Ram Prosad Roy and others vs Sooba Roy

This is an application to set aside an order giving sanction to prosecute. Shortly stated, the facts are these:--The Plaintiff brought a suit to set aside a mortgage deed which was put forward by the Defendant and which he submitted was a forgery. The first Court, after hearing the evidence and examining all the witnessess, held that the document was genuine. The learned District Judge allowed the appeal and gave sanction to prosecute, and, in doing so, has proceeded mainly upon a comparison of signatures. He has also taken into consideration what the learned Moulvi, who appears for the opposite party, describes in showing cause as the balance of evidence. Now, the object of the law in allowing sanction to prosecute is to restrain the exercise of private spite and to insist on their only being prosecutions when the interest of public justice renders it necessary. It is not intended by the law to allow any person as of right to attack his civil adversary in a Criminal Court. If the learned Judge''s order is correct, there would be a sanction to prosecute in every case when the Appellate Court differed from the original Court, and that would be exceedingly dangerous, especially in a case like this, where the Court, which considered that the document was not a forgery, was the Court which heard the witnesses.

Another reason for not granting sanction to prosecute in every case is that there may not be number of prosecutions without convictions. It would be disastrous if there were a number of prosecutions ending not in convictions, but in acquittals. The result would be that instead of putting down perjury it would rather tend to encourage it. Therefore, as has been pointed out by this Court, the Judge, before sanctioning a prosecution, should be satisfied not only that in his judgment the document is not genuine, but that in all probability a conviction will be the result. Here, where we have such a difference of opinion between the two Courts which tried the case, and when the matter rests upon a very doubtful consideration of the comparison of handwriting and also upon more or less evenly balanced testimony, it is impossible to foresee a conviction with anything approaching certainty. This is a case in which we think the learned District Judge would have acted better if he had refused the sanction, and having heard the Rule argued, we think we ought, to set the sanction side. The Rule is accordingly made absolute.