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Sher Singh Vs. Jitendranath Sen - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1931Cal607
AppellantSher Singh
RespondentJitendranath Sen
Cases ReferredSubal Chandra Namadas v. Ahadulla Sheikh
- s.k. ghose, j.1. this matter came to us in revision once before and was disposed of by this court's judgment dated 19th august 1930 in miscellaneous case no. 111 of 1930 (with revision case no. 576 of 1930). the case had had a somewhat chequered career and it will be necessary to recall the facts. i wish to acknowledge the assistance which learned counsel on both 'sides have given us in elucidating the material facts. the opposite party, j. n. sen, is the local agent of the central bank of india at asansole. one lachminarain was a client of the bank. the petitioner sher sing, and one bhag sing, who has taken some part in the dispute, were friends of lachminarain, but they have no connexion with the bank. on 28th march 1929 lachminarain applied in writing to j. n. sen for two ticket.....

S.K. Ghose, J.

1. This matter came to us in revision once before and was disposed of by this Court's judgment dated 19th August 1930 in Miscellaneous Case No. 111 of 1930 (with Revision Case No. 576 of 1930). The case had had a somewhat chequered career and it will be necessary to recall the facts. I wish to acknowledge the assistance which learned Counsel on both 'sides have given us in elucidating the material facts. The opposite party, J. N. Sen, is the local agent of the Central Bank of India at Asansole. One Lachminarain was a client of the bank. The petitioner Sher Sing, and one Bhag Sing, who has taken some part in the dispute, were friends of Lachminarain, but they have no connexion with the bank. On 28th March 1929 Lachminarain applied in writing to J. N. Sen for two ticket numbers in the Calcutta Turf Club Derby sweep and his account was debited with the price of those two tickets at Rs. 10-8 each. Apparently acting on behalf of the client of the bank, J. N. Sen obtained a number of Derby Sweep ticket numbers from one Dr. Holmes, a member of the Calcutta Turf Club, and at that time residing at Asansole. It may be mentioned here that according to the arrangement, the two tickets which were to be obtained in compliance with Lachminarain's letter were to bear the nom-de-plumes 'Spuran Sing' and 'Dhemo' respectively. Spuran Sing happens to be the name of the son of Sher Sing. At the end of April intimation was sent by J. N. Sen to Lachminarain that he had got the ticket numbers DQ7956 'Spuran Sing,' and 7957 'Dhemo'. In June the former ticket number drew a prize worth Rs. 16,65,000 and Sen was informed by Dr. Holmes. On 14th July 1929, Sen took Lachminarain to Dr. Holmes and as a result of his identification of Lachminarain, Dr. Holmes made over the amount to Lachminarain. It should be mentioned here that Dr. Holmes kept for himself 10 per cent of the prize money and Sen also kept for himself another 10 per cent. It is also alleged that Sen kept a further sum of two lacs. The balance of Rs. 13 lacs was made over to Lachminarain by Dr. Holmes by cheque. After this nothing happened until 7th October 1929 when Bhag Singh came to Court with a complaint alleging that he had a share in the aforesaid sweep number and that he had been defrauded of that share by Lachminarain, Sen, and Sher Sing, acting in conspiracy with one another. He also stated that Sher Sing had written a slip admitting 'that Bhag Sing was entitled to one anna share of the prize money. Bhag Sing's case was that he and Sher Sing together paid the price of the ticket number in cash on 9th April 1929 to J. N. Sen, who took a note of the nom de-plume; that Sen verbally gave the number of the ticket to him, and Sher Sing, and that he falsely identified Lachminarain to Dr. Holmes as the father of Spuran Sing. Upon this complaint the Magistrate directed a warrant to be issued against Lachminarain and J. N. Sen on a charge under Section 420, I. P.C. A few days later, on 25th October Sher Sing came to Court with a complaint alleging that he had been cheated by Lachminarain, 'the latter's son, Moti Sing and J. N. Sen. His case differs from Bhag Sing's in that he alleged that he had contributed the whole of the price of the winning ticket number. As regards Sen, he alleged a case of conspiracy with the other accused and also stated that Son had, to Dr. Holmes, falsely identified Lachminarain as the father of Spuran Sing and represented that Lachminarain and his son were the real owners of the winning ticket number. It is important to note that at the time of his initial deposition Sher Sing mentioned the name of certain witnesses who would prove his case. Thus so far as Sen is concerned, there were two cases instituted against him. On 15th November Sher Sing filed an application praying that his case might have priority over Bhag Sing's case. It was ordered that both cases should go on together. However on 29th November Sher Sing compounded with Lachminarain and the latter and his son were acquitted. Mr. Chaudhuri for the opposite party has pointed out that as a result of this compounding, a considerable amount of money was obtained through' the criminal proceedings. On 13th December Lachminarain contended before the Magistrate that he should also be acquitted in Bhag Sing's case, but as this was not given effect to, he filed an application for transfer of this case under Section 526, Criminal P.C., and the case was adjourned. As a matter of fact, however the application for transfer was never moved. Sher Sing meanwhile took another step. He applied to the Magistrate to withdraw his case against Sen, with permission to re-institute it in case Bhag Sing's case might not proceed at any stage for any reason whatsoever. The learned Magistrate, without dealing with the matter on its merits under Section 253, Criminal P.C., allowed the petition for withdrawal 'with permission to re-institute the case if he thought necessary', and Sen was discharged under Section 253, Criminal P.C. On 17th December Bhag Sing's case against Lachminarain was compounded and Mr. Chaudhuri points out that thus money was again obtained through the criminal Court. Sher Sing, by a petition, identified himself with this compromise. On 20th January Bhag Sing took some steps in his case and Dr. Holmes was examined as a witness. I may say here 'that the learned Magistrate, as also counsel in this Court, have made use of this evidence of Dr. Holmes in the present matter although strictly speaking, Dr. Holmes was not examined as witness in Sher Sing's case. However the evidence of Dr. Holmes did not exactly support the story of the false identification of Lachminarain as the father of Spuran Sing. Sher Singh, though called as a witness in Bhag Sing's case, did not appear to give evidence as a witness, but on 23rd January 1930 he filed a petition alleging that he apprehended that Bhag Sing would compound the case with Sen and praying that such a compromise might not be allowed. Bhag Sing apparently failed to prove his case as against Sen, and on 5th February he filed a petition withdrawing his case. Thereupon the Magistrate discharged Sen for want of evidence. At that stage Sher Sing took up the cudgels and on 6th February he filed a petition for permission to revive his case against Sen. The Magistrate called upon Sen to show cause and he also called upon Sher Sing to say what new evidence was proposed to be adduced. Sher Sing then made the case that he had an interview with Sen and had told him that the ticket number in the name of Spuran Sing was his and he asked Sen to send two separate intimations.

