Trial Of Warrant Cases Explained By Justice V Ramkumar [Part-2]

TRIAL OF WARRANT CASES BY MAGISTRATES INSTITUTED ON A COMPLAINT

S.204: Issue of process –

(1) & (2) skipped.

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.

S.244: Evidence for prosecution

(1) When, in any warrant-case instituted otherwise than on a police report the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.

(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.

S.245: When accused shall be discharged - (1) If, upon taking all the evidence referred to in Section 244 the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

S.246: Procedure where accused is not discharged - (1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make.

(3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon.

(4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (3) he shall be required to state, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith whether he wishes to cross-examine any, and if so, which, of the witnesses for the prosecution whose evidence has been taken.

(5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged.

(6) The evidence of any remaining witnesses for the prosecution shall next be taken and after cross-examination and re-examination (if any), they shall also be discharged.

S. 247: Evidence for defence -The accused shall then be called upon to enter upon his defence and produce his evidence; and the provisions of Section 243 shall apply to the case

S.248: Acquittal or conviction - (1) If, in any case under this Chapter in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal.

(2) Where, in any case under this Chapter, the Magistrate finds the accused guilty, but does not proceed in accordance with the provisions of Section 325 or Section 360, he shall, after hearing the accused on the question of sentence, pass sentence upon him according to law.

(3) Where, in any case under this Chapter, a previous conviction is charged under the provisions of sub-section (7) of Section 211 and the accused does not admit that he has been previously convicted as alleged in the charge, the Magistrate may, after he has convicted the said accused, take evidence in respect of the alleged previous conviction, and shall record a finding thereon:

Provided that no such charge shall be read out by the Magistrate nor shall the accused be asked to plead thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has been convicted under sub-section (2).

S. 249: Absence of complainant

When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused.

S. 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 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 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.

S.204 (3) Cr.P.C.: Issue of process.

• The object of this provision is to enable the accused to know precisely what is the charge against him.

Sub-section (3) of Section 204 has been held to be directory in nature and non-compliance thereof does not vitiate the issue of process and copy of the complaint can be furnished to the accused before the proceedings actually start. (Vide para 28 of Pramila Mahesh Shah v. Employees State Insurance Corporation 2002 CrLJ 2454 (Bombay) - R. K. Batta – J.)

S.244 (1) Cr.P.C.: Evidence of prosecution.

• Unlike in a “summons trial” where on the appearance of the accused the substance of the accusation against him is straightaway read over to him and his plea is taken, and unlike in a “warrant-trial” instituted on a police report, on the appearance of the accused he is either discharged or a charge is framed against him,

in a “warrant trial” instituted on a “private complaint”, as and when the accused appears the Magistrate is to first take all evidence produced in support of the prosecution.

(This is usually called “pre-charge evidence”. The reason for such a procedure is that while in a case instituted on a “police-report”, there will be material (in the form of 161 statements of witnesses and documentary evidence) before the Magistrate either for discharging the accused or for framing charge, in a case instituted on a complaint there will be no evidence before Court enabling the accused to plead for a discharge or enabling the Court to frame charge against him).

• In Gopalakrishnan v. State 2001 (2) KLT 767 = 2002 CrLJ 2419 (Kerala) – N. Krishnan Nair – J, took the view that Section 244 Cr.P.C. is at an “inquiry stage” and the accused has no right of cross-examination of the prosecution witnesses examined under Section 244 (1) Cr.P.C. and that refusal to allow cross-examination under Section 244 Cr.P.C. cannot be said to be illegal or irregular.

But the above view is impliedly overruled in para 28 of Ajoy Kumar Ghose v. State of Jharkhand AIR 2009 SC 2282 = (2009) 14 SCC 115 - Tarun Chatterjee, V. S. Sirpurkar – JJ; Para 16 of Harinarayan G. Bajaj v. State of Maharashtra (2010) 11 SCC 520 - V. S. Sirpurkar, Dr. Mukundakam Sharma - JJ.

