EMPEROR Vs. MORARJI JIVRAJ

JUDGEMENT

(1.) The facts out of which the present application arises are as follows. Opponent No. 1, who is the widow of one Narsi Sawal, was the complainant against the petitioner and opponent No. 2 whom she charged with criminal breach of trust and abetment thereof and using a forged share-transfer form in respect of ten ordinary shares of the Tata Iron and Steel Co. belonging to her, under Secs.406 and 471, read with Section 109 of the Indian Penal Code. The case was tried in the Court of the Third Presidency Magistrate, Bombay, who issued process and summons for the production of account books relating to the alleged transaction, and he fixed the case for hearing on July 3, 1934. On July 2, 1934, opponent No. 1 applied for a reference of the case to the Criminal Investigation Department under the provisions of Section 202 of the Criminal Procedure Code. That application was rejected on the ground, apparently, that the Court had no jurisdiction, having once ordered process to issue. On the day of the hearing, i.e., July 3, opponent No. 1 was absent, and the learned Magistrate, purporting to act under Section 259 of the Criminal Procedure Code, discharged the accused. On the very next day the complainant (opponent No. 1) filed a fresh complaint on the same facts and added a prayer that the case should be referred for investigation to the police under Section 202. This prayer was granted by the learned Magistrate. Thereafter the petitioner applied for a revocation of the said order, stating that the prayer was one calculated to circumvent the provisions of the law. The learned Magistrate rejected this application, and the present application has been filed in order to get that order set aside.

(2.) Mr. Carden Noad for the applicant has argued that in this case Section 259 of the Criminal Procedure Code did not apply, as, in the first place, an offence under Section 406 is cognizable and non-compoundable and Section 259 applies only to offences which are either compoundable or non-cognizable, and that, secondly, an offence under Section 471 being triable by a Court of Session, a complaint under that section could not have been disposed of under Section 259, though the accused could have been discharged under Section 209, Criminal Procedure Code.

(3.) The second point urged by him is that the complainant deliberately absented himself on July 3 in order to get round the difficulty of the Magistrate, on his previous application, in not having been able to refer the case for investigation by the police, a procedure evidently keenly desired by the complainant: it is contended that the complainant's action in getting the accused discharged first and then filing a fresh complaint and thereafter applying for a reference to the police amounted to an abuse of the process of the Court.