N.K. Sen, J
1. The Petitioner in this Rule prays that the order of discharge passed u/s 209 of the Code of Criminal procedure on February 11, 1958, by Shri M.C. Sarbadhikari, magistrate, first class, Alipore, should be set aside.
2. The facts leading up to the order of discharge complained of are that the opposite party Panchulal Dey instituted a suit in the court of the Subordinate Judge, Aliproe, against one Surendra Nath Chatterjee, since deceased, and several others including the Petitioner for a declaration of his title in certain lands and in that: suit the opposite party Panchulal Dey produced a certain rent receipt alleged to have been signed by the Defendant Surendra Nath Chatterjee. This receipt which was Ex. 1 in the case was challenged to be forged document and was found to be a forged document on comparison with the signatures of the said Surendra Nath Chatterjee on two other kobalas executed in the year 1928 by which Surendra Nath Chatterjee conveyed some of his properties to one Mohit Mohan Mukherjee. The suit instituted by the opposite party was dismissed and his appeal also failed. The two kobalds which were produced in the suit by Mohit Mohan Mukherjee were taken back by him after the disposal of the suit. It is stated that subsequently in another Title Suit No. 122 of 1954/25 of 1955 of the 7th court of the Subordinate Judge, Alipore these two documents had been filed by the said Mohit Mohan Mukherjee and they are now in the custody of that court. It is also stated that the documents were made over to one Shri Syamapada Sen Gupta, a pleader commissioner who was appointed by the court for taking depositions of certain witnesses on commission.
3. As the document Ex. 1 was found to be a forged receipt, an application was made before the learned Subordinate Judge u/s 476 of the Code of Criminal Procedure for making a complaint against the opposite party. The learned Subordinate Judge passed an order for forwarding a complaint to a magistrate for prosecuting the opposite party under Sections 463 and 471 of the Indian Penal Code. The opposite party filed an appeal against this order and also moved this Court in revision but the order of the Subordinate Judge was upheld. A formal complaint was ultimately sent to the police magistrate of Alipore upon which the opposite party was placed on his trial on charges under Sections 463 and 471 of the Indian Penal Code.
4. The two kobalas which were necessary documents were not produced in the court of the magistrate although on several dates adjournments had to be given for the purpose. On February 11, 1958. the learned magistrate discharged the opposite party holding that the documents in question could not be available and that sufficient opportunities were granted to the prosecution to cause the production of the material documents but to no effect. The learned magistrate held that as these two material documents were not available the handwriting expert could not be examined in the absence of these two documents. He held that no prima facie case under Sections 463/471 of the Indian Penal Code is maintainable against the accused in the absence of that evidence.
5. The Petitioner contends that it is true that these two kobalas are material documents and without producing them the evidence against the opposite party would be insufficient to prove the charge but the Petitioner was not in charge of the carriage of the prosecution which was in the hands of the police. Without doubt the two kobalas in question are in the custody of the court. Even if they had been made over to a pleader commissioner the documents would still be in the custody of the court. There is no reason why they cannot be produced before the criminal court from the custody of the, civil court. It was submitted on behalf of the Petitioner that the learned magistrate was wrong in thinking that the documents in question would not be available.
6. Appearance has been entered on behalf of the state in this Rule and Mr. Chakravartti appeared for the State to support the Petitioner. Mr. Chakravartti, however, has submitted as an excuse for the court sub-inspector not having applied for an adjournment in the court below that since the document had been asked for from the civil court, the State was under the impression that until they were obtained the learned magistrate would not be taking up further enquiry in the proceedings and under that mistaken belief the prosecutor in the court below did not take any further step.
7. Mr. Abinash Chandra Ghose has opposed the Rule on behalf of the opposite party. He has submitted three points before me on behalf of his client and has argued that the order of discharge was the only order that could have been properly passed in the case. The first point taken by him is that the Petitioner''s application before the learned Additional Sessions Judge was barred by time. It appears that the Petitioner moved the learned Additional Sessions Judge for a reference to this Court u/s 438 of the Code of Criminal Procedure. In moving the application before the Court he was beyond the accepted period of time within which such revisional application was to be moved. The learned Additional Sessions Judge did not fail to notice this but did not give effect to the contention and the delay, if any. was condoned by him. The second point urged is that an application of this nature cannot be entertained at the instance of a private individual. The third point which is really an elaboration of the second point is that the State not having taken any steps in moving an application against the order of discharge either before the court of sessions or before this Court, the present revisional application is not maintainable. Mr. Ghose''s argument is that since the amendment of the Code of Criminal Procedure in the year 1923 a court is the only competent person to make a complaint and thereafter there is no scope for a private individual to carry on the prosecution and as such it is the State and the State only that can either prosecute the offender or abandon a prosecution. According to Mr. Ghose, it is quite clear that the documents not having been made available before trying magistrate the State had abandoned the prosecution. In support of his argument Mr. Ghose has cited the case of
8. The argument of Mr. Ghose suffers from a misconception. The High Court in its revisional jurisdiction is not bound to hear any party but since it exercises a discretionary and revisional jurisdiction it can suo motu or at the instance of any person call for the records of an inferior court and examine the same for the purpose of satisfying itself as to the correctness, legality or propriety of any order passed or as to the regularity of any proceeding of such court. In the present case the entire records of the court below are before me and it would be preposterous, in my view to suggest that this Court would have no jurisdiction to examine the same even though the records have been brought up on a Rule issued by this Court on an application made by an interested individual. The Lahore case cited by Mr. Ghose is no authority for the proposition that when a complaint is made by a court, a person interested in the prosecution vanishes from the trial to such an extent that he is not entitled to bring to the notice of the court any illegality or irregularity committed by the court as a result of the laches of those who might be in charge of the prosecution. None of the three points raised by Mr. Ghose appears to me to be sound and as such are not acceptable to me and must be rejected.
9. It seems to me that the charges upon which the opposite party was being tried were serious charges and they were exclusively triable by the court of sessions, they being for forgery of a valuable security and the user as genuine of that document. The documents in question also were necessary for the purpose of proving the case and the records show that they are in a sealed box in the custody of the civil court from where they could be made available for use in the court of the magistrate. It is, however, clear to me that the prosecution was not making any genuine attempts for the production of the documents in the court of the magistrate. The laches on the part of whosoever was in the charge of the prosecution cannot be ignored. I must, however, concede that if the prosecuting officer is negligent in his duties, the accused should not be made punishable by prolonging the trial which could have been expedited but it is also true that the trial of a serious case should not also be brought to an end in this manner on account of the negligence or incompetence of the prosecuting officer. The learned magistrate should have seen that there was no difficulty in obtaining the production of the material documents which were not in the custody of a private individual but of a court. In my view, he was not right in thinking that the documents were not available.
10. Considering all facts and circumstances I am of opinion that for the interest of justice the order of discharge passed by the learned magistrate must be set aside and an opportunity must be given to the prosecution to cause production of the documents before the learned magistrate. It must also be observed that it was clearly the duty of the prosecutor in the court below to have moved the learned magistrate for adjournment of the case if for some reason or other the documents were not obtainable on that date. Prosecution of cases on charges for grave offences should be conducted by more responsible officers and always, if possible, by some lawyer on behalf of the State.
11. The Rule is, accordingly, made absolute. The order of discharge is set aside.
12. Let the records be sent down to the court below as expeditiously as possible so that the trial of the case may be commenced without any further delay.
