the amount of compensation was determined. According to him, if the accused persons were not given an opportunity to participate in the proceedings, the principles of natural justice would be violated and all the proceedings held without giving an opportunity to the accused would smack of impropriety and would be void. The question of violation of the principles of natural justice would come into picture only when the accused has got atleast a remote interest in the matter and if the interest of the accused persons is going to be affected. As already shown above by me, the accused has no interest at all till the amount of compensation is determined. As to whether the Court would be satisfied with the objection filed or cause shown by the complainant to the show cause notice, would be entirely a matter between the Court and the complainant. Therefore the argument of the learned Counsel Shri Potdar that the principles of natural justice demanded that the accused should be given an opportunity to participate in the proceedings or even at this stage, in my opinion, cannot be accepted.
21. Shri Potdar then urged that if the complainant had got a right to come in revision against the order of issuing show cause notice, the accused person also would have a right to be heard or have got a right of revision, if the show cause notice is to be discharged. As already indicated above, the accused have no right to participate in the proceedings till the amount of compensation is determined. Therefore the question of accused having a right to come in revision against any such order will not arise till the stage of determining the compensation is over.
22. That the complainant has got a right to come in revision against the order of issuing show cause notice is well recognised by this Court in H.T. GANGAL v. NARAYAN AND ANOTHER, 1970(2) Mys. L.J. 459. This Court has held in the said case as:-
'In the interests of justice, to prevent abuse of process and to prevent unnecessary harassment of aggrieved party, the High Court can interfere in revision regarding an order to show cause passed under Section 250(1) Cr.P.C. without the petitioner having to wait painfully until the stages of clauses (2) and (3) of that Section. The Magistrate must record a definite finding in his order of discharge or acquittal that the accusation against the accused was false and either frivolous or vexatious. The mere failure of the prosecution would not mean that the complaint was wilfully' false '
(Underlining is mine)
23. Therefore the present revision filed by the revision petitioner against the order of issuing show cause notice under Section 250(1) Cr.P.C. is clearly competent and this Court has got the jurisdiction to entertain a revision against such an order. Therefore it is futile to contend at this stage that the accused persons also should be permitted to participate in the proceedings. Hence the applications filed by A-1 to A-10 for impleading them and/or seeking permission to participate in the proceedings, are rejected.
24. The learned Counsel Shri Devadas attached the order issuing show cause notice on various grounds which would be discussed in the following paragraphs.
25. Section 258 Cr.P.C. under which the present accused persons have been discharged by the Court below reads as:-
'In any summons, case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.'
(underlining is mine)
The Special Judge in this case, has not even put the accusations to the accused and has not recorded any evidence. Therefore the order that has been passed by the Special Judge would come within the ambit of 'and in any other case, release the accused'.
26. The meaning of the words 'release of the accused' within the meaning of Section 258 Cr.P.C. is entirely different from the meaning of discharge, which normally takes place after recording of the evidence in the case of private cases. The Legislature has in its wisdom used the word 'and such release shall have the effect of discharge' If the Legislature intended that the accused should or could be discharged forthwith, it would not have used the words 'release the accused, and such release shall have the effect of discharge.' The only relief to which the accused are entitled under Section 258 Cr.P.C. if no evidence is recorded, is that of release and such release within the meaning of Section 258 Cr.P.C. would have the effect of discharge. The release of the accused under Section 258 Cr.P.C. carries with it the effect of discharge If such a release has got the effect of discharge, it only means that the further action with the permission of the Court may be taken by the complainant under the law. That is the only meaning which can be attached to the word 'release' and such release having the effect of a discharge. Therefore simply because the word 'discharge' has been used in Section 258 Cr.P.C. it does not mean that the accused persons have been discharged within the meaning of Section 250 Cr.P.C. or the other provisions of the Criminal Procedure Code.
27. Section 320(8) Cr.P C. reads as:-
'The composition of an offence under this Section shall have the effect of an acquittal of the accused with whom the offence has been compounded.'
28. The learned author Shri Mitra in his Criminal Procedure Code, 16th edition, page 2/5 13 has stated as:-
'Compensation can be awarded under Section 250 only when the Magistrate himself acquits the accused after trial. But a composition of an offence has in itself the effect of acquittal and no trial is held; and therefore no compensation can be awarded where the offence is compounded under this Section. Proceedings under Section 250 are inapplicable to a case where the accused person himself has, by an agreement with the prosecutor, arrived at a settlement and been a party to the compounding of the offence.'
It has been further stated on the same page that a composition has the effect of an acquittal and not of a discharge and is therefore a complete bar to the prosecution of the accused for the same offence. Therefore the words 'effect of discharge' used in Section 258 Cr.P.C. can be construed in the light of the words used 'effect of acquittal' in Section 320(8) Cr.P.C.
29. Section 250(1) Cr.P.C. would come into play if the Magistrate after hearing the accused and recording the prosecution evidence, discharges or acquits all or any of the accused persons. Therefore Section 250(1) Cr.P.C. would come into play only after the complainant or the prosecution adduces the evidence in support of his or its case and till that stage it cannot be said that the accused is entitled to the discharge or acquittal. The question of discharge or acquittal within the meaning of Section 250(1) Cr.P.C. arises only after the evidence has been adduced by the parties. Therefore the word 'discharge' used in Section 250(1) Cr.P.C. has got a different connotation from the word 'release' which has the effect of discharge used in Section 258 Cr.P.C. Therefore the release of the accused under Section 258 Cr.P.C. will have only the effect of discharge and would not entitle the Court to pass on order under Section 250(1) Cr.P.C. calling upon the complainant to show cause as to why he should not be ordered to pay compensation. The above view that I have taken gets support from the decision in A. VENKATARAMAIAH v. CHANNAIAH AND OTHERS, AIR 1955 Mysore 144. The late Justice Hombe Gowda, as he then was, held in the said case as:
'Where all the witnesses cited by the complainant had not been examined before the accused were acquitted, the order passed by the Magistrate directing payment of compensation to the accused persons is illegal.'
The decisions reported in PARTHASARATHI NAICKER v. T. KRISHNASWAMI AYYAR AIR 1928 Madras 169 and HALAPPA v. STATE OF MYSORE AIR 1953 Mysore 91 have been relied in the said case. Therefore the Special Judge, in my opinion, committed an error while releasing the accused under Section 258 Cr.P.C. which might have, the effect of discharge, in issuing a notice under Section 250(1) Cr.P.C. to the revision petitioner to show cause as to why he should not be ordered to pay compensation to the accused persons.
30. The present case has arisen out of a charge sheet filed by the C.B.I. to which the complaint filed by the revision petitioner had been referred to by the Special Judge under Section 156(3) Cr.P.C. Once the complaint is referred under Section 156(3) Cr.P.C. to any police authority, the complaint loses all the characteristics of a private complaint and it partakes the character of a challan by a police officer. This view taken by me is supported by the decision in SHIVANGOWDA AND ANOTHER v. VEERAPPA AND ANOTHER, AIR 1964 Mysore 129. The view that the private complaint once referred to police loses all the characteristics of a private complaint once, the charge sheet is filed, does not require any further authority. But, however, if my authority is required I have referred to the said decision of this Court.
31. Once a charge sheet is filed, it would be highly (sic)nappropriate and improper to issue a notice under Section 250(1) Cr.P.C. If show cause notices contemplated by Section 250(1) Cr.P.C. are to be issued in such cases where the charge sheets are filed, the very object of investigation and the very sanctity of the investigation and the very propriety of the investigation would be jeopardised. If show cause notice as contemplated under Section 250(1) Cr.P.C. is to be issued in such cases, it would affect the public policy underlying the investigation to be undertaken by the police itself. Section 239 Cr.P.C. which governs the trial of warrant cases, reads as:
'If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reason for so doing.'
