( 1 ) THIS is a reference made Under Section 438 of the Code of Criminal Procedure, by the learned sessions Judge of Chitradurga, recommending to this Court, the order of costs of Rs. 50/directed to be paid by the complainant to the accused in C. C. No. 1290 of 1968, be set aside.

( 2 ) THE complainant, who is respondent No. 1 before this Court, filed a complaint against the two accused-respondents Nos. 2 and 3 for an offence Under Section 354 of the Indian Penal Code before the First Class Magistrate, Chitradurga. The learned Magistrate recorded the sworn statement of the complainant Paravathamma. Thereafter, he also recorded the statement of two of her witnesses and took the case on file and issued summons to the two accused for an offence under Section 323 of the Indian Penal Code. After the trial, of the case, the Magistrate acquitted both the accused, but acting Under Section 516-AA of the amended Criminal P. C. (Mysore)asked the complainant to show cause why she should not be ordered to pay to the accused costs of the proceedings. After hearing the complainant, the learned Magistrate directed the complainant to pay cash of Rs. 50/- to the accused towards costs of the case. The complainant, thereafter, filed revision petition before the learned Sessions Judge, challenging this order passed by the Magistrate. The learned Sessions Judge, after hearing the parties, was of the opinion that the Magistrate was not justified in passing the said order in question and he made a reference under Section 438 of the Code of Criminal Procedure to this Court, that the impugned order be set aside.

( 3 ) THE learned Government Pleader has supported the reference and has taken me through the records. He has argued that the Magistrate had come to the conclusion, after recording the evidence of the complainant and examining her two witnesses, that there was a prima facie case and registered the case and issued summons against the accused. He argues that the accused have admitted their presence at the time of occurrence in the house of the complainant. Merely because the complainant has not been able to secure witnesses and prove their case, that is no ground for holding that she had no reasonable or probable cause for filing the complaint. The complainant bona fide thought that it was a true case and gave a complaint and the court was satisfied that there was a prima facie case and issued summons to the accused. He argues that in the circumstances of the case, it cannot be said that the complainant did not have reasonable and probable cause for filing a complaint.

( 4 ) SHRI S. G. Bhat, learned Counsel appearing for respondents 2 and 3, the accused in the lower court, has supported the order passed by the learned Magistrate, awarding costs, to the two respondents. He submits that in the complaint filed by her, Parvathamma suppressed the facts that both the accused had come to her house for preparing an inventory as per the orders of the court. What she has stated in the complaint has a bearing in coming to the conclusion as to whether there was a reasonable or probable cause. The test to be applied in a case like this is not whether the complaint filed by her is false or frivolous as per Section 250 of the Code of criminal Procedure, but to find out whether there was any reasonable or probable cause for her to file a complaint. It is also contended by Shri Bhat that the learned Sessions Judge has committed two mistakes in his order of reference. The learned Sessions Judge was wrong in thinking that in a case like this the burden of proof lies on the accused to show that the complainant had no reasonable or probable cause to file a complaint. The view of the learned sessions Judge that evidence in a criminal proceeding cannot be looked into in awarding costs under Section 516-AA of the Code is not correct. It is also argued that under Sub-clause (5) of section 439 of the Code, this Court cannot exercise its revisional juri