2. Mr. Chaudhuri has pointed out that there was no mention of this in Sher Sing's original petition of complaint. However on 29th March 1930, Sher Sing examined one Asita Ranjar Rajguru in support of his story. On that date three other witnesses were examined. On 31st March the Magistrate wrote an order reviewing the evidence and finding that ' a prima facie case seemed to have been made out against J. N. Sen.' Ha directed J. N. Sen to be summoned under Section 420, I. P.C., for 16th April 1930. Against this order Sen filed a motion before the Sessions Judge. On 8th April 1930, the learned Judge passed the following order:

Heard pleader. The proceedings appear to have been somewhat strange. Partial com-poundings, discharges withdrawals with liberty to re-institute criminal cases and what not. I should like to know if the District Magistrate after consideration of circumstances will be prepared to direct withdrawal from the prosecution. Let this order be shown to the Public Prosecutor, Fix 14th April 1930 for hearing.

3. Apparently the learned Judge was struck with the unsatisfactory features of the proceedings before the Magistrate and he wished to reach the end by a short cut. The end however did not come as soon as the learned Judge had anticipated. He rejected Sen's application for quashing on the ground that the District Magistrate had decided to withdraw it. On 3rd May 1930, the Public Prosecutor entered appearance before the Magistrate and filed his petition of withdrawal under Section 494, Criminal P.C. Thereupon the parties came to this Court and the matter was disposed of by the Court's judgment, dated 19th August 1930, which I have referred to above. It was directed by that judgment that the trying Magistrate should dispose of the application for withdrawal, which was then pending before him, in accordance with his own independent discretion. Accordingly the case was sent down to the trial Magistrate. On 25th October he heard the parties and on 3rd November he made an order allowing the application of the Public Prosecutor for withdrawing from the prosecution and discharging the accused Sen under Section 494, Criminal P.C. Against this order, Sher Sing filed a petition for revision before this Court, and a rule was issued. This is the rule which we are considering now.

