Patna High Court
S.B. Sharraf And Anr. vs K.P. Singh And Ors. on 30 November, 1962
Equivalent citations: AIR1964PAT33, 1964CRILJ65, AIR 1964 PATNA 33, 1963 BLJR 176
JUDGMENT Ramratna Singh, J.
1. This is a reference under Section 438 of the Code of Criminal Procedure from the Sessions Judge of Motihari against an order of acquittal passed by the Judicial Magistrate of Bettiah on 15-12-61 under Section 494 (b) of the Code of Criminal (Procedure. An information about an occurrence near the factory of Harinagar Sugar Mills Limited was sent by petitioner No. 1, S.B. Starraf, who was the Cane Manager of Harinagar Sugar Mills Limited. It was stated in the information that at about 5.15 p.m. on 23-9-60, opposite party K.P. Singh held a workers' meeting in front of the factory and incited and provoked the workers to take the law in their own hands and assault the personnel of the Management and also that of the Watch and Ward Department of the Mills; and in pursuance of that provocation, the opposite party, who were fifteen in number, led an excited mob of about 200 workers armed with lathis and entered the main gate forcibly, broke open the doors, entered the office, threw brickbats and stones at the closed windows and doors and assaulted the members of the staff, inside and outside the office, They also threw away some of the office records and created an atmosphere of terrorism and anarchy. Some employees of the factory received injuries besides an outsider, namely, Ramekbal Prasad. The rioters are said to have threatened the people when they were taking the injured to the doctor for treatment in the vehicle of the factory.
After the investigation, the police submitted charge-sheet against fifteen opposite parties and they were put on trial, under different sections of the Penal Code, namely, 447, 147, 337, 427 and 323. In the Court eleven prosecution witnesses were produced, four of whom were tendered and cross-examined and the rest were examined and cross-examined fully. The other witnesses were to be examined on 25-11-1961. But on that date a petition for withdrawal of the case was filed by the Additional District Prosecutor. It read thus:
"The humble petition for withdrawal under Section 494 Cr. P. C. in the case on behalf of State most respectfully sheweth:
That in the interest of the good feeling in between both the parties, the State Government does not like to proceed with the case and, therefore, it is prayed that permission for the withdrawal of the case may kindly be given."
The petitioners, namely, Sri S.B. Sharaff and Nagajiramji Pathak, the Accounts Clerk of the Mills, who was one of the victims of the assault, filed a petition on the same day before the magistrate objecting to the withdrawal of the case and stating inter alia that no good feeling had been restored nor was there any chance of good feeling being restored, that there was no bona fide reason or Justification for the withdrawal of the petition which was motivated by some political reasons and there had been no agreement between the Management and the agitators. After hearing the lawyers of both the parties on 15-12-61 the learned magistrate passed the following orders :
"Heard the A. D. P., the informant's lawyer and defence lawyer. The informant's lawyer's argument is that the informant has not received justice though he was aggrieved. On behalf of A. D. P. it was argued that there are 22 cases going on between the Harinagar Sugar Mill and the labourers. All these cases are interlinked and connected. The Government who is the custodian of law and order, in the interest of smoother running of the administration, has ordered for the withdrawal of all the 22 cases and the Informant has got no right to object.
The defence lawyer has referred to Gulli Bhagat v. Narain Singh, AIR 1924 Pat 283 in which it has been laid down that 'The Crown is the prosecutor and custodian of the public peace and if it decides to let an offender go, no other aggrieved party can be heard to object on the ground that he has not taken his full toll of private vengeance'.
In fact all the cases are concerned with the sugar factory, the employer on one side and the labourer on the other and as a policy for the peace and smooth running of the administration, if the Government has ordered for withdrawal of all the cases, I don't find any objection in accepting the withdrawal petition filed by A. D. P. The withdrawal petition filed by A. D. P. is accepted. All the accused persons are acquitted under sec. 494(63 Cr. P. C."
2. The learned Sessions Judge has observed that the learned magistrate seems to have passed an order of acquittal without exercising his own judicial discretion and he acted merely on the representation that in the interest of the good feeling in between both patties the State Government did not like to proceed with the case.
3. Mr. A.B.N. Sinha submitted in support of the reference that the learned magistrate was wrong in his view that the petitioners could not be heard in the matter. The order of the learned magistrate shows that he has relied on this point on a Bench decision of this Court in AIR 1924 Pat 283. But Mr. A.B.N. Sinha referred to another Bench decision of this Court in Jogendra Narain v. Ganga Prasad, AIR 1954 Pat 150, relied on by the learned Sessions Judge in his letter of reference. In the earlier case it was observed that it was for the Crown, who is the prosecutor and the custodian of public peace, to decide to let the offender go and no other aggrieved party should 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 latter case Reuben C. J. observed 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.
