Patna High Court
The King vs K. N. Chachan on 7 January, 1949
Equivalent citations: 1949CRILJ992, AIR 1949 PATNA 449
JUDGMENT Agarwala, C.J.
1. This rule was issued to K. N. Ohachan, a merchant of Muzaffarpur, to show cause why an order of discharge in a case in which he was the accused should not be set aside and the prosecution proceeded with. Notice was also issued to the District Magistrate, Muzaffarpur, and to the Advocate-General.
2. The facts are as follows: On 19th March 1947 Mr. Sukh Nandan Thakur, Market Inspector of the Rationing Office at Muzaffarpur, Submitted a report to the Sub-diviaional Officer, stating that on nth he had detected a case against N. Ahmed, Godown Manager, which disclosed that the latter, in league with the stockist E. N, Chaohan, had been "carrying on the smuggling business of the Government Godown" and that at 7 A. M. on 18th June Chaohan bad visited him and offered him Es, 100 to suppress the evidence against him. Chachan also offered "to give any statement required against the Godown Manager." Thakur stated that this happened in the presence of Ramakant Mishra of village Patore, and also reported that he had refused the bribe and that Chaohan had then left, saying he would return in the after, noon. Thakur requested the Sub-divisional Officer to "get this case detected in the presence of a Magistrate." On this the Sub-divisional Officer endorsed: "Mr. E. K. Shukla will please take necessary action." Mr. Shukla i3 a Magistrate. On the following day, Thakur submitted a further report to the Sub-divisional Officer reiterating the substanoe of his first report, and adding that N. Ahmad, Chaohan and the latter's servant Nandu were in league; that Chaohan had visited his office on the afternoon of the 19th and had promised to see him at his residence the follow ing morning. By arrangement with Thakur Mr. Shukla arrived at the former's residence at 7 A. M, on the morning of 20fch, He was accompanied by Mr. K. N. Sharma and Kishun Prasad Singh. Two other persons, Eambinode Mishra and Ramakant Mishra were also called in. These two latter seated themselves on a ohauki in the room in which Thakur was awaiting the arrival of Chaohan, Shukla and Sharma were in the verandah behind the shutter of the door leading into this room. At 8 a. m. Chaohan arrived and is reported to have said "Please save myself and Nandu. Nandu is my own man. I will ask Nandu to give any statement against Manager Saheb." It is said that he then handed Thakur a ourrenoy note for ES. 100 which Tha-kur placed on the chauki. At this point of time Shukla and Sharma entered the room. Chachan admitted his guilt, fell at Shukla's feet and asked him to save him. He was taken into custody and produced before the Sub-divisional Magistrate with a written report by Shukla suggesting a prosecution under Section 161/116, Penal Code. The order-sheet shows that the Sub-divisional Magistrate treated this report as a com-' plaint by Shukla and took cognizance the same day. The complaint is set out in extenso:
Submitted to S. D. C. According to your dated 19th March 1947 (attached) I took action. The applicant B. Shukhnandan Thakur informed me on 19th evening that the transaction was expeoted to take place in the next morning about 7 to 8 A. M. For protection and to avoid any leakage I took Mr. K. N. Sharma also with me on 20th Maroh 1947 at about 6.80 A. M. I also took B. Kishun Praead Bingh of Sahebganj. We three reached the house of Babu Sukhnandan Thakur M. I. at about 7 A. M. and eonoealed ourselves inside the house. The neighbouring witnesses Rambinod Misra and Ramakant Mishra were also nailed there.
We two, myself and M. K. N. Sharma, took our position on the inner verandah of the house close to the door shutters of the outer room from where the place of occurrence was in sight and within hearing, The three public witnesses named above stood in the same room where B. Sukhnandan Thakur was sitting.
We waited there for an hour, At about 8 A. M, the accused Kedar Nath Chaohan came and entered inside the room where B. Sukhnandan Thakur was sitting on a charpoi. The former took his seat in a chair, in front of the latter.
