Nirmal Singh Sher Singh, Complainant vs Gainda Mal and Another

Teja Singh, C.J.—This is an application by the complainant for the transfer of a case u/s 392, I.P.C. pending in the Court of Magistrate 1st Class, Mansa. Originally notices were issued only to the accused who were made parties to the petition but as I found that some of the questions urged by the Petitioner''s counsel were of general importance I issued notice to the Advocate-General and heard him also.

The complainant lodged a report with the Police on 23-2-1953 that he had been robbed by the accused of his purse containing some currency notes and cash. The Police after investigation, challenged the accused in Court on the 25th. and along with the Challan produced three witnesses. The Magistrate (S. Jogindar Singh Karamgarhia) recorded the statements of the two witnesses and after partly recording the statement of P. W. Surjit Singh adjourned the case to the 27th for his cross-examination. On that day a question put to the witness by the accuser''s counsel was objected to. The Magistrate instead of deciding the objection and proceeding with the" further cross-examination of the witness adjourned the case to the 14th March for arguments on the point whether the question -objected to could be asked. There can be no doubt that the adjournment was altogether unwarranted and taking into consideration the SIMPLE nature of the point involved, it was the Magistrate''s duty to decide it there and then. The record shows that when the accused were produced before the Magistrate for remand on the 24th February, they applied for bail. They were'' remanded to judicial custody till the 2nd March and a notice of their application for bail was ordered to issue to the P.S.I. for the 25th. The only order made on the bail application on the 25th was "To come up with the file" but in spite of this it does not appear to have been considered or decided either on the 25th or on the 27th. As will be observed the case was adjourned on the 27th to the 14th March but for some reason or the other which is not clear from the record .the application for bail was considered by the Magistrate on the 5th March in the presence of the P.. S. I. but in the absence of the complainant and both the accused were enlarged on bail on their furnishing sureties in the sum of Rs. 1000/- each.

By the 14th S. Jogindar Singh Karamgarhia was transferred and his place was taken by S. Udham Singh. The accused taking advantage of Section 350, Code of Criminal procedure requested S. Udham Singh to resummon the prosecution witnesses whose statements had been recorded by his predecessor. Accordingly the case was adjourned to the 16th March. What exactly happened on the 16th . March and why no proceedings in the case were taken on that day is not clear from the record and the only thing that we know is that the Prosecuting Sub-Inspector put in a complete challan. The order of the 16th does not even show to which date the case was adjourned. The next date on which the case came up before the- Magistrate was 2nd April and the order of that date was "Nirmal Singh complainant had intimated the Court that he wanted to apply for the transfer of the case. The case was, therefore, adjourned to the 27th April." On that day Nirmal Singh informed the Court that he had . already made an application to the High Court for the transfer of the case. Because of the .representation made by the complainant and also because no prosecution witness was present; -the case was adjourned to the 14th May. On that day the Public Prosecutor applied to the Court that he be permitted to withdraw the case and the accused be "discharged or acquitted." The application" was dated 30-4-1953 but it was actually submitted to the Magistrate on the 14-5-1953. It was mentioned therein that the Publie Prosecutor had been intimated by. the District Magistrate, Farldkot that the above case "has been falsely made by the complainant and the same is to be withdrawn."

The present application was submitted to the High Court by the complainant on 24-4-1953. lie prayed not only that the case be transferred ''from the Court of the trial- Magistrate, but further that it should be taken out of the District of Bhatinda and made over to a Magistrate outside that District. The main allegations on ''the basis of which he made the prayer were: (i) that the Magistrate deliberately prolonged the case by refusing to record the statements of Witnesses who were present in Court on more,n one date; (ii) that the accused wielded great local influence and carried on intensive propaganda in the locality that the case was. false; (iii) that the accused and their friends approached the Police authorities as a result of which the Sub-Inspector of Police who had investigated the case and had challenged the accused was suspended under the orders of the local Superintendent of Police and efforts were being made to have the case withdrawn; (iv) that the Police Prosecutor who is in charge of the case showed disinclination to take further interest in the case and (v) that owing to the suspension of the Sub-Inspector who challenged the case and other incidents the case had become a subject-matter of common talk in the District and the complainant had a reasonable apprehension that no criminal Court situate in Bhatinda would decide the case impartially and without being influenced by the opinion formed by the local officials as regards the merits of the case. A copy of the complainant''s application was forwarded to the trial Magistrate for his comments. His report which is dated 7-5-1953 was that it was difficult for him to say whether the accused wielded great influence but it had come to his notice that the prosecution intended to withdraw the case and that the Sub-Inspector who investigated the case had been placed under suspension.