4. The rule was upon the District Magistrate of Burdwan to show cause why the order complained of should not be set aside and a further enquiry made into the matter on grounds Nos. 1 and 8, and the added ground of the petition, or such other or further orders made as to this Court might seem fit and proper. Ground No. 1 is to the effect that, having regard to the learned Magistrate's finding dated 31st March 1930 that a prima facie ease had been made out upon the evidence adduced in the case, his order permitting the withdrawal of the prosecution is unwarranted both in law and on facts. Ground No. 8 is to the effect that it was incompetent for the Magistrate to hold that it was extremely doubtful whether the evidence could be accepted, after he had actually accepted the same and issued process thereon. The added ground is to the effect that, in view of the fact that the learned trying Magistrate had come to the conclusion that a prima facie case had been made out against the accused no application lay before him under Section 494 at the instance of the Public Prosecutor without the consent of the complainant. All these grounds therefore take us back to the Magistrate's order of 31st March 1930 by which he found that ' there seemed to be a prima facie ease ' against Sen, and in view of his opinion then expressed, the contention is that his action in permitting the withdrawal is inconsistent and improper. This argument, I may say at once, is not without some apparent force and accordingly we issued the rule. Now, we have heard counsel on both sides and the material features of the case have been placed before us. Quite apart from these grounds, as it seems to me, Mr. Chatterji, for the petitioner Sher Sing, has contended that this Court by its judgment of 19th August 1930, has held that the application of the Public Prosecutor to withdraw the prosecution under Section 494, Criminal P.C. was illegal and that therefore the Magistrate had no discretion but to disallow this application. In support of this argument Mr. Chatterji has relied on this passage in the judgment;

We may say in passing, that the procedure adopted both by the Sessions Judge and the District Magistrate was not in accordance with law.

5. The sentence however does not end there; it continues 'and was irregular and open to objection.' It is clear that it was not intended to lay down by this passage in the judgment that the application of the Public Prosecutor amounted to an illegality as that word was used in the case of N. A. Subramania Iyer v. Emperor [1902] 25 Mad. 61 and not a mere irregularity which could be cured. The judgment in question was delivered by my learned brother Graham, J., and I was a party to it. Mr. Chatterji, who contended this point rather strenuously, at one time suggested that perhaps I was taking a view different from that of my learned brother. I may say therefore that I have consulted my learned brother Graham, and I have his authority for saying that he agrees with me in my reading of his judgment, and I am supported in this by the words used in the judgment itself. Had this been an illegality, not only the Magistrate but we also would have had no discretion but to direct that the application should be disallowed. But what the judgment says is clear from the following passages in the judgment itself:

If however we found upon consideration of all the facts and circumstances that there is no likelihood whatever for conviction, we should be prepared, notwithstanding the unusual procedure adopted in the Courts below, to quash the proceedings so as to prevent them from occupying any longer the time of the Courts.

6. Again:

as matters stand we do not think that any sufficient ground has been made for quashing the proceedings and we think that the proper course in the circumstances is to discharge the rule obtained by J. N. Sen and to send the case back in order that the Magistrate may consider the application for withdrawal and dispose it in accordance with law.

7. It is obvious that what wa3 meant was that the application was not regular, {because the Public Prosecutor had not been in charge of the case before, and it was open to objection, because he appeared in the case in order to withdraw the prosecution. Finally the direction in the judgment is as follows:

The trying Magistrate has an independent discretion in the matter and it will be for him to decide upon a careful consideration of all the materials before him whether the case is a fit one for allowing the withdrawal or whether the consent of the Court should be refused.

8. After this it is not open to Mr. Chatterji to re-argue the question as to whether the application under Section 494 was regular or legal. In accordance with the direction of this Court in the aforesaid judgment the learned Magistrate has made an order and the question that arises for determination in this rule is as to the merits of that order.

