1970 P Cr (PLP)

"Heard. The accused have been challaned falsely and frivolously. The Municipal Committee is fined. Rs. 50 under section 250, Cr. P. C. for lodging such a case against these three innocent persons. This amount of Rs. 50 will be divided amongst these three accused equally." The petitioner‑Municipal Committee has challenged this order by a petition under section 435/436, Cr. P. C. (i) The learned Additional District Magistrate passed the sentence of fine against the petitioner Municipal Committee without recording a formal order of acquittal or discharge in favour of the above three persons. (ii) The learned Additional District Magistrate without com plying with the imperative provisions of section 250 of the Cr. P. C. has passed this order, as he had not called upon the petitioner‑Municipal Committee to show cause against any such order. Under subsection (2) of section 250, Cr. P. C. he was bound to record and consider any cause, which the petitioner‑Municipal Committee may have shown and it was after recording this that the learned Additional District Magistrate was to record that he was satisfied that the accusation was false, frivolous or vexatious and was also‑to record his reasons for the same and then direct any such payment. (iii) Such payment should not have been ordered in the form of a fine but in the form of compensation. (iv) 1936 Lahore 702 is an authority on all four to cover the facts of the present case. In view of the above reasons, the order of the learned Additional District Magistrate is un warranted by law and calls for interference. I, therefore, recommend the case to the High Court for setting aside the above order. Muhammad Latif and Muhammad Sharif imported six bales of cotton thread weighing 30 maunds, into the Municipal limit of Municipal Committee, Jalalpur Jattan, District Gujrat, on 19th May 1961, but at the octroi barrier they represented, that the weight of the imported cotton thread was only 30 seers and paid octroi duty accordingly. The thus evaded the payment of octroi duty of 29 maunds and 10 seers, which came to, Rs. '18.28. The Octroi Staff came to know of the fraud and directed Muhammad Riaz, the carrier of aforesaid cotton thread in his bus, not to release the said consignment, till the matter was decided by the Chairman of the Municipal Committee. He did .not agree and allowed Muhammad Sharif and Muhammad Latif to, take away their goods.

2. Municipal Committee, Jalalpur Jattan filed a complaint against Muhammad Latif, Muhammad Sharif and Muhammad Riaz under section 115 of the Municipal Administration Ordinance, 1960, in the Court of the A. D. M., Gujrat, alleging violation of Article 1 of Second Schedule thereto, which is to the following effect :‑ "Evasion of the payment of a tax or other import lawfully levied by a Municipal Committee."

3. The Magistrate tried the accused summarily on 24th November 1961, who did not plead guilty and passed the following order :‑ "Heard. The accused have been challaned falsely and frivolously. The Municipal Committee is fined Rs. 50.00 under section 250, Cr. P. C. for lodging such a case against these three innocent persons. This amount of Rs. 50.00 will be divided amongst these three accused equally."

4. On a petition moved by the Municipal Committee, the Additional Sessions Judge, Gujrat, has recommended. this case on the revision side for setting aside the above order of the Additional District Magistrate.

5. Section 262 of the Code‑provides that in summary Arial the procedure prescribed for summons‑cases shall be followed in summons‑cases, and the procedure prescribed for warrant‑cases shall be followed in warrant‑cases . . . . . . . . .. . . . . ." The procedure of summons‑cases is contained in Chapter XX. It is briefly to the effect, that when an accused appears or is produced before the Court, the particulars of the offences are stated to him and he is asked to show cause, why he should not be convicted. No formal charge is framed. If he admits the commission of the offence, his admission is. recorded as nearly as possible in the words used by him arid in case he fails to show sufficient cause, he is convicted. In case .the accused does not admit his guilt, then the Magistrate proceeds to hear the complainant and take; all such evidence that he may like to produce in support of his case and also to hear the accused and take all such evidence that) he produces in defence. In the instant case a perusal of the copy] of the Magistrate's order placed on the record reveals that this procedure was not adopted. Thus the entire proceedings are, as a matter of fact, nullity. However, there is another significant fact, which must be mentioned and that is that although the Committee has been fined,, there is no order of the acquittal of the accused.

6. The next lacuna in the case is, that the trial Magistrate did not call upon the complainant‑Committee to show cause, why it should not pay compensation to the accused persons, which was incumbent on him under subsection (1) of section 250 of the Code. In fact under ‑subsection (2).. it was the duty of the Magistrate after giving notice under subsection (1) to record and consider the cause shown by the complainant and if thereafter he was satisfied that the accusation was false and either frivolous or vexatious, then for reasons to be recorded, he could direct payment of compensation and not fine. These mandatory pro visions of law were ignored by the learned trial Magistrate There was no material before him to impose fine (compensation) on the complainant‑Committee. Learned counsel for Muhammad Latif, Muhammad Sharif and Muhammad Riaz candidly admitted that the` impugned order could not have been passed by the learned Magistrate.

7. Thus for the reasons stated above the recommendation of the learned Additional Sessions Judge, Gujrat, is accepted and the impugned order passed by him calling upon the complainant Committee to pay Rs. 50.00 as fine to aforesaid three persons, Muhammad Sharif, Muhammad Latif and Muhammad Riaz, is set aside. Reference accepted.