Apurba Suna vs D. Kosala

R.N. Misra, J.—This is a reference u/s 438 of the Code of Criminal Procedure made by the learned Sessions Judge, Koraput at Jeypnre in the following circumstances:

Apurba Suna laid a complaint in the court of the Sub-Divisional Magistrate, Malkangiri. On 21-11-69 the complainant was examined u/s 200, Cr.PC and the Sub-Divisional Magistrate directed an inquiry u/s 202 of the Code. One of the persons complained against was a police constable. From the order sheet of the complaint case No. I.-C.C. 21/69 registered Under Sections 354/328, I.P.C. it appears that the enquiry report from the Tahsildar and Magistrate, First Class, Malkangiri had not been received until 24-2-70. The case was thereafter adjourned to 20:3-70. In the meantime on 2-3-70, the Court Sub-Inspector of Malkangiri made a petition for withdrawal of the case u/s 494, Cr.PC On that day the learned Sub-Divisional Magistrate passed the following order:

The Court Sub-Inspector, Malkangiri makes a petition for withdrawal of the case u/s 494, Cr.PC relying on the decision reported in (1965) 31 Cut LT 592. The C. S. I. is, however, empowered as a Public Prosecutor to file petition for withdrawal even in complaint case. Heard the C. S. I. Call for the records from the enquiring Magistrate. The enquiry has not yet been completed. The enquiring Magistrate is, however, directed not to enquire into the case further and to send the records at once to this Court for orders on the petition of the C. S. I., by 7-3-70. Send copy of the extract of this order to the enquiring Magistrate for information and necessary action.

On the 7th March, 1970, the learned Sub-Divisional Magistrate directed notice to the complainant and fixed the case to 10th March, 1970. On the 10th March, 1970, the following order was passed:

Complaint appears and files a memo expressing that she has no objection to the petition for withdrawal filed by the C. S. I., Malkangiri. This case has arisen out of U. C. 460/69 to disprove the allegation made in the latter case. Hence these are good grounds to allow the withdrawal petition. So consent of the court is accorded to the C. S. I. to withdraw the case. - The case is, . therefore, withdrawn and the accused named therein is discharged u/s 494 (a), Cr.PC as it is at the state of enquiry.

The complainant thereafter filed a petition before the learned Sessions Judge to have this order vacated. It was alleged that the complainant had never consented to the withdrawal of the case and the police constable and the Court Sub-Inspector had colluded together to bring about the withdrawal in a fraudulent manner.

The learned Sessions Judge has indicated in his order of reference that there is no memorandum in the record filed by the complainant accepting the withdrawal. He has been of the view that the private complaint could not be withdrawn by the Public Prosecutor. The order of reference has referred to a number of cases dealing with the role of the Public Prosecutor, including one of this Court in the case of In re Radhvi Gantayat, (1965) 31 Cut LT 592.

Section 494, Cr.PC provides:-

Any Public Prosecutor may, with the consent of the Court, in cases tried by jury before the return of the verdict, and in other cases before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and upon such withdrawal,-

(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;

(b) if it is made after a charge has been framed, or, when under this Code no charge is required, he shall be acquitted in respect of such offence or offences.

Das, J. in the case reported in (1965) 31 Cut LT 592 held that the Court Sub-Inspector was quite competent to file an application for withdrawal even in respect of complaint eases''- He placed reliance on two- decisions- one of this Court in the case of Ramchandra Panigrahi v. Laxman Das, (1954) 20 Cut LT 102 which had been disposed of by Narasimham, C. J. The other decision from which he wanted to receive support for his view was the case of Karu Mian and Others Vs. Kedar Lal, . It is not necessary to discuss at any length the legal position because their Lordships of the Supreme Court had occasion to deal with this very point of law in the case of State of Punjab Vs. Surjit Singh and Another, , and Vaidialingam, J. speaking for the Court in clear terms said:

The reasonable interpretation to be placed upon Section 494, in our opinion, is that it is only the Public Prosecutor, who is in charge of a particular case and is actually conducting the prosecution, that can file an application under that section, seeking permission to withdraw from the prosecution. If a Public Prosecutor, is not in charge of a particular; case and is not conducting," ''the prosecution, he will not be entitled to ask for withdrawal from prosecution, u/s 494 of the Code.

In the case on hand, it is found by the High Court, that the prosecution is being conducted by the complainant, viz., the first respondent herein and the prosecuting Deputy Superintendent of Police, Bhatinda, was nowhere in the picture, when he filed the application u/s 494 of the Code. The view of the High Court that such a Public Prosecutor is not entitled to file an application for withdrawal in the circumstances, is perfectly correct.

With these conclusions, their Lordships affirmed the Bench decision in the case reported in Surjit Singh Vs. Raj Pal and Another, . In the Punjab High Court in clear terms it had been stated that a Public Prosecutor could not withdraw, under provisions of Section 494, Cr. P, C. when the prosecution of a case pending before a Magistrate instituted upon a private complaint as he came nowhere in the prosecution of such a case and had no locus standi to withdraw from the prosecution.

After the decision of their Lordships of the Supreme Court upholding the view of the Punjab High Court in the aforesaid case, there is no room for doubt that in a complaint case the Public Prosecutor has no role to play, and as such, he cannot ask for withdrawal of the case u/s 494, Cr. P. C. This view seems to be absolutely logical- It would, therefore, follow that the view taken by Das, J. in this Court in 31 Cal LT 592 is not the correct law and must be taken to have been overruled by the decision of their Lordships of the Supreme Court. The learned Magistrate acts erroneously in allowing the withdrawal of the case at the instance of the Public Prosecutor and the complainant had reasonable cause to be aggrieved by such action. The learned Government Advocate has not been able to trace the memorandum signifying the consent of the complainant and I, therefore, accept the statement of the learned Sessions Judge in the order of reference that no such memorandum was actually filed. Normally, the order-sheet of a proceeding is entitled to a presumption of correctness, but in view of the absence of the document from the record and the view expressed by the learned Sessions Judge, which, I am sure, was one entered after due care and enquiry, the statement in the Magistrate''s order-sheet must be taken to be erroneous. The petitioner had, therefore, not signified her consent to the withdrawal at any point of time.

In such circumstances, I accept the reference, quash the order of the learned Magistrate dated 10-3-70 and direct that the enquiry u/s 202, Cr.PC be conducted with utmost expedition and the case be proceeded with in accordance with law. Since more than a year has been lost on account of the undue ''inter- ference of the Public Prosecutor in this case, due care should be taken to conclude the proceeding early.

I must observe that there is sufficient room for the feeling that the petition for withdrawal was the outcome of some collusion, and advantage was sought to be taken of the decision of this Court The Court Sub-Inspector wanted to cover up the constable. The public officer should not have done so. It indeed has the effect of stifling the prosecution as observed by the learned Sessions Judge.

The records be transmitted forthwith.