1. I have had the opportunity of reading the judgments of my learned brothers who are more familiar with the practice of this Court than I am and with those judgments in general I agree. I have little to add.
2. I think it should be made clear that the fact that this Court Sections a prosecution is no intimation to the Magistrate that this Court thinks that there is a case to go to a jury, or that he thereby is in any way relieved from his duty of considering whether the accused ought to be committed for trial or not. This view is not at all inconsistent with the duty of this Court to refuse Section, if it is clearly of opinion, on the evidence before it, that no reasonable jury should convict.
3. There is one matter in the judgment of my brother Coutts Trotter, J., on which I wish to reserve the expression of my view until the matter directly arises, namely, whether the learned Judge was justified in ordering the document in question to be brought into Court on the application for Section, and I must not be taken as expressing assent to the view that, in so doing, he was acting without jurisdiction.
4. On the question of costs, this case might involve the consideration of the vexed question whether it is a criminal or civil matter and whether there is power to grant costs. Under all the circumstances of this case, we think that it is not necessary to consider that question as, in our view, it is a case in which each party should bear his own costs.
5. This application is for the revocation of a Section granted by Phillips, J., under Section 195, Criminal Procedure Code for the prosecution of the petitioner for offences punishable under Sections 193, 465, 467, 474 and 109, Indian Penal Code.
6. Petitioner occupied shops as respondents' tenants. They gave him notice to quit and moved for his ejectment under Section 41, Presidency Small Cause Courts Act. He sued for damages under Section 47, obtaining stay of the ejectment proceeding, and in his suit set up an agreement to lease to him for a term of five years in consideration of a payment of Rs. 1,000 pleading that certain sums aggregating Rs. 265 were actually paid to respondents through 6th respondent towards this amount. In his affidavit of documents he mentioned an account book on one page of which payments to 6th defendant are shown, consistently with the statement in his plaint; and, after his suit had been withdrawn before the trial began, his prosecution was Sectioned, as stated above, on respondents' application with reference to this-book.
7. The provision, under which Section was granted in res pect of the offences'under Sections 465, 467 and 474, Indian Penal Code is Section 195(I)(a) Criminal Procedure Code and it is urged first that this provision is inapplicable, be cause the book was neither '.produced' nor 'given in evtdencc,' as it requires. ft is not contended that the book was given in evidence, but only that it was produced, because it was mentioned in petitioner's affidavit or in the alternative because it was filed in the court translator's office for translation in accordance with the rules. But the affidavit, which is in the ordinary form merely discloses the documents in petitioner's possession relating to the matters in issue; and neither it nor the filing in the Translator's office amounts to what is required actual production in court. In fact the learned Judge relied on neither, as constituting production. What he relied on as the reference in the last sentence of his order to the account book which has now been filed shows, was that petitioner filed it, not in the suit, but after its termination, on being required to do so by the Court on the application of respondents dated 9--12--1921 in the course of the proceedings in which the Section was given. With all respect the proceeding in which Section was asked for, was distinct from the suit, the proceeding, to which petitioner was a party and in which he was alleged to have committed those offences; and his production of the account book in the former cannot be regarded as the production in the latter, which Section 195(1)(c) requires. The learned Judge in these circumstances had no right to give and respondents no duty to obtain Section in respect of the offences under Sections 465, 467 and 474, Indian Penal Code, if indeed Section need be given in respect of the last mentioned.
8. This is material, because we have further to deal only with the remaining offence specified in the learned Judge's order, that punishable under Section 193; and there is nothing in the order to show that any difference between the considerations arising under Section 195(0(b), Criminal Procedure Code, and those under 8. 195(1)(c) was present to the learned judge's mind or influenced the judicial use of his discretion. That the relevant considerations are different is clear. For under the former provision the offence may be alleged as committed not only in but more remotely 'in relation to' a proceeding whilst under the latter it must be committed in respect of a document produced or given in evidence; 'that is in connection with a trial, which has begun and therefore in direct and public prejudice to the reputation of the Court and its administration of justice. Here and in other cases under Section 195(1)(b), when no (question of such prejudice can arise the exercise of the Court's discretion will be judicial only if it considers whether with reference to the evidence available and the other cirumstances as prosecution is desirable In the public interest and not, if it merely satisfies itself, as the learned judge statedly did in the order before us that' a prima facie case has been made out.
