Patna High Court
Ramesh Jha And Ors. vs The State on 25 February, 1958
Equivalent citations: AIR1959PAT380, 1959CRILJ1016, AIR 1959 PATNA 380
ORDER Kanhaiya Singh, J.
1. This application is against the order of the Sessions Judge, Bhagalpur, dated 4-12-57 refusing to refer the case to the High Court for necessary orders. This case has a checkered career. On 30-4-54, the public prosecutor filed an application for permission to withdraw from the prosecution of all the accused persons on the following ground:
''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."
2. The learned Magistrate accorded permis-sion on 10-6-54 to the Public Prosecutor to withdraw from the prosecution in the following words :
"Considering all the matters I find that this is a fit case for allowing the P. P. (which in this case means P.I, as well as the P.P. Bhagalpur, especially appointed for this case) to withdraw from the prosecution under Section 494, Cr. P. C. The P. P. is accordingly permitted to withdraw and the accused persons are discharged under Section 494 (a), Cr. P. C."
3. It will be observed that this application was based on the grounds of inexpediency of the prosecution for reasons of State. The reasons of the State were, however, not disclosed in the petition and the contention raised before the Magistrate was that in the absence of justifiable reasons the permission to withdraw should be refused. The learned Magistrate was of the opinion that dis-
and the Court has to consider the grounds as stated. He held that on the grounds stated by the public prosecutor consent for withdrawal' cannot be with-
held. Accordingly, he granted the permission.
Against this order a reference was made by the Sessions Judge on 27-11-54 to this Court for setting aside the said order of the Magistrate on the § round that the Magistrate had not exercised his iscretion judicially and properly, and it was not proper for the Magistrate to give permission to withdraw from the prosecution unless he had considered the evidence and the attendant circumstances of the case. The hearing of the reference came up before Imam, J., who accepted the reference and set aside the order of the Magistrate permitting the public prosecutor to withdraw from the case substantially on the ground that the learned Magistrate did not in effect apply his mind to the case of withdrawal, and indeed he could not because the State had not divulged the reasons. Further, he observed that the grounds stated by the public prosecutor, such as, 'reasons of State,' 'credible information received,' were too vague for any court to apply its mind. In effect, he held that there was no good ground before the Magistrate for agreeing to the withdrawal of the case.
4. In the meantime, before the learned Magistrate could proceed with the case as directed by this Court, a decision was given by the Supreme Court as to the scope of Section 494 of the Code of Criminal Procedure in the State of Bihar v. Ram Naresh Pandey, (S) AIR 1957 SC 389. In that case the public prosecutor made an application for withdrawal from the prosecution on the following ground :
On the evidence available it would not be just and expedient to proceed with the prosecution of Sri Mahesh Desai and that therefore it was necessary to withdraw the case against Sri Mahesh Desai only."
Against that order the Sessions Judge was moved for making a reference to the High Court, The Sessions Judge declined to make any reference as he thought that the order of the Magistrate was perfectly legal and justified. The complainant then came up in revision against that order to this Court, That application was heard by Das C. J. He was of the opinion that the consent should not have been granted. The learned Chief Justice recognised that normally the High Court should not interfere but felt called upon to set aside the order on the ground that there was no judicial exercise of the discretion in that case.
Accordingly he set aside the order and directed that the Magistrate should record the evidence and then consider whether it establishes a prima facie case against the appellant. Against that crder both the State of Bihar and the accused went up in appeal to the Supreme Court. By their judgment dated 31-1-57 the Supreme Court allowed the appeal and set aside the order of this Court and restored the order of the Magistrate granting permission to the Public Prosecutor to withdraw from the case.
The construction put by the Supreme Court on Section 494 of the Code in effect supports the validity of the order passed by the Magistrate in this case also. The Magistrate found himself bound by the judgment of the Supreme Court, but he himself could not go against the order of this Court. Hence, by his order dated 12-11-57 he submitted the entire record of the case to the Sessions Judge for reference to the High Court if the Sessions Judge considered it necessary. The Ses-
sions Judge by his order dated 4-12-57 refused to make a reference to the High Court, because he thought that the order of Imam, J. was binding upon the court below, and unless that order was modified the Magistrate had no option but to proceed with the case. Now, the petitioners, who are the accused in this case, have come up in revision.
5. Mr. B. C. Chose appearing for the petitioners contended that on the authority of the decision of the Supreme Court above quoted, the order passed by the Magistrate granting permission to the Public Prosecutor to withdraw from the prosecution was perfectly legal and justified and should be maintained, and in face of this pronouncement of the Supreme Court the judgment of Imam, J. has no binding force.
