Banasidar Marwari vs King Emperor

Macpherson, J.—This rule was is sued to the District Magistrate of Monghyr to show cause why the order of the Sub-Divisional Magistrate of Monghyr directing under S. 476 of the Code of Criminal Procedure the prosecution of the petitioner Bansidhar Marwari under S. 211 of the Indian Penal Code in respect of a case instituted on complaint in the Court of the Sub-Divisional Magistrate on the 11th January, 1923 against the Junior Sub Inspector of Lakhisarai, Anant Ram and Anant Ram''s men, should not be set aside.

The facts in chronological order art briefly as follows. The house of Anant (otherwise Ananti or Anti) Ram Marwari adjoins that of the petitioner and his family and there had been ill-feeling between these neighbours over a privy situated in the house of the former which adjoins some land of the latter. On the 7th January Anant Ram lodged information with the Sub-Inspector of Police of Lakhisarai who was on deputation at Barhi station in connection with the passing of the Viceroy''s train that the petitioner, a relation and three peons were making preparation to close the drain of the privy as petitioner''s brother had gone to Monghyr to institute a suit on the subject that the informant protested and the present petitioner abused him and directed his peons to assault him with lathis if he spoke again, that the informant ran away and concealed himself in his shop on the other side of the road and his assailant; then trespassed into his shop. As he was busy, the Sub-Inspector''s record of the first information did not reach the thana until 4 P. M. on the 9th. Meantime on the 8th a member of petitioner''s family, Murlidhar Marwari, had instituted a civil suit in the Munaif''s Court at Monghyr and had applied for a temporary injunction restraining Anant Ram and the other defendants from making or constructing any drain on the land in suit. The injunction however was not granted until the following day. On the 9th January about 3.15 P. M. Sat Narayan a cousin of the petitioner telegraphed to the Magistrate in charge. Monghyr, that the Sub Inspector of Police had caught the three peons of petitioner who had been watching that Anant Ram should not open a drain to the privy, had taken him to hajat and had then directed Anant Ram to open the drain and the drain had been opened. On the 10th the petitioner filed the complaint in respect of which he has been prosecuted and was examined on solemn affirmation on the 11th. He stated that at 1 P.M. on the 9th the Sub-Inspector arrested his three peons whom he had posted to prevent an escape-channel being made to the privy of Anant Ram, took them to Anant Ram''s shop, bound them and marched them to hajat and had the escape channel for the privy opened by Anant Ram''s orders.

The Magistrate directed a Local enquiry by Lieutenant Sahi, Deputy Magistrate who reported on the 17th January that the case of Anant Ram versus Bansidhar should proceed and the complaint against the Sab-Inspector might be dismissed. The escape channel he found, was an old one, the occurrence of the 7th January true and the Sub Inspector''s arrest of petitioner''s peons on the 9th unexceptionable.

The three peons were placed on trial on a charge under S. 448. The parties however compromised that case and the accused were acquitted. Thereafter the Sub Divisional Magistrate took up consideration of the complaint, and relying on the report of the Deputy Magistrate that it was intentionally false and made as a defiance to the true case against the petitioner''s peons dismissed it under S. 203 and called upon the complainant to show cause why he should not be prosecuted for maliciously instituting a false case in his Court. Cause was shown by the petitioner and his pleader, and the Magistrate having set out that there was no reason for distrusting either the enquiring Magistrate''s or the Sub Inspector''s conclusions and evidence, held that there was reliable evidence to prove that the petitioner''s statements that there was no escape channel, that he told his servants to prevent any one making such a channel and that the Sub Inspector had such a channel opened by Anant Ram''s men under Anant Ram''s orders were deliberately and maliciously false and that the case was brought knowing that there was no just or lawful ground for such a charge, and he accordingly made the order in respect of which the revisional jurisdiction of this Court is invoked.

Mr. G. C. Pal on behalf of the petitioner contends (1) that no prosecution could legally be directed upon evidence recorded under S. 202, (2) that a prosecution for an offence under S. 211 is illegal if the complainant has no: been given an opportunity to adduce all his evidence in support of his case and (3) that no prosecution should proceed pending the decision of the Civil Court regarding the Civil rights of the parties.

The first contention is in my opinion not well founded. The opinion of Sundara Aiyar, J. in In Re: Kachi Madar Labbai, . is quoted in support of the proposition. This opinion is short of authority by the fact that in the same case Ayling J. expressed the contrary view remarking that the wording of S. 476 is wide enough to cover the consideration of other than strictly legal evidence, and by the further fact that when Sundara Aiyar, J. expressed the opinion that it would be illegal to grant a sanction under S. 195 based solely on an investigation conducted under S. 204 whether by a police officer or by the Magistrate himself. Spencer J. again expressed a contrary view. In my opinion the correct view was expressed by Ayling J.

The third contention also is without merit. The history of the matter as set out above, shows that delay in determining whether the petitioner committed an offence under S. 211 as a counterblast to an occurrence which took place prior to the institution is strongly contra indicated.

The second proposition also cannot be accepted in the broad form in which it is stated. But there are certain special circumstances in this case. The Magistrate as he states acted partly on the police report which was submitted by an officer whose conduct was assailed. Again it cannot be assumed that the charge under S. 448 was true because it was compromised. It was, moreover compromised before the defense evidence was recorded. Accordingly the Magistrate would have exercised a sound discretion in accepting the evidence to establish the truth of his complaint which the petitioner preferred when showing cause against the proposed order under S. 476. There are also points in the cross-examination of witnesses in the case under S. 448 which appear to merit consideration.

In all these circumstances, I hold that the order for prosecution should be set aside. But it will be open to the Sub-Divisional Magistrate to pass an order under S. 476 if after hearing any evidence which the petitioner adduces he considers that the ends of justice require such order.