These verdicts have recognized the right of the accused to cross-examine the prosecution witnesses at the pre-charge stage. But, it is open to the accused to exercise or not to exercise this right.

S.245 Cr.P.C.: Discharge of the accused at the stage of pre-charge evidence.

• The statement of the complainant recorded under Section 244 Cr.P.C. can be considered as “evidence” under Section 245 Cr.P.C., even though the said statement has not been subjected to cross-examination. (Vide para 11 of Santhosh De v. Archana Guha (1994) 2 SCC 420 = 1994 KHC 1136 - B. P. Jeevan Reddy, B. L. Hansaria - JJ.)
• It is clear that the stage envisaged in sub-section (1) of Section 245 Cr.P.C. would reach only after taking all the evidence which prosecution may produce. What is envisaged in sub-section (2) is "at any previous stage of the case". The discharge order under sub-section (1) can be passed when the Magistrate finds that "no case has been made out". But the discharge order envisaged in sub-section (2) could be passed only if the Magistrate considers the "charge to be groundless". Since the section empowers a Magistrate to pass such an order at any previous stage of the case, it is not necessary that evidence should have been adduced. If the accused, after his appearance in court, convinces the Magistrate that the allegations in the complaint, even if proved, would not amount to the offence, the Magistrate has the power to discharge the accused. Merely because Magistrate was earlier of the opinion that there was sufficient ground for proceeding, the Magistrate need not refrain from performing his judicial duty to discharge the accused. No doubt a Magistrate issues process to the accused as per S.204 of the Code since he was of opinion that there was sufficient ground for proceeding. But such opinion formed at the stage envisaged in S.204 of the Code is no bar in forming a different opinion after accused appears and convinces him that the charge would be groundless. The order issuing process has only the effect of an interim order and it is open to the accused to canvass for its alteration or revocation. (Vide Manmohan Malhotra v. Abdul Salam 1994 (1) KLT 365 : = 1994 CriLJ 1555 – K. T. Thomas – J. (K. M. Mathew v. State - 1992 (1) KLT 1 (SC) followed).
• Interpreting the expression “at any previous stage of the case” occurring in Section 245(2) Cr.P.C. it has been held that the Magistrate has the power to discharge the accused, even before any evidence is recorded under Section 244 Cr.P.C. and thus, an application for discharge even at a stage when the accused appears in response to summons or warrant but no prosecution evidence has been let in under Section 244 Cr.P.C. is perfectly justifiable. But, for framing charge under Section 246 (1) Cr.P.C. there should be some evidence adduced under Section 244 Cr.P.C. (Vide paras 26 and 27 of Ajoy Kumar Ghose v. State of Jharkhand AIR 2009 SC 2282 = (2009) 14 SCC 115 - Tarun Chatterjee, V. S. Sirpurkar – JJ.)
• The mere fact that the complaint was filed 25 days after the period of limitation would not entitle the accused to seek his discharge under Section 245 Cr.P.C. because the complainant has under law, a right to seek for extension of time under Section 473 Cr.P.C. (Vide para 10 of Rakesh Kumar Jain v. State AIR 2000 SC 2754 = (2000) 7 SCC 656 – K. T. Thomas, R. P. Sethi – JJ.)
• The question as to whether charges are to be framed or not has to be considered only after taking all prosecution evidence. But in this case the prosecution did not object to the Court framing charge even before several prosecution witnesses remained to be examined. (Vide R. S. Nayak v. A. R. Antulay AIR 1986 SC 2045 = (1986) 2 SCC 716 – P. N. Bhagwati – CJI, Ranganath Misra – JJ.)
• In a prosecution under Section 161 or 165 IPC or clauses (a) or (b) of Section 5 (1) of P. C. Act, 1947, the Court must necessarily apply the presumption under Section 4 of P. C. Act, 1947 and should examine the evidence as it stands without rebuttal and come to a conclusion whether on the basis of such evidence the Court would convict the accused. If the answer is in the affirmative, a charge is to be framed. (Vide R. S. Nayak v. A. R. Antulay AIR 1986 SC 2045 = (1986) 2 SCC 716 – P. N. Bhagwati – CJI, Ranganath Misra – JJ.)
• Recording of reasons for discharge under sub-section (2) of Section 245 Cr.P.C. is imperative. Mere absence of the complainant will not justify a finding that the charge is groundless. (Vide Gopala Panicker v. Kesavan 1966 KLT 306 = AIR 1966 Ker. 243 – P. Govinda Menon – J.)