If the Magistrate finds that the charge levelled against the accused is groundless within the meaning of Section 239 Cr.P.C. the accused is entitled to be discharged. Therefore the law has given more than sufficient safeguards to the innocent persons and it protects them from being harassed. Section 240 Cr.P.C. speaks about the framing of the charge. Section 241 Cr.P.C. speaks about the Magistrate convicting the accused on plea of guilty of the accused. Section 242 Cr.P.C. enables the Magistrate to record the evidence of the accused who has not pleaded guilty. Section 243 Cr.P.C. enables the accused to lead evidence. Section 244 Cr.P.C. onwards upto Section 247 Cr.P.C. govern the procedure to be followed in cases of private complaints. Section 244 Cr.P.C. relates to the leading of the evidence for the prosecution. Section 245 Cr.P.C. relates to the discharge of the accused if no case is made out against the accused. Section 246 Cr.P.C. lays down the procedure where the accused is not discharged. Section 247 Cr.P.C. enables the accused to lead the evidence. Section 248(1) Cr.P.C. enables the Magistrate to acquit the accused if the accused is not found guilty. Section 249 Cr.P.C. enables the Magistrate to discharge the accused if the complainant is absent in a proceeding instituted upon complaint. It is only after all these stages are over, Section 250 Cr.P.C. had been enacted. Thus the scheme of the Act clearly indicates that Section 250 Cr.P.C. can be pressed into service only after the proceedings as stated in Sections 239 to 249 Cr.P.C. are taken. Till this is done. Section 250 Cr.P.C. will not come into play. Similar is the case in summons cases also. Section 259 Cr.P.C. is almost akin to Section 239 Cr.P.C. Section 259 Cr.P.C. applies to summons cases, while Section 239 Cr.P.C. applies to warrant cases. Under Section 258 Cr.P.C. which governs the summons cases, the Court has been empowered to release the accused by stopping the proceedings. Section 258 Cr.P.C. which applies to summons cases is almost akin to Section 239 Cr.P.C. governing warrant cases. Section 258 Cr.P.C. can be resorted to by the Magistrate when there are no reasonable grounds even to hold that the accused had committed an offence. It is only at that stage that the Court can stop further proceedings and release the accused. Therefore whenever an accused is released under Section 258 Cr.P.C. which would have the effect of discharge, Section 250 Cr.P.C. would not come into play at all. As already shown above by me, Section 250 Cr.P.C. would come into play only after the prosecution has adduced the evidence.
32. The learned counsel Shri Devadas contended that the present case was one triable exclusively by the Special Judge. According to him, Section 250 Cr.P.C. would be applicable when the case is tried only by a Magistrate. The commentary of the learned Author Shri Durga Das Basu on Criminal Procedure Code, 1979 edition, on pages 625 and 626 indicates that Section 250 Cr.P.C. would not be applicable to cases exclusively triable by the Special Judge.
33. Section 12A of the Essential Commodities Act speaks about the constitution of the special Courts. Section 12A(3) reads as:-
'A person shall not be qualified for appointment as a Judge of a Special Court unless -
(a) he is qualified for appointment as a Judge of a High Court, or
(b) he has, for a period of not less than one year, been a Sessions Judge or an Additional Sessions Judge.'
Section 12A of the Essential Commodities Act speaks about the offences triable by Special Courts. Section 12AB speaks about the appeal and revision. Section 12AC of the Essential Commodities Act reads as:-
'Save as otherwise provided in the Act, the provisions of the Code (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.'
Therefore the proceedings before the Special Judge will have to be deemed to be proceedings held by Sessions Court. Section 250 Cr.P.C. would not be applicable to the cases triable exclusively by the Sessions Judge (vide pages 625 and 626 of Durga Das Basu's Criminal Procedure Code, 1979 edition).
34. Shri Devadas placed before me the authorities reported in NARAIN HAZAM v. RAMDHARl SINGH, 1954 (Vol.56) Crl.L.J. 221; AMIN LAL v. EMPEROR, AIR 1930 Lahore 482: L. SHIAM LAL v. NANDARAM, : AIR1931All355 ; SARUP SONAR v. RAM SUNDAR THAKURAIN AIR 1922 Allahabad 188 and HARIHAR DAT v. MAKSUD All, AIR 1926 Allahabad 129 in support of his contention that Section 250 Cr.P.C. will not be applicable to the proceedings before the Sessions Judge. The view taken in the said cases accords with the view taken above by me.
