P.R.C No. 2 of 1946 on the file of the Sub Magistrate, Bezwada Taluk, was a prosecution against the present respondents for offences under various sections of the Indian Penal Code relating to rioting, theft, criminal trespass and dacoity. After the enquiry had proceeded for sometime, the Assistant Public Prosecutor, Bezwada on 5th September 1947 filed a memorandum before the Sub Magistrate under S. 494, Cr.P.C requesting that he may be permitted to withdraw the prosecution against the accused. On the receipt of this application the learned Sub Magistrate passed the following order:

“The Assistant Public Prosecutor, Grade II Bezwada is permitted under S. 494 Cr.P.C to withdraw the prosecution in the case as per the orders of the Government and the District Magistrate, Kistna and the accused are discharged.”

As is to be inferred from this order, the District Magistrate, Kistna had forwarded to the Sub Magistrate a copy of a telegram received by him from the Provincial Government directing him to withdraw P.R.C No. 2 of 1946 and C.C No. 512 of 1946 on the file of same Sub Magistrate. Both the cases have accordingly been withdrawn and the respective accused discharged.

The present petition is by one Kapa Kasi Viswanadham stated to be the complainant and P.W 1 in P.R.C No. 2 of 1946 requesting this court to interfere under the powers of revision and set aside the order of discharge on the ground that the learned Sub Magistrate has not, in giving the consent of the court for the Public Prosecutor to withdraw the case, exercised his judicial mind regarding the desirability or otherwise of granting such permission and has not given any reasons why the permission was granted. In support of this application a long affidavit by the petitioner has been produced and there is also a counter-affidavit answering the various allegations contained in the petitioner's affidavit. In the light of the conclusion I have come to on the question of law, I do not propose to discuss the allegations and the counter allegations or give an opinion on the merits. My learned brother Yahya Ali J. admitted the revision adding a note that no reason for withdrawal is given in the telegram or in the Magistrate's order.

The first argument of the learned counsel for the petitioner is that S. 494 Cr.P.C does not authorise the court to grant permission to withdraw a Preliminary Register Case for the reason that in such a case a Sub Magistrate cannot pronounce ‘judgment’. It is strenuously contended that it is only in cases where the court, is empowered to pronounce a judgment that leave to withdraw can be granted. According to the learned advocate the section can apply only to courts where there are jury trials in which case part one of Cl. (1) of the section will apply and to other courts which are empowered to pronounce judgment in the case. The basis of the argument is that an order of discharge is not a judgment and the case can proceed to judgment only when the full trial is over. Reliance is placed on the observation of Pinhey, J. in Emperor v. Maheswara Kondayya [1908] I.L.R 31 Mad. 544 where that learned Judge was of the view that an order of discharge was not a judgment. A judgment is an order in a trial terminating in either the conviction or the acquittal of the accused. The other learned Judge Munro J. did not express any opinion as regards the meaning of the term judgment. Granting that an order of discharge does not amount to a judgment, does it necessarily follow that Cl. (i) of S. 494 does not apply to a court which is not empowered to pronounce judgment in any particular case from granting permission for withdrawal. In Giribala Dasi v. Mader Gazi [1923] I.L.R 60 Cal. 233 Mukerji J. agreeing with Remfrey J. was of the view that there is no such restriction Cl. (i) wherein the words “in other cases” occur merely describes a class of cases and do not imply that the trial has reached any particular stage. The words “in other cases before judgment is pronounced” provide for the extreme limit or the ultimate point of time up to which a case can be withdrawn and not that the court which is empowered to pronounce final judgment alone, is competent, to grant permission. Nothing has been suggested why I should not agree with the view expressed by the learned Judges of the Calcutta High Court, especially in view of the circumstances that the longstanding practice for more than half a century in all the courts in our Province has been the same. Even in a preliminary register case it is open to the Magistrate under S. 209 Cr.P.C, after recording evidence to decide whether it is a case triable by himself or whether the same should be committed to a court of session. Therefore S. 209 Cr.P.C, gives ample power to a Magistrate enquiring into cases triable by a court of Session or the High Court to convert what was initiated as a preliminary register case into a calendar case. The words in S. 209 “unless it appears to the Magistrate that such person should be tried before himself or other Magistrate in which case he shall proceed accordingly” afford ample authority for holding that a case which was a preliminary register case in its initial stage can become one in which the magistrate can pronounce judgment and that it seems to me that the expression in S. 494 Cr.P.C “in other cases before judgment is pronounced” is wide enough to include a preliminary register case as well.

