Raghupat Sahay vs King-Emperor

Bucknill, J.—This is an application in Criminal Revisional Jurisdiction made by one Raghupat Sahai under the following circumstances. He charged early in this year two men with having committed theft in his house. They were arrested and were convicted by the Sub Deputy Magistrate of Bettiah; however, they appealed and as a result of their appeal the District Magistrate of Champaran came to quite a different conclusion to that which had been come to by the Sub-Deputy Magistrate of Bettiah and allowed their appeal and quashed their convictions; but he did rather more than that for he formed the opinion that the applicant had commenced these prosecution proceedings maliciously, and subsequently indeed he issued notice on the petitioner to show cause why a prosecution u/s 211, I. P. C. should not be instituted against him.

I dare say that there may be something wrong in the applicant''s behaviour, but at any rate his proceedings against the two men were of such a character that he was able to convince one Court that they were guilty whilst another Court, which did not see the witnesses but was an appellate Court, came to the conclusion that they were innocent. The matter is a very petty one, and where one sees split opinions of two differed tribunals, it may be taken as generally a normally safe guide to suggest that definite expressions as to the malice of either party are probably somewhat undesirable. Of course it must be realised that in giving instructions for a prosecution to be instituted against a person on a ground that he himself instituted malicious prosecution, the Magistrate, who directs the prosecution, is endowed with considerable discretionary powers.

At the same time, this Court should not hesitate to exercise discretion in its revisional jurisdiction whenever circumstances seem clearly to justify its so doing.

I must accordingly set aside the order of prosecution on the above ground.