9. The latter is the view of the Court's duty and of the tests to be applied by the appellate Court advocated on behalf of respondents; and it is the judgment of Napier, J., in Krishnama v. Chitluri Chinnamma Perraju (1915) 17 M.L.T. 15 and that of the High Court of Calcutta in In re An Attorney (2) are relied as generally in accordance with it. But it is difficult to deduce from them or other authorities cited, Palaniappa Chettiar v. Kamaswam Chettiar (1916) 32 M.L.J. 54 and In re Haji Mahomed Habibullah Batcha Sahib (4) any such rigid general rule as respondents contend for; and necessarily so, since such decisions are naturally worded with reference to the circumstances of the cases under disposal and give prominence to the considerations which assumed importance in them. I accordingly restrict myself to a statement of what I believe to be the law on the points at present material and in doing so aim at a general adherence to the effect of the authorities than a detailed reconciliation of the apparent differences between them.
10. Firstly, the duty of the Court granting Section is discharged, it it exercises a judicial discretion; and similarly the dutv of the appellate Court, if it satisfies itself whether such a discretion has been exercised. The former Court must therefore be required, whatever the extent to which the investigation undertaken for its own satisfaction has been carried, to put on record sufficient to demonstrate to the latter.that its exercise of discretion has been judicial; and it is undesirable in fairness to the accused that it should do more. In case it does less the appellate Court will have no choice but to follow the course indicated in the judgment of Ayling, J., in Palaniappa Chettiar v. Ramaswami Chettiar (1916) 32 M.L.J. 54 wife which 1 am in general agreement, and to ascertain the necessary facts for itself and base its conclusions on them.
11. In the next place it may be said at least that the Court cannot be regarded as having exercised a judicial discretion in granting Section, when it has satisfied itself only that a prima facie case has been made out, if by that is meant only that formal evidence of the ingredients of the offence is available, without reference to defects which may deprive it wholly or to a material extent of value, Further, apart from the considerations to be referred to and the interests of the accused, it will promote the mischief deprecated by Coutts Trotter, J., in In re riaji Mahomed Habibullah Batcha Sahib (4), ' The frivolous abuse of the powers of the Criminal Court ' to authorise a prosecution which has not, in the words of Ayling, J., in the case already referred to even ' a fair chance of success. '
12. There remains the more difficult* class of cases, of which on the assumption most favourable to respondents the case before us is one and in which there is some evidence deserving consideration at a trial; and of course the requisites for the case of a judicial discretion in connection with them can be in dicated only in the most general terms. But it is here thai the prospects of further proceedings serving any public purpose, on which all the authorities insist, becomes material. It is so, with all deference to the opinion of Seshagiri Aiyar, J. in Palaniappa Chctiiar v. Ramaswami Cheiliar (1916) 32 M.L.J. 54 not wholly or principally out of respect lor the rights of the accused or the liberty of the subject. For, if that were the justification lor the Section procedure, there would be no reason for applying it only to cases in which the offence is alleged in relation to legal proceedings, and for maintaining the ordinary rights of the complainant in connection with those offences, when they are not alleged as so related. That procedure is necessary, as Ayling, J., observed in order ' to avoid the risk of frivolous or vexatious charges designed, not to vindicate justice, but to harass and annoy the person against whom they are directed, 'since' without some such safeguard the criminal Courts of this conutry would be Hooded with useless prosecutions. 'Unless this has been borne in mind, the Court's use of its discretion cannot be regarded as judicial; and it follows that, the remoter the prospect of any public purpose being served, the clearer the Court's duty to insist on evidence in support of the charge.
13. In the present case it is sufficient that whilst the evidence against petitioner, with which the order before us is exclusively concerned, is at least of no special strength, no prospect of a prosecution serving any public purpose whatever is disclosed by the record. In fact the petitioner's conduct, if respondent's case is accepted, secured him no advantage, since his suit was withdrawn, before his alleged forged document could be used. It appears from the latter's affidavit to which the learned Judge has not referred, that petitioner gave evidence in respondent's family quarrel as we were told by their earned Counsel three years back with the result that two of them were imprisoned and that they still intend to dispute the new title, under which he now claims the property, for which he sued. In these circumstances' the prosecution contemplated by respondents can only be regarded as vindictive and coercive and the evidence is too weak to justify the grant of Section for it.
14. I would allow the appeal and revoke the Section.
15. Coutts Trotter:--The plaintiff brought a suit in which he alleged that he had an option to an extension of his lease of the suit premises for live years on payment of an advance of Rs. 1 ,000; and in paragraph 5 of his plaint he set out certain sums which he alleged he had paid towards the Rupees 1,000. ranging in date from the 12th of April to the 22nd July, 1920. In his affidavit of documents he included a rough chitta book which was said to contain an entry recording the payment of these sums in all Rs. 265 which entry was alleged to be signed by the 6th defendant He did not produce the rough chitta book for inspection by the opposite party for a considerable time and only did so in the end under an order of the Court. When the suit came on for trial, it was withdrawn the plaintiff having meanwhile got what he wanted by attornment to the persons who he was satisfied could give him a better title than the defendants. After the withdrawal of the suit an order was made upon the plaintiff by the learned Judge to produce this chitta book in connection with an application for Section to prosecute him, under various sections of the Indian Penal Code, the allegation being that the materiaj entries in the rough chitta boo.k were fabricated for the purpose of manufacturing false evidence, and only came into existence after the signature of the 6th defendant had been obtained.
16. I do not wish to go into the facts in detail, for, they are really not material to the point which we have to decide. it is sufficient to say that in my opinion that this is a case in which no jury would be likely to convict on the materials which were before the learned Judge although it is clear that there was some evidence, which if put before the jury and accepted by them, would justify a conviction; in other words there appears to be what is called a prima fake case. The question) which 1 consider important in this case relates to the general position first of a Court whose Section is sought for a prosecution and secondly of an appellate tribunal on an appeal from the order granting or refusing Section passed by the Court below.
17. In my opinion, entirely different considerations arise when a Court grants a Section and when it refuses it. In In re Haji Mahomed Habibullah Batcha Sahib (4) 1 expressed an opinion to which 1 adhere as to the proper considerations to guide a Court in granting a Section and the proper inference to be drawn from the granting of such a Section. The Code provides for the granting of Section as a preliminary nor merely to a trial but, in many cases, to the taking of the case before a Magistrate who has jurisdiction either to commit for trial to a higher tribunal or to refuse to do so. It is, to my mind, vital that it should be recognised that a Court, in Sectioning a prosecution arising out of facts which have come before it during the trial of a civil case should not be supposed to be discharging that which is the task of the committing Magistrate at a later stage and usurping his functions by explicitly or tacitly pronouncing that there is a prima facie case. i adhere to the view that such a conception of the functions of the Sectioning Judge would turn what is intended to be an additional safeguard to accused persons into a weapon prejudicial to their interests. I do not think that a Court which allows Section does more than say that, on the materials before it, it is not apparent that a prosecution would be against the public interests or a mere indulgence of private spite. On the other hand, the Court which refuses Section to my mind does no more than express the opinion that the public interests would not be served by such a prosecution and it is not as I conceive the matter, debarred from acting upon that view, even where there is a strong prima facie case. It is apparent that if this be the true conception of the functions of a Court on an application made for Section they are of such a nature as necessarily to invest that Court with a very wide discretion, and one with the exercise of which an appellate Court should be extremely slow to interfere. The trial Judge is vested with the function for granting or refusing Section precisely because he has had the parties and witnesses before him and has the best opportunity of judging whether such a prosecution would serve any useful purpose or not.