S.246 (1) Cr.P.C.: Magistrate to frame charge when there is ground for presuming that the accused has committed an offence triable under Chapter XIX.

• The criterion for framing charge under Section 246 (1) is the existence of ground for presuming that the accused has committed an offence triable under Chapter XIX Cr.P.C.
• Trial in a “warrant-case” instituted otherwise than on a “Police Report”, commences with the framing of the charge and on the accused pleading not guilty. (Vide para 28 of Ratilal Bhanji Mithani v. State of Maharashtra AIR 1979 SC 94 = (1979) 2 SCC 179 – 3 Judges – R. S. Sarkaria, O. Chinnappa Reddy, A. P. Sen - JJ.)

• Charge is to be framed on the basis of the evidence offered by the complainant at the stage of Section 244 (1) Cr.P.C. (Vide paras 39 and 40 of Ajoy Kumar Ghose v. State of Jharkhand AIR 2009 SC 2282 = (2009) 14 SCC 115 - Tarun Chatterjee, V. S. Sirpurkar – JJ.)
• The ground for presuming under Section 246 (1) that the accused has committed an offence, should appear from the evidence adduced under Section 244 Cr.P.C. (Vide para 11 of Bhawani Sankar Begaria v. Ratul Dutta 1989 Cr.L.J. 1069 (Gau.) – Manisana – J.)

S.246 (2) Cr.P.C.: Reading and explaining the charge.

• The charge framed should be read over and explained to the accused who should be asked whether he pleads guilty to the charge or has any defence to be made. (Vide Section 246 (2) Cr.P.C.) The charge so read over should be explained to the accused in the language known to him.

S.246 (3) Cr.P.C.: Conviction on the plea of guilt.

• It is no doubt true that the accused pleaded guilty to the accusation. But, when the facts alleged themselves do not constitute an offence, the plea of guilty cannot be made the basis for conviction. A person can be convicted on a plea of guilty only if the ingredients of the offence are made out. If the allegations made against the accused, even if taken on their face value, do not constitute an offence the conviction of the accused cannot be sustained, and has to be set aside. (Vide para 8 of Aslam Ikbal Wali Mohammed vs The State of Karnataka 1976 CrLJ 317 – S. R. Range Gowda – J.)
• This Section is similar to Section 241 Cr.P.C. applicable to warrant-cases instituted on a “police report”. As observed earlier, even if Magistrate is convinced that the accused has voluntarily pleaded guilty to a charge framed against him, the Magistrate has still the discretion either to convict him or not to convict him.

In other words, the Magistrate is not bound to convict the accused even if he has pleaded guilty.

• Both the accused as well as the Magistrate should exercise their respective powers under Section 246 (3) Cr.P.C. in a responsible manner bearing in mind that a conviction of the accused upon his pleading guilty is not open to challenge in view of Section 375 Cr.P.C. as per which the accused can only canvass the extent and legality of the sentence only.

S.246 (4) Cr.P.C.: Where the accused does not plead guilty or is not convicted under Section 246 (3), a further option for cross-examination of the prosecution witnesses, to be given to the accused.