Then began the talks. The accused Kedar Nath Chaohan said and we heard and saw:
'Please save myself and Nandu. Nandu is my own man. I will ask Nandu to give any statement against Manager Saheb. Eoopaya le liya jai aur hamara ham kar diya jai jisme hamara aur Nandu ka, jan banch jai.
He then placed the note in the Ext (sic) in the right hand of B, Sukhnandan Thakur M. I., taking it out from his left upper pocket of his shirt. The M. placed it on the charpoi.
As soon as the transaction completed I along with Mr. K, N. Sharma burst upon the scene.
We recovered the G, C, Note and prepared the searoh list in presenoe of the search witnesses who signed it.
The accased Kedar Nath Chaohan pleading guilty began to request and rub my feet against his forehead Baying; 'hisi tarah se hamko chhor dijiye.' He then also touched the feet of B. K. N. Sharma, making the same request. He refused to give any written statement. He wanted bail but there was no bailor. The accused wanted that his brother might be called. We sent a man to call him to the S. D. 0. We came by rickshaw and K. N. Sharma escorted the accused. Fearing the man to delay in calling a bailor, he allowed (sic) by K. N. Sharma to show his brother from Town P. S. The accsued was then presented before S. D. 0. The accused may be prosecuted under Section 161/116, Penal Code. The following other witnesses will prove the charge: 1. B. E. N. Sharma. 2. B, Sukhnandan Thakur M, I. Rationing Office. 3. B. Kishun Prasad Singh, Vill. Ahiapur, P.S. Sahebganj. 4. B. Rama Kant Mishra. 5. B. Rambinode Mishra, home address Vill. Fatorh, F. S. District Darbhanga, at present be to in Mohalla Rambagh Mantarwali Muzafiarpur. Paper and articles attached: 1. G. C. Note of Hs. 100 (hundred) No. A/80, 116708. 2. The searoh list. 3, The order of S. D. O. dated 19th Maroh 1947.
Sd/B. K. Shukla, 20th Maroh 1947.
On the 21st the Sub-diviaional Magistrate transferred the case to Mr. Suleman "to push the ease quickly." After three adjournments the hearing was fixed for 28th June 1947. There is no entry in the order-sheet on 28th or for the next 25 days. The record had apparently been called for by the Government, as the next entry dated 80th Jane shews: "This case record was called for by the Government and has since been received back today. Fixed 24th July 1947." After two more adjournments, the hearing was fixed for 22nd September, by an order of 11th September, the record having, in the meantime, been called for by the District Magistrate. On the 22nd, the record was received back from the District Magistrate at 4 P. M. and the hearing was fixed for 9th October, On' the last mentioned' date the entry in the order sheet is:
Public Prosecutor files petition withdrawing the cage under order of the District Magistrate. Case is withdrawn. Accused discharged under Section 494, Criminal P. C. Eight months later, on 22nd June 1948, there is this entry in the order sheet of the case over: the initials of the District Magistrate:
Government has order that the case should proceed and be trashed out in Court. The ease is transferred to Mr. D. N. Sinha, Munsif. Magistrate, for disposal. Please summon the accused without delay and then fix dates for hearing and timely intimate dates of hearing to Mr. Brajeshwar Prasad, Public Prosecutor of Patna, -who has been ordered by the Government to conduct the case, Government desire that the case should be expedited.
The next entry, on 25th June, shews that 28th was fixed for the hearing. In the mar. gin, over the initials of the District Magistrate, is an entry dated 9th July 1948: "Record submitted to Government as desired." Then on 29th October, is the following entry:
Case recalled to my file. Seen petition of public prosecutor, Accused discharged under Section 494, Criminal P. C. This entry bears the initials of the Diatict Magistrate. On 29th November, the High Court onlled upon the Distriot Magistrate to send the record of the ease, "Emperor v. Rai Saheb Babu Chachan, under 6s. 161/116". The Additional Distriot Magistrate replied on the 30th stating:
The Distriot Magistrate is on casual leave and the record will be submitted immediately on his return.
