The State of Bihar Vs. Ram Naresh
Pandey [1956] INSC 7 (31 January 1956)
ACT:
Criminal law-Prosecution-Application for
withdrawal by Public -Prosecutor-Consent of Court-Function of the Court in
giving such consent-Case triable by a Court of Session Whether application for
withdrawal does not lie in the committal stage' Tried' 'judgment', Meaning
of-Code of Criminal Procedure, 1898 (Act V of 1898), s. 494.
HEADNOTE:
By s. 494 Of the Code of Criminal Procedure,
1898: " 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." The prosecution of M. and others was launched on the first
information of the first respondent, and when the matter was pending before the
Magistrate in the, committal stage and before any evidence was actually taken,
and 'application for the withdrawal of M. from the prosecution was made by the
Public Prosecutor under s. 494 Of the Code of Criminal Procedure on the ground
that " on the evidence available it would not :be just and expedient to
proceed with the prosecution of M." The Magistrate was of the opinion that
there was no reason to withhold the consent that was applied for and
accordingly he discharged the accused. This order was upheld by the Sessions
judge, but on 280 revision, filed by the respondents, the High Court set aside
the order and directed the Magistrate to record the evidence and then consider
whether it established a -Prima facie case against the accused. The State
appealed against the order of the High Court by special leave, while the
respondents sought to support the order on the grounds (1) that where the
application for withdrawal of the prosecution is made on the ground of no
evidence or no adequate or reliable evidence the Magistrate must hold a
preliminary enquiry into the relevant evidence, and (2) that in a case tried by
jury by a Court of Session, an application by the Public Prosecutor under S.
594 Of the Code does not lie in the committal stage.
Held : (1) Though the function of the Court
in giving the consent under s. 594 of the Code is a judicial one, it is not
necessary that the discretion is to be exercised only with reference to
material gathered by the judicial method, and what the Court has to do is to
satisfy itself that the executive function of the Public Prosecutor in applying
for, withdrawal of the prosecution 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.
(2) The word " tried " in s. 494 Of
the Code is not used in any limited sense and the section is wide enough to
cover every kind of inquiry and trial, and applicable to all cases which are
capable of terminating either in a discharge or in an acquittal according to
the stage at which the application for withdrawal is made.
An order of committal which terminates the
proceeding so far as the inquiring Court is concerned is a " judgment
" within the meaning of s. 494 of the Code of Criminal Procedure.
Giribala Dasee v. Mader Gazi, (1932) I.L.R.
60 Cal 233, and Viswanadham v. Madan Singh,, I.L.R. (1949) Mad. 64, approved.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeals Nos. 53 and 54 of 1956.
Appeals by special leave from the judgment
and order dated May 31, 1955, of the Patna High Court in Criminal Revision No.
102 of 1955, arising out of the judgment and order dated January 10, 1955, of
the Court of the Sessions Judge of Manbhum-Singhbhum of Purulia in Criminal
Re-vision No. 43 of 1954.
Mahabir Prasad, Advocate-General of Bihar,
Tarakesh. war Nath and S. P. Verma, for the appellant in Appeal No, 53 and for
respondent No, 3 in Appeal No. 54, 281 H. J. Umrigar and A. G. Ratnaparkhi, for
the appellant in Appeal No. 54.
Jai Gopal Sethi and Govind Saran Singh, for
the respondents in Appeal No. 53 and for respondents' Nos. 1 and 2 in Appeal
No. 54.
1957. January 31. The Judgment of the Court
was delivered by JAGANNADHADAS J.-These appeals arise out of an order of
discharge passed by the Subordinate Judge-Magistrate of Dhanbad under s. 494 of
the Code of Criminal Procedure 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 Indian 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 of the Indian 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 6, 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 Sri 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 arguments before the learned
Magistrate. that the position of the Public 36 282 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, 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' wag' no
judicial exercise of discretion in the present case." He, therefore,
directed that the Magistrate should record the evidence and then consider
whether it establishes 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.
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
require's judicial consideration.......... The procedure which the learned
Special Magistrate followed was 283 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 s. 494 of the Code of Criminal Procedure justifies, such a procedure..
The legal question that arises from the above
is whether where an application for withdrawal under s. 494 of the Code of
Criminal Procedure is made 'on the ground of insufficiency or meagerness 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.
Section 494 of the Code of Criminal Procedure
runs as follows:
" Any Public Prosecutor may, with the
consent of the Court, in cases tried by jury. before the returns of the
verdict, and in other cases; before the judgment is pronounced, withdraw from
the prosecutions 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".