• If the accused –

1. refuses to plead, or
2. does not plead, or
3. claims to be tried, or
4. is not convicted u/s 246 (3)

whether he wished to cross-examine any, and, if so, which of the prosecution witnesses whose evidence has been taken.

he shall be required to state at the commencement of the next hearing of the case

OR

If the Magistrate for reasons to be recorded in writing so thinks fit, forthwith.

This is a right of cross-examination given to the accused at the post-charge stage of the case.

(Vide para 28 of Ajoy Kumar Ghose v. State of Jharkhand AIR 2009 SC 2282 = (2009) 14 SCC 115 - Tarun Chatterjee, V. S. Sirpurkar – JJ; Para 16 of Harinarayan G. Bajaj v. State of Maharashtra (2010) 11 SCC 520 - V. S. Sirpurkar, Dr. Mukundakam Sharma - JJ.)

S.246 (5) Cr.P.C.: Further cross-examination after re-calling the prosecution witnesses.

• Where the accused wished to have any prosecution witness re-called and cross-examined, his right to do so is absolute and unqualified.

Upon the accused expressing his wish to re-call and cross-examine any prosecution witness, the duty to re-call such witness is on the Magistrate. (Vide para 7 of Madusudanan Namboodiri v. Unni Nair 1974 KLT 856 = 1975 Cr.L.J. 751 (Kerala) – S. K. Kader – J.)

• This right of re-calling and cross-examining the prosecution witnesses is not lost even if those witnesses were cross-examined at the pre-charge stage.

S.246 (6) Cr.P.C.: Evidence of remaining witnesses for prosecution.

• The words “remaining witnesses” do not refer only to those witnesses for whom the prosecution took out summons from the Court under Section 244 (2) but also those witnesses who were not examined earlier and can also include witnesses whose names had not been disclosed before the charge was framed.
• It cannot be said that the words 'remaining witnesses' involve only those that are left out from the first list. (Vide para 1 of V. Ratna Shenoy v. S. A. Prabhu AIR 1967 Ker. 233 = 1966 KLT 994 – P. Govinda Menon – J.)
• Even though the power of the Magistrate should not be fettered either under Section 244 or under Section 246 (6) Cr.P.C. and full latitude should be given to the Magistrate to exercise his discretion even in entertaining a supplementary list of witnesses, the discretion should be exercised judiciously for advancement of the cause of justice and not to give a handle to the complainant to harass the accused. (Vide Sayeeda Farhana Shamim v. State of Bihar AIR 2008 SC 2373 = (2008) 8 SCC 218 – A. K. Mathur, Aftab Alam – JJ.)

S.247 Cr.P.C.: Defence evidence.

• Unlike in “summons-cases”, the accused in a “warrant-trial” has the right to be called up on to enter on his defence.

S.248 (1) Cr.P.C.: Acquittal on merits

• Charge framed under S.246(1) Cr.P.C. against the accused for offences under S.494, S.495 of Penal Code -- Accused was acquitted merely on the ground that complainant and her witnesses were not available for cross examination -- Held, when the Magistrate found that the appellant as well as witnesses were absent, it was the duty of the learned Magistrate to have procured the complainant as well as witnesses, if need be, by coercive process, make them available to the respondents for cross examination and thereafter proceed according to law -- It was not open to him to acquit the accused merely on the ground that the witnesses already examined by the prosecution were not made available for cross examination -- The order of acquittal, being illegal, set aside and retrial ordered. (Vide Vasanthi v. Ramaswami 1992 Cri.L.J. 2442 = 1992 KHC 1555 (Madras) – Padmini Jesudurai – J.)
• Once a charge has been framed and the accused is found not guilty of the offence on merits, an acquittal should follow under Section 248 (1) Cr.P.C. (Vide Harihar Chakravarty v. State of W. B. AIR 1954 SC 266 = 1954 Cri.L.J. 724 – 3 Judges - B. K. Mukherjea, Vivian Bose, N. H. Bhagwati – JJ – Case decided under the corresponding Section 258 of the 1898 Code).
• An order of discharge after the framing of charge, is illegal. (Vide para 27 of Ratilal Bhanji Mithani v. State of Maharashtra AIR 1979 SC 94 = (1979) 2 SCC 179 – 3 Judges – R. S. Sarkari, O. Chinnappa Reddy, A. P. Sen – JJ).
• After the charge has been framed, the only order that can be passed is either conviction or acquittal and not an order of discharge. The Magistrate does not have any sort of inherent power to set aside the order of framing charge. The remedy of the State was to file an appeal against the impugned order, though styled as a discharge. Still the High Court exercising the revisional power set aside the order which was glaringly illegal. (Vide State of Kerala v. Sebastian 1982 KLT 724 = 1983 Cri.L.J. 416 – S. K. Kader – J.)
• An order of acquittal passed by the Magistrate without ascertaining the presence of the witnesses and without any genuine effort made to secure their presence, was without jurisdiction and set aside. (Vide para 4 of M. Narayanan v. Kunhambu 1987 (2) KLT 94 = 1988 Cri.L.J. 1375 – C. Sankaran Nair – J.)