Absence of the District Magistrate on casual leave was no excuse for the Additional District Magistrate's non-compliance with the order of this Court to send the record. During the absence of the District Magistrate, the Additional District Magistrate was in charge and should have complied with the order immediately. As he failed to do so, a notice was sent to him calling upon him to have the record produced on 6th December, or to attend personally and shew cause why he should not be committed for contempt of the High Court's order. On 2nd Deoember, the record was sent to this Court with the following explanation by the Additional District Magistrate: "From enquiry it transpired that there was no case against B. S. Babu Chachan, but there was a ease Emperor v. K. N. Chachan, under Section 161/116, Penal Code which was dealt in the confidential section as it was wanted by Pandit Kaghunandan Pande, Secretary, Anti-corruption Department, and the record was not immediately available. As I am a new to this district and I was really in doubt whether the records of Emjoeror v. B, S. K. N. Chachan should be sent or I should wait for the District Magistrate to come and toascertain whether R. S. K. N. Cbaohan or B. S. Babu Chaohan is the same person or there whs same mistake In name and whether the records of Emperor v. Section 8. K. N. Chachan should be sent and hence the delay,"
3. This explanation cannot be regarded as satisfactory. If there was any doubt in the Additional Distriot Magistrate's mind whether the High Court's requisition for the record of the case of Rai Saheb Babu Ghachan under SB. 161/116 referred to the case of Eai Saheb K. N. Chachan under 8s. 161/116, the doubt could have been resolved by enquiry from the Sub-divisional Magistrate. In any event, in his letter of 30th November, the Additional District Magistrate did not say that he had any doubt about what record the High Court wanted. The only reason he gave for not submitting it was that the District Magistrate was on casual leave. Why so much vacillation has been shown in dealing with this case it is difficult to understand. Here was a prosecution started on 21st March 1947, on a complaint disclosing the commission of an offence .under Sections 161/116, Penal Code. The complainant was not a private person, or any one who might be suspected of lodging a false case, or attempting wrongfully to implicate K, N. chachan in a false charge, for the complainant was no other than & Magistrate whom the Sub-divisional Officer himself had directed to be present at the proposed visit of the accused to the residence of the Market Inspector. On this complaint, the Sub-divisional Magistrate took cognizance, thereby indicating that he considered the allegations made by the complainant required judicial investigation. In. June Government called for the record of the case. In another case we have already commented on the illegality of the action of the Government in calling for the record of a pending ease, It is not proposed, therefore, to comment further on this aspect of the matter. What is clear, however, is that Government returned the record without seeing any reason why the prosecution should not proceed thus agreeing with the Sub-divisional Magistrate that the allegations set out in the complaint required judicial investigation. Why then, soon after the Court in seisin of the case had received the record back from Government, did the District Magistrate again send for it ? That is a question which requires a convincing answer in view of the Government's implied ap. proval of the prosecution proceeding. It is at this stage that it becomes necessary to refer to a letter dated 22nd August 1947, which was received by the Distriot Magistrate, The writer of this letter is Mr. Mahesh Prasad Sinha, a member of the Legislative Assembly, and an advocate of the Muzaffarpur Bar. This is the letter:
Muzaflarpur, 22-8-1947.
My dear Sahiji.
Sometimes back some golmal was detected in the Government godown here upon which proceedings were drawn up against Mr. N, Ahmed, the Manager of the godown. I wrote to Mr. Jillespie, the then Distriot Magistrate to look into the matter personally. He exonerated Mr. N. Ahmed of all the charges and passed unwholesome remarks against one Sukhnandan Tbakur who was the author of the case against N, Ahmed.
It has been brought to my notice that the same Babu Sukbnandan Thakur has tipped one Marwari named Eedarnath Chaoban and baa entangled him in a false criminal case. I am told that a very prominent man is trying to gain some undue advantage from that Marwari gentleman. This goandal is talked about. I therefor request you to look into this matter as this case also is an off-shoot of Sukhnandan Thakur's plan about which Ur. Jillespie made strong remarks. This should be thoroughly examined by competent persons. If the case be worth pursuing it should be taken up vigorously or if not it be dropped. Immediate action be taken by you in this conneotion before the case starts.
Yours sincerely, Sd/- Mahesh Prasaa Sinha.
At the request of this Court, this letter was produced by the District Magistrate, although objection to our calling for it was taken be to by the Advocate-General and by Mr. Baldeva Sahay on behalf of Chaohan. It was contended that this letter should not be regarded as addressed to Mr. Sahi as District Magiatrate but as the head of the district administration, and, therefore, it should not be regarded as relevant to the matter now before the Court, namely, whether the order discharging Chaohan should be set aside. It is true that the District Magistrate has more than one capacity: He is the head of the police in his district and the Chief administrative officer, besides being the bead of the magistracy. But in regard to a pending case he has only one capacity that of a superior Magistrate, to whom, in some cages, an appeal lies from a decision of a subordinate Magistrate, and who, in other cases, has revieional powers with regard to the proceedings and decisions of Magistrates subordinate to him. It is, therefore, highly improper for any one to communicate to the District Magistrate, with reference to a pending case, any matter which may have the effect of prejudicing his mind should the occasion arise for him to exercise appellate or revisional power. If that simple proposition was not known to Mr. Mahesh Prasad Sinha, the legislator, it should have been known to Mr. Mahesh Prasad Sinha, the advocate. In this letter which, it must be emphasised was in relation to a case which was properly in seisin of a competent Court, Mr. Mahesh Prasad Sinha categorically informs the District Magistrate that the case pending against Chachan is a false case and that it is an off shoot of an alleged plan of Sukhnandan Thakur to implicate N. Ahmed in a false charge, and it requested the District Magistrate to have the matter "thoroughly examined by competent persons," there. by implying that the Magistrate before whom the matter was pending was not a competent person. It is most regrettable that any one and, more particularly, an advocate, should thus intervene in a pending case and endeavour to influence the mind of a superior Magistrate by ex parte statements and by casting aspersions on the capacity of the presiding officer of the Court in seisin of the case.
4. On the margin of this letter is an endorsement initialled by the District Magistrate, dated 28rd August 1947: "Public Prosecutor should be requested to examine the record carefully and give his considered opinion." Why the District Magistrate should have considered it desirable to have the Public Prosecutor's opinion in this case after the record had already been cent to Government and returned to the trying Magistrate, it is difficult to understand. However, the record was sent to the Public Prosecutor, and on 18th September, he submitted a report to the District Magistrate. The opening paragraph is as follows:
Reference has been made to me for my opinion whether the case against Mr. Kedarnath Chaohan under Section 161/116, Penal Code has good evidence to stand trial.
If that was the question on which the Public Prosecutor considered his opinion was sought, one would have thought it could have been answered very shortly, namely, by pointing out, with reference to the charge against Chachan, that is to say, the charge of attempted bribery, that the complainant was a Magistrate, that the complaint showed that the complainant was an eye-witness of what had transpired, and that at least three other persons were present, one of whom, Mr. Sharma, is also a public officer. In the whole of this "opinion", however, there is not a reference to any one of these circumstances. Instead of referring to these relevant facts, the Public Prosecutor suggested that there could have been no motive for Chichan to offer a bribe to Thakur as there could have been no question of grain smuggling because "there was no grain inside the Government gadown on 17th March." This was in reference to Thakur's report of 18th March that he detected a case of grain smuggling on 17th, For the purposes of his opinion the Public Prosecutor chose to regard this as an allegation by Thakur that the smuggling took place on 17th March whereas what Thakur had alleged was that it was on 17th that he detected a case of grain smuggling. The Public Prosecutor also stated in support of his opinion that there was nothing on the record to show that Mr. Thakur had collected any evidence whatsoever against Chachan or Nandu on 18th or thereafter. He omitted to mention that Tbakur had never been afforded an opportunity of placing before the Court any evidence in support of the charges which he made against Chaohan, The Public Prosecutor concluded his opinion by stating that it would be very difficult for the proseoution to prove that Mr. Tbakur was in a position on 18th or 19th March to show any favour to Chachan which would lead the lattor to offer him a bribe, again completely ignoring the fact that Mr. Thakur had had no opportunity of stating what evidence was in his possession and showing the cogency of it.
