1. In this case the Chief Presidency Magistrate dismissed a complaint under Section 203, Criminal P.C., for want of sufficient evidence and a rule was issued to show cause why this order should not be set aside and a further enquiry made into the complaint.
2. The petitioner filed a complaint against the two opposite parties charging them with having committed offences under Sections 420, 417, 171-F and 114,I. P.C. The petitioner stated that he was a voter in the West Bengal non-Mahomedan Constituency for the Council of State in India and that before the last by-election held in March 1930 two ballot papers ware sent to him, but on the cover in which they were enclosed his name was incorrectly written. Shortly after this, the petitioner alleges, that some one telephoned to him who gave the name of the first opposite party, whom I will refer to as the Maharaj Kumar. The petitioner instructed his employee to speak on the telephone for him and thereupon the speaker at the other end asked for his vote. He pointed out that he could not vote because the ballot papers had been sent in the wrong name and the speaker suggested that he might vote by adopting the name which appeared in the register. This the petitioner refused to do and thereupon his employee was asked to hand over the ballot papers to the Maharaj Kumar who would get the name corrected and return the ballot papers duly corrected to the petitioner.
3. Soon afterwards two persons alleging that they came from the Maharaj Kumar called for the ballot papers and they were handed over. The petitioner- says that of the two persons who came, one was the second opposite party Earn Abatar Lal. Subsequently repeated requests were made for the return of the papers and eventually after correspondence Ram Abatar came with two ballot papers -with the numbers torn off which he said were the two ballot papers which he had taken and explained that the portions missing had been eaten by white ants. On 15th July 1930 the Maharaj Kumar, it is alleged, saw the petitioner and promised to get back the original ballot papers by 4th August. He did not fulfil his promise and another demand was made and on 19th August the Maharaj Kumar again saw the petitioner and said that he had handed over the ballot papers to Ram Abatar and he had expected that Ram Abatar would give them to the petitioner. Subsequently the petitioner ascertained that no application had been made to correct his name in the register or in the ballot papers but somebody had used the ballot papers and voted in the name of the petitioner. The petitioner has not been able to discover who this was.
4. On 14th May 1930 the petitioner's solicitor wrote to the Maharaj Kumar setting out the facts. On 7th June he received a reply from the Maharaj Kumar saying that he had wired to the man who, the petitioner alleged, had taken his ballot papers and had directed him to come to Calcutta to explain the matter.
5. Both the opposite parties have denied any knowledge of the facts alleged by the petitioner. The learned Magistrate asked for a report from the police. The investigating officer examined both parties and a number of witnesses, and submitted a report. The learned Magistrate after carefully considering the report and the whole of the facts came to the conclusion that it would be impossible upon those facts to convict either of the opposite parties of fraud or cheating and further that as no sanction had been obtained for prosecution under Section 171-E he could not proceed with that charge.
6. The first thing noticed by this Court when the petition came before it, was that though the most serious charges of fraud and cheating had been made by the petitioner against the two opposite parties the petition was in the name of and had been affirmed by his employee. The case therefore so far as this Court is concerned, started badly. When serious charges of fraud are made the facts must be sworn to by the person who alleges them. The method of getting some subordinate to take the responsibility of making serious charges of fraud which may afterwards turn out to be false, is a practice which cannot be allowed, Upon this being pointed out however the petitioner himself swore an affidavit. The necessity for requiring such an affidavit to be filed was at once confirmed by the fact that the petitioner had to recede from the statement made by his employee about the alleged meeting between the petitioner and the Maharaj Kumar on 15th July. The Maharaj Kumar, on that date, was in another part of the country. The petitioner however says that though his employee made a mistake about the date, there was such a meeting on 28th June.
7. The petitioner on one or two occasions, has endeavoured to explain the prime motive which has influenced him, in his somewhat tenacious pursuit of the opposite party in this case after having, had his complaint rejected by the Chief-Presidency Magistrate; and after having had some doubt thrown upon the bona-fides of this application he has persisted with it. The only motive suggested by the learned Advocate-General who appeared on the first occasion and by the learned Counsel for the petitioner today, is that the petitioner desired to expose a flagrant attempt to pollute the clear waters of electioneering in Bengal. Personally I have some doubt about whether this was the real motive prompting the petitioner, especially in view of some of the facts elicited during the police investigation. After a somewhat lengthy experience of political life myself. I am a little sceptical about statements made by those who are or have been candidates themselves, that in attacking other candidates their only object is to further the cause of political morality. A curious fact in this case is that although the petitioner had been so anxious to prose-cute the Maharaj Kumar, he was, according to his own statement, desirous of supporting him at the election.
8. The position taken by the petitioner has been made more difficult by the fact that he has had to abandon any idea of prosecution under Section 171 (f). As I said on the last occasion, that was the only-charge about which it could be said that a prima facie case had been made out. When at the commencement of today's hearing the learned Counsel announced that he proposed to abandon that charge I found some difficulty in understanding the course which the learned Counsel desired to pursue, because the evidence in support of a charge under Sections 420 or ill is so small that it is almost impossible to say that a prima facie case can be made out under either of those sections.
9. The first difficulty which the petitioner has to face is that there is no evidence to show that the Maharaj Kumar spoke to the petitioner or to his employee upon the telephone as alleged, must before the by-election. The most that can be said by the employee is that some one spoke to him upon the telephone who gave the name of the Maharaj Kumar. Unless some evidence of identification can be given the whole of that conversation would have to be excluded. The learned Counsel urged that in the subsequent history, there is evidence to show that it was the Maharaj Kumar who spoke to the petitioner and induced him to part with his ballot papers. What he means is that the attitude adopted by the Maharaj Kumar in the subsequent letters is evidence to show that it was he who spoke upon the telephone.
10. I am unable to appreciate this part of the argument. It is possible to say that the letters indicate some knowledge of what had taken place on the part of the Maharaj Kumar but they are not inconsistent with the attitude of a man who has come to know that some such thing may have been done by someone in his interest. If he discovered that one of his assistants through over-zeal had adopted these means to further his candidature it is quite possible that he would adopt an attitude of diplomacy and would neither admit nor deny what the petitioner alleged that his assistant had done.
11. However it is unnecessary to examine the various explanations which could be given of the attitude adopted in those letters, because the worst that can be said of them is that they may arouse in the mind of anybody who reads them some suspicion whether the Maharaj Kumar was absolutely innocent and ignorant of what his assistant had done. But that is very far from anything which amounts to evidence.
12. In our opinion the learned Magistrate was quite right when he said that there was some suspicion surrounding the attitude of the Maharaj Kumar but that there was no evidence of a prima facie case of cheating. Consequently upon the evidence as it stands no process could be issued. It must also be borne in mind, that in cases such as this, where fraud is alleged, it is absolutely essential that there should be clear evidence of intention to defraud or to cheat, before the opposite party ought to be allowed to be harassed with a criminal prosecution.
13. For these reasons this rule must be discharged.
S.K. Ghose, J.
14. I agree.