S.248 (2) Cr.P.C.: Finding the accused guilty on merits and passing a sentence on him, unless Sections 325 or 360 Cr.P.C. are invoked.

• Where the Magistrate finds the accused guilty on merits, he shall after hearing the accused on the question of sentence, pass a sentence upon him according to law, unless the Magistrate proceeds under Section 325 or Section 360 Cr.P.C.

Section 325 Cr.P.C. refers to the procedure when the Magistrate finds that he cannot inflict sufficiently severe punishment in the case and accordingly submits the case to the CJM for recording a conviction and passing a condign sentence.

Section 360 Cr.P.C. and Probation of Offenders Act, 1958 deal with first offenders who are liable to be released on probation or let off after admonition.

• Imposition of sentence without considering its effect on the social order in many cases may in reality be a futile exercise. The social impact of the crime. Eg. where it relates to offences against women, dacoity, kidnapping,

misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.

The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". (Vide paras 9 and 10 of State of M. P. v. Saleem @ Chamaru AIR 2005 SC 3996 = (2005) 5 SCC 554 – Arijit Pasayat, S. H. Kapadia – JJ.)

S.248 (3) Cr.P.C.: How to frame charge for “previous conviction” and “adduce evidence”.

• The charge under Section 211(7) Cr.P.C. for “previous conviction” can be clubbed along with the charge for the main offence to be tried. (Vide Part III of the Model Form No: 32 in the Second Schedule to Cr.P.C.) But, until the accused is found guilty of the main offence to be tried, the charge for “previous conviction” framed under Section 211 (7) shall not be read over to the accused nor his plea taken. Similarly, the previous conviction shall not be referred to by the prosecution or in any evidence adduced by it unless and until the accused is convicted of the main offence. (Vide Section 248 (3) and its proviso.)