5. It is difficult to regard this effusion as the considered opinion of a lawyer of sufficient experience to be entrusted with public prosecution, and apparently Government took the same view of the matter, for they not only, in spite of this opinion, directed the prosecution to proceed, but also took the precaution of briefing Mr. Brajeshwari Prasad, Public Prosecutor of Patna, to conduct the prosecution instead of the Public Prosecutor of Muzaffarpur.
6. This rule was first issued to show sause why the order of discharge dated S9th October 1918, should not be set aside. At the heariilg of that rule it was contended that an order of discharge being a judicial order, Government had no power to direofc the prosecution o the accused on the same facts so long as that order was not Bet aside by competent judicial authority. Consequently, it was contended that all proceedings which followed Government's decision to proceed with the proBeoution, that is to say, all proceed. ings from 22nd June 1948, were without jurisdiction, including the order of discharge of 29th OOtober 1948. That contention being irresistible, it followed that the order of disoharge of 9fch Ootober 1947, stands in favour of Chechan. Government appear to have been wrongly advised that they could proceed with the prosecution without having the order of discharge datod 9th October 1947, set aside in a proper proceeding. The position, therefore, was that the accused stood discharged, not by reason of the order of 29th October 1948, which was passed without jurisdiction, but by reason of the order of 9fch October 1947. As the learned advocate for the accuaed was not prepared on that day to show cause why this order o disoharge should not be set aside, a further date was fixed to afford him an opportunity of showing cause why that order should not be set aside and the case proceed.
7. Here it is desirable to mention that the Court called upon Mr. Pande, Seoretary to Government, Supply and Price Control Department, to produce a letter addressed to him by Mr. Mahesh Prasad Sinha, dated 22nd August 19i8, that is to say, after the District Magistrate had, for the second time, submitted the record to Government which resulted in the second order of discharge. Mr. Pande stated in an affidavit that he was unable to produce this letter as it was no longer in his custody, it having been attached to a file in the Secretariat, and that he had been refused permission to remove it from the file. In another affidavit, the Chief Seoretary stated that Government declined to produce this letter for reasons of' state. The argument was advanced that Government is entitled to claim privilege for confidential reports received from its intelligence service. The argument would have been relevant if this letter was of that nature, but Government does not claim Mr. Mahesh Prasad Sinha to be a member of its intelligence service. Whether the Government is entitled to refuse to produce a letter written to one of its officers by a private individual is a question which it is not necessary to decide in the present case as we are now concerned with the earlier and not the later order of disoharge. The letter is relevant only with regard to (be latter order, A claim of privilege in respect of this letter is all the more extraordinary as it was known that the Court was in possession of a copy of this letter, the accuracy of which was not challenged. It may be mentioned that in the record of the case there is no indication of any vakalatnama having been filed by Mr. Mahesh Prasad Sinha authorizing him to act on behalf of the accused Chachan, and no explanation whatsoever of his solicitude on behalf of the accused which led him into the improper course of writing to the District Magistrate.
7a. It remains to mention an argument that has been addressed to us by Mr. Baldeva Sahay that this Court has no power to revise an order of discharge pasted under Section 494, Criminal P. C. It is contended that an order of disoharge must follow automatically when a Magistrate consents to the withdrawal of the Public Prosecutor from the case, and that this Court cannot inquire into the reasons which led a Magistrate to consent to such withdrawal. It is conceded that the Courts have power to interfere, when the Code requires a Magistrate to exercise discretion, for the purpose of ascertaining whether the discretion haa been exercised in a judicial manner or not. But, it is argued, when the Code merely requires a Magistrate's oonsent, the Court cannot inquire into the reasons for the consent. For this pro-position, reference was made to the decision in Gulli Bhagat v. Narain Singh, 2 pat. 708 : A.I.R. (11) 1924 Pat, 283: 26 Cr. L. J. M6), where it was held that where a Court permits a pro. secution to be withdrawn under Section 494, it is not necessary to record its reasons for permitting the withdrawal, and that it is not the practice of the High Court to inquire into the reasons for, nor interfere with the discretion exercised by a Court of competent jurisdiction which is not, on the face of it, arbitrary. What the Court was considering in that case, however, is unequivocally stated in the opening sentence of the judgment of the learned Judges who decided it namely:
This application raises a somewhat important point, namely, whether an order of acquittal passed under Section 494, Criminal F, C, should be revised in this Court at the instance of a private party.
