SHER SINGH Vs. JITENDRANATH SEN

JUDGEMENT

(1.) This matter came to us in revision once before and was disposed of by this Court's judgment dated 19 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 28 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 e 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 14 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 7 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 9 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 under Section 420, I. P.C. A few days later, on 25 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 15 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 29 November Sher Sing compounded with Lachminarain and the latter and his son were acquitted. Mr. Chaudhuri for the opposite party has pointed out that as a result of this compounding, a considerable amount of money was obtained through the criminal proceedings. On 13 December Lachminarain contended before the Magistrate that he should also be acquitted in Bhag Sing's case, but as this was not given effect to, he filed an application for transfer of this case under Section 526, Criminal P.C., and the case was adjourned. As a matter of fact, however the application for transfer was never moved. Sher Sing meanwhile took another step. He applied to the Magistrate to withdraw his case against Sen, with permission to re-institute it in case Bhag Sing's case might not proceed at any stage for any reason whatsoever. The learned Magistrate, without dealing with the matter on its merits under Section 253, Criminal P.C., allowed the petition for withdrawal with permission to re-institute the case if he thought necessary", and Sen was discharged under Section 253, Criminal P.C. On 17 December Bhag Sing's case against Lachminarain was compounded and Mr. Chaudhuri points out that thus money was again obtained through the criminal Court. Sher Sing, by a petition, identified himself with this compromise. On 20 January Bhag Sing took some steps in his case and Dr. Holmes was examined as a witness. I may say here that the learned Magistrate, as also counsel in this Court, have made use of this evidence of Dr. Holmes in the present matter although strictly speaking, Dr. Holmes was not examined as witness in Sher Sing's case. However the evidence of Dr. Holmes did not exactly support the story of the false identification of Lachminarain as the father of Spuran Sing. Sher Singh, though called as a witness in Bhag Sing's case, did not appear to give evidence as a witness, but on 23 January 1930 he filed a petition alleging that he apprehended that Bhag Sing would compound the case with Sen and praying that such a compromise might not be allowed. Bhag Sing apparently failed to prove his case as against Sen, and on 5 February he filed a petition withdrawing his case. Thereupon the Magistrate discharged Sen for want of evidence. At that stage Sher Sing took up the cudgels and on 6 February he filed a petition for permission to revive his case against Sen. The Magistrate called upon Sen to show cause and he also called upon Sher Sing to say what new evidence was proposed to be adduced. Sher Sing then made the case that he had an interview with Sen and had told him that the ticket number in the name of Spuran Sing was his and he asked Sen to send two separate intimations.

(2.) Mr. Chaudhuri has pointed out that there was no mention of this in Sher Sing's original petition of complaint. However on 29 March 1930, Sher Sing examined one Asita Ranjar Rajguru in support of his story. On that date three other witnesses were examined. On 31st March the Magistrate wrote an order reviewing the evidence and finding that a prima facie case seemed to have been made out against J. N. Sen." Ha directed J. N. Sen to be summoned under Section 420, I. P.C., for 16 April 1930. Against this order Sen filed a motion before the Sessions Judge. On 8 April 1930, the learned Judge passed the following order: Heard pleader. The proceedings appear to have been somewhat strange. Partial com-poundings, discharges withdrawals with liberty to re-institute criminal cases and what not. I should like to know if the District Magistrate after consideration of circumstances will be prepared to direct withdrawal from the prosecution. Let this order be shown to the Public Prosecutor, Fix 14 April 1930 for hearing.

(3.) Apparently the learned Judge was struck with the unsatisfactory features of the proceedings before the Magistrate and he wished to reach the end by a short cut. The end however did not come as soon as the learned Judge had anticipated. He rejected Sen's application for quashing on the ground that the District Magistrate had decided to withdraw it. On 3 May 1930, the Public Prosecutor entered appearance before the Magistrate and filed his petition of withdrawal under Section 494, Criminal P.C. Thereupon the parties came to this Court and the matter was disposed of by the Court's judgment, dated 19 August 1930, which I have referred to above. It was directed by that judgment that the trying Magistrate should dispose of the application for withdrawal, which was then pending before him, in accordance with his own independent discretion. Accordingly the case was sent down to the trial Magistrate. On 25 October he heard the parties and on 3 November he made an order allowing the application of the Public Prosecutor for withdrawing from the prosecution and discharging the accused Sen under Section 494, Criminal P.C. Against this order, Sher Sing filed a petition for revision before this Court, and a rule was issued. This is the rule which we are considering now.