S. Kuppuswamy Chettiar vs Subbaraya Chettiar

Mockett, J.—This is an appeal against the order of the learned District Judge of North Arcot directing that a complaint should be laid in the

Court of the Magistrate having jurisdiction charging the petitioner with offences under Sections 199, 209, 210 and 420, Indian Penal Code. I think

it is clear from the decision in K.V. Muniswami Mudaliar Vs. Rajaratnam Pillai and Others, , that in sanctioning a prosecution the Court should

consider not only whether there is a prima facie case but also whether it is, in the words of Coutts Trotter, J., in the above case, ''against the public

interest to allow criminal proceedings to be instituted'' but which I respectfully suggest must also imply the consideration as to whether it is in the

public interests they should be instituted. In this case the offence on which these complaints are based was committed between the 30th January,

1937, and 7th April, 1937. On the 9th April, 1937 the money said to have been obtained on 7th April, by means of the offences alleged was

returned voluntarily by the petitioner to the Official Receiver. April 8 was a holiday. No action was taken by the present respondent until June,

when an application is said to have been made for papers. Not until the 10th September, 1937, was an application made to prosecute. The case

has had a chequered career. It came before a Subordinate Judge who-in considering the matter stated that ''the respondent stands self-

condemned. He admittedly made a false claim before the Official Receiver and obtained payment.'' The Subordinate Judge considered that the

long delay in making the complaint by the respondent stood in the way of prosecuting the present appellant. If he considered this was a matter of

law, he was wrong. If he considered that it was an ingredient assisting him to arrive at his decision, he might have considered the element of delay

with all the other circumstances. The District Judge set aside that order and directed the matter should be reconsidered on grounds with which I am

not wholly in agreement. They amount to this : Who is the worse offender--the petitioner in this case or the respondent? I. A. No. 702 of 1937

was heard on the 25th March, 1940, and a long judgment was delivered by the District Judge, the result of which in my opinion is most

unfortunate. He should have considered whether there should be a prosecution on the lines laid down in K.V. Muniswami Mudaliar Vs.

Rajaratnam Pillai and Others, and said very-little, regarding the merits and nothing about the expected result. He described the man whose

prosecution he was directing as a ''self-confessed criminal who on his own admission is responsible for contriving and perpetrating a serious fraud

on the Court.'' This"" entirely prejudices the case. He then goes on to use the following words ""I have no doubt that that matter""--referring to a

contention of the petitioner--""will be taken into consideration by the trial Court in awarding punishment in the case."" This presumes a conviction.

He does not consider at all the long delay in this case in making the complaint. In my view this case has reached a stage when it is not definitely in

the public interest that a prosecution should proceed. This is a good example of the maxim now so well-known that not only should justice be done

but should be seen to be done and I consider for me to allow a case to proceed in which the District Judge has referred to a man to be prosecuted

as a self-confessed criminal who had contrived and perpetrated a serious fraud on the Court would not be in accordance with the last of the two

conditions in the maxim. There might be such a case but this does not seem to me to be that case. It?does seem unquestioned that the petitioner

admitted an offence against the Court which he endeavoured to put right at the earliest possible moment. That was in 1937. On the face of it does

not seem to be necessarily a very grave case but it has been magnified and embellished with extravagant epithets in a manner wholly out of

proportion to its importance and I consider that now it is not in the public interests that the prosecution should proceed in this atmosphere of pre-

trial comment. I shall therefore allow the appeal and the lower Court is directed to withdraw the complaint. There will be no order with regard to

costs.

In this case the question has arisen as to whether notice should go to the Public Prosecutor or Government Pleader in appeals such as this. The

decision in E.P. Kumaravel Nadar Vs. T.P. Shanmuga Nadar and Others, , makes it clear that this is a civil matter from the point of view of

whether the CPC applies. I think however that owing to the nature of the proceedings it is desirable that notice should go to the Public Prosecutor

rather than to the Government Pleader as he is the appropriate Law Officer to deal with questions relating to prosecutions, e.g., perjury and similar

offences. I may add that I think this case has shown how necessary it is that notice should go to a Law Officer who can bring an impartial eye to

bear upon this question and thereby assist the Court. The respondent has pressed most strongly for this prosecution to continue although I do not

suggest that his learned Counsel went further than he properly could. His instructions are the instructions of the lay client. But the Public Prosecutor

suggests the view which I have now held, namely, that having regard to all the circumstances and especially the manner in which this case was dealt

with in the lower Court it is not in the interests of justice but rather contrary to them that this prosecution should proceed.