In my opinion, this contention is well-founded and must be accepted. The grounds for withdrawal in the instant case and in the Case before Supreme Court are, as will appear from the above, identical, and in both the cases the permission was granted by the Magistrate before any evidence had been taken. The permission was really rested upon the grounds set forth by the Public Prosecutor considered in the light of evidence that was then in the record. On the grounds on which Das, C. J, has set aside the order of the Magistrate in the case of Ram Naresh Pandey referred to above was that the Magistrate could not judge about the propriety or otherwise of the withdrawal of the case, until he had recorded the evidence and considered whether or not the evidence established a prima facie case against the accused. He observed as fol ows :
"This is not a case where there is no evidence, on the contrary, this is a case where there is evidence which requires judicial consideration.....
The procedure which the learned Special Magistrate followed was tantamount to considering the sufficiency or otherwise of evidence before the evidence has been heard ..... The function of the Court would be surrendered to the Public Prosecutor, I Ho not think that Section 494, Criminal P. C. justifies such a procedure."
In support of the order of the learned Chief Justice, the learned Counsel for the respondents advanced the argument before the Supreme Court that in a case where the application for consent is made on the ground of no evidence or no adequate Or reliable evidence, the Court can exercise its judicial function, only with reference to judicially recorded evidence as in one or other of the appropriate situations contemplated by the Code for judicial inquiry or trial.
Their Lordships of the Supreme Court rejected this contention and refused to subscribe to the view taken by the learned Chief Justice that where the application is on the ground of inadequacy of evidence requiring judicial consideration, it would be manifestly improper for the Court to consent to withdrawal before recording the evidence and taking it into consideration. They emphasised that although it was not necessary to record the entire evidence in enquiry or trial before according consent, such evidence, as may already have been recorded by the time the application is made, should 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. The Supreme Court, in effect, laid down that for granting consent it was not necessary at all that all the evidence must be recorded and considered by the Magistrate before granting permission. On the scope and extent of Section 494 of the Code, they observed as follows :
"The section is an enabling one and vests in the Public Prosecutor the discretion to apply to the Court for its consent to withdraw from the prosecution of any person. The consent, if granted, has to be followed up by his discharge or acquittal, as the case may be. The section gives no indication as to the grounds on which the Public Prosecutor may make the application, or the considerations on which the Court is to grant its consent. There can be no doubt, however, that the resultant order, on the granting of the consent, being an order of 'discharge' or 'acquittal' would attract the applicability of correction by the High Court under Sees. 435, 436 and 439 or 417, Criminal P. C. The function of the Court, therefore, in granting its consent may well be taken to be a judicial function. It follows that in granting the consent the Court must exercise a judicial discretion.
But it does not follow that the discretion is to be exercised only with reference to material gathered by the judicial method. Otherwise the apparently wide language of Section 494, Criminal P. C., would become considerably narrowed down in its application. In understanding and applying the section, two main features thereof have to be Kept in mind. The initiative is that of the Public Prosecutor and what the Court has to do is only to give its consent and not to determine any matter judicially.
As the Privy Council has pointed out in Faqir Singh v. Emperor, AIR 1938 PC 266 at p. 269, 'it (S. 494, Criminal P. C.) gives a general executive discretaion (to the Public Prosecutor) to withdraw from the prosecution subject to the consent of the Court, which may bet determined on many possible grounds.' The judicial function, therefore, implicit in the exercise of the judicial discretion for granting the consent would normally mean that 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 this context it is right to remember that the Public Prosecutor though an executive officer as stated by the Privy Council in, AIR 1938 PC 266, is in a larger sense, also an officer of the Court and that he is bound to assist the Court with his fairly considered view and the Court is entitled to have the benefit of the fair exercise of his function."
Considering the merits of this application in the light of the principles laid down by the Supreme Court, it appears that the order of the Magistrate granting permission to the Public Prosecutor to withdraw from the prosecution is unexceptionable. The evidence had not been recorded. The Public Prosecutor, however, sought permission to withdraw, because subsequent to the submission of the charge-sheet the State had received credible information on matters connected with the case which rendered the trial of the accused inexpedient for reasons of the State.
The learned Magistrate considered that it was not necessary for the State to disclose the reasons, The grounds as stated by the Public Prosecutor had to be accepted as correct, and there was no reason to consider that the State unduly interfered with the course of justice and unjustifiably wanted to stifle prosecution. In my opinion, these grounds are valid grounds for granting the permission. In order to grant permission the Magistrate is not to consider the evidence as it is done in trial of cases.
Their Lordships of the Supreme Court further observed in the case referred to above that the ap-
plication for consent may legitimately be made by the Public Prosecutor for reasons not confined to the judicial prospects of the prosecution. Here, the permission was sought on the ground that for reasons of the State the prosecution was inexpedient in view of the credible information received by the State. In my opinion, the order of the learned Magistrate was fully justified. The order of the learned Magistrate must, therefore, be maintained. In face of the aforesaid pronouncement of the-Supreme Court the previous order of this Court has no binding force.
6. In the result, the application is allowed and the order of the learned Magistrate granting permission to the Public Prosecutor to withdraw from the prosecution and discharging the accused; is maintained.