Document Fragment View

Matching Fragments

"The prosecution puts in a petition saying that under circumstances stated therein they do not offer any evidence. The accused is discharged under Section 253, Cr. P. C."

In upholding the defence of the mortgagor, that the contract of mortgage came within the mischief of Section 23 of the Contract Act, their Lordships of the Privy Council observed at p. 96: "The law in regard to agreements to stifle prosecutions is reasonably clear. The Board were referred to the various considerations set out at length in the well known judgment of Vaughan Williams J. in 'Jones v. Merionethshire Permanent Benefit Building Society', 1891-2 Ch 587 (F). The learned Judge is in fact doing nothing more than considering the elements that go to the making of a simple contract, for it is of the essence of the defence that the defendant should establish a contract whereby the proposed or actual prosecutor agrees as part of the consideration received or to be received by him either not to bring or to discontinue criminal proceedings for some alleged offence . . .

Proof that there has actually been a crime committed is obviously unnecessary. But it is also of course necessary that each party should understand that the one is making his promise in exchange or part exchange for the promise of the other not to prosecute or continue prosecuting. In all criminal cases reparation where possible is the duty of the offender and is to be encouraged. It would be a public mischief if on reparation being made or promised by the offender or his friends or relatives, mercy shown by the injured party should be used as a pretext for avoiding the reparation promised. On the other hand, to insist on reparation as a consideration for a promise to abandon criminal proceedings is a serious abuse of the right to private prosecution. The citizen who proposes to vindicate the criminal law must do so wholeheartedly in the interests of justice, and must not seek his own advantage." (24) In -- 'Jones v. Merionethshire Permanent Benefit - Building Society', 1892-1 Ch 173 (G), Lindley L. J. pointed out: