P (PLP)

S. Afzal, Dy. Legal Remembrancer, for the Crown. Ellis J.‑

In this case a Rule was issued on the District Magistrate of Rangpur to show cause why an order of Mr. C. A. Ali, District Magistrate of Rangpur, dated 11th October 1947, reversing an order of discharge under Section 209 (1), Criminal Procedure Code, passed by Mr. P. K. Clatterjee, a Magistrate of the first class, Nilphamani, on the 23rd June 1947, should not be set aside. The material facts are that on the 5th November 1940, one Sarat Kamini Debi, the wife of Barada Bhattacharjee instituted a suit for ejectment, being Title Suit No. 210 of 1940, before the Munsif of Second Court, Nilphamari. The suit was instituted to recover possession of the suit land on ejection of the defendant. The defendant was one Sashi Dhusan. His defence, inter alia, was that he had purchased the holding with the consent of the plaintiff and that the plaintiff had recognised him Es a tenant and had granted rent receipts. Two receipts were proved in the case on the side of the defendant ; one marked Ex. D was for a sum of R9. 140 said to have been paid by Sashi Bhusan to Barada Bhattacherjee for arrears of rent. This receipt is said to have been both written and signed by Barada Bhattacharjee. The second receipt is Ex. D. (1) in support of a subsequent payment of Rs. 95‑5‑0. by Sashi Bhusan to Barada Bhattacherjee. The receipt is said to have been written by Trilochan, the present petitioner rod should have been signed by Barada Bhattacharjee. The suit was decreed by the learned Munsiff of the Second Court, Mr. K. S. Bhattacharjee, on the 31st of July 1941. Oil the 4th December 1941, the Munsif as complainant started proceedings in the Criminal Court against Sashi Bhusan and Trilochan in respect of these receipts and the accused were summoned on the 5th of December 1941. Thereafter they asked for proceedings to he stayed pending the disposal of an appeal to the District Judge. The appeal of Sashi Bhusan to the District judge was dismissed on the 28th December 1942 and a second appeal to the High Court was dismissed on the 4th February 1946. Thereafter the case was again taken up in the Criminal Court on the 20th September 1946. In the meantime Sashi Bhusan had died and Trilochan was summoned under Section 467, Penal Code. He was dis charged under Section 209, Criminal Procedure Code on the 23rd June 1947 and on the 2nd July 1947 Kimala Pada Bhattacharjee the son of Sarat Kamini Debi, moved the District Magistrate. The District. Magistrate after hearing the matter directed Trilochan to be committed to the Court of Session on th3 11th October 1947. Thereafter Trilochan moved this Court and obtained this Rule on the l7th, November 1947. Mr. Radhika Ranjln Guha, who has appeared on behalf of the petitioners, has raised four points before us. The first point is that as tire principal Sashi Bhusan is now dead, there is no reason to proceed against Trilochan who, is merely a witness. The second point is that no signature of Trilochan was ever sent to the hand writing expert. The third point is that there is no finding by the learned Munsiff that the prosecution of Trilochan is in the interest of justice and his fourth point is that the Crown did not think it worthwhile to move the matter of the discharge under Section 209, Criminal Penal, Code, on the 23rd June 1947 and it was left for a private person to set the law once more in motion. With regard to Mr. Guha's first point we find no substance in his plea that there was no necessity to proceed against Trilochan who was merely a witness. The evidence establishes that Trilochan was something more than a mere witness in this case because he is the sister's son of the plaintiff Sarat Kamini Debi and, therefore; no outsider to the proceedings. Similarly we find no substance in Mr. Guha's fourth objection that the Crown did not think it worthwhile to move in the matter of the discharge under Section 209, Criminal Procedure Code. The application was made by Kamala Pada Bhattacharjee, son of the plaintiff Sarat Kamini Debi and the plaintiff Sarat Kamini Debi was herself dead at that time and her husband Barada Bhattacherjee, if the record is correct, was by then 102 years of age. It is, therefore, only natural that any action in the matter should be taken by Kamala Pada Bliattacherjee and Kamala Pada's prompt action forestalled any other moves. But we think that there is substance in Mr. Guha's complaint that as the signature of Trilochan on the disputed rent receipt was never sent to the handwriting expert, the materials on record fall short of what is required to obtain a conviction under Section 467, Penal Code. This point is well dealt with by the learned Magistrate and we agree with him that in the absence of any evidence to show that Trilochan wrote the signature of Barada Kanta Bbattacharjee on Ex. D‑1 the admission by Trilochan that he wrote the body of the document, in the circumstances arising in this case I would not be sufficient to support a charge under Section 467 of the Code. We may observe in this connection that when the learned Munsiff of Nilphamari recorded his first complaint under Section 476, Criminal Procedure Code, and forwarded it to the Sub-Divisional Officer at Nilphamari, the latter, in an endorsement on the complaint drew the Munsiff's attention to the fact that he ought to file a separate complaint in respect of the supposed offence under Section i93, Penal Code. Thereafter the learned Munsiff did file a second complaint on the 20th December 1941 but instead of filing it in respect of an alleged offence under Section 193, Penal Code, he filed it in exactly the same terms as his previous complaint on 4th December 1941 save that his second complaint was, directed against Trilochan alone while his first complaint was against Trilochan, and Sashi Bushan. This second complaint was completely lost sight of and no action ever appears to have been taken on it.