Jugeshwar Pershad vs Ragho Misser and Another

Mullick, J.—One Jugeshwar Pershad, who is a resident of the Darbhanga District, brought a suit in the Small Cause Court of Madhubani, in the Darbhanga District, on the 20th of August 1915, for a debt of Rs. 11 against Ragho Misser and Chhitnas Misser, who are both residents of the Mongbyr District. On the 10th September 1915 the suit was decreed ex pate. It appears that about the end of 1915, or the beginning of l91o, the defendants came to know of the decree, and on the 24th January 1916 made an application to the Commissioner of the Bhagalpur Division, within which is situated the Monghyr District, for an investigation into the circumstances connected with the decree. The Commissioner thereupon had an inquiry made by the Criminal Investigation Department, with the result that on the 1st November 1916 an application was made by the defendants Ragho Misser and Chhitnas Misser before the Munsif at Madhubani for sanction to prosecute the plaintiff Jugeshwar Pershad.

On the 16th December 1916 both parties applied to the Munsif for an adjournment, but the Munsif refused the application and examined the two defendants and three witnesses on behalf of the defendants. The plaintiff was not examined, and it is alleged that he had no witness in attendance. On the 21st December 1916 the Munsif made an order granting sanction for the prosecution of the plaintiff Jugeshwar Pershad, for committing offences under Sections 210 and 193 of the Indian Penal Code. The matter is now before me in revision, and my jurisdiction is limited within the scope of Section 115 of the Code of Civil Procedure, Section 25 of the Provincial Small Causes Courts Act and Section 107 of the Government of India Act.

The first point taken by Mr. Muhammad Hasan Jan on behalf of the petitioner is that so long as the ex parte decree remains un reversed there can be no prosecution for obtaining a false decree and for fabricating false evidence. Now it is true that the result of a conviction of the petitioner in consequence of the present sanction to prosecute will be somewhat inconsistent for while the Criminal Courts will hold that the plaintiff''s case was false, the decree of the Civil Court passed on the footing that the case was true will stand and remain capable of execution. But this anomaly, in my opinion, is not sufficient to prohibit the prosecution of the plaintiff if the Court which decreed the suit is satisfied that the suit was false.

The defendants ought to have moved to set aside, the ex parte decree within one month of the date of knowledge of the decree or at least within one month from the 24th of January 1916, on which date they made the application to the Commissioner. The time for making the application expired on the 23rd of February 1916, and possibly their only civil remedy after that lay in bringing a suit to set aside the ex parte decree on the ground of fraud. But the Jaw nowhere says that they were bound to set aside the decree before they could avail themselves of the remedy given by the Criminal Law. If an offence against public justice has been committed, the offenders are liable to punishment irrespective of the state of affairs in the Civil Courts, and this has been held in Emperor v. Molla Fuzla Karim 33 C. 193 : 3 CrI.L.J. 365. Mr. Muhammad Hasan Jan, however, attempts to distinguish that case on the ground that there the defendants resided in the Punjab and the decree was obtained in Calcutta, and that it would have been very inconvenient for the defendants to come to Calcutta for the purpose of setting aside the decree; whereas, in the case now before me, the decree was obtained in a District which adjoins that in which the defendants reside. This question of inconvenience does not appear to me to touch the principle involved in the matter. If once it is granted that the criminal remedy is independent of the civil remedy, then questions of distance and inconvenience are wholly immaterial. I hold, therefore, that in law there was no bar to sanction being given for the prosecution of the plaintiff in the present case notwithstanding the fact that the ex parte decree still remains capable of execution.

The next ground urged on behalf of the petitioner is that there was great delay in the application for sanction. From the date of the ex parte decree till the date of the application there elapsed a period of fourteen months, and from the date of the application to the Commissioner there elapsed a period of ten months. In the application for sanction made to the Munsif the defendants said that the enquiry by the Criminal Investigation Department in the District of Monghyr was finished on the 11th of March 1916. Even then there was a delay of eight months. Miking the fullest allowance for the delays incidental to setting the machinery of the Criminal Investigation Department into motion, and to getting sanction for the prosecution and the defrayal of expenses by Government, I think the delay in this case was not satisfactory; but, nevertheless, I do not think that I should interfere with the order that the Munsif has made. Ordinarily, delay on the part, of a private prosecutor in obtaining sanction in respect of offences against public justice is material as bearing upon the question of bona, fides, bat whore Government is in fact the real prosecutor, the question of bona fides disappears. It is assumed that the Crown will not act mala fide in matters of this kind. Therefore the main objection to delay in applying for prosecution in this class of cases on the part of the Crown disappears.

The learned Munsif appears on a review of the whole case to Have been satisfied that he ought to exercise his discretion in favour of the defendants, and, sitting in revision, I am not prepared to say that he has exercised that discretion wrongly.

I trust, however, that the learned Government Advocate will in future applications of this kind bring to the notice of the authorities the desirability of concluding investigations as quickly as possible and bringing the matter before the Courts at the earliest possible moment. The difficulty of proving offences against public Justice is difficult without adding to it by delay in bringing the offenders to justice.

The third ground is that on the merits no sanction ought to have been given. Now this is a question on which the learned Munsif has exercised his discretion upon the evidence recorded. It is unfortunate that the plaintiff had not got any witness present in Court on the appointed day, but as he had had time to produce those witnesses, there seems to have been no material irregularity in the exercise of the Munsif''s Jurisdiction. I see no reason why, upon the prima facie case established, the matter should not proceed to trial in the ordinary course.

The result is that the application for revision is dismissed. The prosecution of the plaintiff petitioner will take its course.