The whole point of the decision was that the application was at the instance of a private party, and that the order sought to be revised was an order of acquittal, It is seldom, and only in the most extraordinary circumstances, that this Court will interfere with an order of acquittal unless moved to do so by the public authorities, and then only on being convinced that it is in the public interest that the acquittal should be set aside. It is not the practice of this Court to inter, fere with an acquittal at the instance of a private party. Disagreement was expressed with the view taken in the Calcutta High Court that the Court should record its reasons for consenting to the withdrawal of a Public prosecutor under Section 494,but their Lordships treated the granting of consent as a matter of discretion, and it is well-established that where a Court is required to exercise its direction, it must do so judicially, and not arbitrarily, The history of this case, like that of many others which have recently come before us, shows that, unfortunately, the magistracy now merely regard themselves as instruments for recording such orders as they may receive from superior authority without considering the propriety of those orders. When an order of discharge under Section 494 is passed in such circumstances, it is obvious that there is no judicial exercise of the Magistrate's discretion. When this becomes apparent from the record of a case, this Court has the power to set aside an order of discharge and will not hesitate to do so when satisfied that the matter is one which, in the public interest, requires judicial investigation. In the present instance, the complaint which was before the Court was, as I have already stated, a complaint by a Magistrate and was with respect to matters which the Magistrate says that he saw with his own eyes. Even if there was no other witnesses in support of the Magistrate's allegations, the matter would require investigation. But, in this case, as I have already shown, there are other witnesses as well. This, therefore, in my opinion, is essentially a case which, in the public interest requires further investigation. The order of discharge dated 29th October 1948, is declared to be an invalid order. The order of disoharge dated 9th October 1947, is set aside and the Munsif Magistrate is directed to proceed with the hearing of the case.
Das, J.
8. I agree, but would like to make the following observations. I have some doubt if the Provincial Government were justified in olaiming privilege in respect of the letter written by Mr. Mahesh Prasad Sinha to Mr. Fande. That letter was, however, written on 22nd August 1943, that is, long after the first order of discharge which was passed on 9th October 1917- As it is clear that all further proceedings after the said order of disoharge were without jurisdiction, the letter stated to have been written by Mr. Mahesh Prasad Sinha to Mr. Pande has no bear-ing on the principal question at issue before us. For this reason, I express no final opinion on the point if the Provincial Government were justified in' claiming privilege in respect of that letter and withholding its production.
9. In my opinion, the principal question for consideration in this case is if there are good grounds for interference with the order of discharge dated 9th October 1947. The second order of disoharge passed on 29th October 1948, was clearly without jurisdiction. I must, however, point out that the case was in the file of the Munsif Magistrate from 25th June 1948, and the Distriot Magistrate withdrew the case to his own file and then pass-ed the second order of discharge. The District Magistrate had formed some opinion about the case by reason of the letter which he had earlier received from Mr. Mahesh Prasad Sinha and also the opinion given by the Public Prosecutor. In these circumstances, I consider that it should have been more proper for the learned District Magistrate to allow the Munsif-Magistrate, assuming that he was rightly in seisin of the case, to deal with the application of the Proseouting Inspector under Section 494, Criminal P. C, instead of withdrawing the case to his own file and then proceeding to pass an order under that section. The record shows that the Distriot Magistrate had himself passed an executive order on 29th October 1948, to the Prosecuting Inspector direct-ing the latter to withdraw from the case, as per order of the Provincial Government. The District Magistrate had not, therefore, a free mind in the matter, and to recall the case to his own file oh the same day and then pass an order of discharge looks very much like "registering" the order of the Provincial Government instead of exercising judicial discretion.
