1. It remains to consider the subject of the other Rule, No. 3 of 1925, which has been obtained by Bijoy Singh Hazari who is one of the three persons in respect of whom an application was made to the learned Subordinate Judge for the institution of criminal proceedings.
2. It is necessary to deal very shortly with certain matters which led up to the making of this application. In the year 1910, one Sattan Kumari obtained a decree for arrears of maintenance for Rs. 2,500 against Mathuriya Debya and others. Thereafter, numerous applications for execution of this decree appear to have been made-whether they were in fact made or whether the entries relating to them which appear in the Court registers are forgeries is a matter of dispute, However, the material applications were: No. 104 of 1911, which the register would show was made by Sattan Kumari. Then again No. 736 of 1914 and No. 1255 of 1918 and finally No. 152 of 1921. Sattan Kumari died on the 20th of March 1922. By her will, her whole property was bequeathed to the present petitioner Bejoy Singh Hazari. He then made an application in the Execution Case No. 208 of 1922 on the 5th of January 1922. To this an objection was made that the decree had been satisfied years ago and it has been alleged that there was a conspiracy on the part of Bejoy Singh Hazari, Chunder Kumar Sen, who was a clerk in the office of the Subordinate Judge of Chittagong and another person, to forge these records of execution cases with a view to show that this old decree which had in fact been satisfied many years ago was still effective.
3. An application was, therefore, made to the learned Subordinate Judge under Section 476, of the Criminal Procedure Code to make a complaint against these three persons. The result, as the learned Chief Justice has just pointed out, was the rejection of the application against Chunder Kumar Sen and the other person, but the prosecution went on for some time as against Bejoy Singh Hazari. The learned Subordinate Judge says in his order: 'The case of the petitioner is that Bejoy Singh Hazari knowingly filed a verified petition of execution and in collusion and conspircy falsified the register and used the false entries as genuine and thus committed the offences enumerated above.' In the result he expressed the opinion that 'if there be a prosecution there is no likelihood of a conviction. Such being the case I have no other alternative but to reject the application.'
4. Thereupon an appeal was taken to the learned District Judge who directed that criminal proceedings should be instituted against Bejoy Singh Hazari and Chunder Kumar Sen for offences under Sections 209 and 466 of the Indian Penal Code and for abetment of those offences.
5. It has been urged on behalf of Bejoy Sing Hazari that this order should be set aside and the facts of the case have been gone into at some length before us.
6. I have, however, very grave doubts as to whether the prosecution which the learned District Judge has directed could possibly come to a successful end. In arriving at this conclusion. I have particular regard to the attitude which the learned Deputy Legal Remembrancer, who appears for the Crown, has, if I may say so, very properly assumed in this matter. Moreover, the position of affairs has completely changed now that the prosecution against Chunder Kumar Sen has failed; and I very much doubt whether the learned District Judge, had he had the case of Bejoy Singh Hazari only to consider, would have arrived at the opinion that this man should now be prosecuted. There is further a very important fact, this fraud, if it was perpetrated, was perpetrated so long ago as 1921, and is said to have come to light in 1923.
7. In these circumstances my opinion is that the prosecution of Bejoy Singh Hazari is not desirable and should not be ordered.
8. It is true that the Rule issued by this Court was to show cause why the appeal should not be re-heard by the learned District Judge. It is, however, within the competence of this Court to make any such order as it may think fit. In my opinion the proper order for us to make is simply that the order of the District Judge is set aside, the result being that there will be no prosecution of the present petitioner.'
9. I agree.