- (1.) These appeals arise out of an order of discharge passed by the Subordinate Judge Magistrate of Dhanbad under S. 494 Criminal P.C., on his consenting to the withdrawal of the Public Prosecutor from a prosecution pending before him in so far as it was against the appellant Mahesh Desai, one of the accused therein. The prosecution was launched on the first information of one Ram Naresh Pandey as against 28 persons about the commission of the murder, of one Nand Kumar Chaubey a peon of a colliery in Bagdigi committed in the course of a serious riot on February 20, 1954. This was said to have resulted from differences between two rival labour unions in connection with a strike. The prosecution as against most of the other persons is under various sections of the Penal Code including S. 302, on the ground of their actual participation in the commission of the murder. But as against the appellant, Mahesh Desai, it is only under S.302 /109 Penal Code, the part ascribed to him in the first information report being that he abetted the murder by reason of certain speeches and exhortations at meetings or group talks the day previous to the murder. The application for withdrawal as against the appellant was made, on December 6th 1954, when the matter was pending before the Magistrate in the committal stage and before any evidence was actually taken. It was made by the Public Prosecutor on the ground that "on the evidence available it would not be just and expedient to proceed with the prosecution of Shri Mahesh Desai and that therefore it was necessary to withdraw the case against Sri Mahesh Desai only". It was elicited in the course of the argument before the learned Magistrate that the position of the Public Prosecutor was, that the evidence regarding the complicity of this accused was meagre and that there was only a single item of evidence of a dubious nature against him which was not likely to establish a prima facie case. The learned Magistrate dealt with the matter in a fairly reasoned order and was of the opinion that there was no reason to withhold the consent that was applied for. He accordingly discharged the accused. That order was upheld by the learned Sessions Judge on a revision petition against it filed jointly by the first informant in the case and by the widow of the murdered person. These private parties pursued the matter further and applied to the High Court in revision. The learned Chief Justice who dealt with it was of the opinion that the consent should not have been granted accordingly, he set it aside. The learned Chief Justice recognised that normally in a matter of this kind the High Court should not interfere. But he felt called upon to set aside the order on the ground that "there was no judicial exercise of discretion in the present case". He therefore, directed that the Magistrate should record the evidence and then consider whether it establish a prima facie case against the, appellant, Mahesh Desai. The Advocate General of the State has come up before this Court against the order of the learned Chief Justice. Leave was granted because it was urged that the view taken by the learned Chief Justice was based on an erroneous appreciation of the legally permissible approach in a matter of this kind and that the decision of the learned Chief Justice was likely to have repercussions in the State beyond what was involved in the particular case. The aggrieved party, Mahesh Desai, also has come up by special leave and both these appeals are disposed of by this judgment.
(2.) The question of law involved may be gathered from the following extracts from the learned Chief Justice's judgment. "This is not a case where there is no evidence; on the contrary, this is a case where there is evidence which requires judicial consideration.....The procedure which the learned special Magistrate followed was tantamount to considering the sufficiency or otherwise of evidence before the evidence has been heard.... The function of the Court would be surrendered to the Public Prosecutor, I do not think that section 494 Criminal P.C. justifies such a procedure." The legal question that arises from the above is whether where an application for withdrawal under S.494, Criminal P. C. is made on the ground of insufficiency or meagreness of reliable evidence that is available, it is an improper exercise of discretion for the Court to grant consent before evidence is taken, if it was reasonably satisfied, otherwise that the evidence, if actually taken, is not likely to result in conviction.
(3.) Section 494, Criminal P.C. 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) 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". The section is an enabling one and vests in the Public Prosecutor the discretion to apply to the Court for its consent to withdraw from the prosecution of any person. The consent, if granted. was to be followed up by his discharge or acquittal as the case may be. The section gives no indication as to the grounds on which the Public Prosecutor may make the application, or the considerations on which the Court is to grant its consent. There can be no doubt, however, that the resultant order on the granting of the consent, being an order of 'discharge' or 'acquittal' would attract the applicability of correction by the High Court under Ss.435,436 and 439 or 417, Criminal P.C. The function of the Court, therefore, in granting its consent may well be taken to be a judicial function it follows that in granting the consent the Court must exercise a judicial discretion. But it does not follow that the discretion is to be exercised only with reference to material gathered by the judicial method. Otherwise the apparently wide language of S.494, Criminal P.C. would become considerably narrowed down in its application. In understanding and applying the section, two main features thereof have to be kept in mind. The initiative is that of the Public Prosecutor and what the Court has to do is only to give its consent and not to determine any matter judicially. As the Privy Council has pointed out in Faqir Singh v. Emperor, AIR 1938 P C 226 at p. 269 (A). "It (S. 494, Criminal P. C.) gives a general executive discretion (to the public prosecutor) to withdraw from the prosecution subject to the consent of the Court, which may be determined on many possible grounds." The judicial function, therefore, implicit in the exercise of the judicial, discretion for granting the consent would normally mean. that the Court has to satisfy itself that the executive function of the public prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. In this context it is right to remember that the Public Prosecutor (though an executive officer as stated by the Privy Council in A I R 1938 P C 266 (A) is, in a larger sense, also an officer of the Court and that he is bound to assist the Court with his fairly considered view and the Court is entitled to have the benefit of the fair exercise of his function. It has also to be appreciated that in this country the scheme of the administration of criminal justice is that the primary responsibility of prosecuting serious offences (which are classified as cognizable offences) is on the executive authorities. Once information of the commission of any such offence reaches the constituted authorities the investigation including collection of the requisite evidence and the prosecution for the offence with reference to such evidence, are the functions of the executive. But the Magistrate also has his allotted functions in the course of these stages. For instance, in the course of investigation a person arrested must be brought before him within 24 hours (S. 61, Criminal P.C.). Continuance of the arrested person in detention for purposes of investigation from time to time has to be authorised by him (S. 167, Criminal P.C.). A search can be conducted on the issue of warrant by him (S. 94, Criminal P.C.). Statements of witnesses and confessions may be recorded by him (S. 164, Criminal P.C.) In an appropriate case he can order investigation or further investigation (Ss. 155 (2) and 202, Criminal P.C.). In all these matters he exercises discretionary functions in respect of which the initiative is that of the executive but the responsibility is his. His discretion in such matter has necessarily to be exercised with reference to such material, as is by then available and is not a prima facie judicial determination of any specific issue. The Magistrate's functions in these matters are not only supplementary, at a higher level to those of the executive but are intended to prevent abuse. Section 494, Criminal P.C., acquiring the consent of the Court for withdrawal by the Public Prosecutor is more in line with this scheme, than with the provision of the Code relating to inquiries and trials by Court. It cannot be taken to place on the Court the responsibility for a prima facie determination of a triable issue. For instance the discharge that results therefrom need not always conform to the standard of "no prima facie case" under Ss.209 (1) and 253(1), Criminal P.C. or of 'groundlessness' under Ss. 209 (2) and 253 (2), Criminal P.C. This is not to say that a consent is to be lightly given on, the application of the Public Prosecutor, without a careful and proper scrutiny of the grounds on which the application for consent is made.;