On the second point there is a sharp cleavage of opinion among the various High Courts. So far as our court is concerned, in dealing with the powers of withdrawal under S. 494 Cr.P.C, it has been held as long ago as 1908 in In Re Sadayan3 that neither the Public Prosecutor nor the Judge is called on to give any reasons for his action, that is, either in the application to withdraw or in granting permission to withdraw. The learned Judges there, disagreed with the view expressed in Cr. R.C No. 274 of 1907. Perusing the records in that case, I find that it was a case where during the course of the hearing before a Sessions Court, from the evidence of a certain witness, it was found that the accused did not commit the crime but that the witness himself was responsible. On that, the Public Prosecutor withdrew the case on the suggestion of the court. The learned Judges who considered the correctness of this withdrawal in revision were of opinion that reasons should have been given. In the peculiar circumstances of that case it may very well be that it was desirable to give some reasons. But the Bench which decided In re Sadayam took a different view. Neither the appellant's learned advocate on the one side nor the Public Prosecutor and Mr. Rajagopalachari on the other, have been able to show any decision of this court either dissenting from the view expressed by Wallis and Abdur Rahim JJ. or concurring with it. In view of the circumstance that this decision has stood for nearly 40 years without being questioned, I am bound to follow the same.

The matter does not rest there alone. In Gulli Bhagat v. Narain Singh* [1923] I.L.R 2 Pat. 708 Mallick and Macpherson JJ. alter discussing the question at some length have dissented from the view taken by the Calcutta High Court in Rajani Kanta Shaha v. Idras Tkakar [1921] I.L.R 48 cal. 1105, Umesh Chander Roy v. Satish Chandra Roy [1918] 22 C.W.N 69, and Jagat Chandra Roy v. Kalimuddi Sirdar [1922] 26 C.W.N 880. The learned Judges have held, interpreting the section as it stands, that there is no provision of law compelling a Magistrate to record his reasons for granting permission to withdraw and that it would be to overstate the law to say that reason should be given. S. 494 does not expressly require the court to give any reasons for consenting to the withdrawal nor is there any provision which compels a court to write a reasoned judgment establishing the propriety of the order. It is further laid down that when a discretion has been exercised by a court of competent jurisdiction which is not, on the face of it arbitrary, the High Court as a revisional court will neither enquire into the reasons for such withdrawal nor interfere with it especially at the instance of a private party. The learned Judges of the Patna High Court did not make any reference to the decision in In Re Sadayan, but their reasoning and conclusion are the same even though expressed in stronger terms than that of our court. In Lakshmi Narain Varma v. Mohamad Hanif [1932] A.I.R Lah. 368 the same view has been expressed by Harrison, J. agreeing with the opinion of the Patna High Court in Gulli Bhagat v. Narain Singh* and disagreeing with the view taken by a single Judge of the Rangoon High Court in Abdul Gani v. Abdul Kader [1923] I.L.R 1 Rang. 756. Here also no reference to the Madras case is made. In Ratanshah Kuvasji v. Keki Behramsha [1945] I.L.R Bom. 141 N.J Wadia and Sen JJ. dissenting from the Calcutta High Court's view and agreeing with the views of our court and of the Patna High Court, expressed the opinion that in permitting the Public Prosecutor to withdraw from the prosecution under S. 494 Cr.P.C the court is not bound to record its reasons for giving consent. That the same is the view taken by the Nagpur High Court will be revealed by the decision in Dattatraya Govinda Rao v. Emperor [1938] A.I.R Nag. 76 where Grille J. expressed the opinion that it is desirable no doubt to give reasons for giving permission to withdraw a case but to say that it is essential to give reasons is overstating the law. The Criminal Procedure Code makes no such requirement, I need barely add that I am bound to follow the judgments of this court in preference to that of other courts.

I have already stated that the Calcutta High Court has consistently taken a different view, vide the decisions in Rajani Kanta Shaha v. Idras Thakar, Umesh Chander Roy v. Satish Chandra Roy and Jagat Chandra Roy v. Kalimuddi Sirdar. The Rangoon Court also agrees with Calcutta.

I do not think it permissible to impart into the language of the section words which are not there. There are many sections in the Code where the giving of reasons is made obligatory as for example Ss. 263 (h), 203, 209 and various other sections. It is not the function of the court to add to the Statute by laying down that reasons should be given when S. 494 makes no mention of such a thing. For the above reasons I hold that it was not obligatory upon the magistrate to record any reasons for the withdrawal and since it is not shown that he has acted arbitrarily or in any unjudicial manner, the order of discharge cannot be interfered with.

There is another circumstance which has to be considered in deciding whether this court should exercise the revisional powers. There is nothing to show that P.W 1, the complainant objected to the Public Prosecutor withdrawing the case. On the other hand, it is stated for the respondents that both the case and the counter case were withdrawn, that the present petitioner was an accused in the counter case and he had the benefit of a withdrawal of the case against him. That was the reason why he did not object to the withdrawal of the case in which he was the complainant. The learned counsel for the petitioner has not denied this fact nor has he proved to my satisfaction that the complainant did not acquiesce in the withdrawal of P.R.C No. 2 of 1946. There was another remedy open to the complainant by moving the Sessions Court to set aside the order of discharge it really he had a just cause for complaint. Ordinarily, this court will not entertain a revision against a discharge by a Magistrate where the aggrieved party has not moved the Sessions Court or the District Magistrate before coming up to this Court. The petitioner here has not availed himself of that remedy as well and this is a circumstance against this court entertaining his application for revision. This revision petition is accordingly dismissed.

N.T.RPetitions dismissed