Dukhu Shyam Khamrui vs State

K.K. Mitra, J.—This is a Rule directed against the order passed by Sri A. K. Sen, Magistrate, First Class, Midnapore, in G.R-Case No. 92IN/67 refusing consent to the prayer of the prosecution to withdraw from the case u/s 494, Code of Criminal Procedure. The facts of the case are as follows:

One Shyamapada Sett of village Natun Bazar, Police Station Keshpur, district Midnapore, filed a complaint to the Police against the Petitioners on the allegation that on November 26, 1967, when he with the help of his laborers were engaged in reaping paddy from their lands, the Petitioner objected which led to an altercation and then to rioting and assault. One Dukhashyam Mondal was seriously injured as a result of the rioting and he died on his way to hospital. Some other persons were also injured.

The Police after investigation submitted charge against the Petitioners under Sections 148, 149/304 and 325/34, Indian Penal Code, on August 22, 1968. The ''case was transferred to Sri A.K. Sen, Magistrate, for the purpose of holding committal proceedings u/s 207A, Code of Criminal Procedure. When the committal proceedings in the Court of the Magistrate had been proceeding and three principal witnesses from the side of the prosecution had been examined and the case was fixed for examination of the accused persons u/s 342, Code of Criminal Procedure, on June 25, 1969, a petition was filed for withdrawal of the case on behalf of the State which was objected to by the complainant. The learned Magistrate, after consideration of the prayer made by the Public Prosecutor to withdraw from the prosecution in respect to all the accused persons, completely refused to give his consent thereto.

The prayer for withdrawal from prosecution was made on June 26, 1969, which was the date fixed for examination of the accused persons u/s 342 of the Code of Criminal Procedure. The learned Magistrate considered the evidence of the witnesses examined by the prosecution and all documents referred to in Section 173, Code of Criminal Procedure, including the medical report) the chemical examiners'' report and Police papers and was of opinion that a prima facie case had been made out and that the accused should be committed for trial. As such, after exercising his judicial discretion he refused to give his consent to the prosecution for withdrawal from the case and decided about committal of the accused stand trial in the Sessions Court.

Being aggrieved by his decision, the Petitioners accused persons moved the Sessions Judge under Sections 435/436, Code of Criminal Procedure, for setting aside the order of the learned Magistrate and for transfer of the case to some other Magistrate on the ground that the permission for withdrawal had been arbitrarily refused. The Sessions Judge rejected the prayer upon hearing the parties.

There is no controversy on the point that the Court Inspector who was conducting the case on behalf of the State in the Court of the Magistrate just filed a petition for withdrawal from prosecution u/s 494, Code of Criminal Procedure, without assigning any reason as to why such withdrawal was being sought for. It, however, appears that in the revisional application filed u/s 435, Code of Criminal Procedure, before the Sessions Judge, some reasons for withdrawal from prosecution had been given. It was stated in paras. 4 and 5 of the petition filed before the Sessions Judge on August 11, 1969, as follows:

Para. 4: That as the case arose purely out of a dispute concerning agricultural labour and their struggle for having fair wages which will enable them to exist, the Government thought it expedient to withdraw the prosecution in view of the avowed policy of the present Government.

Para. 5: That as a matter of State and public policy the Government thought it expedient to withdraw the case against the laborers, as the present Government does not like to crush the labour movement. Whatever was done, was done in furtherance of the policy of the Government to pull up a mighty labour movement.

It is, however, clear that in the petition for withdrawal u/s 494, Code of Criminal Procedure, filed before the Magistrate, the Court Inspector, that is, the Public Prosecutor did not in so many words narrate the reasons which was working in the mind of the Government for instructing the prosecution to withdraw from the case. It also appears from the order passed by the learned Magistrate that there was no submission from the prosecution disclosing the reasons for taking steps for withdrawal of the case.

Mr. Chatterjee, appearing for the Petitioner accused, urged that it was completely within the province of jurisdiction of the State to decide all questions regarding State policy and it was enough for the Court to be told just about existence of a State policy without disclosing the reasons behind that policy adopted by the Government and the nature thereto upon which the Court should give consent to the Public Prosecutor to withdraw from the case. It is thus contended that the Magistrate acted arbitrarily.

Section 494, Code of Criminal Procedure, runs as follows:

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.

