Brajeshwar Sahay v. K. K. Sinha — 1969 DIGILAW 50 (PAT)

Judgment 1. This is an application in revision against an order of acquittal passed by the Munsif-Magistrate of Chaibasa on the 24th April, 1968, under Sec. 494 of the Code of Criminal Procedure. 2. The petitioner lodged an information at Jhinkpani Police Station in the district of Singhbhum on the 26th February, 1965, alleging therein that the accused persons led by Opposite Party No. 1, entered the office and verandah of Messrs. Associated Cement Company Ltd. and completely paralysed the working of the office and threatened and abused the supervisory staff. After investigation, the police submitted charge-sheet against the Opposite Parties. The Sub-Divisional Magistrate took cognizance of the case under Sections 147 and 448 of the Indian Penal Code and transferred it to the Judicial Magistrate for trial. Thereafter, the case was transferred to the file of Shri H.C. Mittal, Munsif-Magistrate, First Class, Chaibasa. 3. Opposite Party No. 1 appeared to the Court of the Munsif-Magistrate for the first time on the 1st December, 1966. By the 15th September, 1967, six prosecution witnesses were examined in the case; and, on the 7th October, 1967, a petition was filed for framing charges under Sections 448 and 147 of the Indian Penal Code. Some of the accused persons absented themselves, and, ultimately, on the 16th February, 1968, the case was transferred to the file of Shri K.M. Toppo, Munsif-Magistrate, Second Class, Chaibasa, and on the said date he issued a non-bailable warrant of arrest against the accused persons. Again on the 21st March, 1968, and 17th April, 1968, the accused persons were absent. The Munsif-Magistrate, by his order dated the 17th April, 1968, fixed 27th of May, 1968, for return of service of non-bailable warrants of arrest issued by him. 4. In this case, the prosecution was conducted by Shri S.N. Pandey, Advocate, Chaibasa, as the Deputy Commissioner, Singhbhum, had appointed him a special Public Prosecutor. Shri Pandey had taken all steps in the case on behalf of the prosecution in the trying Court. On the 24th April, 1968, the Public Prosecutor, Singhbhum, filed two applications under Sec. 494 of the Code or Criminal Procedure to withdraw from the prosecution against the accused persons. The two applications filed by the Public Prosecutor read as follows : "(1) This humble petition on behalf of the State by the Public Prosecutor under Sec. 494, Cr. P.C., most respectfully sheweth : 1. The two applications filed by the Public Prosecutor read as follows : "(1) This humble petition on behalf of the State by the Public Prosecutor under Sec. 494, Cr. P.C., most respectfully sheweth : 1. That this petitioner does not want to proceed with the prosecution against the accused persons in this case on the grounds of inexpediency of prosecution for reason of State and public policy. Under the circumstances it is prayed that this petitioner may kindly be allowed to withdraw the prosecution against the accused persons and for this he shall ever pray." "(2) This humble petition on behalf of the State by the Public Prosecutor most respectfully sheweth : 1. That, on the petition filed by this petitioner, your honour has been pleased to allow the withdrawal of the prosecution against the accused persons, and, as such, this petitioner do hereby withdraw the prosecution against them. It is, therefore, prayed that the accused persons be acquitted under Sec. 494 Cr. P.C. And for this he shall ever pray." The learned Magistrate perused the applications, heard the Public Prosecutor and permitted the withdrawal from the case, and, thereafter, he acquitted the Opposite Parties as requested by the Public Prosecutor in the second petition. On the 26th April, 1968, a petition was filed on behalf or the complainant objecting to the withdrawal of the case. The learned Munsif-Magistrate on the 27th April, 1968, noted on the margin of the application as below : "Final order has already been passed. No further order can be passed by Court." 5. It has been submitted by the lawyer appearing for the petitioner that the learned Magistrate has passed the impugned order of acquittal without exercising his own judicial discretion and has acted merely on the request of the Public Prosecutor. The contentions of Mr. A.N. Sahay are : (1) that the learned Magistrate was wrong in granting permission for the withdrawa from the prosecution without hearing the complainant, (2) that the learned Magistrate has not exercised his judicial discretion in granting his consent to the withdrawal from the prosecution and (3) that the petition filed by the Public Prosecutor for withdrawal from the prosecution amounted to an abuse of the process of the Court. In my opinion, the contentions raised on behalf of the petitioner are well founded and must be accepted. 