S.249 Cr.P.C.: Absence of Complainant

• This Section does not apply to a case instituted on a police report and has application only to a case instituted on a complaint. The accused cannot be discharged under Section 249 after the framing of charge.
• The corresponding Section in a summons-case instituted upon a complaint, is Section 256 Cr.P.C which not only takes in non-appearance of the complainant, but also his death.
• Death of the complainant in a complaint case does not cause abatement of proceedings. (Vide Ashwin Nanu Bhai Vyas v. State of Maharashtra AIR 1967 SC 983 - 3 Judges - M. Hidayatullah; S. M. Sikri; Raghubar Dayal – JJ).
• Section 249 Cr.P.C has no application if charges were framed and the complainant died thereafter (Vide K. Chathukutty v. K. S. Presenna Venkitesan 2007 (1) KLT 584 = 2007 Cri.L.J 1120 – J. B. Koshy, K. Padmanabhan Nair – JJ).
• Evidently Section 394(1) Cr.P.C has no application to cases of death of the complainant in an appeal against acquittal, presented under Section 378 (4). The words 'every other appeal under this Chapter' exclude appeals filed under Section 377 and 378 of the Code. The result is that an appeal filed under Section 378(4) does not abate on the death of the complainant.' So this Court cannot dismiss a criminal appeal as abated. The appeal is to be heard and disposed of on its merits. (Vide para 15 of K. Chathukutty v. K. S. Presenna Venkitesan 2007 (1) KLT 584 = 2007 Cri.L.J 1120 – J. B. Koshy, K. Padmanabhan Nair – JJ).
• Even though there is no provision for impleading the legal hires of the deceased appellant, the Court can under Section 302 Cr.P.C allow the legal representatives of the deceased appellant to come on record and prosecute the appeal. (Vide para 16 of K. Chathukutty v. K. S. Presenna Venkitesan 2007 (1) KLT 584 = 2007 Cri.L.J 1120 – J. B. Koshy, K. Padmanabhan Nair – JJ).

S.250 Cr.P.C.: Compensation for accusation without reasonable cause.

• The condition for application of this Section are –

1. The case must be instituted upon a “complaint” u/s 2 (d) Cr.P.C. or upon information given to a police officer or to a Magistrate.
2. The case must be triable by a Magistrate.
3. The Magistrate must be satisfied that there was no reasonable ground for making the accusation.
4. Action must be taken simultaneously with the “discharge” or “acquittal” of the accused by calling upon the complainant forthwith to show cause why compensation should not be avoided. It cannot be taken at a later period.
5. Before compensation is granted –
6. Sufficient time should be allowed to show cause, and
7. The acquittal or discharge order must show on the face of it that there was no reasonable ground for making the accusation against all or any of the accused.

• The Magistrates should not be slow to make use of this Section in appropriate cases to stop not only the abuse of their own processes but also the harassment of innocent people. (Vide Emperor v. Jehangir M. Jassawalla AIR 1948 Bom. 6 = (1947) 48 Cr.L.J.929 - Leonard Stone, Kt. - C.J.)
• The Section which applies to both summons and warrant cases is to be applied in a summary manner.
• The complainant cannot be asked to compensate the accused in a case where the police, by mistake, prosecuted a wrong person. (Vide Om Prakash v. State of Rajasthan 1975 Cr.L.J. 196 – B.P. Beri – C.J.)
• This Section applies in the case of an offence punishable under the Indian Penal Code or any other law and triable by a Magistrate as shown in Column 6 of the First Schedule to Cr.P.C. read with Section 26 (a) (iii) Cr.P.C. (Vide Narain Hazam v. Ramdhari Singh AIR 1954 Pat. 145 = 1954 Cr.L.J. 221 – Das – J – This verdict is under the corresponding Sections of the 1898 Code.)
• The same Magistrate who discharged of acquitted the accused alone can initiate action and pass final orders under this Section. The succeeding Magistrate cannot continue the proceedings initiated by his predecessor-in-office. (Vide Nandkumar Krishanrao Navgire v. Gananath Laxman Kushalkar v. Maharashtra (1998) 2 SCC 355 – M. M. Punchhi, K. Venkataswami – JJ.)
• “Reasonable and probable cause” means an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of the state of circumstances, which assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. (Vide Hicks v. Faulkner 1881, 8 QBD 167 – Hawkins – J, which was approved in Herminan v. Smith 1938 All. ER. 1 (HL) 5 Judges – Lord Atkin, Lord Russell of Killowen, Lord Macmillan, Lord Maugham, Lord Roche.)
• The order of acquittal or discharge must show on the face of it that the prosecution of the accused was without reasonable cause. (Vide Bijoy Krishna Chandra v. The State AIR 1958 Cal. 121 = 1958 Cr.L.J. 364 – Debabreta Mookerjee – J.)