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1978 DIGILAW 442 (MAD)

K. Mohan Rao v. State of Karnataka and others

1978-07-26

M.S.NESARGI

body1978
Order.- The petitioner has prayed that the order dated 15th November, 1977 passed by the Judicial Magistrate, First Class (II Court), Mangalore, in C.C. No. 2251 of 1976, permitting the Assistant Public Prosecutor to withdraw from the prosecution, and acquitting the respondents, who were the seven accused in the said case, be set aside. 2. The records maintained in the Court of the Magistrate are before me. They show that charges under sections 143, 147, 447 and 324 read with 149 of the Indian Penal Code had been framed and the case was being adjourned. On 25th August, 1977 the case was adjourned to 27th December, 1977. On 19th October, 1977 the Assistant Public Prosecutor filed an application to advance the case to 19th October, 1977, and another application under section 321 of the Code of Criminal Procedure, 1973 (to be hereinafter referred to as the new Code) for permission to withdraw from the prosecution. In that application he narrated certain reasons as to why he had asked permission to withdraw from the prosecution. The learned Magistrate has passed the following order: “15th November, 1977. State by M.M.A.P.P. perused the records. Permitted to withdraw. Accused are acquitted”. Section 321 of the new Code is section 494 of the Code of the Criminal Procedure, 1898 (hereinafter referred to as ‘the old Code’). As the charges had been framed when the Assistant Public Prosecutor wanted to withdraw from the prosecution, the accused were to be acquitted on granting permission. 3. Section 321 of the New Code lays down that withdrawal is permissible by any Public Prosecutor or Assistant Public Prosecutor with the consent of the Court. The same was the sum and substance of section 494 of the Old Code. As to what are the functions that a Court should discharge while giving consent or refusing consent, the Supreme Court has laid down in The State of Bihar v. Ram Naresh Pande and another1and in M.N. Shankaranarayan Nair v. P.V. Balakrishnan and others2. The same was the sum and substance of section 494 of the Old Code. As to what are the functions that a Court should discharge while giving consent or refusing consent, the Supreme Court has laid down in The State of Bihar v. Ram Naresh Pande and another1and in M.N. Shankaranarayan Nair v. P.V. Balakrishnan and others2. The Supreme Court has held that while giving consent the Court exercises its discretion and necessarily judicial discretion and as it is a judicial function that is discharged by the Court the conscience of the Court should be satisfied feat giving of consent furthers the cause of justice and that permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the State go unpunished. There is a catena of decisions of the various High Courts including the decision in Ouseph Yakob v. Jose and others3. These decisions lay down that reasons for withdrawal must satisfy the judicial conscience of the Court and as it is a judicial order the Court should record reasons for permitting withdrawal so that the High Court may see whether the discretion was properly used. This principle also flows from what has been laid down by the Supreme Court in the afore-mentioned two decisions. 4. As the order is revisable by this Court, this Court should have sufficient material to satisfy itself that the Magistrate has applied his mind to all aspects of the case and has satisfied himself in regard to the principles laid down by the Supreme Court and has then granted consent. 5. It is already seen from the order in question that it is bald in nature. No reasons are furnished by the Magistrate. There is no material to show that the Magistrate had applied his mind from the aforementioned point of view. Therefore the order is unsustainable. 6. In the result, this petition is allowed and the order dated 15th November, 1977 passed by the Judicial Magistrate, First Class (II Court), Mangalore, in C.C. No. 2251 of 1976 is set aside. The Magistrate is directed to proceed to dispose of the application filed by the Assistant Public Prosecutor under section 321 of the new Code, bearing in mind the observations made in the body of this order.