Gopi Bari And Others Accused v. Emperor Opposite Party.

1. This is an application to set aside the order of the trying Magistrate, dated 13th April, 1920, refusing the petition of the Court Sub-Inspector, who asked for permission to withdraw from the prosecution under Section 494 of the Cr PC. The order complained against runs as follows:

“In this case the police submitted charge sheet under S. 143, I.P.C Today the Court Sub-Inspector puts in a petition under Section 494 of the Cr PC, asking for permission to withdraw from the prosecution. A petition of protest has been filed by the complainant to proceed with the case, which he can prove. Accused are all present. They will give bail of Rs. 50 each. Witnesses are all present, recognizance of Rs. 10 each to appear tomorrow as under the circumstances stated above the case will need to proceed.”

2. The first question that arises for consideration on this application, is whether an order refusing to give permission to the Public Prosecutor to withdraw from the prosecution is a judicial order or not.

3. It was held in the case of Umesh Chandra Roy v. Satis Chandra Roy(1) that

“when a Court, acting under Section 494 of the Cr PC, gives its consent to a withdrawal from a prosecution, it should record its reasons in order that the High Court may be in a position to say whether the discretion vested in the Court has been properly exercised.”

4. In my opinion, it is perfectly clear that an order passed under S. 494 is a judicial order and the discretion vested in the Court cannot be arbitrarily exercised but must be exercised properly.

5. I now proceed to consider whether the discretion vested in the Court has been properly exercised by the Magistrate in this case or not. The Magistrate in the explanation has submitted that his only reason for not granting the prayer of withdrawal was that the complainant could prove his case aud desired to proceed. This raises a very important question as to how far a complainant in a case started on a police report can control the proceeding in Court in defiance of the Public Prosecutor. In a case under Section 526 of the Cr PC, Hari Prasad Pandey v. Jagannath Singh (Criminal Miscellaneous No. 96 of 1916), the Chief Justice and Sharfuddin, J., held that

“the case having been instituted by the police after an enquiry made upon a report by he applicant, the applicant has no right to apply for transfer where the Crown opposed it.”

6. The same view of law has been recently laid down in the case of Jamuna Kanth Jha v. Budra Kumar Jha(2) and it was held therein that

“where there is a conflict between the private prosecutor and the Public Prosecutor in the matter of a transfer of a case, the right of the latter must prevail.”

7. It is conceded that in the present case the conduct of the prosecution was in the hands of the Court Sub-Inspector, who was the Public Prosecutor within the meaning of Section 4, Clause (t) of the Cr PC. I have absolutely no doubt that the complainant in the present case was a person, who had only to assist the Crown for the purposes of bringing the offender to justice, and his position was no higher than that of a witness in the case. Under these circumstances when the Public Prosecutor applied to withdraw from the prosecution, the Magistrate could not refuse the application simply on the ground that a witness wanted that the case should be proceeded with. The Magistrate had no jurisdiction to reject the application on that ground. This Court would not ordinarily interfere with the discretion of the subordinate judiciary, but where that discretion is exercised arbitrarily or wantonly, this Court is bound to interfere. If the Magistrate had refused the application of the Court Sub-Inspector on its merits though reasons for refusing to do so may have been erroneous, this Court would not have interfered. But the learned Magistrate, according to his own explanation appears to have rejected the petition of the Public Prosecutor simply because the complainant wanted to proceed with the case. By this order the learned Magistrate has given a higher position to the complainant than the law entitled him to give to him. It appears to me that the Magistrate was under the impression that the power of the Court Sub-Inspector to withdraw from the prosecution was subordinate to the pleasure of the complainant. That this view of the law is erroneous is obvious from the consideration of the general scheme of the Code of Criminal Procedure. It was pointed out by Bayley, J., in Burdett v. Abbot(3) that

“any private person in the absence of statutory provision to the contrary can commence a criminal prosecution, but the prosecution is always at the suit of the Crown. Hence it is that criminal proceedings were called pleas of the Crown. The Crown only can stay process or remit a punishment awarded by any Court.”

8. The order of the Magistrate therefore in my opinion was absolutely without jurisdiction and must be set aside.

9. The case seems to be a petty one and no reason, except the one which I have stated above, has been given why the application of the Court Sub-Inspector should have been rejected. In my opinion the learned Magistrate failed to exercise the jurisdiction vested in him by law and there being nothing against the granting of the application of the Court Sub-Inspector to withdraw from the prosecution, his application should have been granted.

10. I think it is in the province of this Court in a case like this to accept the application of the Court Sub-Inspector, who asked for permission to withdraw from the prosecution, and pass the order which ought to have been passed by the Magistrate. If the learned Magistrate had accepted the petition of the Court Sub-Inspector, the result of the case would have been the discharge of the accused. I have already shown that there was no reason for refusing the application and I therefore grant the application and direct the discharge of the accused, which would have been the result if the application of the Court Sub-Inspector had been granted by the Magistrate.

V.S/R.K

11. Order set aside;

12. Accused discharged.