The point stressed before me by S. Ujagar Singh, counsel for the Petitioner is that the Public Prosecutor by incorporating the order conveyed to him by the District Magistrate and his opinion that "the complainant had started -a false case" had not only created situation for the trial Magistrate which left him no option but to permit the withdrawal of the case and had thereby tried to force his hands but had also committed the offence of Contempt of Court. Learned Counsel argued that though it was open to the Public Prosecutor to apply to the Court for the withdrawal of the case actual withdrawal could only take place with the consent of the Court, that is to say, it was for the Court to decide after taking into consideration the merits and the circumstances whether or not the Public Prosecutor should be allowed to withdraw from the prosecution. Learned Counsel further argued that an order of a Court consenting to the with drawl of the case by a Public Prosecutor u/s 494 is a judicial order, that it is liable to be questioned by the higher Courts and the Public Prosecutor had no right whatsoever to influence the Magistrate''s decision by stating that the District Magistrate had already applied his mind to the merits of the case and had come to the conclusion that the case was false. On giving careful consideration to the matter, I cannot help observing that there is much force in S.''Ujagar Singh''s arguments.

The words of Section 494 are 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 offences.

These words, in my opinion, leave no doubt that the Public Prosecutor cannot withdraw from the prosecution unless he is allowed to do so by the Court and since the order of the Court accepting or rejecting the Public Prosecutor''s request for withdrawal has to be a judicial order it must be made on merits and not because some other person or authority is of the view that the case is false. It must be remembered that when once a case is before a Court of law, it is for that '' Court and that Court alone to decide whether the case is true or false and if any other person ventures to form an opinion on this point and communicates that opinion to the Court during the pendency of the case his conduct amounts to interference in the administration of justice and consequently to contempt of Court. The same remarks apply to a person who communicates to the. Court someone else''s opinion about a pending case, in the Court. I am aware that the District Magistrate being the head of the Prosecuting Agency has a right to keep a watch over the progress of cases in criminal Courts and he has also the right to issue orders to the Public Prosecutor of his District as to how he should conduct'' himself in a particular case, or what line of action he should adopt as the Prosecutor, but if he happens to convey his views to the Public Prosecutor about the merits of a case the Public Prosecutor has no right whatsoever to communicate those views to the Court.

I think it is also desirable to say a word regarding the duties of District Magistrates with regard to pending cases and'' the attitude that they should adopt towards them. It goes without saying that the fate of every case must depend upon the evidence that has to be examined and the examination of the evidence and the determination of the question whether the evidence is worth the reliance or not are the functions of the Court and of no one else. This means that if any other person takes upon himself to examine evidence relating to a case'' which is pending in Court with a view to finding out how far that evidence is trustworthy and he conducts those proceedings in such a manner as to affect or interfere with the functions of the Court he opens himself to the orange of interference with the course of justice. In this connection I cannot do better than refer to the remarks of Davis C. J. in - ''Emperor v. Sital Das'' AIR 1943 Sind 109 (A).

In that case the complainant was a poor widow and the accused were influential men. The complaint against the, accused was of a serious nature but for various reasons, one of which was that her case was transferred by the District Magistrate to an out of the way Court, she approached the District Magistrate with an application that she did not want to go on with her complaint. The District Magistrate instructed the Public Prosecutor to withdraw the case on'' the ground. of ''Public Policy''. The learned Chief Justice strongly criticized the conduct of the District Magistrate and remarked:

If we were to accept this loose and specious term ''public policy'' as a good ground for the withdrawal of a case, the withdrawal of a prosecution might well come to depend upon the whim and caprice of a District Magistrate and be used, as it has been here used, as a cloak or cover for the oppression of the weak and helpless.

As regards the practice of withdrawing cases on the ground that the evidence in the case is false, this is what the learned Chief Justice observed:

The Code of Criminal Procedure has made provision for the compounding either with or without the consent of Court of many cases, and where a case cannot be compounded according to law, it is to be assumed, the Legislature intends that ordinarily the law should take its course and the prosecution should proceed according to law. If there are mitigating circumstances in any case, it is always open to the Magistrate at the end of the trial to adjust the punishment accordingly. If it turns out that the complaint is false and the evidence is false, the Code of Criminal Procedure provides ample means for the Magistrate to take action against the false complainant and the false witnesses. But for a District Magistrate'' to decide at the beginning of a case, before the trial Court has even heard the witnesses, that these witnesses are false, that the case is false, is ordinarily to usurp the functions of the trial Court and is improper. For, after all, it is the trial Court which is to see and hear the witnesses; it is the trial Court which is in a position to decide whether the, case is true or false; and a trial Court has power to dismiss a complaint at a very early stage if it thinks proper. Where it is quite clear, a case must fail because there is no evidence on which it can succeed, that may be a good ground for withdrawal from the prosecution and the Public Prosecutor can say so and it will not be necessary to invoke this loose and specious term ''public policy''. Ordinarily, however, it should be left to the trial Magistrate in his free and judicial discretion to dismiss a complaint.

