The judgment established the principle that the Magistrate has an independent discretion to allow the withdrawal of the prosecution u/s 494, Criminal P.C. based on the circumstances and new evidence presented.

JUDGMENT

S.K. Ghose, J. - This matter came to us in revision once before and was disposed of by this Court's judgment dated 19th August 1930 in Miscellaneous Case No. 111 of 1930 (with Revision Case No. 576 of 1930). The case had had a somewhat chequered career and it will be necessary to recall the facts. I wish to acknowledge the assistance which learned Counsel on both 'sides have given us in elucidating the material facts. The opposite party, J. N. Sen, is the local agent of the Central Bank of India at Asansole. One Lachminarain was a client of the bank. The petitioner Sher Sing, and one Bhag Sing, who has taken some part in the dispute, were friends of Lachminarain, but they have no connexion with the bank. On 28th March 1929 Lachminarain applied in writing to J. N. Sen for two ticket numbers in the Calcutta Turf Club Derby sweep and his account was debited with the price of those two tickets at Rs. 10-8 each. Apparently acting on behalf of the client of the bank, J. N. Sen obtained a number of Derby Sweep ticket numbers from one Dr. Holmes, a member of the Calcutta Turf Club, and at that time residing at Asansole. It may be mentioned here that according to the arrangement, the two tickets which were to be obtained in compliance with Lachminarain's letter were to bear the nom-de-plumes "Spuran Sing" and "Dhemo" respectively. Spuran Sing happens to be the name of the son of Sher Sing. At the end of April intimation was sent by J. N. Sen to Lachminarain that he had got the ticket numbers DQ7956 "Spuran Sing," and 7957 "Dhemo". In June the former ticket number drew a prize worth Rs. 16,65,000 and Sen was informed by Dr. Holmes. On 14th July 1929, Sen took Lachminarain to Dr. Holmes and as a result of his identification of Lachminarain, Dr. Holmes made over the amount to Lachminarain. It should be mentioned here that Dr. Holmes kept for himself 10 per cent of the prize money and Sen also kept for himself another 10 per cent. It is also alleged that Sen kept a further sum of two lacs. The balance of Rs. 13 lacs was made over to Lachminarain by Dr. Holmes by cheque. After this nothing happened until 7th October 1929 when Bhag Singh came to Court with a complaint alleging that he had a share in the aforesaid sweep number and that he had been defrauded of that share by Lachminarain, Sen, and Sher Sing, acting in conspiracy with one another. He also stated that Sher Sing had written a slip admitting "that Bhag Sing was entitled to one anna share of the prize money. Bhag Sing's case was that he and Sher Sing together paid the price of the ticket number in cash on 9th April 1929 to J. N. Sen, who took a note of the nom de-plume; that Sen verbally gave the number of the ticket to him, and Sher Sing, and that he falsely identified Lachminarain to Dr. Holmes as the father of Spuran Sing. Upon this complaint the Magistrate directed a warrant to be issued against Lachminarain and J. N. Sen on a charge u/s 420, I. P.C. A few days later, on 25th October Sher Sing came to Court with a complaint alleging that he had been cheated by Lachminarain, "the latter's son, Moti Sing and J. N. Sen. His case differs from Bhag Sing's in that he alleged that he had contributed the whole of the price of the winning ticket number. As regards Sen, he alleged a case of conspiracy with the other accused and also stated that Son had, to Dr. Holmes, falsely identified Lachminarain as the father of Spuran Sing and represented that Lachminarain and his son were the real owners of the winning ticket number. It is important to note that at the time of his initial deposition Sher Sing mentioned the name of certain witnesses who would prove his case. Thus so far as Sen is concerned, there were two cases instituted against him. On 15th November Sher Sing filed an application praying that his case might have priority over Bhag Sing's case. It was ordered that both cases should go on together. However on 29th November Sher Sing compounded with Lachminarain and the latte