1. The accused were tried by the Third Presidency Magistrate in 1921 for getting the complainant arrested on a warrant and sent to the Civil Jail when he possessed a valid protection order. The acts of the accused were taken as offences falling under Sections 341, 342 and 114, Indian Penal Code. The trial ended in the discharge of the two accused, and this is an application to set aside the discharge and to order further enquiry.
2. The reasons given by the Magistrate are (1) that the evidence shows that first accused was not present when the arrest was made: (2) the Bailiff who made the arrest takes the whole responsibility on himself and (3) the prosecution failed to make out a case against the accused.
3. The Bailiff (P.W. No. 3) no doubt stated in his evidence that he acted on his own interpretation of the protection order. But in his report (Exhibit L 3) he stated that second accused was worrying him to do his duty and to arrest the man and take him to Jail, and Prosecution Witnesses Nos. 2/4 and 6 stated in their evidence that accused No. 1 insisted on the complainant being taken to Jail.
4. The Magistrate's observation that the prosecution had not made out a case against the accused thus is not justified by the record. It would be no defence against the charge under Sections 342 and 114, Indian Penal Code, for the first accused to say he was not present at the actual arrest, if in fact he was instrumental in getting the arrest made, and, if after it was made, he instigated the Bailiff to wrongfully confine a debtor in spite of a protection order in his favour.
5. However, since the accused were discharged, a civil suit based on the same cause of action has been decided and the first accused has been mulcted in heavy damages, for his ill-advised action. The appeal has all gone against him. I think it is not necessary in the ends of justice that he should again be put on a trial in a Criminal Court for these compound-able offences after he has purged his offence in the Civil Court. It would savour of vindictiveness to press further proceedings against him.
6. As regards the second accused the same reasons cannot be urged in his favour. There is plenty of evidence that he was present at the arrest, and that he pointed out the complainant as the person to be arrested. I set aside the order of discharge under Section 437, Criminal Procedure Code and direct the Third Presidency Magistrate to make further enquiries into his case.