Teja Singh, J. - (1.) THIS is an application by the complainant for the transfer of a case under Section 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.
(2.) 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, 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 under Section 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.
(3.) 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.;