This is a Rule issued at the instance of the two accused Santoke Chand and Anup Chand for revision of an order of Mr. A.T Mukherjee, lately 5th Presidency Magistrate, whereby he convicted them of an offence under sec. 406, Indian Penal Code, and sentenced them each to one day's rigorous imprisonment and a fine of Rs. 200. The facts appear to be as follows:—

The first accused Santoke Chand is a partner and (so far as this case is concerned) the sole representative in Calcutta of the firm of Koramal Santoke Chand. The second accused Anup Chand is the munim Gomashta of that firm. The firm acted as aratdars for another Marwari firm Meghraj Sugan Chand, in which the complainant Sugan Chand Munawat is a partner. Meghraj Sugan Chand owed money to Koramal Santoke Chand, and demands were made for payment. Meghraj Sugan Chand agreed to consign certain jute to Koramal Santoke Chand towards satisfaction of the debt, but in breach of that agreement they consigned the jute to another firm, Chogmal Hazarinial. On 2nd January 1918 Koramal Santoke Chand filed a suit on the Original Side of this Court against Meghraj Sugan Chand for Rs. 6,296-5-6, and on the same day applied for attachment before judgment of the jute abovementioned. A Rule nisi was issued and in the meantime the Plaintiff firm were appointed Receivers of the jute on giving security for Rs. 3,500. As such Receivers, on 5th January 1918 they took delivery of the jute from the Eastern Bengal Railway, 641 half bales, and paid the Railway charges.

On 11th January 1918 a consent order was passed by Greaves, J., in the matter. The portions of that order material for the present purpose were (1) that the Defendants were to furnish security to the satisfaction of the Registrar for Rs. 6,296-5-6, the amount claimed. (2) On their doing that and paying Rs. 524-12-0 for freight to the Plaintiffs the latter were to give delivery to the Defendants or their nominees of the 641 half bales. (3) The hearing of the motion was to stand over till the hearing of the suit, the question of costs being reserved. (4) The order appointing the Plaintiffs Receivers was to be discharged and the security given by them to be refunded. Though the order was made on 11th January 1918 and the Defendants on that day gave the required security in this Court, the terms of settlement appear not to have been filed until the 24th, and the order was not signed by the Master until the 28th. Meanwhile, on 16th January 1918, the complainant Sugan Chand accompanied by some persons from the firm of Chogmal Hazarimal went to the Plaintiffs' godown and actually took delivery of 57 half bales. They then discontinued taking delivery, alleging that four of the 57 half bales were not the Defendants' jute, and that the Plaintiffs had substituted jute of an inferior quality in those bales, affixing to them labels of the Defendants. Letters passed between the Attorneys of the parties, two of which are set out in the petition but which (we are told) have not been exhibited in this case. Nothing much turns upon the letters, as to the writings of which there is no dispute. In their first letter the Defendants' Attorneys complained that all the labels had been tampered with, by substitution of inferior jute; This, we are told, they corrected in a subsequent letter. On 18th January, however, the Defendant Sugan Chand filed a complaint before the then 5th Presidency Magistrate, in which he stated that after the discovery of the four half bales of inferior jute abovementioned he had inspected the rest of the stock and discovered that all the complainant's bales had been removed by “him” (it is not clear who is meant, but we presume it referred to Santoke Chand) and the accused had extracted the labels thereupon and attached them to bales of inferior quality. The complainant charged both the accused under sec. 406, Indian Penal Code, with having committed criminal breach of trust in respect of 584 bales of jute, and applied for process and a search warrant. The search warrant was issued and 341 half bales were found in the Plaintiffs' godown No. 17 and 241 in godown No. 23. The 341 half bales were admittedly intact. It was alleged and has been found by the Magistrate that from the 241 the Defendants' labels had been removed but those 241 half bales were otherwise intact. Two half bales are said to be missing but of these the Magistrate makes no mention. It was stated to us by Counsel for the accused that there are in fact 243 and not 241 half bales in godown No. 23. On 27th February 1918 two charges were framed, each against both the accused. The first charge is of criminal breach of trust in respect of 247 half bales of jute; the second is of abetting each other in the commission of that offence. It need hardly be pointed out that the first charge is clearly erroneous as regards Anup Chand, the second accused. It is no body's case that he was ever entrusted with the jute. He acted, if at all, as the servant of Santoke Chand, the first accused. The Magistrate's decision is contained in the few concluding words of his judgment. He says:—“The evidence shows that the two accused, after they had got the 641 bales in sound condition from the Railway authorities in their own possession, did tamper with several of them, i.e, removed the labels therefrom and put the same on bales of inferior jute in order to pass them off as belonging to the complainant. They actually made over four such bales to the complainant on the first day of taking delivery. A few bales of the complainant's jute are missing after all. Thus the accused had clearly committed criminal breach of trust in respect of some of these bales.”

