ORDER Niamatullah, J.
1. This is an application by one Bechan Prasad for revision of an order passed by the learned District Magistrate, Benares, awarding compensation to the opposite party under Section 250, Criminal P.C. It appears that Mt. Biranjia was married to one Jhuri by her parents, Lakhan and Mt Nanki. Badri Nath officiated as the priest at the marriage. On 21st January 1935 Bechan Prasad, who is the secretary of an association which has social reforms among the "mallahs" as one of its objects, filed a complaint under the Sarda Act, alleging that Mt. Biranjia was below 14 on the day of her marriage and praying that her parents, her husband and the priest be prosecuted under the Sarda Act. The District Magistrate in whose Court the complaint was filed, called for a report from a Magistrate, and the latter reported that the complaint was well-founded. Accordingly summonses were issued to the accused, but no service could be effected for some time. In the meantime, the District Magistrate sent the girl for examination by a lady doctor, who wrote a letter expressing a certain opinion which I need not mention, as it is clearly not admissible in evidence. On 15th May 1935 the District Magistrate acquitted the accused and called upon the complainant, Bechan Prasad, to show cause why compensation should not be awarded against him under Section 250, Criminal P.C. Bechan Prasad made a certain statement, but the District Magistrate considered that he had shown no cause. The District Magistrate awarded Rs. 150 compensation to all the four accused.
2. It is clear from the language of Section 250, Criminal P.C., that compensation can be awarded thereunder only if "the accusation was false and either frivolous or vexatious." If the accusation is proved to be false but cannot be regarded to be frivolous or vexatious, the section does not justify the award of compensation. If the accusation is not proved to be false, no compensation can be awarded, however frivolous or vexatious the conduct of the complainant might have been. The learned District Magistrate has expressed the opinion that the accusation made by Bechan Prasad was false. The state of the evidence, however, does not appear to me to have justified that conclusion. He based it merely on personal observation. The letter of the lady doctor is referred to, but the learned District Magistrate does not rely on it in [support of his finding. It is clear that;in the absence of the sworn testimony of the lady doctor her letter is inadmissible in evidence. It does not appear whether the learned District Magistrate saw the girl on the day he passed his order, that is 15th May 1935. I am informed that he had done so sometime in March 1935. It does not make any appreciable difference as to whether he saw the girl on 15th May 1935 or a few weeks earlier. He says: "I saw the girl and she is obviously well over 15 now." Bechan Prasad had produced a certificate of birth, but it appears to be no more than an extract from the register of births maintained by the Police. According to that register the age of girl therein mentioned was 14 years one month when the District Magistrate saw the girl. This document was rejected by the District Magistrate on the ground that there was no evidence to show that the girl, to whom the entry referred, was Mt. Biranjia. Apparently the name of the girl was not entered in the register, as she had not till then been named. The learned District Magistrate considered that the entry could not possibly have referred to Mt. Biranjia, as it is 'absurd" to think that she was only 14 years one month when the District Magistrate saw her.
3. A distinction clearly exists between a fact not being proved and being disproved. In a prosecution under the Sarda Act it is the duty of the prosecution to establish that the girl in question was below 14 at the time of her marriage, but for awarding compensation under Section 250 the position is the reverse. There ought to be evidence before the Magistrate for a positive finding that the complainant's allegation that the girl was below 14 at the time of her marriage was false. The mere fact that the evidence produced by the complainant in support of his allegation was unreliable or inconclusive will not justify the opposite finding that the allegation was false. In the absence of definite [evidence showing the age of the girl, it is impossible to say that the complainant's allegation that the girl was below 14 at the time of her marriage is false. All that can be said is that he failed to prove his allegation. It does not necessarily follow that his allegation was false. The estimate of age, formed by the District Magistrate, might have been of some value in weighing evidence. By itself it cannot be regarded as sufficient for determining the issue, namely whether the complainant's allegation as regards the age of Mt. Biranjia was false. Even medical opinion is considered to be evidence of an unsatisfactory character where the exact age is in question, nor can it be assumed that the entry in the register of births does not refer to Mt. Biranjia but to some other girl born to her parents. A girl, who is estimated to be over 15 in March 1935, might well have been a little less than 14 on 24th June 1935. The estimate of age depends very materially on the development of the girl, and there is considerable room for divergence of opinion on a matter like this. In these circumstances I am of opinion that; the finding of the learned District Magistrate that Bechan Prasad's allegation regarding the age of Mt. Biranjia was false is not supported by evidence.
4. The result is that this application is allowed. The order of the District Magistrate awarding compensation under Section 250, Criminal P.C., is set aside.