9. Upon the grounds on which this rule was issued Mr. Chatterji has contended that, since the Magistrate has found that there seemed to be a prima facie case under Section 420, I. P.C., and there were no fresh materials before him, it was not competent for him to allow the withdrawal under Section 494, Criminal P.C. I may point out however that it is not correct to say that, since his order of 3lst March 1930, the Magistrate had had no fresh materials. There was in the first place the judgment of this Court opening the field for the exercise of his discretion. In the second place there was a petition of the Public Prosecutor which, I may say, is a lengthy and well-considered document. Thirdly, the matter was re-argued before him by both sides. Therefore the Magistrate had another opportunity of reconsidering the matter and the question before him was, not whether there was a prima facie case for proceeding, but whether the Public Prosecutor should be allowed to withdraw the prosecution. Mr. Chatterji has contended the point very strenuously and he seemed to take up the position that the Magistrate who issues the process is not competent in law to allow the withdrawal of the prosecution on the ground that the evidence may not lead to conviction. Throughout his argument before us, Mr. Chatterji seemed to rely on this one point, viz., the inconsistency in the attitude of the Magistrate. It seems to me that this argument is based upon a fallacy, viz. that the Magistrate having once come to a finding that there was a prima facie ease, was tied down to that opinion throughout the proceeding and he could not be allowed to revise his own estimate of the evidence. What is meant by a prima facie case It only means that there is ground for proceeding. When the police investigate a case and find that there is a prima facie case they are to send the case before the Magistrate for taking action. Section 170 says that if upon an investigation it appears to the police that

there is sufficient evidence or reasonable ground for suspicion to justify the forwarding of the accused to the Magistrate,

the police will take necessary action. When the Magistrate is taking action himself under Section 204, if ' there is sufficient ground for proceeding and the case appears to be one' in which process should be issued the Magistrate shall issue process. In a warrant case Section 254 directs that when evidence has been taken and:

the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence,

he shall frame a charge against the accused. Therefore so far the Court is only dealing with the initial stage and ha has to proceed if there is ground for proceeding. But a prima facie case is not the same thing as 'proof' which comes later when the Court has to find whether the accused is guilty or not guilty 'Proof' is nothing but belief according to the conditions laid down in the Evidence Act, and it is obvious fallacy to say that because the Magistrate has found a prima facie case therefore he believes the case to be true in the sense that the case is proved. Mr. Chatterji has pointed out that under Section 202, Criminal P.C., a Magistrate is required to hold an enquiry 'for the purpose of ascertaining the truth or falsehood of the complaint.' But this does not carry the matter any further. Mr. Chatterji overlooks the point that although the Magistrate may have formed some notion of the apparent truth of the complainant's case at the initial stage, he has to keep an open mind till the final stage when the question for him would be to decide as to whether he should believe the evidence or not and before that final stage is reached the Magistrate would get at least one opportunity to revise his estimate. But even if the Magistrate should start with the belief that the prosecution case is true that would not necessarily affect a proceeding under Section 494, Criminal P.C. Under that section the Public Prosecutor may apply to withdraw from the prosecution at any stage of the case so long as the judgment is not pronounced or the jury have not given their verdict, and it is quite independent of the possibility that at the time of the application the Court has come to the conclusion that the prosecution case is true and that the accused has committed the offence. In a suitable case the Court may still give its consent to the Public Prosecutor to withdraw from the prosecution if it finds that there are good reasons for doing so. Consent is not to be given as a matter of course, neither is it to be unreasonably withheld. If Mr. Chatterji's arguments were correct, then no Magistrate issuing process in the first instance would be competent to entertain an application under Section 494. Mr. Chatterji has referred me, to the remarks of Page, J., in the case of Subal Chandra Namadas v. Ahadulla Sheikh A.I.R. 1926 Cal. 795 at p. 610 (of 53 Cal.). But on that very page the following observations occur:

If the Magistrate were to refuse to grant a summons on that ground it would mean either that ho was trying out the merits of the case at a preliminary stage in proceedings or was following a process of guesswork and speculation and neither of these things is he permitted to do.

