Skip to content


Shantaram Sharma Vs. Kanai Lal Jatia and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1934Cal137
AppellantShantaram Sharma
RespondentKanai Lal Jatia and anr.
Excerpt:
- .....applied to my learned brother buckland, j., who had tried the case to make a complaint to the chief presidency magistrate that in giving evidence in the case sagarmull, a partner of the complainant firm, had wilfully given false evidence and thereby committed an offence punishable under section 193, i. pc. the chief presidency magistrate issued processes, tried the case and convicted sagarmull. sagarmull appealed to this court but his appeal was dismissed. he has now applied for special leave to appeal to his majesty in council and i understand that he is now on bail pending the decision of the privy council. in the complaint filed on 20th march 1933 it is alleged that the entries in the cash books of 1928-29, which were inspected in the circumstances i have mentioned, are.....
Judgment:

Panckridge, J.

1. This is a Rule obtained by the petitioner Shanta Ram Sharma calling upon the Chief Presidency Magistrate and the opposite parties to show cause why an order of transfer made by him on 25th March should not be set aside. The complainant is a munim gomastha of a firm known as Dilshukhroy Sagarmull and the opposite parties are members of a firm known as Mahaliram Ramjidas, opposite party 1 being a partner and opposite party 2 being a gomastha of that firm. It appears that Dilsukhroy Sagarmull instituted a suit in 1930 against the firm of Mahaliram Ramjidas on the allegation, that the plaintiffs had advanced a lac of rupees to the defendants. Among other defences taken was that the sum had never in fact been advanced and that if it had been advanced the borrower was not the firm of Mahaliram Ramjidas but a deceased partner, Gajanand Jatia. In the course of the litigation the plaintiff obtained an order for affidavit of documents. The defendants filed an affidavit, disclosing certain entries made in the latter part of 1928 which, it is said, supported their case that the advance had never been made. On various dates in March 1931 the plaintiffs inspected the documents disclosed by the defendants including the entries I have mentioned. Owing to the course the litigation took it became unnecessary for the Court to decide whether or not the books of the defendant were genuine on this point and the suit was dismissed with costs.

2. The defendants then successfully applied to my learned brother Buckland, J., who had tried the case to make a complaint to the Chief Presidency Magistrate that in giving evidence in the case Sagarmull, a partner of the complainant firm, had wilfully given false evidence and thereby committed an offence punishable Under Section 193, I. PC. The Chief Presidency Magistrate issued processes, tried the case and convicted Sagarmull. Sagarmull appealed to this Court but his appeal was dismissed. He has now applied for special leave to appeal to His Majesty in Council and I understand that he is now on bail pending the decision of the Privy Council. In the complaint filed on 20th March 1933 it is alleged that the entries in the cash books of 1928-29, which were inspected in the circumstances I have mentioned, are forgeries. The complaint does not state on what materials this allegation is based and merely alleges that the complainant has since made further enquiries into the whole affair with the result which I have indicated. Nothing is stated in the complaint about the conviction of Sagarmull for perjury and it appears to me that the complaint is most disingenuous and is intended to give an impression that the proceedings before Buckland, J., terminated in an amicable compromise.

3. On the allegations made in the complaint the additional Chief Presidency Magistrate on the application of the complainant issued a search warrant for the books which it is alleged were forged. The opposite parties at once went before the Additional Presidency Magistrate and on their undertaking to produce the books he stayed execution of the search warrant and subsequently set it aside. Emboldened by their success the accused then presented a petition to the Chief Presidency Magistrate asking him to transfer the case from the file of the Additional Presidency Magistrate to his own file on the ground that it would be more convenient and expeditious for the Chief Presidency Magistrate to deal with the matter himself. The Chief Presidency Magistrate heard the parties and made an order Under Section 528, Criminal PC, transferring the case to his own file. The reasons he has given are that he considers that by suppressing the fact of the conviction of Sagarmull the complainant wrongfully obtained the search warrant which the learned Additional Presidency Magistrate would have declined to issue ex parte had he been in possession of the whole history of the previous relations between the parties. He also states that inasmuch as the accused persons will have had no locus standi before the Additional Presidency Magistrate or before any other Magistrate who deals with the case Under Chapter 16, Criminal PC, he apprehends that advantage will again be taken of the Additional Presidency Magistrate's lack of acquaintance with the details of the case. He states that as be is aware of the whole history of the litigation he thinks that in the interests of justice he should hold the enquiry himself.

4. The ground on which the complainant has obtained thisRuleis that the reasons given by the Chief Presidency Magistrate are insufficient and erroneous. In Section 528 there are no words which have the effect of fettering the discretion of the Chief Presidency Magistrate or other Magistrates in transferring cases from the files of Magistrates subordinate to them. At the same time it is in my opinion beyond argument that before such an order is made the Magistrate must and should have reasons and those reasons should be such as the law regards as satisfactory from the point of view of principle. In my opinion the reasons given by the Chief Presidency Magistrate are open to criticism and I should sincerely regret it if anything I say or any order I make lend colour to the view that a Magistrate is exceptionally qualified to deal with particular cases because he approaches it with a knowledge of facts, whether that knowledge be derived from what he has learnt in his personal capacity or from what has come before him in his judicial capacity. If the accused persons are prejudiced by the fact that they have no, locus standi before the issue of process it is not the proper way to counteract that prejudice by ordering the case to be dealt with by a particular Magistrate who happens to have knowledge of matters which the law prevents persons complained against from bringing to his notice. So far as from previous knowledge of the facts being a qualification for the enquiring Magistrate it is in many cases a disqualification.

5. This being so, the question arises whether we should set the order aside, for it is entirely a matter of discretion in the exercise of which we feel we cannot disregard the circumstances of the particular case. The complainant is not a person in whose favor I feel disposed to interfere. The delay between the production of the books in 1931 and the institution of the proceedings is not explained. Moreover, I agree with the Magistrate that the complainant was guilty of disingenuous conduct in not saying anything in his complaint as to the events which happened after the dismissal of his employer's suit. His personal interests are admittedly not involved and so he cannot take it as a personal injustice if we decide not to accede to his application. So far as the previous knowledge is concerned the two Magistrates are very much in the same position because in connection with the proceedings for setting aside the search warrant affidavits have been filed which put the Additional Presidency Magistrate in possession of the facts relative to the previous litigation. We see no reason to suppose that the Chief Presidency Magistrate will not deal with the complainant's petition fairly and indeed it has not been seriously suggested that any intentional bias on his part is to be apprehended. Were the position different and had the transfer been made to a Magistrate with knowledge of the fact against the wishes of the accused I should not have hesitated for a moment to set the order for transfer aside on the application of the accused. However, in the circumstances of the case we consider that the conduct of the complainant has not been such that we ought to interfere at his instance and we do not think that there is any chance of failure of justice if we discharge the Rule. The Rule is accordingly discharged.

Patterson, J.

6. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //