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Kapa Kasi Viswanadham v. Bondili Madan Singh And Others.

Madras High Court
Jan 28, 1948
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Structured Summary of the Provided Opinion

Factual and Procedural Background

P.R.C. No. 2 of 1946 on the file of the Sub Magistrate, Bezwada Taluk, was a prosecution against the present respondents under various sections of the Indian Penal Code (offences relating to rioting, theft, criminal trespass and dacoity). After enquiry had proceeded for some time, on 5 September 1947 the Assistant Public Prosecutor, Bezwada filed a memorandum under S. 494, Cr.P.C. requesting permission to withdraw the prosecution. The Sub Magistrate passed an order permitting withdrawal under S. 494 Cr.P.C. and discharged the accused, noting instructions from the Provincial Government and the District Magistrate, Kistna (the District Magistrate had forwarded a telegram from the Provincial Government directing withdrawal of P.R.C No. 2 of 1946 and C.C No. 512 of 1946).

The present petition was filed by Kapa Kasi Viswanadham, described as the complainant and P.W.1 in P.R.C No. 2 of 1946, seeking revision to set aside the discharge order on the ground that the Sub Magistrate did not exercise judicial mind or give reasons when consenting to the Public Prosecutor's application to withdraw the prosecution. Affidavits and counter‑affidavits were filed; the court (through the presiding judge and an assisting judge) admitted the revision but noted that no reason for withdrawal appeared in the telegram or the Magistrate's order.

Legal Issues Presented

  1. Whether Section 494, Cr.P.C. authorises a court (specifically a Sub‑Magistrate dealing with a Preliminary Register Case) to grant permission to the Public Prosecutor to withdraw the prosecution, given the contention that a Sub‑Magistrate in a PRC cannot pronounce a "judgment".
  2. Whether the court granting permission under S. 494 Cr.P.C. is obliged to record and give reasons for consenting to the withdrawal of a prosecution.
  3. Whether the revisional court should exercise its revisional powers to set aside a magistrate's order of discharge where the complainant did not object at the time and had other remedies available (for example, applying to the Sessions Court).

Arguments of the Parties

Petitioner's (Appellant's) Arguments

  • Section 494 Cr.P.C. does not authorise the court to grant permission to withdraw a Preliminary Register Case because, in such cases, a Sub‑Magistrate cannot pronounce a "judgment". The counsel contended that the clause applies only to courts empowered to pronounce judgment and therefore cannot apply to PRCs where an order of discharge is not a judgment.
  • Reliance was placed on the observation of Pinhey, J. in Emperor v. Maheswara Kondayya ([1908] I.L.R 31 Mad. 544) that an order of discharge was not a judgment.
  • The petitioner argued that if discharge is not a judgment then Clause (i) of S. 494 should not permit withdrawal by a court not empowered to pronounce judgment in that case.

Respondent / Public Prosecutor / State Position (as reflected in the opinion)

  • The Assistant Public Prosecutor applied to withdraw the prosecution under S. 494, Cr.P.C. on the basis of orders from the Provincial Government transmitted via the District Magistrate.
  • Counsel for respondents (and various judicial authorities cited by the court) argued that Clause (i) of S. 494 is not restricted to courts already empowered to pronounce final judgment in the particular case and that the words "in other cases before judgment is pronounced" indicate the latest point in time up to which permission may be granted; thus preliminary register cases fall within the scope of S. 494.
  • As to the requirement to give reasons, authorities and practice cited by the court (including decisions of this court and other High Courts) support the view that neither the Public Prosecutor nor the court is obliged by S. 494 to provide written reasons for consenting to a withdrawal, and that absence of reasons alone does not warrant interference unless the action is arbitrary or unjudicial.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Emperor v. Maheswara Kondayya [1908] I.L.R 31 Mad. 544 The observation (by Pinhey, J.) that an order of discharge was not a "judgment". The court records the observation but treats it as not decisive of the meaning of S. 494; the court examines broader authority and practice rather than adopting a strict consequence from that observation.
Giribala Dasi v. Mader Gazi [1923] I.L.R 60 Cal. 233 Holds that Clause (i) of S. 494 is not restricted to courts already empowered to pronounce final judgment; phrase "in other cases before judgment is pronounced" sets the outer time‑limit and does not exclude preliminary register cases. The court agrees with this view and applies it to hold that S. 494 is wide enough to include preliminary register cases; it cites S. 209 Cr.P.C. to show how a PRC can become a case in which a magistrate may pronounce judgment.
In Re Sadayan (decided c.1908 by this court) Held that neither the Public Prosecutor nor the Judge is required to give reasons for withdrawing a prosecution or for consenting to withdrawal. The court states this decision of its own bench has stood for nearly 40 years and is binding; the judge follows it and declines to require reasons to be recorded as obligatory under S. 494.
Gulli Bhagat v. Narain Singh [1923] I.L.R 2 Pat. 708 Patna High Court held S. 494 does not compel recording reasons for withdrawal; High Court will not inquire into reasons where discretion is not manifestly arbitrary, particularly at the instance of a private party. The court cites and follows this reasoning favourably as consistent with its own precedent.
Rajani Kanta Shaha v. Idras Thakar [1921] I.L.R 48 Cal. 1105 Representative of decisions from the Calcutta High Court taking a different view (i.e., requiring reasons or approaching the issue differently). The court notes the Calcutta High Court's consistent contrary view and expressly declines to follow it.
Umesh Chander Roy v. Satish Chandra Roy [1918] 22 C.W.N. 69 One of decisions associated with the Calcutta line which the court identifies as taking a contrary approach. The court notes these Calcutta decisions as being in opposition to its view and to other High Courts; the court does not follow them.
Jagat Chandra Roy v. Kalimuddi Sirdar [1922] 26 C.W.N. 880 Another decision aligned with the Calcutta view. Not followed by the court; recorded as part of the contrary line of authority.
Lakshmi Narain Varma v. Mohamad Hanif [1932] A.I.R. Lah. 368 Expressed view in agreement with Patna High Court that reasons need not be recorded and disagreed with a Rangoon single judge decision. Referred to as supportive of the court's position (agreement with Patna view).
Abdul Gani v. Abdul Kader [1923] I.L.R 1 Rang. 756 Single Judge of Rangoon High Court whose view (apparently favouring the Calcutta position) was disagreed with in some other High Courts. Cited as an example of a contrary view; the court prefers its own precedent and those of other High Courts that align with it.
Ratanshah Kuvasji v. Keki Behramsha [1945] I.L.R Bom. 141 Bombay High Court held that the court is not bound to record reasons for consenting to a withdrawal under S. 494. Used by the court to show a line of authority in agreement with its view; supports the conclusion that reasons are not obligatory.
Dattatraya Govinda Rao v. Emperor [1938] A.I.R. Nag. 76 Nagpur High Court indicated it is desirable to give reasons but not essential; the Criminal Procedure Code makes no such requirement. Cited by the court as supportive of the proposition that giving reasons is desirable but not legally compulsory; court notes it is bound to follow its own decisions in preference to other courts.