No doubt, this section has been expressed in very general and wide words without defining the circumstances in which the Court would give its consent for withdrawal from prosecution. But, as in all cases when discretion is given to a Court, either to give consent or not, the Court has the imperative duty to exercise that discretion judicially and on well-established principles. Evidently, when the Court exercises its function in deciding the question of giving consent or refusing consent, such decision must be taken as part of a judicial function. The Public Prosecutor has got two fold duties and, though he is an executive officer, in the broader context he is an officer of the Court and that he is, as such, duty bound to render assistance to the Court. The Court can demand from him the benefit of such assistance to be rendered in due discharge of his duties and functions.

Mr. Chatterjee referred to Section 333, Code of Criminal Procedure, wherein it is provided that no consent of Court is necessary for a nolleprosequi by the Advocate-General in a Sessions trial before the High Court and wanted to draw an analogy with that provision in relation to the provision of Section 494, Code of Criminal Procedure. It is urged that the Court while considering the question of giving consent or withdrawing the same should be guided by the same principle and allow the State acting through the Public Prosecutor to secure withdrawal from prosecution as a matter of course on account of State policy. But the provision in Section 333 is entirely different from the provision in Section 494. There is thus no scope for making such comparison in the two distinct and different provisions to support a proposition that the Public Prosecutor has got, the same rights as that of the Advocate-General acting on behalf of the Government. The very fact that Section 333 is so made as to leave it for the Advocate-General to think fit that) he would not further prosecute the Defendants upon the charge makes it clear that it is the unfettered discretion pi the Advocate-General irrespective of any consent of the Court in season over the matter that the proceedings must be stayed and the Defendants discharged of the charge. It is well-settled that entering nolleprosequi by the Advocate-General does not require the consent of the Court as in the case of the Public Prosecutor u/s 494, Code of Criminal Procedure.

The functions, powers and duties of the Advocate-General so far as it is conferred upon him u/s 333, Code of Criminal Procedure, is entirely different and, therefore, Section 494 must be construed and interpreted with reference to the language and words used in that section without making any confusion in respect to the provisions of that section by drawing any analogy with Section 333 which relates to an entirely different matter. There is no such provision in the Code of Criminal Procedure for withdrawal of suit. All that Section 494 provides is that the Public Prosecutor may with the consent of the Court withdraw from the prosecution. Withdrawal of prosecution is not the same thing as withdrawal from prosecution. As a result of consent given by Court to the Public Prosecutor to withdraw the case ends either in discharge or acquittal of accused as stated in Section 494, Code of Criminal Procedure. The proceeding is never terminated just because the Public Prosecutor, in spite of refusal of consent, chooses to withdraw from the prosecution though it is expected that no Public Prosecutor who has a duty to render assistance to the Court would do so after consent is refused. But, even if after refusal of consent the Public Prosecutor declines to assist the Court and perform his duties enjoined on him to assist the Court, the Court is not incompetent or helpless in proceeding with the prosecution. In fact, he must proceed with the trial with such assistance as he obtains. After such refusal of consent, if the Public Prosecutor declines to assist the Court, the Court has ample power given u/s 495 to permit the prosecution to be conducted by any other person either personally or by a pleader. Now, such officer or person as appointed u/s 495(1), Code of Criminal Procedure, permitted by the Court for conducting the prosecution, will have similar power of withdrawing from the prosecution as provided in Section 494, Code of Criminal Procedure. A situation may, therefore, be created when the Court would be placed in a situation when there would be neither a Public Prosecutor nor any person or officer appointed u/s 495, Code of Criminal Procedure, to carry on the prosecution and render assistance to the Court, and in such situation it would perhaps be simply the duty of the Court to proceed with the trial on his own initiative without getting any assistance whatsoever from the side of the prosecution.

None the less a Public Prosecutor is a person appointed u/s 492, Code of Criminal Procedure, by the State Government, as in all criminal cases, the State is the Prosecutor. But, once a criminal case is started and the Public Prosecutor is appointed by the State to conduct the prosecution, such a Prosecutor, though an executive officer, is in the broader sense as much an officer of the Court functioning just as a lawyer and that he is bound to assist the Court, and refusal of assistance on his part to render assistance to the Court when his prayer from withdrawing from the prosecution on the instruction of the State is not consented to by the Court who has season over the matter might; lead to undesirable result as the Court by virtue of his position under the law is bound to perform the duties of his office duly and faithfully in accordance with the law of the land to the best of his ability.

