P L D 1962 Supreme Court 331 (PLP)

FAZLE‑AKBAR, J.‑

This is an appeal by special leave against the judgment and order of the High Court of West Pakistan passed in revision. This appeal has arisen in the following circumstance. The appellant Ghulam Qadir laid an information against respondents Nos. 1 to 5 in the Court of a Magistrate of Sialkot praying that action be taken against them as provided by section 107 of the Code of Criminal Procedure. The Magistrate after making enquiry found the allegations to be false, frivolous and vexatious and, therefore, dismissed the petition. The Magistrate then called upon the petitioner to show cause why he should not pay com pensation to the said respondents. After he had shown cause the Magistrate passed an order directing him to pay a sum of Rs. 100 to each of the five respondents as compensation or in default to undergo simple imprisonment for 30 days. On appeal the Sessions Judge, Sialkot, held that the Magistrate had no jurisdiction to award compensation to the respondents. The respondents then preferred a petition for revision in the High Court of West Pakistan against the order of the Sessions Judge. A learned Single Judge of the High Court reversed the order of the Sessions Judge and restored that of the Magistrate. Special leave to appeal was granted in this case to consider "whether an order for payment of compensation under section 250 A of the Code of Criminal Procedure could be made against a person who had initiated a proceeding under section 107 of the said Code." It has been contended on behalf of the appellant that a petition under section 107 of the Code of Criminal Procedure does not allege the commission of an offence, but merely the apprehension that an offence may be committed and hence the provisions of section 250 of the Code of Criminal Procedure are not attracted to the said proceedings. The sole question for determination in this case is Whether section 250 (1) of the Code of Criminal Procedure would apply to a proceeding initiated under section 107 of the said Code. ? The true import of the question will be apparent on reference to the language of section 250 (1) of the Code of Criminal Procedure which is as follows :‑ "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 the accusation against them or any of them was false and either frivolous or vexatious, 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." Now, can the expression "accused before a Magistrate of any offence" as used in this section denote a proceeding under section 107 which relates to prevention of crime ? The plain intent of the above expression seems to be that to justify the application of this section a person must be accused of an offence' already committed. On the other hand, the object of proceedings under section 107 is to prevent the commission of an offence. This section 107 appears in Chapter VIII of the Code of Criminal Procedure which is headed "Prevention of Offence". Security pro ceedings are thus intended to prevent the commission of an offence and not to punish an offence already committed. It is thus obvious that a person against whom action taken by Court in advance of the commission of an apprehended crime cannot fall E within the expression "person accused of an offences." This is also clear from the definition of "offence" in clause (o) of section 4 of the Code which is as follows :‑ "Any act or omission made punishable by any law for the time being in force :" This view also finds support from the fact that a petition under section 107 cannot be described as a "complaint" which is defined in clause (h) of section 4 in these words :‑ "`complaint' means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but It does not include the report of a police officer ". It may also be pointed out that wherever a reference is made In Chapter VIII, Criminal Procedure Code to the person from whom security for keeping peace is sought to be taken the expression used is not "accused person" but merely "person." It is sufficiently apparent from the foregoing that a proceeding under section 107 cannot be regarded as pertaining to an offence already committed. We are, therefore, unable to agree with the learned Single Judge that the provision of section 250 (1) of the Code of Criminal Procedure would also apply to a proceeding under section 107 of that Code. The learned Judge seems tai think that the language employed in section 250 does not "neces sarily exclude the application of that section" to a proceeding under section 107 of the Code of Criminal Procedure. We are unable to discover any warrant for any such assumption which may be justified by the plain terms of section

250. It would not be only unduly straining the language of the section, but also inserting in it words that do not exist if the section was construed to mean that security proceedings were also within its purview. It will suffice to say that the construction placed by the learned Single Judge on this section is not reasonably possible. It may be mentioned here that before Independence the different High Courts In India took the view that section 2~50 of the Code of Criminal Procedure would not apply to security pro ceedings. In our opinion those decisions being founded on sound reasoning are worthy of respect. For the reasons stated above, we hold that section 250 of the, Code of Criminal Procedure would not apply to proceedings under section 107 of that Code. In this case the respondents were not accused of having committed any offence. The only charge against them was that they were likely to do some act that would probably occasion a breach of peace and it was, therefore, necessary that they should give security for keeping peace. Tills Is, therefore, not a case that falls under section 250 of the Code of Criminal Procedure We accordingly allow this appeal and set aside the order for compensation. Before parting with the case we would observe that the learned Judge rightly pointed out that the Sessions Judge had no jurisdiction to set aside the order for compensation. The High Court, however, as a Court of revision could have easily corrected that error. A.H. Appeal allowed.