Court's Reasoning and Analysis

The court's analysis proceeds in distinct steps corresponding to the legal issues raised:

  1. Interpretation of S. 494 Cr.P.C. and applicability to Preliminary Register Cases:
    • The court examined the textual phrase in S. 494 — particularly the words "in other cases before judgment is pronounced" — and referenced Giribala Dasi v. Mader Gazi for the proposition that those words indicate a temporal limit (the outer limit up to which withdrawal may be permitted) rather than a restriction that the court granting withdrawal must already be empowered to pronounce final judgment in the case at the time of withdrawal.
    • The court noted S. 209 Cr.P.C. gives a Magistrate inquiring into a case the power, after recording evidence, to decide whether the case should be tried by himself or committed to the Court of Session; thus a case that begins as a Preliminary Register Case can become one in which the Magistrate may later pronounce judgment. This supports a broader reading of S. 494 to include PRCs.
    • On this basis the court agreed with the view that S. 494 is wide enough to include preliminary register cases and that the inability to pronounce a "judgment" at the initial stage does not by itself prevent the Magistrate from permitting withdrawal under S. 494.
  2. Whether reasons must be recorded when consent to withdrawal is given:
    • The court observed a clear division of opinion among High Courts. It summarized holdings: this court's earlier decision in In Re Sadayan held neither the Public Prosecutor nor the Judge was obliged to give reasons for withdrawal; Patna, Lahore, Bombay and Nagpur decisions were in general agreement with that approach; the Calcutta and Rangoon courts took a contrary view in a line of cases.
    • The court emphasized statutory interpretation: where the legislature requires reasons to be given in specific sections (examples: Ss. 263(h), 203, 209 and others), it has expressly done so. S. 494 contains no such express requirement; therefore it is not the function of the court to add to the statute by imposing an obligation to record reasons where none is prescribed.
    • The court concluded that S. 494 does not make it obligatory for the magistrate to record reasons for consenting to withdrawal. Further, absent any showing that the magistrate acted arbitrarily or unjudicially, the order of discharge cannot be interfered with on the ground of non‑recording of reasons.
  3. Discretion to entertain revision and procedural posture of the complainant:
    • The court observed there was no evidence that P.W.1 (the complainant) objected to the Public Prosecutor's withdrawal. On the contrary, respondents stated that both the case and a counter case were withdrawn and that the petitioner benefited from withdrawal of the counter case in which he had been accused.
    • The petitioner did not deny these facts to the court's satisfaction, nor did he avail the alternate remedy of applying to the Sessions Court to set aside the discharge (a remedy the court noted was open to him if he had just cause).
    • Given the complainant's apparent acquiescence and failure to pursue available remedies before invoking the revisional jurisdiction, the court treated this as a further reason not to exercise revision to disturb the discharge order.

Holding and Implications

Holding:

DISMISSED. The revision petition was dismissed and the order of discharge granted by the Sub Magistrate was not interfered with.

Implications:

  • Direct effect: The Sub Magistrate's order permitting withdrawal of P.R.C. No. 2 of 1946 under S. 494 Cr.P.C. and discharging the accused is upheld; the accused remain discharged and both the cited preliminary and calendar cases were withdrawn as directed by the Provincial Government via the District Magistrate.
  • On statutory interpretation: The court held that S. 494 Cr.P.C. is wide enough to include preliminary register cases and that the section does not obligate the court to record reasons for consenting to withdrawal; recording reasons is not a statutory requirement under S. 494.
  • Procedural consequence: Where a complainant did not object and had available remedies (for example, moving the Sessions Court), the revisional court is less likely to entertain revision against a magistrate's discharge order; absence of objection and failure to exhaust alternate remedies weighed against granting revision.
  • Precedential note: The court followed its own earlier decision (In Re Sadayan) and aligned with several High Courts (Patna, Lahore, Bombay, Nagpur) in holding that reasons for withdrawal are not obligatory. The opinion expressly declined to adopt the contrary Calcutta/Rangoon line. The decision applies the law as stated in the opinion to the facts of this petition; if no broader implications are discussed beyond that application, the immediate practical outcome is that no new procedural requirement to record reasons under S. 494 was created by this judgment.
N.T.R Petitions dismissed
Show all summary ...

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