J.S. Bedi, J. - (1.) ATMA . Ram son of Daulat Ram lodged a petition under section 3 of Contempt of Courts Act against the two respondents, namely, Home Secretary, Punjab Government, Chandigarh, and Jiwan Lal, Prosecuting Officer, Bhatinda alleging that Vaid Sham Singh Municipal Commissioner of Mansa who was his friend was murdered in broad day light. A case against Mukhtiar Singh son of Jawahar Singh, Ramji Dass son of Paras Ram and Hukam Singh son of Mani Singh was registered for offences under sections 302 read with section 34 and 120B of the Indian Penal Code. Four prosecution witness to prove the murder and conspiracy were examined by the Commitment Court and the case was ripe for arguments when the respondent Jiwan Lal. Public Prosecutor, made an application under section 494 of the Criminal Procedure Code stating that on the basis of the information received the Punjab Government had come to the conclusion that the evidence of conspiracy relating to Ramji Dass was not genuine and therefore, sought permission of the Court for withdrawal from the prosecution of Ramji Dass. Copy of that application is Annexure A. The application was opposed by the opposite party and ultimately rejected by the Magistrate. Copy of the order of the learned Magistrate is Annexure B. The petitioner alleged that by moving application Annexure A the respondent tried to influence the mind of the Magistrate by holding a parallel inquiry when the case was pending before him and tried to cast doubt on the reliability and genuineness of the prosecution evidence. It was further alleged that in doing so the respondents committed grass contempt of the Court.
(2.) NOTICE was, therefore, issued to the respondents who have put in their replies. The case was argued at considerable length. For the disposal of this case, it is necessary to reproduce the relevant portion of section 494 of the Criminal Procedure Code. - 494. 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 more 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. * * * *
(3.) The counsel for the petitioner submitted that the proceedings were pending in the Court of the Judicial Magistrate and an enquiry in this case was also being conducted by the State simultaneously and that there could not to be two parallel enquires and the two respondents committed contempt of the Court. He relied on D. Jones Shield v. Ramesam A.I.R. 1955 Andhra 156 learned counsel for the respondent cited Security and Finance Private Ltd. v. Lattarya Raghao Agge 1968 S.C. No. 671 which says that an authority holding an enquiry in good faith in exercise of the powers vested in it by a statute is not guilty of Court, merely because a parallel inquiry is imminent or contempt pending before a Court. Now in the present case, the wording of section 494 of the Criminal Procedure Code reproduced above is quite clear. Section 494 of the Criminal Procedure Code 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, has 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 Sections 435, 436 and 439 or Section 417, Criminal Procedure Code. 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 Section 494. Criminal Procedure Code, 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. The section 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 functions, 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. It is also to be remembered that the Public Prosecutor, though an executive officer, 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 is also to be remembered that the consent is not lightly to be 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.;