I respectfully concur with these observations, but wish also to add that where a Public Prosecutor applies for the withdrawal of a case on the ground that there is no evidence in support of it, his duty is merely to state the fact and leave it to the Court to form his independent opinion thereon. He cannot quote the opinion of the District Magistrate and if he does so his conduct may be regarded as an effort to influence the judgment of the Court. I dare say that it is for this reason that the learned Chief Justice held that ordinarily it should be left to the trial Magistrate to dismiss the complaint if there is no evidence. Viewed in the light of the above, I have no hesitation in holding that the conduct of the Public Prosecutor in the present case was open to serious objection.

I may also mention that Section 494, as is clear from its words, merely authorises the Public Prosecutor to withdraw from the prosecution and does not enable him to withdraw the case. This aspect of the matter was considered by a Pull Bench of the Patna High Court in - The King Vs. Parmanand and Others, In that case the Police submitted a charge-sheet against six persons and the Sub-Divisional Magistrate being of the view that the case required judicial investigation transferred it to the Court of Mr. R.K. Lall, a Magistrate of the First Class. Some of the accused persons sent a petition to the Prime Minister of the State praying that the proceedings in the case be stayed and the record be sent for perusal. In pursuance of this letter the Chief Secretary wrote to the additional Deputy Commissioner of the District asking him to submit his report regarding the. facts of the case and in the meanwhile "to take steps to get the case adjourned until further" orders." The Deputy Commissioner forwarded the Chief Secretary''s letter to the Sub-Divisional Officer for report and with the endorsement that the case should be adjourned until further orders. The Sub-Divisional officer in his turn forwarded the Chief Secretary letter to the City Magistrate with the ''" request to prepare a report by a given date and further to examine the Police Papers carefully, to .compare them with the contention of the Petitioner/ and to report to Government whether the, case was likely to succeed." The City Magistrate - on receipt ''of this letter added his own endorsement to it, directed to the Bench Cleric of Mr. Lall Show Mr. Lall who will please adjourn this case as directed." In compliance with the City Magistrate''s wishes Mr. Lall adjourned the case from time to time and sent the record and the case diary to the Deputy Commissioner. On the receipt of the City Magistrate''s report Government decided not to proceed with the prosecution of the two accused who had made representation to the Chief Minister and the Deputy Commissioner wrote a letter to the Magistrate saying that the case against the said accused was ordered to be withdrawn. On this the Magistrate passed the*following order:

The case against Babu Parma Nand and Sham ''Lal is withdrawn u/s 494, Code of Criminal Procedure and I, therefore, discharge them u/s 494.

The Full Bench set aside the above order and directed the Magistrate to proceed with the prosecution, as regards Section 494, Agarwala C. J. who delivered thx leading judgment of the Bench observed that the Section did not authorise the withdrawal of a case but it merely authorised the Public Prosecutor to withdraw from the prosecution and that only with the consent of the Court. He said:

The Court is not bound to give its consent. As the effect of the withdrawal of the Public Prosecutor with the consent of the Court is either discharge or acquittal'' of the accused, as the case may be, the giving or withholding of consent is a judicial act and the discretion conferred on the Court must be exercised judicially.

Later on, after disassociating himself from the View that the Prime Minister or any other Minister or Executive Officer has the power to usurp the functions of the Court or to take the case tout of the seizing of the Magistrate before whom it is pending for trial, his Lordship added:

The most the Section authorises is that the Public Prosecutor may withdraw from the prosecution if the Court consents to his doing so. This merely means that the Public Prosecutor may, with the leave of the Court, discontinue his assistance to the Court.

Then he compared the words of Section 494 with Section 333 which lays down that in a trial before a High Court the Advocate-General may inform the Court on behalf of the Government that he will not further prosecute the Defendant upon the charge, and lays down that when the Advocate-General so informs the Court all the proceedings on such charge against the Defendant shall be scaled and he shall be discharged etc. his Lordship remarked:

Here, it will be observed, the consent of the -'' Court is not necessary nor has the Court any power to proceed with the hearing of the charge against the accused after the Advocate General has stated that he will not further prosecute it. The position is entirely different u/s 494. The Public Prosecutor is only authorised to withdraw from the prosecution with the consent of the Court and the Section does not provide that the proceedings shall be stayed or terminated if the Court does not con sent to the Public Prosecutor''s withdrawal.