10. That only supports what I am now trying to point out that upon an application for withdrawal considerations may arise which are entirely different from those which led the Magistrate to issue process. Mr. Chatterji, has also referred to the case of Rajani Kantha Saha v. Idris Thakur A.I.R. 1921 Cal. 259. But there the facts were entirely different, the Judge having recorded no reasons for withdrawal and not even having examined the commitment record for himself. It has been pointed out that the terms of Section 494 are very wide, that the Court has been given a discretion and that the test is whether in giving consent the Court had been influenced by circumstances which ought not to have been considered: see the case of G. V. Raman v. Emperor : AIR1929Cal319 . It has been held in English cases that a nolle prosequi is usually granted where any improper and vexatious attempts are made to oppress the defendant, as by repeatedly preferring defective indictments for the same supposed , offence, or if it is clear that an indictment is not sustainable against the defendant: see Archbold's Criminal Pleadings, 28th Edn, p. 127.

11. As I have mentioned Mr. Chatterji has laid stress on the argument that the Magistrate's order of 31st March 1930, and his subsequent order of 3rd November 1930, are both supported by reasons and that these reasons, coming as they do from the same Magistrate, are inconsistent. 'We have therefore to refer back to those reasons and the question is, whether the reasons furnished for the order which is now complained against are adequate, I may say that I consider that the Magistrate's order of 3rd March 1930 is rather superficially worded and to that extent I sympathize with Mr. Chatterji. I consider that in view of the history of the case the Magistrate should have taken more trouble, that in his order he should have gone more fully into the matter and stated his reasons more in detail. But even if the reasons are not adequately expressed by the Magistrate in his order permitting withdrawal of the prosecution, we are not on that account bound to interfere, because after all this is a matter in revision and our exercise of our revisional powers is entirely discretionary. If good reasons do exist as to why the case should not be allowed to proceed further, if it appears to us that the accused should have been discharged, if not under Section 494, then under another section of the Code, or that the case should not have been allowed to have been revived by the Magistrate in the way in which that was done, we would not now interfere and revive the proceedings.

12. I wish to emphasize this point, because in a revisional matter this Court does not take a technical view and interfere in every case where an order has been made irregularly or even improperly. Learned Counsel on both sides have discussed the entire proceeding before the lower Courts and we have to satisfy ourselves as to whether this is a fit case for our interference. The question is not whether Sen's action was correct from the moral point of view in taking a share in the distribution of the spoils. On the contrary, I consider that his conduct in taking a large share for himself is highly reprehensible and I do not see how it can be defended. It seems to me to be unworthy, to say the least, of a representative of a respectable bank that he should try to make money out of his clients in this way. But whether a criminal offence is made out, is a different question.

13. Coming to the merits of the order of 3rd November 1930, which is the subject-matter of this rule, I find that the Magistrate has relied on some of the arguments contained in the petition of the Public Prosecutor. He has referred specially to paras. 12 (e), (i) and (j) of that petition. The first one points out that in the long and carefully worded petitions of complaint and the initial depositions and in the mass of elaborate petitions, no allegations or suggestions were made about Sen's knowledge of the alleged secret understanding of the complainants. The second one points out that Asita Ranjan Rajguru was produced as a witness at a very late stage. The third one refers to some discrepancy in the evidence as between Asita Ranjan and Sher Sing. Mr. Chatterji has contended that, as regards the third point, the alleged discrepancy does not really exist. But that does not seem to me to be so very material.

14. It is more material that there should be a discrepancy in the deposition of Sher Sing himself as between his initial statement on solemn affirmation and his later deposition, lending colour to the suggestion that his later story regarding Sen's guilty knowledge was an afterthought. The Magistrate next points out that it is extremely doubtful if the belated story of the interview in the bank of Sher Sing with Sen in the presence of Lachminarain and within the hearing of Asita Ranjan can be accepted. Mr. Chatterji contended that this was not a new argument before the Magistrate, that this argument had been advanced before, and that in spite of it he had found that there was a prima facie case. I have no doubt that this inconsistency is there. But simply because the Magistrate had failed to see the point of it at one stage of the case, it does not follow that his present view is unsound. There are those points mentioned in the petition of the Public Prosecutor upon which the Magistrate has relied. Are those points unreal? Is it not true that Asita Ranjan was produced at a very late stage of the case? And if these points are real, can they be overlooked now when somebody appears before the Magistrate and impresses on him they should not be overlooked