6. In my opinion, the contentions raised on behalf of the petitioner are well founded and must be accepted. 6. In the case of Jogendra Narain V/s. Ganga Prasad, AIR 1954 Pat 150 , it was observed by Reuben, C.J., that the complainant of a case was vitally concerned with the success or failure thereof, and he ought to be given a chance to be heard in the matter of this kind. Mr. S. Ali Ahmad, appearing for the Opposite Parties, relied on a Bench decision of this Court in Gulli Bhagat V/s. Narain Singh, AIR 1924 Pat 283. In this case, it has been held that it was for the Crown, who is the prosecutor and custodian of the public peace to decide to let an offender go, and no other aggrieved party could be heard to object to the request for withdrawal of the case on the ground that he had not taken his full toll of private vengeance. In the case of S.B. Sharraf V/s. K.P. Singh, AIR 1964 Pat 33 , Ramratna Singh, J., considering both the decisions which were cited before him, has observed as follows : "It is not difficult to reconcile the two decisions. What their Lordships meant in the former case was that, strictly speaking, the private party, at whose instance the case was started by the police, had no locus standi to object to the withdrawal of the case, but their Lordships never meant to say that the private party could not be heard at all when they had a genuine ground before the Magistrate against the withdrawal of the case. That is why in the latter case Reuben, C.J., said that the complainant should be heard." 7. In the case of State of Bihar V/s. Ram Naresh, AIR 1957 SC 389 , their Lordships of the Supreme Court have settled the principles governing exercise of judicial discretion in such matters. The function of the Court in granting its consent to the withdrawal of a case is a judicial function and in granting the consent the Court must necessarily exercise a judicial discretion. However, it does not follow that the discretion is to be exercised only with reference to materials gathered by the judicial method. What the Court has to determine, for the exercise of its discretion in granting or withholding consent, is not a triable issue on judicial evidence. However, it does not follow that the discretion is to be exercised only with reference to materials gathered by the judicial method. What the Court has to determine, for the exercise of its discretion in granting or withholding consent, is not a triable issue on judicial evidence. The Court has to satisfy itself that the permission sought by the Public Prosecutor is not an attempt to interfere with the normal course of justice. In the present case, almost all the prosecution witnesses had been examined, when the Public Prosecutor filed the petition for withdrawal from the prosecution. The only reason given by him was inexpediency of prosecution for reason of State and public policy. The learned Magistrate observed that the State on the ground of inexpediency of prosecution for reason of State and public policy does not want to proceed with the case and seeks permission for withdrawal, and, therefore, he granted permission for the withdrawal from the prosecution. The learned Magistrate ought to have examined the materials on the record including the evidence of the witnesses and, after hearing the parties, should have decided whether the prayer for the withdrawal from the prosecution should be granted but the learned Magistrate does not seem to have applied his mind at all to this point and he has simply acted on the request of the Public Prosecutor. 8. I have already stated that Shri S.N. Pandey had been appointed a Special Public Prosecutor for the purposes of conducting prosecution in the instant case. The application filed on behalf of the complainant on the 26th April, 1968, protesting against the withdrawal from the prosecution has been signed by Shri S.N. Pandey. Sec. 494 of the Code of Criminal Procedure gives a general executive direction to the Public Prosecutor to withdraw from prosecution subject to the Courts consent which may be determined on many possible grounds. The withdrawal undoubtedly is an executive and not a judicial act. The third contention raised by learned counsel for the petitioner has been settled by a recent decision of the Supreme Court in State of Punjab V/s. Surjit Singh, AIR 1967 SC 1214 . The learned Judges had to consider the import of the words "any Public Prosecutor may withdraw from the prosecution" in Sec. 494. The third contention raised by learned counsel for the petitioner has been settled by a recent decision of the Supreme Court in State of Punjab V/s. Surjit Singh, AIR 1967 SC 1214 . The learned Judges had to consider the import of the words "any Public Prosecutor may withdraw from the prosecution" in Sec. 494. In that case, the question which arose for consideration was as to whether a Public Prosecutor had right to