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 on the principle that "persons likely to be aggrieved by the order, which the Court is about to pass, must feel that the Court has been impartial and has given them an opportunity of representing their side of the case".
But this discussion is purely academic; and now 1 have to see whether, in the circumstances of the case, the learned magistrate was justified in giving his consent to the withdrawal of the case.
4. The principles governing exercise of judicial discretion in such matters by a Court are now well settled. In State of Bihar v. Ram Naresh, (S) AIR 1957 SC 389, their Lordships of the Supreme Court said that 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. But 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 executive function of the public prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. In that case their Lordships allowed the withdrawal of the case on the ground that there was practically no evidence at all against the accused before the Police; and it may be mentioned that the case had not then been investigated by the Police. At the same time, their Lordships observed:
"We are not to be understood, however, as implying that such evidence as may already have been recorded by the time the application is made is not to be looked into and considered in such cases, in order to determine the impropriety of the withdrawal as amounting to abuse or an improper interference with the normal course of justice."
In a decision of this Court in Ramesh Jha v. The State, AIR 1959 Pat 380, Kanhaiya Singh, J., following the principles laid down in the Supreme Court allowed the application for the withdrawal of a case and the ground mentioned in the application was:
"Subsequent to the submission of the charge-sheet in this case, credible information, on matters connected with the case, has been received which renders it inexpedient for reasons of State, to continue the prosecution."
There is no dispute regarding the principles; but the facts of the aforesaid two cases were different. In the present case a large number of witnesses had been examined and cross-examined and some more were to be examined when the Additional District Prosecutor filed a petition for withdrawal of the case. The only reason given by him was that in the interest of good feeling between the parties, the State Government did not like to proceed with the case. The learned Magistrate observed that the Government wanted to withdraw the case in the interest of smooth running of the administration. But there is no material on the record to justify this conclusion, particularly when the complainant and one of the injured employees of the Mill filed an objection petition on the day the Additional District Prosecutor filed the petition for withdrawal alleging that good feeling between the management and the workers had not been restored. In view of this objection, the learned Magistrate ought to have examined the materials on the record, including the evidence of the witnesses, in order to decide whether the prayer for withdrawal of the case amounted to abuse or improper interference with the normal course of justice. But the learned Magistrate does not seem to have applied his mind at all to this point, and he has simply acted on the statement of the Additional District Prosecutor.
The learned Standing Counsel, who opposed the reference, relied on a Full Bench decision of this Court in The King v. Moula Bux, AIR 1949 Pat 233. That case arose on account of a riot committed by the workers of Tata Iron and Steel Co. Ltd. at Jamshedpur. Charge-sheet was submitted against 17 accused persons. Prosecution witnesses were examined and the statements of the accused were recorded under Section 342 of the Code of Criminal Procedure and some defence witnesses were also examined. Arguments were heard and the case was adjourned for judgment. Thereafter a petition for withdrawal of the case was filed before the Magistrate by the Public Prosecutor. The learned Advocate General had filed an affidavit in that case made by the Subdivisions! Magistrate of Dalbhum in which, among other things, it was stated that during the pendency of the case some irresponsible persons were causing dissatisfaction between the labour and the management of the Tata Iron Works and were "imbuing" the workers with revolutionary spirit and inciting them to take recourse to steps which were likely to disturb the peace. On receipt of the representation from the President of the Tata Workers' Union, tot Provincial Government waited for some time in order to make sure that the workers were penitent and would cooperate with the management in the production of steel, in case the prosecution was withdrawn, and when the Provincial Government were so satisfied, they instructed the public Prosecutor to withdraw from the case with the consent of the Court. Their Lordships observed that permission to withdraw from the case was asked fir in this case with a view to restoring peace and good feeling between the workers and the management and avoiding further trouble and stoppage in the matter of production of steel and held that the Magistrate had not acted improperly or arbitrarily in giving his consent to the withdrawal of the Public Prosecutor from the prosecution of this case.
But the facts of the present case are absolutely different. 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 working of the Mills it was expedient to withdraw the case. On the other hand, the petitioners on behalf of the management filed an objection to the giving of consent to withdrawal on the ground that good feeling had not been restored and there was no justification for the withdrawal of the case, in the circumstances, it must be held that the petition of the Additional District Prosecutor for withdrawal in the present case amounted to an abuse or improper interference with the normal course of justice and the learned Magistrate seems to have acted improperly and arbitrarily in giving his consent to the withdrawal.
5. The order of the learned Magistrate dated 15-12-61 permitting the withdrawal of the case and acquitting the accused under Section 494(b) of the Code of Criminal Procedure must be set aside and reference is accepted. The case will now proceed from the stage immediately before the aforesaid order dated 1542-61.