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Mathura Sahu and anr. Vs. Damri Ram - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in14Ind.Cas.755
AppellantMathura Sahu and anr.
RespondentDamri Ram
Excerpt:
sanction to prosecute - technical grounds--sanction not to be granted in absence of reasonable prospect of conviction--criminal procedure code (act v of 1898) section 195. - .....what purports to be his signature, though, if he really signed the petition along with dvvarka sahu, evidence ought to have been easily available in that respect. on the other hand, there is positive evidence on the record to show that mathura sahu was not present at the time and in the place, when the petition was drawn up and signed by dwarka sahu; this is conclusively shown by the evidence of the pleader who presented the petition, as also of another witness who deposes in support of the application for sanction. under these circumstances, i am of opinion that while no case for our interference has been made out on behalf of dawarka sahu, the case of mathura sahu stands on a different footing. i am further of opinion that the distinction between the oases of the two persons is.....
Judgment:

Mookerjee, J.

1. The Court is invited in this Rule to set aside a sanction granted under Section 195 of the Criminal Procedure Code for the prosecution of the petitioners, Mathura Sahu and Dwarka Sahu, for offences under Sections 182 and 193 of the Indian Penal Code. In the view I propose to take of the matter, it is needless to set, out the facts in full detail. It is sufficient to state that these persons were the plaintiffs in two civil suits, in which, among others, one Pati Rai was a defendant. On or about the 19th December 1910, an application alleged to have been verified by both the plaintiffs, was made on their behalf to the effect that Pati Rai was dead and his heirs had to be brought on the record. It was subsequently intimated to the Court by the defendants that this allegation was false, and Pati Rai was alive. The defendants also applied for sanction to prosecute the plaintiffs on the ground that they had made a false statement in a verified petition and thereby given false information to the Court. The original Court granted the sanction on the 25th April 1911, which was upheld by the District Judge on appeal on the 27th May 1911. In this Court, the petitioners have submitted an elaborate explanation of the circumstances under which the statement in question was made, the substance whereof is that it was based on a bona fide mistake. The same explanation was put forward before the District Judge, who declined to accept it on the ground that it was set up too late and ought to have been placed before the primary Court. This view is cleary inaccurate, because, upon an examination of the record, it transpires that the explanation; submitted before the District Judge and repeated before this Court, bad been, at one stage, narrated in a petition to the first Court. This error on the part of the learned Judge, however, is immaterial, because, though the theory of mistake was set up in the original Court, no attempt was made by the petitioners to establish the facts upon proof whereof alone that theory could have been supported. The statement, therefore, which is admittedly untrue in fact, because Pati Rai was alive, must prima facie be taken to have been deliberately made. Here, however, a difficulty presents itself. The gist of the alleged offence is that the untrue statement was made in a verified petition. In the primary Court, evidence was adduced to prove that the petition had been duly verified; but that evidence shows only that it was verified by Dwarka Sahu whose signature was proved. There is literally no evidence on the record that it was verified by Mathura Sahu also; no attempt was made to prove what purports to be his signature, though, if he really signed the petition along with Dvvarka Sahu, evidence ought to have been easily available in that respect. On the other hand, there is positive evidence on the record to show that Mathura Sahu was not present at the time and in the place, when the petition was drawn up and signed by Dwarka Sahu; this is conclusively shown by the evidence of the Pleader who presented the petition, as also of another witness who deposes in support of the application for sanction. Under these circumstances, I am of opinion that while no case for our interference has been made out on behalf of Dawarka Sahu, the case of Mathura Sahu stands on a different footing. I am further of opinion that the distinction between the oases of the two persons is vital, and goes to the root of the matter. It may be conceded that when a Court is invited to sanction a prosecution because an offence against public justice has been committed, the ends of justice ought not to be allowed to be defeated on technical grounds. At the same time, it must be remembered that a sanction ought not to be lightly granted, merely because there is room for suspicion that an offence may have been committed; the Court is bound to satisfy itself that there is at least a prima facie case, and that if a sanction is granted, there is a reasonable prospect of a successful termination of the prosecation about to be instituted. In the case before me, there is no evidence, as I have said, upon the fundamental point, in so far as Mathura Sahu is concerned. In my opinion, the Rule ought to be discharged in so far as Dwarka Sahu is concerned, but made absolute in so far as Mathura Sahu is concerned.

Carnduff, J.

2. I should have been prepared to discharge this Rule in toto and decline to go into the facts and the merits, on the broad ground that two Courts have, after the examination of witnesses and evidently full consideration, concurred in finding that there is a prima facie case against both the petitioners. As to the general principles which should guide us in dealing with matters of this kind, I adhere to the view expressed by Chitty, J., and myself in In re Ram Prosad Malla 37 C. 13 : 13 C.W.N. 1038 : 4 Ind. Cas. 6 : 10 Cr. L.J. 454.

3. That being so, I concur, of course, in discharging the Rule in so far as the petitioner Dwarka is concerned; bat I do not appreciate the reason for making it absolute in favour of the other, Mathura. The fact that he did not sign the verification may, no doubt, prevent his successful prosecution under Section 193 of the Indian Penal Code; but his prosecution under Section 132 ought not, in my opinion, to be interfered with. It has been discovered, literally at the last moment, that his signature to the petition, which is the basis of the proceeding against him, has not been regularly proved. But the petition was on behalf of the two brothers, it bears what purports to be Mathura's signature, bakalam khas; and Mathura has never repudiated the signature or suggested that he was not responsible for the petition. On the contrary, Mathura has not dissociated himself from his brother, and the only joint reply of the two, as well as the whole of the arguments on their behalf up to the last moment here, has been that the petition was made bona fide and that the inaccurate statement in it was the result of a mistake. For the purposes of mere sanction, I should have thought this amply sufficient.

Mookerjee, J.

3. Under Section 36 of the Letters Patent, the judgment of the senior Judge prevails. The Rule is, therefore, discharged so far as Dwarka Sahu is concerned, bat made absolute so far as Mathura Sahu is concerned.


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