The learned Magistrate has not dealt with the case of each accused separately, though the two cases are obviously not identical. Nor has he decided in respect of how many and which half bales the offence of criminal breach of trust has been committed, unless it be in respect of the four half bales in lieu of which inferior jute was said to have been delivered to the complainant. Of the four half bales delivered it appears from the evidence, and indeed it was admitted by the learned Advocate-General, that two have been sold and the other two were not exhibited in Court. It is difficult therefore to see how the learned Magistrate could have satisfied himself as to the alleged inferiority of quality, which must have rested on the bare word of the complainant and his witnesses. As to 53 out of the 57 half bales delivered, and the 341 found in godown No. 17, no charge is preferred. As to the 241 found in godown No. 23 no offence of criminal breach of trust is established. The mere removal of the Defendants' labels would not amount to such an offence, and in other respects these bales were found intact. There has been no conversion of them to the Plaintiffs' use. In respect of the two missing bales also (even if they be missing which the accused deny) it cannot be said that any offence has been committed. There is nothing to show, nor has the Magistrate found that they have been converted to the Plaintiffs' use. The case against the two accused is thus confined to the four half bales, for which the last four half bales out of the 57 are alleged to have been substituted. The point for determination is whether the accused or either of them has committed criminal breach of trust with regard to these four half bales. To take the case of Santoke Chand first, although, strictly speaking, it was the Plaintiff firm that were appointed Receivers in this case, we may assume that he, as representing the firm, must be deemed to be the Receiver so appointed.

It must be borne in mind (and this is a point which the learned Magistrate seems to have overlooked) that the jute in question was entrusted to Santoke Chand, not by the Defendants but by the Court, in whose possession and custody it undoubtedly came. The Defendants had only an indirect interest in the property contingent upon the fulfilment of certain conditions. It was not open therefore to Sugan Chand to commence proceedings against Santoke Chand for criminal breach of trust without first obtaining the leave of the Court which held the property. The principle which guided the Court of Chancery in England in dealing with cases where an Officer of the Court was charged with misconduct in executing its orders was clearly laid down by Lord Brougham in Aston v. Heron(1). He said (at page 395):—“The two descriptions of cases to which I have adverted, those, where the jurisdiction of the Court is disputed directly by resistance, or indirectly by obstruction, and those where complaint is only made of the irregular or oppressive, and therefore illegal execution of its unquestioned decree, do neither of them accurately embrace the facts of the present case, although they furnish a principle which exhausts the whole subject, and which therefore rules the present case, as well as all others. That principle is, that, in the first class of cases, those where the jurisdiction is disputed, the Court has no choice, but must, at all events and at once, draw the whole matter over to its own cognisance; but that in the other class, where, admitting the Court's authority, redress is only sought for irregularity or excess in the performance of its orders, and, generally speaking, wherever the jurisdiction is not denied or resisted, the Court has an indisputable right to assume the exclusive jurisdiction, but may, if it think fit, on the circumstances being specially brought before it, permit other Courts to proceed for punishment or redress.” The High Courts in this country may, we think, adopt that principle for their guidance. Applying it to the present case (which falls within the second class of cases alluded to by the Lord Chancellor) if the Defendants had any cause of complaint as to the delivery of the jute by the Plaintiffs under the order of this Court, it was clearly their duty to bring the matter to the notice of this Court, and let it decide what course should be followed. It was the right of this Court to be so informed in order that it might exercise the discretion, which it undoubtedly possessed, of dealing with the matter itself or sending it for disposal to the Magistrate's Court. If the matter had been investigated by this Court, it could have determined after hearing both parties whether any irregularity had been or was being committed by its officer, the Receiver, and if that were the case, whether an award of pecuniary compensation would suffice or whether the Receiver should be prosecuted criminally. All this was prevented by the Defendant Sugan Chand rushing to the Police Court. His object is self-evident. In that Court the accused could not give evidence on their own behalf and a conviction, if obtained, might be a useful lever to be employed in the suit-then pending against him to bring the Plaintiffs to terms. We were referred to a case decided by Fletcher, J. (High Court, Original Side, Suit No. 161 of 1908) where he held that it was not necessary to obtain the sanction of this Court for the prosecution of a Receiver appointed by it in respect of any criminal act committed during his tenure of such office. That case is clearly distinguishable. The offence there complained of, i.e, defamation, though said to be contained in a letter written by the Receiver, had no particular relation to his official conduct or position. We think that the criminal proceedings against Santoke Chand were improperly instituted against him because the complainant was not the person then directly interested in the property and because the leave of this Court was not first obtained. The conviction of Santoke Chand cannot be allowed to stand.

The case against Anup Chand is even weaker. There was no entrustment of property to him and he could not be convicted of criminal breach of trust. He might have been found guilty of abetting that offence if it had been committed by his master, Santoke Chand, but in the circumstances it is clear that no such offence of abetment has been established. We accordingly make the Rule absolute, set aside the convictions and sentences on both the accused and direct that the fines, if paid, be refunded.

S.C.M

Rule made absolute.