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Ali Naqi vs Sheikh Baqridu And Ors.

High Court Of Judicature at Allahabad|30 July, 1934


JUDGMENT Kendall, J.
1. The facts out of which this application has arisen are briefly as allows : There was a civil suit for ejectment in the Court of the Munsif, and a post card was filed on behalf of the defendant, of which according to the plaintiff, the date had been altered. The civil suit was settled by agreement, but on the application of the plaintiff, the Munsif made an inquiry into the question whether the defendant should be prosecuted under Sections 193, 465 and 4.71, Penal Code. He came to the conclusion that there ought to be a prosecution and he sent a complaint to the District Magistrate to tibia effect. On appeal, the Additional Subordinate Judge found that the materials on the record did not justify the hope that the prosecution would end in the conviction of the defendant in the civil suit, and set aside the order of the trial Court, I am asked to interfere with this order under Section 115, Civil P.C. on the ground that the lower appellate Court had no jurisdiction to set aside the order at the original Court without recording a finding that it was not expedient in the interests of justice that the trial should proceed. I am not at this stage concerned with the correctness of the finding of the lower appellate Court, on the evidence, that a prosecution was bound to fail. What I am asked to hold is, that assuming that finding to be sound ha had no jurisdiction to refuse to proceed with the prosecution, unless he had also found in terms that the prosecution was not expedient in the interests of justice. There is some authority for this argument in the judgment of Sir Lal Gopal Mukerji, in the case of Surendra Nath v. Emperor 1934 All. 385. If the result of that judgment must be held to be that where the appellate Court finds that a prosecution is bound to fail, it must nevertheless allow the prosecution to proceed merely because there was justification for an inquiry into the matter by the trial Court, I must with all respect differ from the decision. There is a right of appeal against the order passed under Section 476, Criminal P.C. containing a complaint, and according to the argument advanced for the applicant, that appeal could only be successful if the lower appellate Court were to find that there had been no good ground for an inquiry, whatever the result of the inquiry might be. I do not wish to express an opinion as to the correctness of the finding by the Judge that there was no ground for hoping that the prosecution would succeed. But as he did come to that conclusion, he was perfectly correct in setting aside the order of the Munsif and refusing to sanction the prosecution. He did not therefore act without jurisdiction or irregularity in the exercise of his jurisdiction, and the application for revision is dismissed with costs.
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Ali Naqi vs Sheikh Baqridu And Ors.


High Court Of Judicature at Allahabad

30 July, 1934