file an application under Sec. 494 of the Code of Criminal Procedure in respect of a complaint filed by a private party which was being prosecuted as such. 9. The facts giving rise to the said appeal before the Supreme Court were as follows : Harnek Singh lodged a complaint at the Police Station, Phul, on October 15, 1964, at about 10-40 p.m. that while coming out of a picture-house along with Surjit Singh, first respondent, his foot accidentally struck against third party, Avtar Singh, who was also coming out of the picture-house along with Raj Pal, the second respondent. According to the complaint, Avtar Singh and the second respondent picked up a quarrel with Harnek Singh, but they were pacified and separated by the Manager of the cinema who intervened. It was also alleged that when later, Harnek Singh and the first respondent were near the Civil Hospital, Phul, the second respondent fired a shot at Harnek Singh. Before the police submitted charge-sheet, Surjit Singh instituted a complaint before the Magistrate under Sections 307, 504 and 323 read with Sec.34 of the Indian Penal Code against both Avtar Singh and the second respondent. The Magistrate, after holding a preliminary enquiry, issued summonses to both the accused. On January 8, 1965, the Prosecuting Deputy Superintendent of Police, Bhatinda, filed an application in his capacity as Public Prosecutor before the trial Magistrate under Sec. 494 of the Code for permission to withdraw from the prosecution of the case and for discharging the second respondent. The trial Magistrate by his order dated the 8th February, 1965, held that the Prosecuting Deputy Superintendent of Police was the Public Prosecutor for the entire district of Bhatinda, within whose jurisdiction the Magistrates Court at Phul was situated and that the application was bona fide. In consequence, the Magistrate gave permission for the withdrawal, of the case as against the second respondent, who was one of the two accused. In consequence, the Magistrate gave permission for the withdrawal, of the case as against the second respondent, who was one of the two accused. This order was challenged by Surjit Singh, the complainant. 10. In the Supreme Court, besides learned counsel for the parties, the Advocates-General of some States who had intervened in the matter on notice issued to them were heard. Their Lordships referred to the material provisions of the Code of Criminal Procedure dealing with the Public Prosecutors contained in Chapter XXXVIII, Part IX of the Code. Their Lordships also considered the decisions of various High Courts on the point and held as follows : "The reasonable interpretation to be placed upon Sec. 494, in our opinion, is that it is only the Public Prosecutor, who is in charge of a particular case and is actually conducting the prosecution, that can file an application under that section, seeking permission to withdraw from the prosecution. If a Public Prosecutor is not in charge of a particular case and is not conducting the prosecution, he will not be entitled to ask for withdrawal from prosecution under Sec. 494 of the Code." 11. There is no affidavit in the present case to the effect that good feeling had been restored between the workers and the management; and, in the interest of the working of the factory it was expedient to withdraw the case. On the other hand, as I have already indicated, the petitioner on behalf of the management filed an objection through the Special Public Prosecutor to the giving of the consent to the withdrawal of the case, although it had been filed after the consent had been given. There is also one more reason which vitiates the consent given by the learned Munsif-Magistrate. The 24th of April 1968, the date on which the said Public Prosecutor filed the two applications, was not the date fixed in the case. The Special Public Prosecutor, who was conducting the prosecution, had no information as he was neither called nor heard and still the order was passed on that day. The circumstances, mentioned above, compel me to conclude that there was no judicial consideration of the petitions filed by the Public Prosecutor. 12. The Special Public Prosecutor, who was conducting the prosecution, had no information as he was neither called nor heard and still the order was passed on that day. The circumstances, mentioned above, compel me to conclude that there was no judicial consideration of the petitions filed by the Public Prosecutor. 12. As a result the order of the learned Magistrate dated the 24th April, 1968, permitting the withdrawal of the case and acquitting the accused persons under Sec. 494(b) of the Code of Criminal Procedure must be set aside. The case will now proceed from the stage immediately before the aforesaid order dated the 24th April, 1968. The application is, accordingly, allowed and the rule is made absolute.