1. On the 8th June, 1907, the present applicant laid an information before the Sub-Inspector of Police at Sambalpore to the effect that there had been a burglary in his house and that a sum of Rs. 200 together with a mortgage-bond securing Rs. 2,350 had been stolen. He said that he suspected that the thefts had been instigated by one Kripa Sindhu and his brother-in-law Balk who, he said, would benefit by the disappearance of the bond. The Police held an investigation in the case and reported that the information was false. On this report the Deputy Commissioner directed a judicial enquiry into the matter by a Deputy Magistrate who, however, was transferred before the enquiry was completed. Thereupon the Deputy Commissioner transferred the case to the file of another Magistrate, Mr. Pujahri, who, after giving the petitioner every opportunity of proving his story, came to the conclusion that the report of burglary was entirely false. On the 4th February, 1908, he submitted his report containing the conclusion at which he had arrived to the Deputy Commissioner for orders.' On the 6th February the Deputy Commissioner called upon the petitioner to show cause why he should not be prosecuted under Section 211, Indian Penal Code, and on the 20th March ordered his prosecution. Thereupon the petitioner applied to this Court to have that order set aside and obtained a Rule which on the 6th May was made absolute. It was then held by this Court, following the case of Haibut Khan v. Emperor 10 C.W.N. 30; 33 C. 30; 3 Cr. L.J. 125 that the order of the Deputy Commissioner for the prosecution of the petitioner was under the circumstances made without jurisdiction. That order of the Deputy Commissioner having been set aside, the record of the case was returned to Mr. Pujahri. This Magistrate again enquired into the matter and examined two more witnesses who were tendered by the petitioner and on the 14th August under Section 476, Criminal Procedure Code, formally ordered the prosecution of the petitioner under Sections 182 and 211, Indian Penal Code, and sent him for trial to the Court of a First Class Magistrate. It is this order which is the subject of the present rule. A Division Bench of this Court issued a Rule to the Deputy Commissioner to show cause why this order should not be set aside 'on the ground mentioned in the petition.' The Rule has now come before us for disposal. Only three of the grounds mentioned in the petition have been pressed by the learned Counsel who appears on behalf of the petitioner.
2. It is contended, first, that having regard to the terms of Section 476, Criminal Procedure Code, and the recent Full Bench ruling of this Court in the case of Begu Singh v. Emperor 11 C.W.N. 563; 34 C. 551; 5 C.L.J. 503; 5 Cr. L.J. 398; 2 M.L.T. 293, as also to the ruling in the case of Rahimatulla v. Emperor 31 M. 140; 7 Cr. L.J. 54; 3 M.L.T. 79 (F.B.); 17 M.L.J. 584 the order was illegal. In our opinion there is no force in this argument and neither of the rulings has any application to the present case. The ratio decidendi of the Full Bench ruling of this Court was the terms of Section 476 indicate that the desirability of prosecuting the offender must be present to the mind of the Court during the proceedings in the course of which the offence was committed or brought to its notice. It was never contended that when the proceedings had terminated, the attention of the Court should be subsequently drawn by some private person to the fact that in those proceedings there had been committed some offence in contempt of the Court's authority or against public justice which deserved punishment.' It is quite clear in this case that on the 4th February, 1908, when Mr. Pujahri submitted his report he had come himself after the fullest enquiry to the conclusion that there were good prima facie grounds for ordering the prosecution of the petitioner. Instead, however, of thereupon himself directing the prosecution of the petitioner under Section 476, as he should have done, he sent the record to the Deputy Commissioner 'for orders.' The order of the Deputy Commissioner was set aside by this Court as explained above. But on setting aside the order of the Deputy Commissioner, this Court in no way animadverted on the record of Mr. Pujahri which was not directly before it. It was quite open to Mr. Pujahri when the record returned to him to complete his enquiry, if further enquiry was necessary, and himself pass orders under Section 476 if he was satisfied that such a course was desirable.
3. The next ground pressed by the learned Counsel is that inasmuch as there is a Civil suit now pending between the parties filed by the petitioner against the opposite party on the basis of the very mortgage bond which is alleged to have been stolen, it is undesirable that these Criminal proceedings should go on until the Civil litigation is concluded, as the alleged loss or theft of the mortgage-bond is directly in issue and will have to be determined in that suit. The case of Jadu Lal Sahu v. J.R. Lowis 11 C.W.N. 712; 34 C. 846; 5 Cr. L.J. 480; 6 C.L.J. 531 is cited in support of this contention.
4. It appears that this suit was filed on the 8th March, 1908, that is to say, nearly eight months after the Criminal enquiries began. In fact the Deputy Commissioner had received Mr. Pujahri's report and had called on the petitioner to show cause why he should not be prosecuted. It would be a dangerous doctrine to lay down any hard and fast rule to the effect that a Criminal trial or enquiry should of necessity be stayed simply because a Civil suit has been instituted between the parties in which some or all the matters materially in issue in the Criminal case would have to be determined, until the Civil litigation was finally decided. The case in Jadu Lal Sahu v. J.R. Lowis 11 C.W.N. 712; 34 C. 846; 5 Cr. L.J. 480; 6 C.L.J. 531 lays down no general rule. On the facts of that particular case this Court held that it was undesirable to grant sanction to a private person to prosecute his adversary in a Civil litigation in the course of which the alleged offences were said to have been committed until the appeal which was pending from the original decree in the suit had been decided, especially as it appeared from the order of the District Judge itself (which order was then under the consideration of this Court) that the evidence on which the first Court had come to the conclusion that an offence had been committed was more than shaky. It appeared also highly probable that the object of obtaining the sanction to prosecute in that case, was not so much to vindicate public justice as to hamper the appellant in the prosecution of his appeal. A Court may well hesitate to give sanction to a private individual to prosecute his adversary for an offence alleged to have been committed during the pendency of a civil litigation, as if it acceded to his request, it must to some extent at least, give him an unfair advantage by enabling him to holdover the head of his adversary for at least six months the threat of a criminal prosecution which might or might not eventually be undertaken. But it is a very different thing to ask a criminal Court which after enquiry held with this very object in view has come to the conclusion that there are grounds for starting criminal proceedings against an individual, to stay its hand indefinitely or at any rate, possibly, for some years because that individual has filed a Civil suit. As held in the recent case of Hem Chandra Ray v. Atal Behary Ray 35 C. 909; 8 Cr. L.J. 435 it is very desirable in the ends of justice that when a competent Court has taken upon itself the responsibility of ordering a prosecution under Section 476, that that prosecution should be entertained as speedily as possible while the evidence on both sides is fresh. We, therefore, are of opinion that no valid reason has been shown in this case to postpone the trial of the petitioner and we regret that there has been so much delay.
5. The last ground that was argued was that inasmuch as no one was directly charged in the first information, a prosecution under Section 211 at all events must fail. It is true that in the report to the Police the petitioner did not name any one as being the actual offender. What he did was to report the fact of theft and his suspicion that the opposite party had instigated it. If it had been established that there had in fact been a burglary in the course of which the mortgage-bond had been stolen there might, perhaps, have been some force in this argument. But Mr. Pujahri in the preliminary enquiry has come to the conclusion, rightly or wrongly as will be decided in the trial, that as a matter of fact there was no burglary at the house of the petitioner as alleged by him and that the mortgage-bond was not stolen under the reported circumstances. Having arrived at this conclusion he was quite justified in ordering the prosecution of the petitioner under both the sections. For these reasons we discharge the Rule.