18. The Section granted in this case was for a prosecution for offences punishable under three substantive sections of the Penal Code, Sections 193, 467 and 474, the other two sections cited being ancillary. Section 474 has been given up because it is clear that no Section is required for that and where no Section is required it is obviously proper that none should be sought or granted. Section 467, forgery of a document purporting to be a receipt, does require Section under Section 195(1)(c) of the Criminal Procedure Code when such offence has been committed by a party to any proceeding in any Court in respect of a document 'produced or given in evidence in such proceedings.' In this case the document was not produced or given in evidence, on the construction of those words that 1 think to be the right one, in the civil suit at all. Inspection of it was given to the opposite side but it was not before the Court until after the civil proceedings had terminated and the plaintiffs had withdrawn his suit. ' roduced or given in in the course of the civil proceedings which ended with their withdrawal. I confine the expression ' ivil proceedings.' for drawal. I confine the expression 'civil proceedings,' for my present purpose to the actual trial of the suit up to the point when it was withdrawn without expressing any opinion on the debated question whether the subsequent Section proceedings are in their nature civil or criminal. But the offence under Section 193 stands on a different footing, for, the offence defined by that section is that of fabricating false evidence for the purpose of being used in a stage of a judicial proceeding and actual production or tender of the document to the Court is not a necessary ingredient of the offence. This, therefore, falls under Section 195(1)(b) of the Code of Criminal Procedure and is not obnoxious to the objection formulated to the other charges. I must therefore, consider whether there is any good ground for refusing the Section which the learned Judge in his discretion has granted. 1 think that there are two such grounds. The first is that, in my opinion, the whole proceedings were vitiated by the learned Judge ordering the plaintiff to produce the document for the sole purpose of considering whether or not a prosecution should be launched upon it. That was an order which I consider that the learned Judge had no jurisdiction to make and one which is absolutely repugnant to all those fundamental notions of fairness to a person accused or about to be accused of a criminal offence, which He at the root of the criminal law of England and of India alike. He was never warned as to his position, nor was it intimated to him what the consequences of producing the document might be. In my opinion, the plaintiff could have disobeyed that order with impunity and the fact that, from ignorance of his rights, he did not disobey it does not affect its irregularity. But there is an even more serious objection which appears on the face of the learned Judge's order. As I have pointed out, it is not necessary ingredient of an offence under Section 193 of the Penal Code that the evidence alleged to be fabricated should actualy be produced in the antecedent judicial proceedings; but no one can doubt that, in considering the advisability of Sectioning a prosecution its production or non-production in Court is a circumstance to which the learned Judge might attach very considerable importance, in weighing that which 1 have held to be the sole question properly before him, nairiely whether it was against the public interest to allow criminal proceedings to be instituted. It is clear that, at the time he passed this order, the learned Judge was under the impression that the impugned document had been filed in the course of the civil proceedings, and entirely overlooked the consideration that the document was only produced on his own order alter the civil proceedings in the strict sense had terminated. To my mind, that misapprehension must have vitiated the learned Judge's exercise of the discretion he undoubtedly possessed and leaves us free, on a knowledge of the true facts to differ from his view. Where it is shown that the learned Judge exercised his discretion on a mistaken view of the facts, it appears to me that he may be treated as not having exercised a judicial discretion at all, and that the appellate tribunal may be considered as thereby invested with an unfettered discretion to act on the true facts. Viewing the case in that light it appears to me that no useful purpose would be served by allowing this prosecution; not only because I think that, no jury would convict on the materials before us but also because i think it is clear that this prosecution was one which was projected not to satisfy the requirements of public justice, but to find an outlet for the anger of the defendants at being thwarted in their desire to get possession of this property.
19. I think that the appeal should be allowed.