JUDGMENT

Smith, J - This is a reference by the learned Sessions Judge of Lucknow with respect to an order which was passed by an Honorary Magistrate of the First Class under Section 250, Criminal P.C. One Abdul Aziz was prosecuted under Section 299, United Provinces Municipalities Act (U.P. Act 2 of 1916), the allegation being that he had been working his mill long after the hours prescribed by a bye-law of the Municipality. The Magistrate came to the conclusion that the complaint was not correct, and he accordingly acquitted the accused, and ordered the Municipal Board to pay Rs. 15 as compensation to him. The learned Sessions Judge has referred the case with a recommendation that the order for the payment of compensation should be set aside. His recommendation is based upon various points, but it is only necessary for me to say that there is nothing to show that the Magistrate complied with the requirements of Sub-sections (1) and (2), Section 250, Criminal P.C. Who technically ought to be regarded as' the complainant, is somewhat doubtful, but it seems that the actual complaint was signed by Mr. H.S. Dube, the Medical Officer of Health. The officer who appeared in Court to give evidence was Mr. Manmohan Lal, Sanitary Inspector, upon whose information the proceedings were initiated. It does not appear that either Mr. Manmohan Lal or Mr. H.S. Dube or anybody else was given any opportunity to show cause why compensation should not be paid to the accused. This was a fatal defect in the Magistrate's proceedings. It is true that in Sub-section (1), Section 250, Criminal P.C., the words are: "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 Mm forthwith to show causa 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. Sub-section (2) however provides that: "the Magistrate shall record and consider any cause which such complainant or informant may show."

3. These words clearly show that it is mandatory to give the complainant or informant an opportunity to show cause why compensation should not be ordered to be paid by him. The word "may" in Sub-section (1) clearly only relates to the manner in which opportunity to show cause is to be given to the person concerned. The result is that since in the present case no opportunity appears to have been given to anyone to show cause against the making of the order for compensation, that order cannot be sustained, and it must be, and hereby is, set aside. The reference of the learned Sessions Judge, in other words, is accepted. The compensation, I am informed, has not actually been paid, so no order of refund is necessary.