10. In my opinion, the expression "with the consent of the Court" occurring in Section 494, Cri-minal P. 0., must mean a consent freely given by a free and independent Magistrate, though there may be room for difference of opinion if reasons extraneous to the case can be considered by the Court (see Fakirohand Ramkrishin v. Murad Umar A.I.R. (27) 1940 sind 233: 42 Cr. L. J. 182). A discretion is given to the Magistrate in the matter 'of giving his consent, buii the discretion muat be based on oorreot legal principles and must not be exercised arbitrarily. If, on the face of the record, it appears that there has been no judicial exercise of the discretion, or that the Magistrate has not applied his mind, or has acted arbitrarily, this Court can and will interfere. This view is in conacnance with common sense, and is supported not only by the actual wording of Section 494, Criminal P. C., but also by authority. I need only refer to the decision of this Court in Gopi Bari v. King Emperor 1 P. h, T. 400 : A. I. K. (7) 1920 Pat, 862: 21 cr. L.J. 64l) and the same view has been expressed in several decisions of the Calcutta High Court and other High Courts of India, there being a difference of opinion only on the narrower question if it is necessary for the Court giving its consent under the section to record its reasons in order that the High Court maybe in a position to say whether the discretion vested in the Court has been properly exercised, So far as I know, there is no difference on the question that this Court can and will infcerfera if, on the face of the record, it appears that the discretion has been arbitrarily exercised, or the Court had failed to apply its mind, or had been unduly influenced. This view was recently expresaed by a Special Bench of this Court in the Jamshedpur case for. Misc. case No, 488 of 194B, The King v. Parmanand and Ors., diapered of on 5th November 1948 (since reported in A.I.R. (36) 1949 Pat. 222: 50 Or. L, J. 474 S.B.) The decision in Gulli Bhagat v. Narain Singh, 2 pat, 708 : A. I, B. (11) 1924 Pat. 283: 25 Cr. L. J. 446), on which Mr. Baldeva Sahay appearing for the accused person has placed great reliance, does not really conflict with the above view, as the following observations made therein would show:
Is the next place, where a discretion has been uxeroised by a Court of competent jurisdiction, which in not on the face of It arbitrary, the practice of the High Court is that as a revisional Court it will neither inquire into the reasons nor interfere.
I emphasise the words "which is not on the face of it arbitrary". These worde show that if the discretion has been exercised arbitrarily, that is, without applying a free and independent mind, then this Court can interfere in revision. Mr. Baldeva Sahay has argued that except on the ground of jurisdiction, this Court has no power to inferfere when the trial Court gives consent; and the order of discharge follows automatically as a resalt thereof. In my opinion, this contention of Mr. Sahay, ignores the fact that the giving of consent, which is a pre-requisite to the order of discharge or acquittal as the case may be, is a matter of judicial discretion; and the contention is not 'supported by the decision in Gulli Bhagat's case, 2 Pat. 708 : A.I.R. (11) 1924 Pat. 288: 25 Cr. L. J. 446). Where a Court of competent jurisdiction gives consent even without recording reasons and there is nothing in the record to show that the discretion was arbitrarily exercised, this Court will not interfere: that is the only effect of the decision in Gulli Bhagat's case, 2 Pat. 708 : A.I.R. (11) 1924 pat. 283: 25 Cr. L. J. 446), and it would be wrong to press that decision in support of a view which would make this Court unable to redress a wrong or prevent a failure of justice, as a result of an arbitrary Act. of the Magistrate. Therefore, the point to be considered is if there was a judicial exercise of discretion when the Magistrate passed his order of discharge on 9th October 1947. The order purports to have been passed on a petition filed by the Public Prosecutor which stated:
Under instructions from the Diatriot Magistrate the Public Proseoutor requests for permission to withdraw this case and praya that the order may be made accordingly.
