Cri. Writ Petition No. 68 of 1992

5th April, 1999

Petitioner Counsel: J. G. BHANUSHALI
Respondent Counsel: R. Y. MIRZA

JUDGMENT

JUDGMENT :- This Criminal Writ Petition is filed, being aggrieved by the judgment and order dated 3rd December, 1991 passed by the Additional Sessions Judge in Criminal Revision Application No. 216 of 1991, dismissing the said revision application filed by the applicant Mrs. Minal Manohar Borwankar (present petitioner). By the impugned judgment and order, the learned Additional Sessions Judge, while dismissing the revision application filed by the applicant, confirmed the order of the learned Metropolitan Magistrate, 26th Court, Borivli, directing the complainant Mrs. Minal Borwankar to pay compensation of Rupees Five hundred to the accused, as provided under section 250(2) of the Code of Criminal Procedure, 1973, in default, to suffer simple imprisonment for 30 days.

2. Few facts which are required to be stated are as follows:-

It is the prosecution case that the complainant Mrs. Minal Manohar Borwankar was a landlady in whose premises the accused Shilpa Vinay Nerurkar was admittedly residing. The said Shilpa Nerurkar was in occupation of the block of the complainant on tenancy basis and there was a dispute between the complainant and the accused relating to the issue of tenancy in respect of the said block. The complainant had a grudge against the accused, as the accused allegedly carried out some unauthorised construction in the said block, without the permission of the landlady (complainant). The landlady therefore gave a complaint in the Bombay Municipal Corporation and invited the attention of the authorities. On 12th January, 1987, one Junior Engineer and some officers from Bombay Municipal Corporation visited the premises of the accused for inspection with respect to the alleged unauthorised construction carried out by the accused.

3. It is further the prosecution case that on that day, there was a quarrel between the complainant Mrs. Minal Borwankar and the accused. According to the prosecution case, Mrs. Minal Borwankar was holding one purse in her hand which was containing cash amount of Rupees One thousand, bunch of the keys, diary and some other sundry articles. The allegation of the prosecution is that during the course of quarrel, the accused snatched the money purse from the hands of the complainant with dishonest intention, and thus, committed theft of Rupees One thousand, which at that time, were in the purse. Thereafter, the complainant went in Goregaon Police Station on the same day at about 2.20 p.m. and lodged complaint with respect to the theft allegedly committed by the accused Shilpa Nerurkar.

4. Cognizance was taken immediately and offence came to be registered at C.R. No. 25 of 1987. After necessary investigation charge-sheet came to be filed against the accused under section 379 of Indian Penal Code. The accused pleaded not guilty and claimed to be tried.

5. The learned Magistrate, after hearing both the sides, gave a finding that the prosecution had totally failed to bring home the charge against the accused and acquitted her. While passing the order of acquittal, in the body of the judgment, the learned Magistrate also discussed the aspect relating to the dispute between the complainant and the accused regarding the premises and about the complainant taking help of the concerned police machinery. He therefore ordered that since the accused was unnecessarily prosecuted, the complainant Mrs. Minal Borwankar, should compensate the accused. He therefore directed the said Minal Borwankar, who was present in the Court, when the order was pronounced, to file her say on this point as to why the compensation in favour of the accused should not be granted for unreasonable prosecution. He further directed that the complainant Mrs. Minal Borwankar should file her say on the above point on or before 30th January, 1991. This was as per the provisions laid down in section 250 of the Code of Criminal Procedure, 1973.

6. The complainant accordingly filed her say on 14th February, 1991. The learned Metropolitan, Magistrate, 26th Court, Borivli, considered the said say and after hearing both the sides, directed the said complainant Mrs. Minal Borwankar to pay compensation of Rupees Five hundred to the accused, as provided under section 250(2) of the Code of Criminal Procedure, 1973, in default to suffer simple imprisonment for 30 days.

7. The complainant, being aggrieved by this order directing the complainant to pay compensation to the accused, filed Criminal Revision Application No. 216 of 1991 in the Sessions Court of Greater Bombay. The learned Additional Sessions Judge, however, after hearing both the sides by his judgment and order dated 3rd December, 1991 dismissed the Revision Application, and confirmed the order of the Metropolitan Magistrate.

8. I have heard Mr. J.G. Bhanushali for petitioner/complainant, and Mr. R.Y. Mirza, learned A.P.P for respondent No. 1. I have also gone through both the judgments of the lower courts. The learned Additional Sessions Judge, in his well reasoned judgment, has correctly arrived at the conclusion that the order passed by the Metropolitan Magistrate did not need any interference. He has discussed at length provisions of section 250 of the Code of Criminal Procedure, 1973, while arriving at the finding that the order of the Magistrate was not at all perverse or illegal. He observed that the complainant was given full opportunity to give her say, which was availed by her, and the learned Magistrate, after considering all the points before him, passed the order directing the complainant to pay compensation of Rupees Five hundred.

9. Section 250 of the Code of Criminal Procedure, 1973 which provides for payment of compensation to be paid to the accused, is on the ground of equity, to give justice to the accused, when complaints filed against them are frivolous and when the Magistrate, after considering the material on record, comes to the conclusion that the accused must be discharged or acquitted, because there was no reasonable ground for making the accusation against the accused.

10. After going through the proceedings, it is revealed that the procedure laid down in section 250 of Code of Criminal Procedure, 1973 is correctly followed by the Magistrate and the Magistrate rightly exercised the discretion vested upon him by the provisions of section 250, Cr P.C. The learned Additional Sessions Judge, was therefore, right in confirming the order passed by the Metropolitan Magistrate. No interference is therefore called for in writ jurisdiction of this Court. Hence, the following order:

ORDER

Criminal Writ Petition No. 68 of 1992 is dismissed. Ad-interim order passed on 31st January, 1992 is hereby vacated. Rule discharged.

Petitioner to deposit the amount of Rs. 500/- (Rupees Five hundred) in the trial Court, within 15 days from today. The trial Court to intimate accordingly to Mrs. Shilpa Vinay Nerurkar, as and when the said amount is deposited by the petitioner/complainant.

Petition dismissed.