Reuben, J.

(1) The petitioner filed a first information report under Sections 447 and 380, Penal Code, against Banti Ahir and four other persons, alleging that they had committed house-breaking and theft in his house. The accused persons were acquitted by the First Class Magistrate, Motihari, and, in a proceeding under Section 250, Criminal P.C., the petitioner was directed by the Magistrate to pay Rs. 100 as compensation to each of the accused persons. The order has been upheld by the Sessions Judge with the modification that the amount payable to each of the accused persons has been reduced to Rs. 50.

(2) The order passed by the Magistrate is on the face of it defective as not complying with Section 250. This section provides that, after cause has been shown by the complainant or informant, as the case may be, if the Magistrate is satisfied that the accusation was false and either frivolous or vexatious, he may direct payment of compensation. This necessarily implies a finding by the Magistrate on two heads firstly, whether the accusation was false, and, secondly, whether it was either frivolous or vexatious. In acquitting the accused persons of the offences charged, the Magistrate expressed the opinion that the accusation was false and malicious. This is at most a compliance with the provisions of Sub-section (1) of Section 250, which says that the complainant or informant, as the case may be, is to be called on to show cause, only if the Magistrate is of the opinion that the accusation was false and either frivolous or vexatious. The expression of opinion contained in the judgment of acquittal does not exempt the Magistrate from considering the point after the cause is shown. The learned Magistrate lost sight of this provision altogether and recorded only one finding, namely, that the accusation was false.

( 3. ) It has been urged that the absence of the necessary finding under the other head affects the jurisdiction of the Magistrate to pass the order and, therefore, the order is bad ab initio. It appears to me that this is not a defect which goes to the root of jurisdiction. At the most, there is an irregularity and, since the appellate Court can exercise the same powers as the original Court, the defect might have been supplied by the Sessions Judge in appeal. I, therefore, turn to the order of the Sessions Judge.

(4) The finding of the learned Sessions Judge is that there was probably a house-breaking and theft as alleged, but that the accusation as against these particular persons is without any reasonable and probable ground and was made out of enmity between the parties. He did not refer to the particular terms of Section 250 and went on to decide whether the condition as to frivolousness or vexatiousness was satisfied. In the circumstances of this case, it is not necessary to enter into a consideration of the difficult question as to whether a finding of this sort is a sufficient finding for the purposes of Section 250. Some guidance on the point is afforded by In re Dinshahji Hirjibhai, A.I.R. (19) 1932 Bom. 177 : (33 Cr. L.J. 392). But that was a case where the falseness of the accusation, against the accused person was definitely established. On a consideration of the order of the Sessions Judge, I do not find this to be so here. According to the Sessions Judge, there probably was a house-breaking and theft. The-witnesses, however, seem to be interested and have deposed before for the prosecution. There is previous enmity between the first informant on one side and the accused persons on the other and there are discrepancies in the evidence and improbabilities in the evidence relating to the occurrence. These are the reasons given by the learned Sessions Judge. They are, at the most, reasons for disbelieving the witnesses, in other words, for holding that the offences alleged against these accused persons have not been proved. Before an order under Section 250 can be passed, however, it must be definitely established that the accusation is false.

(5) For the reasons given above, I would allow this petition and set aside the order for the payment of compensation. The money, if paid, must be refunded.