15. The whole point in this criminal prosecution is whether Sen can be said to have acted dishonestly as that word is defined in Section 24, I. P.C. At first the case seems to have been started on the supposition that there was a prima facie case under Section 420, I. P.C., with regard to the sweep money. But as to Sher Sing, the complainant himself, the only money which can be said to have been delivered was Rs. 10-8-0, the price of the sweep number. When this was put to Mr. Chatterji he suggested that there might be an offence under Section 403, I. P.C., in respect of the amount of the sweep money, and that with regard to the offence under Section 420, I. P.C., the person who was cheated was not Sher Sing, but Dr. Holmes. It seems to me that in this prosecution the real object is the sweep money. Mr. Chatterji in the course of his argument asserted that his client would not compromise even if the amount were paid to him, and that I consider is going to the other extreme. Whatever it be, it is impossible to carry on this prosecution without going into the question of the claim to the sweep money and that is a question which cannot be determined in a criminal Court. On the showing of the parties, the bank was accountable to its own client, Lachminarain. The transaction for the purchase of the sweep numbers was carried through the bank in the 'name of Lachminarain and ostensibly Sen was bound to pay over to Lachminarain. Apart from any question regarding this being a gambling transaction Dr. Holme's duty was discharged when he paid over the money to Sen or to anyone on the recommendation of Sen. Dr. Holmes could keep any amount he liked for himself and he did keep something. The point that is sought to be made is that Sen identified Lachminarain to Dr. Holmes as the person who had bought the winning number. That is Dr. Holme's evidence, though he was not examined in this case. It may be mentioned in passing that this evidence, strictly speaking does not corroborate Sher Sing's allegation that Sen identified Lachminarain as the father of Spuran Sing. But whatever it may be, what happened between Sen and Lachminarain in the presence of Dr. Holmes was quite consistent with what was made to appear in the bank books. It might be said that Sen would have acted more prudently if he had taken Sher Sing also with him to Dr. Holmes, so that the whole thing might have taken place in the presence of all the contesting parties. Mr. Chatterji at one point conceded that if Sen had said to Dr. Holmes that the bank was bound to pay to Lachminarain he would have had no case. It seems to me that this is only quibbling with words. As a matter of fact the Bank was bound to pay to Lachminarain and to nobody else. The question as to whether Sher Sing was the true owner of the winning number or Lachminarain was the true owner is a matter for the civil Court and the criminal Court cannot be used for that purpose.

16. Had the learned Magistrate taken a little more trouble, he could have pointed out that there were other peculiar features in the prosecution case which went to show that it was not a bona fide prosecution. There was the inordinate delay in the filing of the criminal case which was sought to be explained by reference to certain private negotiations between the parties. However, when the matter came to Court it was Bhag Sing who first appeared as complainant and Sher Sing followed him. As between the two there were important discrepancies regarding the purchase of the winning number. Bat they agreed as to the charge against Sen. In Sher Sing's complaint the charge against Sen, in spite of the long delay and the carefully worded petition as the Public Prosecutor has pointed out, was vaguely put. Mr. Chowdhury points out that the case, as then made, excluded any connexion or knowledge of Sen with reference to the allegation that Sher Sing had contributed towards the price of the number, that Sen knew that Spuran Singh was Sher Sing's son, that he knew that the number had been bought for Sher Sing, or that he knew that two different intimations were to be sent to Lachminarain for the two sweep numbers, because one of the owners was Sher Sing. It is evident that later on Bhag Sing and Sher Sing joined forces against Sen. In fact Sher Sing did so openly by a petition. On their own showing Lachminarain was the principal offender, but Sher Sing compounded with him first and then Bhag Sing compounded, and Sher Sing identified himself with Bhag Sing's compromise. The latter even withdrew the charge of abetment as against Sen, Sher Singh's conditional withdrawal from the case as against Sen was obviously done with a motive. Mr. Chowdhury seems to be quite justified in arguing that the motive was that there would be a strong weapon in the hands of Sher Sing to ultimately force the money out of Sen. Bhag Sing evidently failed to satisfy the Magistrate that he had a case and thereupon Sher Sing re-appeared. Then the question arose as to whether Sher Sing should be allowed to revive his case. The Magistrate asked what new evidence there was to be adduced, overlooking the fact that new evidence at that stage would hardly be worthy of belief. Mr. Chowdhury points out that then for the first time a new story was invented, viz., that Sher Sing had an interview with Sen and told him that the ticket in the name of Spuran Sing was his, and that he asked Sen to sand separate intimations. There was no mention of this in the petition of complaint and there was no mention of any witness until 1st March 1930, and even then Asita Ranjan, who was the head clerk of the bank, was not named. He was examined for the first time on 29th March 1930. At that time this man was out of employment. As to a letter said to have been written by Sen, which is referred to in the Magistrate's order issuing process, it does not appear to be incriminating.