There may be cases in which the Court on a consideration of ttie Public Prosecutor''s application to withdraw from the- prosecution considers that the prosecution should proceed. In such a case the Court will be acting with in its powers, and rightly, to refuse to accede to the Public Prosecutor''s request to withdraw from, the Prosecution. If, after such refusal the Public Prosecutor declines to assist the Court, the. Court has power u/s 495 to permit the prosecution to be conducted by any other person, either personally or by a pleader.

Narayan J., while agreeing with the learned Chief Justice in the conclusion, reached by him. added the following remarks as regards the in query that the Government .conducted into the facts of the case:

It is a cardinal principle that when a matter is pending for decision before a Court of justice nothing should be done which might disturb the free- course of justice and this Court will discountenance any attempt on the part of any executive officer howsoever high he may be to prejudge the merits of the case and to usurp the functions of the Court which has got seisin of the case. Such a practice is fraught with immense danger and I was surprised to hear the learned Advocate contending that a parallel inquiry could be started by the Government. If we accede to the argument of the learned Advocate General that a parallel inquiry can be started we will be opening the door for contempt and impediment in the course of justice.

There is no definite evidence in the case to show that any parallel inquiry about the facts of the case was conducted either by the District Magistrate or by any other authority after it had been put in Court. This much, however, is clear that the view taken by the District Magistrate that the case was false, and which has been communicated by the Public Prosecutor to the trying Magistrate, has created a difficult situation for the Magistrate and I am in complete agreement with S. Ujagar Singh that it has become very difficult for the Magistrate to consider the Public Prosecutor''s request dispassionately and without being influenced by the opinion of the District Magistrate. Yet Anr. difficulty has been creat ed by the action taken, by the Superintendent of Police of the District against the Sub-Inspector who investigated the case. It is true that unlike the District Magistrate the Superintendent of Police has no direct authority over the Magistrate, but it must be admitted that the suspension of the Sub Inspector by the Superintendent of Police which can well be taken to show that the Superintendent was not satisfied with the investigation is bound to have some effect upon the Magistrate posted in the District. I should not be taken to imply that I have no faith in the independence or impartiality of the Magistrate. On the other hand, I trust that in spite of the view of the District Magistrate and the action taken by the District Superintendent of Police against the investigating Sub-Inspector the Magistrate will bring upon the facts of the case his independent judgment. At the same time it must be recognised, and this has been held by our High Court and other High'' Courts in India in several cases that it is not so much the manner in which the Magistrate is going to act in a particular case that should decide the fate of an application for transfer but the feelings of the parties and if the High Court is convinced that there exists a genuine and reasonable apprehension in the mind of a party that the Magistrate in whose Court his case is pending is not likely to be fair and impartial the case must be taken out of the hands of that Magistrate. The principle to be observed in cases of his kind is that it is not only necessary that justice shall be clone; it is also necessary that it should be plain to all, including the parties to a case that it is being done. Of a large number of cases bearing on the point I may refer only to - Ram Prasad Mandal and Others Vs. The King, in which the case, was transferred from the Court of a Magistrate not because there was anything against the Magistrate himself but because the Sub-Divisional Magistrate to whom the Magistrate was subordinate had taken a certain view which made the accused apprehend that he would not get in partial justice. The following observations made by one of the Judges who disposed of the case are important;

It is necessary to observe, and I wish to emphasise this, that in the present cases there is nothing whatever against the Magistrate in whose Courts the cases are now pending. Far from it, against them there are not even any allegations. Nevertheless, here again we have to regard the matter from the point of view of the. accused persons. These Magistrates are in direct administrative subordination to the Sub-Divisional Officer... .. .. ..The Petitioners, therefore, may understandably feel some lack of confidence in all the subordinate Magistrates of the sub-division, if they suspect the disinterestedness of the Sub-Divisional Officer. This apprehension of theirs, whether or not it has any factual basis must be taken into account by the High Court.

For all these reasons I accept the petition and withdraw the case from the Court of Magistrate, Ist Class, Mansa and order that the record be sent to the District Magistrate, Barnala with the direction that he should make it over for dis-posal.to a Magistrate Ist Class at Barnala.

Copies of this order should be sent to all the District Magistrates of the State and a copy should also be forwarded to the Chief Secretary for information of the Government.