Hiralal Sarda and Others vs Emperor

Rowland, J.—These two applications in revision have been heard together as they arise out of a single set of proceedings and are both directed against one order of Mr. Anjani Kumar Sahai, Munsif of Jamshedpur of Chaibassa, dated 17th September 1931, directing the filing of a complaint against the petitioners u/s 476, Criminal P.C. The petitioners challenge the legality as well as the propriety of the order and of the complaint.

The complaint recites that:

it has been found that Hiralal, Baijnath, Bankim Behari and Bal Kishan (petitioners) have been guilty of a conspiracy to fraudulently obtain a decree from the Court of the Deputy Commissioner-Sub-Judge of Chaibassa...an offence u/s 210 read with Section 120-B.I.P. C., that accused Hiralal has further committed an offence u/s 209, I. P.C., by a false statement in the plaint of that suit and that accused Baijnath and Bankim Behari have further committed an offence u/s 193, I. P.C., by giving false evidence in support of the claim.

The legality of the complaint of the Munsif of Jamshedpur is challenged on the ground that u/s 195, Clause (b), Criminal P.C., the only person or Court competent to complain of offences alleged to have been committed in the proceeding in the Court of the Deputy Commissioner-Subordinate Judge was the Deputy Commissioner-Sub-Judge or some other Court to which he was subordinate. In my opinion that contention must be given effect to. The complaint as it stands is bad and cannot proceed. It is contended for the opposite party that offences u/s 193, I. P.C., have been committed by Baijnath and Bankim Behari in the Court of the Munsif of Jamshedpur himself. If that were so, the Munsif should have said so in the complaint. There is ample authority for the proposition that a complaint u/s 195 read with Section 476, Criminal P.C., should disclose the Court before which and the occasion on which the offence is alleged to have been committed. The Munsif''s complaint does not disclose that any of the offences of which he complains was committed before himself on any particular occasion.

Coming now to the question of the propriety of the prosecution of the petitioners, that is in the first instance a matter for the discretion of the Courts affected, a discretion with which this Court in revision would not lightly interfere and which I have no desire unduly to fetter; but I would like to point out that the examination of the facts on which the Munsif based his order for a complaint was an inadequate examination and that if he contemplates preparing a fresh complaint avoiding the defects already pointed out there are other matters on the merits to which he will do well to have regard. The most important of these is that whereas in the original money suit proceedings went on the footing that the burden of proof lay on the plaintiff to establish that the defendant Mr. Patel had stood surety as alleged, the case will be quite otherwise in any criminal proceeding. It will not be enough in a criminal proceeding to show that the plaintiff in the civil suit failed to discharge the burden of proof. It will not be enough to show that in the evidence adduced for the plaintiff there were discrepancies or improbabilities, which made it impossible for the Court to rely with confidence on their evidence or even which made it improbable that the fact alleged was true. In a prosecution based on the allegation that a false claim was wilfully presented the prosecution will have to prove affirmatively that no guarantee was given and the question will turn not only on the reliability of Hira Lal and his witnesses but on the reliability of Mr. Patel and any witnesses who may be called to support him.

The Munsif has said nothing so far by way of examination of the veracity of Mr. Patel, but at the hearing before me some certified Copies of depositions Mr. Patel made on various occasions have been placed before me and I have no doubt that if the Munsif takes any further proceedings that they will in due course be placed before him. It appears to have been at one time denied and at another time admitted by Mr. Patel that at one time he did have his place of business at No. 6, Old China Bazar Street. The Munsif will have to consider the effect on the veracity of Mr. Patel of his having at one time denied this fact and at another been forced to admit it. I am told that it is admitted by Mr. Patel that on the occasion of the alleged verbal guarantee he was in the dakbungalow at Chaibassa as alleged by Hira Lal and his witnesses and had actually had a meeting on that day with defendants 1 and 2 of the original suit.

All these are matters which the Court of first instance will have to consider in any proceeding that may be taken before deciding that there is a reasonable chance of success in a prosecution of the petitioners and that on the facts of the case there ought to be a prosecution.

The result is that the applications are allowed and the order for prosecution is set aside and the complaint quashed.