Actually, however, it appears that a detailed report of the Public Prosecutor, dated 18th September 1947, to the District Magistrate, submitted in compliance with the endorsement of the District Magistrate on the letter addressed by Mr. Mahesh Prasad Sinha to the District Magistrate, then a further note of a consultation between the District Magistrate, the Sub-divisional Magistrate and the Rationing Officer containing the opinions of these officers were all sent to the trying Magistrate with an order of the District Magistrate to the following effect: "The case is to be withdrawn", and all these documents are to be found in the record. In these circumstances it can hardly be said that the consent given was a free consent of a free and independent Mftgiatrate. Mr. Baldeva Sahay suggested in the course of his arguments that the aforesaid documents which contained instructions of executive officers to their subordinates should not be looked into by us. Indeed, Section 494, Criminal P. C, does not anywhere mention either the District Magistrate or the Provincial Government, The person who may withdraw from the prosecution with the consent of the Court is the Public Prosecutor. The Public Proseoutor may, however, act under instructions from the District Magistrate or the Provincial Government, e. g., such instructions as are contained in the Practice and Procedure Manual. They are, however, executive instructions, and this Court should not ordinarily be concerned with them. When such instructions are communicated to the trying Magistrate who obviously is influenced by them, they become relevant for the purpose of deciding whether the Magistrate exercised his discretion judicially. There is indeed a decision of the Rangoon High Court is The King v. Ba Khin A.I.R. (27) 1940 Bang. 189 : 41 Cr. L. J. 853), where the following observations were made:
I have not seen the orders of the Distriot Magistrate of Pegu which were referred to by the Magistrate, cut presumably these orders were instructions to the Public Proseoutor to apply to the Court under Section 494 for the withdrawal of the cases, and if 80, they were perfectly proper instructions for the District Magistrate to give to the Public Prosecutor. But the Public Prosecutor acted with grave impropriety in showing his In' struotions to the trial Magistrate and the Magistrate acted with equal impropriety in looking at them. The fact that the District Magistrate has instructed the Public Prosecutor to apply for withdrawal is no reason for a Magistrate giving his consent to such withdrawal. The Magistrate must not surrender his authority to the District Magistrate, but must act judicially and come to his own independent conclusion as to whether withdrawal ought to be permitted or not upon a consideration of all the relevant circumstances.
It is clear to me that in view of the circumstances in which the order dated 9th October 1947, was passed the trying Magistrate did not at all apply his mind, but merely carried out the order of his superior officer; in other words, there was no judicial exercise of discretion. On this ground itself the order dated 9th October 1947, is liable to be set aside.
11. There is one other aspect regarding which I wish to say a few words. In the Jam shed-pur ease, (A.I.R. (36) 1949 pat. 222: 50 Cr. L. J. 474 S. B.) we had referred to the procedure for the production and transmission of disposed of and pending records, as laid down by the rules of this Court. In the course of his arguments the learned Advocate-General referred to the Letters Patent. The relevant clause is Clause 40 which requires the High Court to comply with such requisitions as may be made by the Provincial Government for records, returns and statements. I do not think that this clause justifies the method adopted in this particular case, such as, the calling of a record by means of an executive order direct from the trying Magistrate, or by means of a written slip of paper as was done by the Distriot Magistrate. In the case before us the record seems to have moved from one authority to another on more than one occasion without a proper requisition as contemplated by the rules of this Court or by the relevant clause of the Letters Patent. In one of his orders dated 9th July 1948, the Munsif Magistrate had noted as follows: "Record demanded by the District Magis-trate for sending it to Government." It is obvious that the demand of the record by the District Magistrate in the manner indicated above was not in conformity with the existing rules. If there is a case for an amendment of the existing rules, that is a different matter altogether. It is also curious that in spite of the order of discbarge the Munsif Magistrate continued to geoord orders in the case, as he was obviously unaware that the case bad been recalled to his own file by the District Magistrate and then disposed of by the latter on 29th October 1943.