35. The learned Sessions Judge has written a very lengthy order running into nearly 56 pages. The only relevant para relating to the issuance of show cause notice is found in para 55. It reads as:
'I have already referred to the submission made by Sri K.N. Bhat on the point that the accused are entitled to be awarded compensation under Section 250 of the Code. On this point, Sri B.A. Changappa argued that C.W.1, who has set the law in motion in all good faith, should not be punished at this stage by calling upon him to pay compensatory costs under Section 250. I find it difficult to accept the said argument of Shri B.A. Changappa as I am satisfied from the above appraisal of the prosecution case that C W. 1 has not acted in good faith in lodging a private complaint before this Court in spite of the above mentioned proceedings before the Delhi High Court and also before our Hon'ble High Court.' (underlining is mine).
36. Section 250 Cr.P.C. as it stands amended today reads as:-
'(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,.......'
Therefore if Section 250 Cr.P.C. is to be attracted or pressed into service by the Court, it must arrive at a definite conclusion that there was no reasonable ground for making the accusation against the accused or any of them. (Vide LATHIA JADHAVJI LAXMICHAND v. THE STATE OF GUJARAT, 1979 Crl.L.R. (Gujarat) 765). I have extracted para 55 of the order passed by the Special Judge wherein he has not even remotely expressed that he had come to the conclusion that there was no reasonable ground for making the accusation against the accused or any of them. Want of bona fides is no ground. Even assuming for a moment that there was no bona fides or that there is want of good faith, it will not be sufficient to attract Section 250 Cr.P.C. The word 'good faith' has been defined in Section 52 I.P.C. Section 52 I.P.C. reads as:-
'Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention.'
Therefore in order to show that the thing was not done in good faith, it must be shown that it was done or believed without due care and attention. Saying that a particular thing was done without due care and attention, is different from saying that there was no reasonable ground for making the accusation. There is a good deal of difference between want of 'good faith' and the expression 'no reasonable ground for making accusations.
37. In any event the 'lengthy order passed by the Special Judge does not show that the revision petitioner was actuated by any malice or motive or mala fides or want of good faith in filing the complaint before the Special Judge.
38. The Special Judge in his lengthy order at some stage has stated that the prosecution had not made out a prima facie case. If the prosecution has not made out a prima facie case, it would not amount to saying that there was no reasonable ground for making the accusations against the accused. The expression 'prima facie case' is entirely different from the expression 'there was no reasonable ground for making the accusations against the accused.' Therefore the reasons which the Special Judge has given for resorting to Section 250 Cr.P.C. are opposed to law and the principle underlying Section 250 Cr.P.C. They are not sufficient to press into service Section 250 Cr.P.C. The Special Judge in his entire order has not come to the conclusion that there was no reasonable ground for making the accusations against the accused or any of them. Therefore, under these circumstances, the issuance of the notice under Section 250(1) Cr.P.C. to the revision petitioner is wholly unwarranted and is opposed to Section 250 Cr.P.C.
39. As the applications filed by the accused persons seeking to be impleaded and seeking permission to participate in the proceedings were rejected, I have not heard them regarding the merits of the revision.
40. In the result, the order passed by the Court below calling upon the revision petitioner under Section 250(1) Cr.P.C. to show cause as to why he should not be ordered to pay compensation to the accused persons and which is impugned in this revision, is quashed and is set aside. The revision is allowed.
41. At this stage, the learned Counsel Shri Potdar for A-2, A-3, and A-4, and Shri Gopala Rao for A-1, A-5, A-6, and A-7, and Shri Nanaiah for A-8, A-9 and A-10, sought for a certificate to approach the Supreme Court against the order passed by this Court just now. Though the matter involves an important and interesting question of law, I do not think that the matter involves an interpretation of the Articles of the Constitution. I do not think that it involves even any substantial question of law which needs to be decided by the Supreme Court. Hence their request is rejected.
42. Shri Potdar, Shri Gopala Rao and Shri Nanaiah sought for stay of the order passed by this Court as their clients would like to approach the Supreme Court in the matter. There is nothing to be stayed so far as the order passed by this Court is concerned. Hence their request for stay of the operation of the order passed by this Court, is rejected.