1. The Chief Presidency Magistrate has been called upon to show cause why he should not give to the Bank of Bengal copies of the depositions of the witnesses and the orders recorded in the matter of their complaint made against Dinonath Roy, who has been discharged by the Magistrate.
2. This rule is moved for under the Specific Belief Act and under Section 170 of the Presidency Magistrates' Act.
3. Two questions arise in this matter: first, whether, under Section 170 of the Presidency Magistrates' Act, the Bank of Bengal, as the prosecutor in the case, have a right to the copies; and second, whether, supposing that they have a right, and this right has not been acceded to by the Magistrate, the High Court can proceed, under Section 45 and the following sections of the Specific Belief Act, to order the Magistrate to fulfil his duty.
4. Although the rule has been moved for under the Specific Belief Act, it appears to us to be beyond doubt that the provisions of Section 15 of the High Courts Charter Act enable the Court to make the order upon the Magistrate, if it ought to have been made. But we think that Section 45 of the Specific Relief Act is wide enough in its terms to apply to a case like this. Section 7 of the Specific Relief Act has been referred to as showing that 'specific relief cannot be granted for the mere purpose of enforcing a penal law.' It cannot be said, however, that an application to the Magistrate to grant copies of depositions and orders is an application 'for the mere purpose of enforcing a penal law.' Copies may be required for many purposes.
5. Then the application must 'be made by some person whose property, franchise, or personal right would be injured by the forbearing or doing (as the case may be) of the said specific act.' If the prosecutor has a right to the copies, his personal right would be injured if they were refused. And it does not appear that the applicant has any other specific and adequate legal remedy.
6. Then the question is, whether, under Section 170 of the Presidency Magistrates' Act, the applicant is entitled to copies of the depositions and order. Section 170 enacts that,--'If any person affected by an order passed under this Act desires to have a copy of such order, or of any deposition or other part of the record, he shall, on applying for such copy, be furnished therewith, provided that he pay for the same, unless the Magistrate, for some special reason, thinks fit to furnish it free of cost.' It is contended that this does not apply to a prosecutor, because the Crown is the prosecutor, and not the private individual. There is no doubt that, technically, the Crown is the prosecutor. But supposing we were to say, that on that ground the private individual cannot apply for copies of depositions, the consequences may be very serious. It is said it would be very inconvenient if the Magistrate were to be called upon to furnish those copies in every case. However great the inconvenience may be, it would be a much more serious thing if he were justified in refusing an application for copies. As far as the inconvenience goes, it has not been shown that it would be very great in any case, as the section provides that copies are to be furnished on payment of Costs for the same, unless the Magistrate specially directs copies to be furnished without payment. But supposing the prosecutor, having failed in his prosecution, is not allowed to get copies of the depositions, the consequences may be most serious to him. Take for instance the case in which a prosecutor charges the accused with defamation, or with bringing some charge against him which seriously affects his character, and suppose for some reason which left the character of the prosecutor perfectly clear and untainted, the accused person were to be discharged, then, if the prosecutor were unable, under this section, to get copies of the depositions, it might be said that he had prosecuted a man for charging him with an infamous crime, and yet that the accused had been acquitted, and people would conclude that the prosecutor had been guilty of the crime imputed to him. We think this single instance would show that the consequences of refusing copies would be most serious. No distinction can be made between such a case as this and any other case; the section is perfectly general. A prosecutor who charges another with dishonesty, as in this case, if he cannot sustain the charge, might suffer an unjust imputation, unless by producing a true record of the proceedings he could show that his action was bona fide. No distinction ought to be made between the prosecutor in one case and in another. All prosecutors whose charges are dismissed by the Magistrate are, in our opinion, affected by the orders dismissing them, and are entitled under Section 170 to copies of the order and depositions.
7. The rule will be made absolute.
8. We direct that the copies be given to Mr. Macnair, attorney of the prosecutors.