This is an application asking the Court to revise an order of the Fourth Presidency Magistrate made in the following circumstances.
In a suit on a pronote for Rs. 200, plaintiff applied for attachment before judgment of the defendant's moveable property. The Court ordered notice to defendant. The notice was returned with an endorsement that it had been personally served on defendant. As defendant did not appear attachment was ordered. As soon as the bailiff went to effect attachment, the defendant paid up.
The defendant complains that his signature on the reverse of the notice was forged by the clerk of plaintiff's advocate and the forged document was used to stifle his objections to attachment before judgment.
The defendant, after about a month's delay, moved the Court to prosecute the clerk of plaintiff's vakil and also filed a private complaint against him and also applied under S. 95 Civil Procedure Code for compensation against plaintiff for attachment before judgment without reasonable and probable cause.
The Court declined to prosecute the plaintiff's vakil's clerk on 11th January 1937, and dismissed the application for compensation under S. 95 Civil Procedure Code on 17th December 1936. But the defendant's private complaint against the plaintiff's vakil's clerk has been taken cognisance of. This petitioner requests that the order of the fourth Presidency Magistrate deciding to go on with this private case should be revised.
The principle underlying S. 195, Criminal Procedure Code, is plainly this. Where an act amounts to the offence of contempt of the lawful authority of public servants (Ss. 172-188 Indian Penal Code), or to an offence against public justice such as giving false evidence (S. 193 et seq Indian Penal Code) or to an offence relating to documents actually used in a Court (S. 471 etc.) private prosecutions are barred absolutely, and only the Court in relation to which the offence was committed may initiate proceedings. This salutary rule of law is founded on common sense. The dignity and prestige of Courts of law must be upheld by their Presiding Officers, and it would never do to leave it to parties aggrieved to achieve in one prosecution gratification of personal revenge and vindication of a Court's honour and prestige. To allow this would be to sacrifice deliberately the dispassionate and impartial calm of tribunals and to allow a Court's prestige to be the sport of personal passions.
The offence alleged to have been committed here by the clerk of the plaintiff's vakil is undoubtedly an offence against public justice, punishable under S. 193 Indian Penal Code and possibly also under S. 199, Indian Penal Code. The Court in its discretion has declined to prosecute on the ground that there was not a strong prima facie case and that no prosecution at all is far better than a prosecution which is likely to prove abortive.
The defendant cannot be allowed to prosecute merely because he feels that he has been personally dishonoured. It is not indeed clear how such a prosecution can vindicate his honour. The refusal of the Court to prosecute is final. It must mean that there should be no prosecution at all for this alleged offence. The complainant, who is animated by a sense of personal grievance, cannot be allowed or trusted to be an impartial advocate and deputy of the Court in the role of prosecuteor.
I allow this petition. The complaint is dismissed as barred by S. 195(b), Criminal Procedure Code.
Petition allowed.
N.R.R