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1938 Supreme(Cal) 128
CALCUTTA HIGH COURT
Henderson, J., Derbyshire, J., Bartley, J.
Devendra Kumar Roy - Appellant
Versus
Syed Yar Bakta Chaudhury & Ors. - Respondent
Decided On : 08-12-1938
The main legal point established in the judgment is that the withdrawal of a prosecution and the discharge of accused persons must be justified based on the evidence presented and the public interest in prosecuting the alleged offenses.
Headnote:
Withdrawal of Prosecution - Criminal Procedure Code - 494 - Summary
Fact of the Case:
The complainant filed a complaint against several accused persons for forgery and fraud in relation to a property conveyance. The prosecution was ongoing, and evidence was being presented. However, the Government of Assam requested the withdrawal of the case, citing insufficient evidence and heavy expenses. The Magistrate allowed the withdrawal and discharged the accused.
Finding of the Court:
The Court found that the withdrawal of the case and the subsequent discharge of the accused were not justified. The Court noted that the complainant had initially opposed the withdrawal and offered to pay the expenses. The Court also highlighted the serious nature of the alleged offenses and the public interest in prosecuting such cases.
Issues: The main issue was whether the withdrawal of the case and the discharge of the accused were justified, considering the evidence presented and the public interest in prosecuting the alleged offenses.
Ratio Decidendi: The Court held that the withdrawal of the case and the discharge of the accused were not justified, as there was sufficient evidence to proceed with the prosecution, and the public interest in prosecuting the alleged offenses was significant.
Final Decision: The Court quashed the orders of withdrawal and discharge, and the case was sent back to the lower court for further proceedings.
JUDGMENT
Derbyshire, J. - This rule was issued by a Division Bench of this Court at the instance of the complainant, Devendra Kumar Roy, calling upon the opposite par. ties to show cause why the order complained of in the petition should not be set aside. Notice of the matter was given to the Legal Remembrancer of Assam. The petitioner has appeared before us by counsel as have the opposite parties. The Government of Assam is represented by Mr. S.M. Bose, Standing Counsel of the Government of Bengal. The order complained of was one made by Mr. R.R. Khaund, Magistrate, First Class, of Sylhet, on 31st March 1938 whereby he directed that the opposite par. ties herein, the accused persons then before him, should be discharged u/s 494, Criminal P.C.
2. The facts leading up to and in connexion with that order are as follows: Opposite party No. 1, Syed Yar Bakht Chaudhury, was indebted to the complainant petitioner and it was agreed some time in 1936 that that indebtedness should be discharged by a conveyance of property to the complainant by Yar Bakht Chaudhury and other persons. A conveyance in pursuance of that agreement was executed by Yar Bakht Chaudhury and other persons and on 9th June 1936 that deed was presented to the Sub-Registrar at Balaganj in Assam for registration in the Registry Office there. The Sub-Registrar is opposite party 6, A. A. Abdul Ali. The deed was sent by registered post from Balaganj Sub-Registry to Habiganj Sub-Registry Office and there acknowledged by one of the executants, Abdul Matin Chaudhury, a pleader. After execution it was sent back on 13th June to the Sub-Registrar's Office at Balaganj. In July another executant at Balaganj admitted execution before the Sub-Registrar. On 16th August, another executant, Jamirunnessa Khatun, refused to admit the execution at Balaganj. As a result of that, appropriate proceedings were taken in the District Sub-Registrar's Office at Sylhet for the purpose of having Jamirunnessa's admission of execution duly recorded, and the deed was sent to Sylhet by registered post for that purpose arriving there on 2nd October.
3. It is alleged that on arrival there it was found that the deed had been altered and that two pages - pp. 4 and 52 - had been taken out of the deed and two others inserted in their places, the net resul of the alleged-alterations being that the complainant received under the deed fewer parcels of property than had been assured to him under the deed as originally presented for registration. As a result of that discovery, on 17th October" 1936 the complainant lodged a complaint against the six opposite parties and four others - ten in all. In that complaint were charges u/s 193, I.P.C., fabrication of false evidence, Section 467, forgery, Section 468, forging a valuable security with a view to cheating, and Section 477, fraudulently destroying or defacing a valuable security. There were charges in addition u/s 109, abetment, and Section 120-B, conspiracy to commit those offences. On 29th January 1937 the Magistrate received the sanction of the Government of Assam to prosecute opposite party 6, Abdul Ali, who was, as I have mentioned, the Sub-Registrar of Balaganj, on charges under Sections 81 and 82, Registration Act. Such charges were duly added.
4. The complaint was made before the Additional District Magistrate of Sylhet, who made an inquiry into it, and on 9th February 1937 issued summonses against all the ten opposite parties. On 10th March the case was made over to Mr. Khaund, Deputy Magistrate with First Class powers, who fixed 1st May 1937 as the date for the appearance of the accused before him. Between 10th March and 1st May, friends of the accused approached the complainant and agreed to have executed the necessary documents to convey to the complainant all the property which it had been originally agreed should be conveyed to him under the deed. On 23rd April 1937 opposite party 1, Syed Yar Bakht Chaudhury, and his cosharers in such property execut