Mr. Chatterjee has referred to some decision of the Patna High Court. In the case of The King Vs. Parmanand and Others, the Full Bench of the Patna High Court, in the facts and circumstances of the case, decided to set aside the order of the Magistrate withdrawing the case and discharging the accused and directed that the Magistrate should proceed with the prosecution. In that case the Police after investigation submitted charge-sheet against six persons of whom five including Paramananda Marwari and his cousin Shyamlal Marwari under Sections 380, 411 and 120B, Indian Penal Code. The case was received on transfer by Mr. R.K. Lal, Magistrate, First Class, for trial. In course of the trial the record had been submitted by the Magistrate to the Government; in compliance of the request of the Government of Bihar (Political Department) on the strength of a private prayer for withdrawal of the case on the basis of a petition submitted to the Chief Minister of the province by Paramananda and Shyamlal. The learned Magistrate stayed the proceedings and went so far as to send the record to the Government. The Full Bench of the High Court in emphatic terms disapproved such action on the part of the Magistrate and stated that the Magistrate had acted wrongly in the master of procedure to be followed in administration of justice and that he must exercise his judicial independence when he had season of the case without in any way being regulated in the matter of his procedure by instructions he received from the Government. The learned Magistrate purported to permit the withdrawal of the prosecution merely in consequence of the Deputy Commissioner''s order including a letter from the Legal Remembrance to the effect that in the circumstances appearing from the record the chances of a successful prosecution u/s 411, Indian Penal Code, against the two persons seem to be remote and, therefore, the criminal case be withdrawn. In that case, it was so held that the Court would be reluctant to direct the prosecution of all such persons against whom Government does not desire to proceed unless there is evidence which requires judicial consideration, and in that view the Court went to examine the report which led the Government to decide not to proceed with the prosecution. This decision of the Patna High Court lays down a proposition that even when the Government feels that on the basis of the evidence available the chance for conviction was remote and that the case might be withdrawn, it remains for the Court to examine the evidence to find out whether such inference on the part of the Government was correct or not.

There is a Single Bench decision in Ramesh Jha and Others Vs. The State, wherein the order of the lower Court granting permission to the Public Prosecutor to withdraw from the prosecution and pass order as to discharge the accused in terms of the provisions of Section 494, Code of Criminal Procedure, was maintained for the reason that the prayer of withdrawal was made on the ground of inexpediency of the prosecution to proceed with "the case for reasons of the State. In that case it may, however, be pointed out that the prayer for withdrawal by the Public Prosecutor was made at a time when the evidence have not been recorded at all, and at that stage the Public Prosecutor prayed for withdrawal on the ground of the opinion of the State for reasons of State without, of course, disclosing what were the considerations for which the State considered it inexpedient to proceed with the case for reasons of State. It is to be noted that the Full Bench decision in The King v. Paramananda (Supra ) had not been placed for consideration of the learned Judge deciding the case.

The Full Bench decision of the Patna High Court along with several other decisions of this Court and the Madras High Court had been considered by their Lordships of the Supreme Court in the case of the The State of Bihar Vs. Ram Naresh Pandey, . It is stated therein as follows:

There is however a general concurrence� at least in the latter cases- that the application for consent may legitimately be made by the Public Prosecutor for reasons not confined to the judicial prospects of the prosecution. (See The King Vs. Moule Bux and Others, , and The King Vs. Parmanand and Others, . So it is clear that what the Court has to determine for the exercise of its discretion in granting or withholding consent, is not a triable issue on judicial evidence.

In that case prosecution was launched on the basis of first information as against 28 persons for various offences including an offence punishable u/s 302, Indian Penal Code, arising from an occurrence as to mutual fight between rival unions of a colliery. The prayer of the Public Prosecutor for withdrawal of the case was restricted to only one of the accused persons, Mahadeb Desai, on the ground that on the evidence available it would not be just and expedient to proceed with the prosecution of that person and, therefore, it was necessary to withdraw the case against him. The learned Magistrate also after applying his judicial mind gave consent as he found that the evidence against him was meagre and that, there was only a single item of evidence of dubious nature against him which was not likely to establish a prima facie case. Thus, the order of discharge passed by the learned Magistrate u/s 494, Code of Criminal Procedure, was not disturbed in revision by the Sessions Judge and the private parties referred the matter to the High Court in revision. The High Court set aside the order on a finding that there was no exercise of discretion properly and the Magistrate must first proceed to record the evidence to see if a prima facie case was established. Their Lordships in the Supreme Court disagreed with the view taken by the Patna High Court and decided as follows:

We are, therefore, unable with great respect to subscribe to the view taken by the learned Chief Justice whose judgment is under appeal, 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. We are not to be understood however as implying that such evidence as may already have been recorded by the time the application is made is not to be looked into and considered in such cases, in order to determine the impropriety of withdrawal as amounting to abuse or an improper interference with the normal course of justice.

