KALI PRASANNA BASU ROY CHOUDRY Vs. EMPEROR

JUDGEMENT

(1.) The petitioners in this case are two brothers. They admittedly belong to a most respectable family of zemindars--the Basu Choudhuris of Bohor. They are both legal practitioners, the elder Kali Prasanna having extensive criminal practice at Munshigunj where he mostly resides, the younger Kali Kumar mostly living at Bohor, the family residence and looking after the family properties. The Bohor family has now split up by successive partitions and the several branches have been admittedly at logger-heads. The members of several branches have made a common cause against the accused and supported the prosecution by their evidence. The petitioners had special enmity with Rai Abhai Charan Mitra Bahadur, a retired Military Contractor of great wealth, and the learned Magistrate says "the struggle with Rai Abhai Mitra Bahadur, over the chur lands has been long and bitter, and the Rai Bahadur s influence is plainly visible in the present case * * The police-officers, especially Chinta Haran Dutta, Sub-Inspector of Rajahari thana from March 1906 till June 1909, and Inspector Kalipada Mukerjee, have generally espoused the Rai Bahadur s side." It is clear, therefore, on the finding of the learned Magistrate himself, that this public prosecution has been supported by persons more or less interested in the downfall and humiliation of the petitioners. It is notorious that accusations under this section are constantly made with the object of blackening an enemy s character and of satisfying feelings of spite and hatred and the Magistrate cannot be too cautious in making sure that provisions intended for securing the peace of the community are not utilized for wreaking private vengeance under the ?gis of a Crown prosecution.

(2.) It appears that on the 27th of February 1909, the petitioner, Kali Prasanna, saw the District Superintendent of Police, Mr. Webb, and complained to him that the local police- officers had combined, with his enemies and were trying to humiliate him in various ways. He was directed to make a written representation and he did this by a petition dated the 9th of March 1909. The Sub-Inspector, Babu Chinta Haran, on the 24th of May 1909, made a report endorsed by the Inspector, Babu Kalipada Mukerjee, that the petitioners were men of irritative and desperate character and have an earnest desire of increasing their landed property by force: whenever any land is accreted in any place, in or near any mouzah in which they have got some share, they always come forward with a claim to it, whether valid or not, and try to get the whole of it into their possession by driving out any person who might have taken possession of it beforehand by means of criminal force; in short they cannot remain in peace without quarrelling with their equals and oppressing the weaker ones." On this report there is hardly any element of Section 110 of the Criminal Procedure Code. However, the police mentioned a large number of cases in which the accused are said to have been implicated and asked for a proceeding under Section 110, Clauses (e) and (f), and such a proceeding was in fact initiated against them and they have been bound down for three years in heavy recognizances and sureties. They have furnished the security and given the required bonds and they obtained this rule on three grounds: (1) that the Magistrate has relied on matters occurring many years ago; (2) that the petitioners have not been convicted or charged with any offence involving a breach of the peace; (3) that the Magistrate has refused to examine certain witnesses tendered for examination.

(3.) On the first ground the learned Magistrate has, no doubt, referred to one case of 1902, one of 1903 and one of 1905; but it cannot be said that these cases were not admissible in evidence: See Wahid Ali Khan v. Emperor 11 C.W.N. 789 : 6 Cr. L.J. 1 and if that be so the order of the Court below cannot be impeached on that ground.