Research › Browse › Judgment

Orissa High Court · body

1965 DIGILAW 22 (ORI)

IN RE: RADHU GANTAYAT v. .

1965-02-08

DAS

body1965
JUDGMENT : Das, J. - This revision is directed against an order of the Sub-Divisional Magistrate (Judicial), Kendrapara, refusing withdrawal of a complaint case u/s 494, Code of Criminal Procedure. 2. The facts leading to this application may briefly be started as follows At the instance of one Madhusudan Das, G.R. case No. 132 of 1 63 was stated in the Court of the Sub-divisional Magistrate (Judicial) Kendrapara against Bhagaban Gantayat and Radhu Gantayat, Petitioner No. 1. in this Revision petition. Radhu also lodged an F.I.R. against the said Madhusudan and Petitioners 2 to 15. After investigation of this case the police submitted final report and instituted a case u/s 211, Indian Penal Code which was registered as case No. 22-C-II /64. After the above final report was submitted the Petitioner No. 1 filed a regular complaint case No. 383 C-1 of 1963 in the court of the Sub-divisional Magistrate, Kendrapara in which Petitioners 2 to 15 were summoned to stand their trial for offences under Sections 147, 380 and 448, Indian Penal Code. As the cases between the parties was the outcome of ill feeling and village quarrel, at the intervention of the local gentlemen the dispute was settled between them sometime in August 1961. The offences in all the three cases being not compoundable, the present Petitioners and the aforesaid Madhusudan Das and Bhagaban Gantayat filed a joint application in the court of the Additional District Magistrate, Cuttack, on 5-9-1964 for instructing the Public Prosecutor, that is, the Court Sub-Inspector of Police, Kendrapara, for withdrawal of these cases and necessary direction was given by the Additional District Magistrate on 8-9-1964, in accordance with which the Court Sub-Inspector filed petitions for withdrawal of the three cases. The learned trial court permitted withdrawal of G.R. case No. 132 of 1963 and No. 22.C-II/64 as a result of which Bhagaban Gantayat and the Petitioner No. 1 were acquitted. The learned trial court permitted withdrawal of G.R. case No. 132 of 1963 and No. 22.C-II/64 as a result of which Bhagaban Gantayat and the Petitioner No. 1 were acquitted. In respect of the complaint case no 383-C-1/63, in which the Petitioner No. 1 was the complainant and Petitioners 2 to 15 and another were the accused, the learned Magistrate refused permission for withdrawal of the case on the ground that the Court sub-inspector being the Public Prosecutor only in respect of police cases, and case No. 383.C-1/63 being a complaint case, the court sub-inspector cannot be said to be the Public Prosecutor having authority for withdrawing this case u/s 49/1, Code of Criminal Procedure. It is against this order of the Magistrate refusing to give his consent to withdraw the case, the present revision has been filed by both the parties in the aforesaid complaint case. 3. The simple question that arises for consideration in this case is whether the Court Sub-Inspector is a Public Prosecutor competent to withdraw the case u/s 494, Code of Criminal Procedure. In this connection, it is necessary to refer to Rule 285 of the Orissa Police Manual which runs as follows: 285(a) Withdrawal from prosecution The following instructions have been issued by the Legal Remembrancer for the guidance of Public Prosecutors subordinate to him. No public prosecutor shall withdraw from the prosecution of any person u/s 494, Code of Criminal Procedure unless he has obtained the permission of the District Magistrate. Should there not be time to obtain the orders of the District Magistrate owing to his absence, the permission of the Magistrate in charge must be obtained. (b) The Superintendent should ordinarily be consulted, when feasible, by the District Magistrate or Magistrate-in-Charge, before orders are passed on any such reference. (c) These instructions apply also to police officers appearing as prosecutors in criminal courts, except that such officers will obtain their instructions from the Superintendent, who should take the orders of the District Magistrate in important cases. It appears that by notification No. 12593.P dated 19.12-1938 the Court-Sub-Inspectors that were appointed to prosecute cases before the Courts of Magistrate were also made the public prosecutors for purposes of all such Courts. No doubt, for such withdrawal prior permission of the District Magistrate or the Magistrate-in-Charge is necessary. It appears that by notification No. 12593.P dated 19.12-1938 the Court-Sub-Inspectors that were appointed to prosecute cases before the Courts of Magistrate were also made the public prosecutors for purposes of all such Courts. No doubt, for such withdrawal prior permission of the District Magistrate or the Magistrate-in-Charge is necessary. There is no dispute in this case that the Additional District Magistrate who is competent to give the necessary permission for withdrawal of the case has accorded such permission for such withdrawal. Thus there can be 110 doubt that the Court Sub-Inspector of Kendrapara was quite competent to file application for withdrawal even in respect of complaint cases pending before the Court of the Subdivision Magistrate, Kendrapara. 4. In a case of this Court reported in Ramchandra Panigrahi v. Laxman Das and Ors. 20 C.L.T. 102 it was held that Rule 285 which requires the Court Sub-Inspector to obtain instructions of the Superintendent of Police and the District Magistrate for withdrawal of a case is primarily meant for his guidance and mere noncompliance with the provisions of the said rule, will not affect the jurisdiction of the Court Sub-Inspector as public prosecutor to apply for withdrawal of a case, u/s 494, Code of Criminal Procedure in view of his having been appointed as a public prosecutor u/s 492(2) of the Code of Criminal Procedure. 5. In a case reported in Karu Mian and Others Vs. Kedar Lal, it was held that if a pleader conducting prosecution on behalf of the complainant is satisfied that there are good grounds for withdrawing from the prosecution, it is open to him to ask the public prosecutor to appear and formally withdraw from the prosecution and if the public prosecutor declines to do so, it is still open to him and move the District Magistrate and the District Magistrate, if satisfied, with the reasons given by him, may instruct the public prosecutor to take necessary action. The reasons for taking such permission of the District Magistrate are obvious. 6. Section 248 of the Code of Criminal Procedure permits a complainant to withdraw in a summons case and Section 259 permits a Magistrate in the absence of a complainant to discharge the accused persons, only where the offences may be lawfully compounded or are not cognizable offences. The reasons for taking such permission of the District Magistrate are obvious. 6. Section 248 of the Code of Criminal Procedure permits a complainant to withdraw in a summons case and Section 259 permits a Magistrate in the absence of a complainant to discharge the accused persons, only where the offences may be lawfully compounded or are not cognizable offences. The offences alleged to have been committed in the present complaint case were cognizable offences and are not also compoundable and as such the permission of the District Magistrate for its withdrawal was necessary. As already seen, such permission had been obtained by the Court Sub-Inspector and that being so, the aforesaid order of the learned sub-divisional Magistrate, Kendrapara, cannot be sustained, and is set aside. The learned Magistrate is directed to dispose of the case on the footing that the court sub-inspector is competent to file the application for withdrawal, and pass orders in accordance with law.