Stone, C.J:—

This is a petition by eight persons against whom a complaint has been filed by one Shamsuddin Mahamuddin Pathan, in the Court of Khan Bahadur B.H Kazi, First Class Honorary Magistrate at Nasik, alleging the offence of cheating under s. 420 of the Indian Penal Code. The petitioners ask that the proceedings against them should be quashed or in the alternative transferred to the Court of some Magistrate at Mokhada in the Thana District. Mokhada is the nearest centre to the village of Poshera in which the petitioners reside, whereas the Court at Nasik in which the complaint has been filed is about 70 miles from Poshera.

Shamsuddin Mahamaddin Pathan is a money-lender and a jungle contractor, and he alleges that he was cheated of Rs. 10 by each of the eight petitioners who are illiterate woodsmen and who were on July 5, 1945, the date of the alleged offence, in great hunger due to the scarcity.

According to the complaint, the complainant engages Kathodis for cutting the jungles for preparing bhuttis for making charcoal, and that on July 5th all the accused came to him and told him that they were Kathodis and knew how to do jungle work, but that as it was the rainy season work was suspended and that they were dying of hunger:

“They said that it some moneys were advanced to them on personal security they would come to do my job after the rainy season was over and that they would not go anywhere else. The complainant told them upon this that they should come after the rainy season was over and that he would then see to it. Upon this all the accused began to say that they were in dire circumstances and that they would remain bound to me if some moneys were given and that they would not go anywhere else and that they would attend to my work after the Dasara. This they said several times. The complainant at first was not willing to advance them moneys, but on their assuring him several times that if the moneys were paid they would definitely attend to his work and that they would not let him down, the complainant thought that if he relied upon them and paid them moneys they would attend to his job and paid the accused Rs. 80.”

The complainant continues that the accused did not come back after the Dasara and that on enquiries he came to know:

“That the accused had already taken moneys in similar way from some other person and that it was reliably understood that they had gone to that person for attending to his work.”

And thus it is said that the accused knowingly took the moneys from the complainant and cheated him by making false representations, though they knew that they would not be able to take up the complainant's work.

On November 6, the complainant gave evidence before the Magistrate for the purpose of inducing the Magistrate to take cognizance of his complaint, and in substance he repeated what is set out in his complaint, though he says nothing about lending money to them on their “personal security”. Upon that evidence being given the Magistrate took cognizance of this case. A charitable society arranged for the petitioners to be legally represented before the Magistrate and has also arranged for their representation in this Court. In the petition the following is stated:—

“The petitioners are ignorant aborigines of Mokhada Peta in the Thana District. That they have a primeval mode of life, habits and superstitions and are frequent victims of the outrages of jungle contractors who treat them worse than chattels. They are often subjected to forced labour in the jungles in the manufacture of charcoal. That an organisation called the “Adivasi Seva Mandal” is formed to look after these aborigines with a view to educating them for some year past.”

The petition goes on to allege that the petitioners are residents of Mokhada area and live at Poshera village and that the complainant has filed a false cheating case with the sole object of compelling them to join his service for manufacturing charcoal. It is also stated that it is extremely inconvenient for the petitioners to go from Poshera to Nasik to stand their trial at that place, and it describes their difficulty in getting to Nasik, their inability to afford the expenses of the journey and their difficulties with regard to getting food owing to the rationing system being in force. They also make various allegations about the complainant's treatment of his work people.

In answer the complainant has filed an affidavit, in which he has made a bare denial with regard to the allegations in the petition, and after expressing his views that the circumstances do not give rise to a civil suit, the affidavit continues:—

“On their having taken away the money, the applicants did not turn up after Dasara as represented. Later enquiries made by the complainant revealed that the applicants had already, even before their approaching the opponent, taken advances from some other persons with similar undertakings. Thus at the time they induced the opponent-complainant to deliver them money on representations that they would join his services they all were aware that they were telling something which was not possible for them to do. The representations thus, on the making of which property was delivered, were false to the knowledge of the accused-applicants. Thus they intentionally deceived the opponent-complainant into a belief that they mean to join complainant's service which they never intended to do and thus dishonestly induced the complainant to advance money upon faith of their such joining the work. The fact that they had taken advances from other persons on similar promises and the fact that they did not turn up as also the allegations made in the present application to the effect that the petitioners have no desire to work with the complainant make it very clear that at the time of the inducement they had no intention to come and work with the complainant. Prima facie thus it is a clear case of cheating and not a mere civil dispute.”

The complainant, neither in his complaint, nor in his evidence before the Magistrate, nor in his affidavit before this Court, has given any particulars of what he describes as “other person” in his complaint and as the “other persons” in his affidavit, to whom he alleges that the petitioners had engaged themselves previously to coming to see him. The evidence, therefore, with regard to this allegation that the petitioners had previously engaged themselves is purely hearsay in character, and the complainant has not even given the source of his information or the names of the other person or persons concerned. Accordingly we decline to give any weight to this assertion.

As stated in the complaint the Rs. 80, that is to say Rs. 10 to each of the petitioners, was advanced on their “personal security”, coupled with the promise that the applicants would, after the monsoon, come and work for the complainant, but no rate of wages was agreed nor was any duration of the servitude fixed. It is clear that such a promise for personal service, if it was ever made, is unenforceable in any Court, and that the only measure of damages is the amount of the Rs. 10 loans.

On the allegations contained in the complaint and in the complainant's evidence and affidavit the proper inference to be drawn is that the complainant was prepared to lend to each of the petitioners Rs. 10 upon their personal security, in the expectation that he would thereby get these labourers into his power. Apart from the improbability of eight ignorant and starving woodsmen being able to cheat such a man as the complainant, the complainant does not set out facts which are prima facie criminal, since even if the petitioners had previously engaged themselves to some other contractor, there is no reason why in breach of such civil contract they should not have honoured their unenforceable promise to the complainant, if it was ever made, this being the promise on which he alleges that he lent to each of them Rs. 10 “on their personal security”.

In our opinion no prima facie case of cheating under s. 420 of the Indian Penal Code has been made out at all. The course pursued by the complainant was no doubt taken with the intention of intimidating these ignorant woodsmen into binding themselves in servitude to him, so that he could get the benefit of their labour for an indefinite period. Neither the police nor the Crown has in any way supported this complaint, and though the Magistrate has taken cognizance of it, it is clearly within our revisional powers to quash these proceedings and to discharge the petitioners, and that course in our opinion this court should adopt.

The Criminal Procedure Code offers an almost unlimited invitation to litigious-minded persons to embark upon criminal processes against their neighbours, and the process of this Court and the Magisterial Courts subordinate to it is frequently abused by the launching of private prosecutions, which are as frivolous as they are vexatious in character. Particularly is this so in respect of cases alleging criminal trespass, s. 442, cheating, s. 420 and defamation, s. 500 of the Indian Penal Code.

Much time of the Courts is wasted in the investigation of unjustifiable complaints. But more mischievous still is the fact that the Criminal Procedure Code should be used as an instrument of oppression.

Counsel for the petitioners, who as we have already said is instructed through the intervention of a Charitable Society, has asked for the payment of costs, and this question has been fully argued by both sides, and we have also had the advantage of hearing the extremely able discourse by the learned Government Pleader who has been good enough to assist the Court as amicus curiae.

In order to determine this question, it is necessary to commence by noticing the manner in which criminal jurisprudence in this country has evolved, since if this court has the capacity and power to order the payment of compensation or costs against a complainant, it must be found, either in the express provisions of the Criminal Procedure Code or must owe its existence to the inherent capacity and jurisdiction of this Court de hors the Code.

Criminal jurisprudence in India was codified in its present form in the years 1860 and 1861. On October 6, 1860, there came into operation the Indian Penal Code (Act XLV of 1860) and on September 5, 1861, the Code of Criminal Procedure, but between these two enactments there had been placed on the statute book on August 6, 1861, the High Courts Act of that year. The Criminal Procedure Code of 1861 was replaced by the Code of 1882, which in its turn gave place to the present Code of 1898 which has been subsequently substantially amended, particularly in the year 1923.

There is not in the Criminal Procedure Code any general provision with regard to costs, as is to be found in s. 35 of the Code of Civil Procedure, but specific provision dealing with costs is to be found in certain sections of the code, viz. s. 148 which deals with local inquiries, s. 433 which is a general section concerning references to the High Court, s. 488 concerning orders for the maintenance of wives and children, s. 526 which gives the High Court power to order the transfer of the case in circumstances therein mentioned and s. 545 which empowers the Court to order the payment of expenses or compensation out of a fine.

The Criminal Procedure Code also by s. 250 gives power to Magistrates, by whom a case is heard, to award compensation to an accused person if he discharges or acquits him and is of the opinion that the accusation is false and either frivolous or vexatious. But this section is limited in its operation to cases in which after a hearing the accused is discharged or acquitted, whereas in the case before us this stage has not been reached, since the application made to this Court is to quash the complaint and the proceedings consequent thereon and is made at a very early stage. This means that this useful section, a section which we observe should be much more widely employed than it is at present, is not applicable to the circumstances of the petition before us.

The very fact that by the sections mentioned above power is specifically conferred in certain types of cases to award costs or compensation, negatives the existence of any general power or jurisdiction so to do in other cases, unless such general power or jurisdiction is to result from s. 561A of the Code. That section is in these terms:—

“Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice”.

This section, in effect, brings us back to the question of the inherent jurisdiction of this Court, and has been the subject-matter of a judicial decision of a bench of this Court in Rogers v. Shriniwas Referring to s. 561A the Chief Justice Sir John Beaumont said that all the section does is to preserve the inherent powers of the High Court without conferring any additional power.

