Laville J:

The question also arises in these two cases as to whether the Magistrate's order of imprisonment in default of payment of compensation is correct.

Section 426 of the Criminal Procedure Code gives power to order compensation or costs in addition to any other punishment and applies the provisions of s. 432 to any order made thereunder, with the exception of para. (d) of subsection (i) of s. 432.

Section 432 (i) States that when a person is under this Code, for any reason whatsoever, ordered to pay any sum of money by way of costs or compensation, the Court making the order may in its discretion do all or any of the following things namely

(a) allow time for payment

(b) direct payment by instalments

(c) issue warrant for distress and sale in order to levy the amount

(d) direct that in default of payment or sufficient distress such person shall suffer imprisonment for a certain term, which imprisonment shall) be in excess of any other imprisonment to which he may be sentenced .... provided where time is is not allowed for payment an order for Imprisonment in default shall not issue unless such person has none or insufficient property or that the levy of distress will be more injurious to him or his family than imprisonment.

(e) direct payment out of money found on him etc.

The section allows imprisonment to be of either description and there are other provisions which it is not necessary for the purposes of this judgment to enumerate.

Section 438 allows a Magistrate in case of ground- lessly giving in charge to award compensation up to $25 and any expenses incurred.Sub-section (ii) provides that any imprisonment imposed under s. 432 in default of payment of compensation under this section i.e., under s. 438 shall be simple.

Section 175 of the Code provides for an order for compensation to an accused who is acquitted when the charge is frivolous or vexatious, and also lays it down that any imprisonment imposed under s. 432 for default of payment of compensation ordered under s. 175 shall be simple.

It would appear therefore that ss. 175 and 438 contemplate compensation to the accused in case of acquittal or unreasonable arrest, and s. 426 covers all compensation paid in cases of conviction to the complainant.

From the words "in addition to any other punishment" in s. 426 it appears clear that an order for costs or compensation made in a criminal matter is looked upon as an additional penalty or punishment, when it is made in favour of the complainant against the guilty party, and the appropriate method of enforcing it would be by imprisonment in default of either description.

As to orders under ss. 175 and 438, they appear to be more of a civil than a criminal nature: this appears from the direction in s. 17 (iii) that in any civil action relating to the frivolous or vexatious charge the civil Court shall take into account in making its award any sum already awarded and recovered or paid in a criminal Court under s. 175, Criminal Procedure Code.

Section 438(iii) also contemplates that compensation awarded under s. 438 shall be no bar to an action for false imprisonment and in awarding damages the Court would no doubt take into account the amount awarded in the criminal Court if any under this section.

Under s. 432 (i)(d) the Court ordering compensation or costs can make an immediate order for imprisonment in default only if it is satisfied that the person against whom the order is made

(1) has no property or not enough to satisfy the order for compensation or costs, or

(2) if an order for distress would injure him or his family more than imprisonment.

Otherwise it must make an order under paras. (a) or (b) or (c) or (e) of subsection (i) and defer the order for imprisonment in default, till there has been disobedience to any order under the said paragraphs.

It is therefore possible under the provisions of ss. 175 and 438 combined with the provisions of s. 432 (i) for a Court in certain circumstances to make