1. This rule has been issued on the application of the crown against an order of the Chief Presidency Magistrate of Calcutta discharging the accused persons under Section 253, Criminal P.C. The facts are that on 10th January 1928 one Gulzari Mull Thakur laid a complaint before the Chief Presidency Magistrate against the accused in respect of offences under Sections 380, 411 and 403, I.P.C. The learned Magistrate ordered the Deputy Commissioner of the Detective Department for enquiry into the matter. On 10th February the police produced the two accused under arrest before the Magistrate who remanded them to hajut. On 13th February 1928 the police submitted charge-sheet against the two accused. It appears from the charge sheet that accused 1 was charged under Section 380 for stealing a deed of conveyance or in the alternative for dishonestly retaining it in his possession. The first accused was further charged with an offence under Section 471 for fraudulently and dishonestly using as genuine two forged documents namely, one acknowledgment receipt dated 2nd July 1927 and one counterfoil of rent bills book. The , second accused was charged under Section 414 read with Section 511 for voluntarily assisting each other in attempting to dispose of the stolen deed of conveyance and he was also charged under Section 471 read with Section 114 for aiding and abetting accused 1 in the fraudulent use of the forged document. On 17th February 1928 accused 1 instituted, a suit in the original side of the High Court on the aforesaid acknowledgment receipt claiming equitable mortgage on the basis of it. With the plaint he attached only an English translation of the receipt. On 4th April at the instance of the accused the documents said to be forged were sent to the Registrar, Original Side of this Court. On 2nd May 1928, the suit instituted by the accused was dismissed for non-prosecution. The application for its restoration also failed as the accused did not carry out the condition on which the learned Judge had ordered the restoration of the suit. On these facts the learned Magistrate is of opinion that a suit having been brought in a civil Court on the basis of the document which is said to have been fraudulently used sanction of the Court is necessary and that the prosecution cannot go on without such a sanction. In this view of the matter the learned Magistrate has discharged the accused under Section 253, Criminal P.C.
2. It is argued on behalf of the Crown that the view taken by the Magistrate is not correct in law, as the offences with which the accused were charged had been taken cognizance of before the suit was brought in the civil Court. With regard to the offences under Sections 318 and 411 it is conceded by the learned Counsel on behalf of the accused that there is no bar, legal or otherwise, to the accused being tried separately although he at the same time contends that all the offences should be tried together. With regard to the offence under Section 471 he tries to support the view of the Magistrate by saying that when a suit is brought in respect of a document said to have been used as genuine the accused cannot be prosecuted for offences under Section 471 even though he may have used this document prior to the institution of the suit. There is no authority for this proposition but we have been referred to some cases which apparently have no bearing on the question. There are many features in this case which distinguish it from the case of Nalini Kanto Laha v. Anuhul Chandra Laha  44 Cal. 1002. In that case the suit was brought before the complaint was made in a criminal Court. There were charges of forgery and of using forged document before the Sub-Registrar subsequently, that document was produced and used in proceeding under Section 105, Criminal P.C., and since an offence of using a forged document was committed in connexion with proceedings in Court the learned Judges were of opinion in view of Section 195-1(c), Criminal P.C., that for such a user the accused could not be prosecuted for using a forged document before it was used in Court. The learned Judges relied upon some cases which apparently do not support in its entirety the view that was taken and it is not necessary to consider those cases since in the present case the complaint was made by the complainant and the charge sheet was submitted by the police before the institution of the suit by the accused.
3. Another question was raised in the Court below as to whether calling of the documents from the custody of the Deputy Commissioner of Police by the Registrar is an user within the meaning of Section 471, I.P.C. It is contended on behalf of the Crown that it is not such an user and reliance has been placed on the case of Muni Sidami Mudaliar v. Rajarathnam Pillai A.I.R. 1923 Mad. 136. In that case the accused was prosecuted for offences among other sections under Sections 465, 467 and 474. The document in support of which the offences are alleged to have been committed was not actually produced in Court in the suit but was disclosed in an affidavit filed therein and inspection thereof was allowed to the other side and it was filed in the office of the translator of the High Court for translation. On these facts it was held that it was not used or given in evidence in the suit and that therefore sanction under Section 195 was not necessary. This case apparently supports the view urged by the Grown but it is not necessary to go into this matter as on the facts of the case I am of opinion that the prosecution in the present case can proceed without a complaint by the civil Court. If effect were given to the contention of the accused that because he has brought a suit in the original side of the High Court the criminal Court is incompetent to take cognizance of the offence under Section 471 without sanction from such Court, it will make prosecution depend on the will of the accused. In the present case it may be presumed that the suit was brought in the High Court solely for the purpose of defeating the prosecution. It was not prosecuted and was allowed to be dismissed for default It is difficult to hold that the prosecution of a party should be in his hand and should depend upon the course he adopts to defeat it. At any rate there was no occasion for the Magistrate to say that the prosecution required sanction under law.
4. I accordingly make this rule absolute set aside the order of the Magistrate dated 31st August 1928, discharging the accused and send the case back to him for disposal according to law.
5. Accused 2 who has appeared separately has urged that on the materials before us no substantive offence is disclosed against him. This is a matter with which we cannot deal in the present rule. It is only confined to the legality or otherwise of the order of the Chief Presidency Magistrate discharging the accused on the ground that he could not be prosecuted without sanction from the High Court.
6. I agree that the rule should be made absolute. Having regard to the facts and circumstances it seems to me that the order of the learned Chief Presidency Magistrate discharging the accused cannot be supported. The main reasons which appear to have actuated the learned Magistrate, as stated by him, are that it is a very serious case involving a change of forgery, and that as the accused had brought a suit in this Court in which use was made, or is said to have been made of the forged document in question, a formal complaint by the High Court ought to have been made.
7. It is to be observed, however, that prior to the institution of the suit the accused had already been sent up by the police under Sections 380, 411, 414, 511 and 471, 1. P.C. and cognizance of those offences had been taken. It is difficult to understand why, because a suit was subsequently instituted by the accused, the ease should not proceed in respect of the charges referred to above, none of which requires any sanction. Nor is it easy to appreciate why as a consequence of the action taken by the accused at a subsequent stage the complainant should be deprived of his right to redress so far as those charges are concerned. When upon the facts the commission of several offences is disclosed, some of which require sanction, and others do not, it is open to the complainant, if he so wishes, to proceed in respect of those only which do not require sanction.
8. It appears further that there was no trial of the suit in this Court; and that it was dismissed for non-prosecution. The High Court could not therefore, make a complaint under Section 476 or Section 471 without first making an enquiry into the matter. That, however, is perhaps not a very material circumstance. The main point is that the complainant is entitled as of right to have his case tried in respect of the charges previously made, and in regard to which cognizance has already been taken. There does not seem to be any reason why he should be compelled, whether he is willing or not, to add to the other charges, a charge under Section 476 in respect of the proceedings before this Court, these proceedings, as I have already said, having arisen in consequence of the action subsequently taken by the accused.
9. For these reasons I agree to the order which my learned brother has made.