17. Taking then all the facts of the case it seems to me that the object of this prosecution is to extort money from Sen. It does not seem to me to be a bona fide prosecution at all. The evidence that has been adduced leaves the whole matter in doubt. The Magistrate in discharging the accused has given reasons which in themselves cannot be said to be unsound and, once the accused has been discharged, it does not seem to me to be proper that the case should be revived. The parties, if they cannot settle the matter amongst themselves, will be at liberty to take their dispute to the civil Court. The rule is accordingly discharged.

Lort-Williams, J.

18. I agree. It is a mistake to imagine that the opinion which we have formed about the withdrawal of the prosecution is not consistent with, or contradicts the judgment delivered by my learned brothers on 19th August 1930. In that judgment my brother Graham, J., draws attention to the fact that the Sessions Judge, instead of proceeding to hear the application and either making the reference asked for, or rejecting the application, adopted the unusual coarse of suggesting that the Public Prosecutor should consider the desirability of withdrawing from the prosecution. In continuation he says that the procedure adopted by the Sessions Judge and the District Magistrate was not in accordance with law and was irregular and open to objection, and that the procedure adopted by the Public Prosecutor in entering appearance simply for the purpose of withdrawing the prosecution was unusual. Therefore it is clear what the learned Judge intended. He was drawing attention to the fact that the intervention of the Sessions Judge or the District Magistrate suggesting to the Public Prosecutor that he should come in and withdraw the prosecution is a procedure for which no warrant can be found in any section of the Code. Therefore it was illegal and irregular, and was certainly open to objection. But what the Public Prosecutor did was neither illegal nor irregular; it was merely unusual. Consequently the learned Judge proceeds to say that the Court was prepared, notwithstanding the unusual procedure adopted, to send back the case to the Magistrate with the direction that he should consider the question whether he ought to consent to the withdrawal asked for by the Public Prosecutor. The action of the Public Prosecutor in entering appearance simply for the purpose of withdrawal, though unusual, was neither illegal nor irregular.

19. In accordance with the procedure laid down in Sections 492 to 495, Criminal P.C., the Public Prosecutor can take charge of any prosecution at any time and without asking anybody's consent. Thereafter the prosecution is to be directed by the Public Prosecutor, and if he thinks fit he may ask the Court to allow him to withdraw the prosecution. There is no inconsistency in my opinion between the decision of the Magistrate, that the further evidence which it was suggested was available seemed to disclose a prima facie case, and his decision consenting to the withdrawal of the prosecution. Different considerations apply to the two decisions. The evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused. When therefore the Magistrate said that the evidence seemed to disclose a prima facie case he did not intend at that time to decide whether he believed that evidence or not.

20. As reference has been made to the case of Subal Chandra Namadas v. Ahadulla Sheikh, I desire to make it clear that we must not be taken to be consenting to the view expressed by Page, J., reported at p. 610 (of 53 Cal.) to the effect that, if the evidence discloses a prima facie case the Magistrate is bound to issue process. Section 203, Criminal P.C., in my opinion makes it clear that even though the evidence discloses a prima facie case there is a discretion left in the hands of the Magistrate who may for good reasons refuse to issue process. In considering the question whether he ought to consent to the withdrawal of the prosecution, the Magistrate had to consider points similar to those which he has to consider under Section 203, that is to say, he had to take into consideration, among other things, the question whether, in spite of there being a prima facie case, the evidence was likely to be believed, and he came to the conclusion, that owing to the new evidence having appeared for the first time so long after the original complaint had been made, such circumstances would be likely to induce the Court to take an unfavourable view of the case for the prosecution. In my opinion the Magistrate was not only consistent, but was right in the view which he took.

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