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DE SILVA v. MAMMADU et al.
P. C., Badulla, 8,835.
Compensation—■ Vexatious complaint—Procedure before punishmenttherefor.
The power given to Police Magistrates of punishing a person formaking a vexatious complaint is a very wholesome one, but it mustbe exercised with great circumspection; and it is only right andfair that, before a person is condemned to pay compensation forinstituting a vexatious prosecution, he should be called upon toshow cause why he should' not be so condemned.
A vexatious complaint is one that i3 brought without oause orfor a matter so trivial that no person of ordinary sense or temperwould complain of it, with intent to harass the person complained of.
'T'HIS was an appeal by the complainant against an ordercondemning him to pay to the accused, as compensation forvexatious prosecution, Rs. 50. The facts of the case are fully setforth in the judgment.
De Vos, for appellant.
30th August, 1897. Withebs, J.—
Under section 236 of the amending Criminal Procedure Code,No. 22 of 1880, the appellant has been fined Rs. 50 for institutinga vexatious complaint. There were five accused, so that eachreceived Rs. 10. Thi s was the extreme penalty, and the questionis, Did the Magistrate exercise a sound discretion in imposing thisfine ? On the 20th July the appellant complained to the Court• that a bull belonging to a firm of Moorish traders, which they hadentrusted to him, had been stolen three days before. He chargedtwo Moormen and three Sinhalese with'the theft of the animal.
At the same time as the complaint was lodged, the Police Sergeantbrought up four of the accused before the Court and produced thehide of the stolen bull. The complainant was examined, and hisstory was shortly this. He had been absent from bis village,where the bull was in charge of his cattle-keeper Kaurala or Kiri-banda, and on his return on the 20th July he was told that thisbull had been stolen and slaug’ tered. His brother Kineris and thePolice Sergeant gave him particulars, which he embodied in hisplaint, and without the least delay he laid his complaint before theCourt. The case was tried, and amongst other witnesses his twoinformants and the cattle-keeper Kiribanda were examined.
The Magistrate did not call upon the accused for their defence.He took a strong view against the case for the prosecution.
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A ugust 30.Withers, J
The power of punishing a person for making a vexatious complaintis a very wholesome one, but it must be exercised with great circum-spection. If it is used indiscreetly no one will be found boldenough to prosecute for actual offences.
In the present case there was direct evidence of the theft of thebull by the two first accused, and after inquiry into the matter atthe time the constable arrested the first two accused, and thesergeant the third and fourth accused.
It is only fair to assume that these officers had received informa-tion which they thought credible before making the arrest.
Having regard to the fact that four of the suspected charactershad been arrested, that there were people prepared to swear to the1first two accused being seen with the stolen animal, and that theconstable who had inquired into the charge on the spot had furnishedthe plaintiff with the particulars in his plaint, can it be said thatthis charge was made recklessly and without cause ?
It is not pretended that the complainant bore any malice towardsany of the accused. In my opinion this was not a proper case forpuuishing the complainant. Then the Magistrate did not ask thecomplainant to show cause why he should not be fined for insti-tuting a vexatious complaint. Surely it is only right and fair todo so. Liability to fine and imprisonment' marks conduct of thekind as an offence.
An offender is not punished without being told of his offence,and asked what he has to say why he should not be punished.
He said that, except the fact of the theft and the slaughter of thebull, there was not a word of truth in the case. His reason for. fining the complainant was this, to use his words: “ The com-“ plainant should not have signed the plaint without assuring“himself that there were reasonable grounds for charging the“ accused. As it now stands it appears to me a vexatious case,“ especially against the third, fourth, and fifth accused.” There isno definition in the Code of the term vexatious, but I understanda vexatious complaint to mean one that is brought without causeor for a matter so trivial that no person of ordinary sense or temper(see section 88 of Penal Code) would complain of it, with intent toharass the person complained of. The fact of making a trumperyor a groundl es charge would in many cases, without evidence ofpersonal ill-will, raise a presumption of intent to harass. WhatBacon wrote on this subject is noteworthy :■—“ Albeit the party“ grieved thereby may have some reason to complain of an untrue“ charge, yet that may be not well to call it an unjust vexation.”
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This was a very important part of the old procedure in cases ofthis kind under Ordinance No. 11 of 1868, section 106. Section236 of Ordinance No. 22 of 1890 is taken word for word fromsection 250 of the Indian Criminal Procedure Code as it was. Eventhen the High Court of Calcutta held that a Magistrate should callupon a complainant to show cause why he should not be fined.Whether to remove doubts or not I do not know, but it was after-wards enacted that the Magistrate before making a direction to paycompensation should record and consider any objection which thecomplainant or informant may urge against the direction, and ifthe Magistrate decides to direct compensation he must give hisreasons for doing so.
Here the Magistrate did give his reasons, but I do not think themsufficient, and in my opinion the order directing complainant topay compensation must be discharged.
DE SILVA v. MAMMADU