The same question was dealt with by the Privy Council in Emperor v. Nazir Ahmed in which Lord Porter delivering the judgment of the Judicial Committee said (p. 249):

“It has sometimes been thought that s. 561A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possesses shall be preserved and is inserted as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act.”

So the crucial point is whether this Court inherently has the power, and since criminal procedure is codified, that must mean has inherited the power from its predecessors; see the Letters Patent and the High Courts Act, 1861.

Before the establishment of the High Courts in British India, criminal cases were disposed of by the Sudder Foujdaree Adawlut. The earliest records of those Courts preserved in this High Court come from the Surat Court and go back to the year 1822. There is also to be found summaries of some of the cases tried by the Sudder Foujdaree Adawluten in the Reports of Cases in the Sudder Foujdaree Adawlut of Bombay by James Morris published in 1854. But in none of the cases either recorded or examined of the Sudder Foujdaree Adawlut is there any indication of an unsuccessful complainant being ordered to pay costs. Indeed the cases show that private prosecutions were rather encouraged than repelled as being vexatious or frivolous.

The question whether the High Court has any inherent power to make orders for costs was considered in a full bench case of the Madras High Court reported in Sankaralinga Mudaliar v. Narayana Mudaliar That case was before the amendments of 1923 to the Criminal Procedure Code, which brought in s. 561A as a new section. But that makes no difference, because, as we have already noticed, s. 561A is declaratory only. The case in the Madras High Court was dealing with a revisional application against an order of acquittal, and the question raised, was whether in a criminal revision application the Court could grant costs to the respondent, and dealing with that question the Chief Justice Sir Walter Schwabe said (p. 919):—

“Now in this matter we sit in revision in criminal cases first under the Letters Patent and being constituted under the Letters Patent have powers given to us as a Court to hear criminal appeals and revision petitions by the Criminal Procedure Code of 1898. That Code does provide in several instances for the payment of costs. Unlike the Code of Civil Procedure, it has no general clause providing for costs in every case. The sections providing costs are, among others, 148, 433, 438, 526 and 545. The one, and I think the only one, that it is necessary to look into carefully is section 433 because there in a particular form of proceeding before the High Court in criminal cases there is an express provision that the High Court may direct by whom the costs of a reference shall be paid. The other sections are specific instances where power to grant costs is given, such as in maintenance proceedings by a wife and in proceedings to recover stolen property. Having got those instances in which specific power is given to grant costs, in my judgment, the maxim expressio unius est exclusio allerius applies, where in specific instances a statute gives a Court power to grant costs and the same statute gives the Court whole criminal jurisdiction, I think the proper rule of interpretation is that expressed in the maxim I have just quoted, with the result that as the Code gives a specific right of granting costs, it excludes any other right of granting costs.”

Coutts Trotter, J. in his judgment after citing the case of Guardians of West Ham Union v. Churchwardens, &c., of St. Matthew Bethnal Green(2) said (p. 921):—

“But I think that the main reason why it is not possible for this Court to adopt that line of reasoning and take upon itself the award of costs in criminal cases is this—revision is not an inherent power of this or any other Courts; the whole machinery of revision is a creature of statute and has to be found within the four walls of the Code of Criminal Procedure and so far as criminal cases are concerned I do not see how we can possess an inherent power in ourselves to supplement purely statutory machinery by assuming to ourselves the power of supplementing it by the awarding of costs.”

And the learned Judge proceeded by observing that the Court had no power to do what it was asked to do and that it was for the Legislature to consider, whether when revisional proceedings are taken by private prosecutors the Court should not be armed with the power of mulcting them in proper cases by the award of costs. In our opinion the reasoning of that case is sound and we respectfully follow it. There is one further case to which reference should be made, Bai Jiba v. Chandulal Ambalal but in our judgment that case must be distinguished, because the Court there was dealing with a case where the proceedings out of which the revision arose were proceedings taken under s. 145, and the Magistrate had under s. 148 power to make an order by way of costs, so that case is not an authority for the point which we are considering in the present case.

The petition before us is to quash a complaint and the proceedings resulting therefrom, and for the reasons we have already given this Court has not, in our opinion, the power to award costs against the complainant. We regret it should be so, for if this Court had the power, this would be a proper case in which to exercise it, for we regard the complaint as being both frivolous and vexatious.

We can only follow the example of Coutts Trotter, J. and add, before parting with this petition, that it is for the Legislature to consider whether in criminal complaints launched by private prosecutors wider powers with regard to awarding costs should not be conferred on this Court, when there are circumstances from which the Court is of the opinion that a complaint is frivolous or vexatious or is an abuse of the process of the Court.

The complaint and the proceedings before the Magistrate are quashed.

Complaint and proceedings quashed.

J.G.R