This decision of the Supreme Court outlines the principles to be followed in exercising the discretion in the matter of giving consent for withdrawal from prosecution u/s 494, Code of Criminal Procedure.

In the instant case, evidence had been adduced by the prosecution to establish a prima facie case against the accused persons. The learned Magistrate had, therefore, looked into such evidence as already on record to determine whether a prima facie case had been established. In fact, the prayer for withdrawal from prosecution was not made on the ground of inadequacy of evidence requiring judicial consideration. When no evidence has been recorded by the Magistrate there arises no scope for making a judicial determination on the question of sufficiency or adequacy of evidence which might be given to prove a prima facie case. In such. circumstances, the duty of the Court in deciding the fitness of the prayer for withdrawing is very little. The Court has to determine judicially the propriety or impropriety of the prayer for withdrawal from the standpoint if it is an improper interference with the normal course of justice. But, the situation completely changes when evidence had already been given by the prosecution to prove a case when the Court| cannot be expected to shut its eye upon such evidence and submit to the prayer of the Public Prosecutor to withdraw from prosecution.

The primary and principal responsibility for prosecuting serious offences rest with the executive Government and, therefore, the exercise of judicial discretion for giving consent to withdrawal from prosecution must be exercised confining the attention to determine if the executive function of the Public Prosecutor had not been improperly exercised or that it was an attempt to interfere with the normal course of justice for illegitimate reasons or purposes.

In the instant case, there could be no such ground for withdrawal from prosecution on account of inadequacy of evidence when actually evidence had been adduced and the learned Magistrate considered such evidence and found such evidence to be sufficient to establish a prima facie case as needed in trial for enquiry before commitment. It cannot, therefore, be said that the learned Magistrate went wrong or exercised his discretion arbitrarily.

The ground for withdrawal as arising from the State policy and the particulars of the State policy had, of course, been mentioned in the petition filed before the Sessions Judge before whom the rejection of prayer for withdrawal passed by the Magistrate was challenged in revision. The sum and substance of the State policy as stated before the Sessions Judge was to the effect that the case resulting in murder arose out of a dispute concerning agricultural labour in their struggle to get fair wages and the present Government did not like to crush the labour movement} whatever was the consequence as it had been done in furtherance of the policy of the Government. The executive Government is the proper authority to decide about the policy to be. followed by the State in the administration of the country. Whether a State policy can go to the extent of allowing people to commit murder without any risk of being dealt with for such acts punishable under the Indian Penal Code is a question of considerable importance upon which it is not necessary to give any decision in the scope of this case where the simple question is, if in the circumstances of the case the Magistrate did anything improper, illegal or wrong, when he refused permission to withdraw from prosecution. It may very well be that in spite of there being sufficient evidence to proceed with the prosecution for offences committed, the State as a matter of policy might not start any prosecution. But, once the prosecution is started and evidence has been given to prove the charge, the Court cannot be said to overlook or ignore the evidence already taken and recorded in accordance with law at the instance of the prosecution and still permit the prosecution to withdraw the case on the ground of State policy. Obviously, there might be reasons other than inadequacy of evidence for which the State through the Public Prosecutor may ask for withdrawing from prosecution. But, after evidence had been given, the Court has got to exercise its judicial discretion to determine the question of giving consent upon assessment of the evidence which" prosecution adduced at the trial.

The learned Magistrate had, therefore, rightly refused to give his consent to the prayer of the Public Prosecutor to withdraw from the prosecution, and I find no reason to interfere with the order passed by the learned Magistrate. It is contended that the complainant himself does not now object to the prayer for withdrawal. The question of giving consent is a matter resting with the Court in season of the case and the attitude of the complainant is of no consequence.

Mr. Chatterjee also submitted that the parties want permission to compound the offence u/s 325, Indian Penal Code. I leave the matter as it is, when the revisional application fails and there is no scope to act u/s 354(5A) of the Code of Criminal Procedure.

The Rule is, therefore, discharged.