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; 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, how ever, that the resultant order, on the
granting of the consent, being an order of I discharge' or 'acuittal', would
attract the applicability of correction by; the 284 High Court under es. 435,
436 and 439 or 417 of the Code of Criminal Procedure. 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 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 Bawa Faqir Singh v. The King Emperor(1) " It (section 494 of the
Code of Criminal Procedure) 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 Bawa Faqir Singh v. The King Emperor(1)) 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 (1) (1938) L. R. 65 I.
A. 388, 395.
285 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 of the Code of Criminal Procedure).
Continuance of the arrested person in detention for purposes of investigation
from time to time has to be authorised by him (s. 167). A search can be
conducted on the issue of warrant by him (s. 96).
Statements of witnesses and confessions may
be recorded by him (s. 164). In an appropriate case he can order investigation
or; further investigation (ss. 155(2) and 202). 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 matters 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 requiring the consent of the Court for withdrawal
by the Public Prosecutor is more in line with this scheme, than with the
provisions 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 there from need not
always conform to the standard of " no prima facie case " under ss.
209(1) and 253(1) or of " groundlessness " under ss. 209(2) and
253(2). 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.
A large number of cases from the various High
Courts have been cited before us. We have carefully gone through them.
All of them recognise that the 286 function
of the Magistrate in giving consent is a judicial one open to correction. But
in some of them there is no sufficient appreciation of the respective positions
of the Public prosecutor and the Court, in the discharge, of their functions
under s. 494 as we conceive. them to be. There is, however, a general
concurrence-at least in the, later 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 v. Moule Bux(1) and. The
King v. Parmanand(2).] If 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.
Learned counsel for the respondents has
strenuously urged before us that while this may be so where the consent is
applied for on other grounds, or for other reasons, the position would not be
the same, where the application for consent is made on the ground of no.
evidence or no adequate or reliable evidence. It is urged that in such a case,
the Court can exercise its, judicial function, only with, reference to
judicially recorded evidence as in one or other of the appropriate situations
contemplated by the Code for' judicial inquiry or trial. If this argument means
anything it must mean that in such a situation the Court before granting
consent must hold a kind of preliminary inquiry into the relevant evidence in
much the same way as, for instance'. when a Magistrate acting under s. 202 of
the Code of Criminal Procedure may direct or it must mean that no consent can
at all be given on such a ground and that the Court must proceed with the
prosecution, and either discharge or acquit under one or other of the other
sections in the Code enabling hereunto. It appears to us that this would be
engrafting, on the, wide terms of s. 494 an exception or & proviso limited
to such a case. In our opinion, this would not be a permissible construction of
the section. We are, therefore, unable, with great respect, to subscribe to the
view taken by the learned Chief (1) A.I.R. 1949 Pat'233 (F.B.).
(2) A.I.R. 1949 Pat. 222, 226 (F.B.).
287 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 the withdrawal as amounting to abuse or
an improper interference with the normal course of justice.
Learned counsel for the respondents has
raised a fresh point before us for maintaining the order of the High Court
setting aside the discharge of the appellant by the -Magistrate. The point
being purely one of law, we have allowed it to be argued. His contention is that
in a case triable by a Court of Session, an application by the Public
Prosecutor for withdrawal with the consent of the Court does not lie in the
committal stage.' He lays emphasis on the wording of s. 494 which says that
" in cases tried by jury, any Public, Prosecutor may, with the consent of
the Court, withdraw from the prosecution of any person before the return of the
verdict." This, according to him, clearly implies that such withdrawal
cannot be made until the case reaches the trial stage in the Sessions Court. He
also relies on the further phrase in the section " either generally or in
respect of any one or more of the offenses for which he is tried." The
use' of the word 'tried' in this phrase. confirms, according to him, the
contention that it is only when the case reaches the stage of trial that s. 494
can be availed of. He draws our attention to a passage in Archbold's Criminal
Pleading, Evidence and Practice (32nd Ed.),pp. 108, 109, s. 12, that "a
nolle prosequi to stay proceedings upon an indictment -or information pending
in any Court may be entered, by leave of the Attorney General, at the instance
of either the prosecutor or the defendant at any time after the bill of
indictment is signed, and before judgment." He urges that it is this principle
that has been recognised in the first portion 288 of s. 494 of the Code of
Criminal Procedure. It appears to us that the analogy of the English practice
would be misleading as an aid to the construction of s. 494. The scheme of our
Criminal Procedure Code is substantially different. The provision corresponding
to the power of the Attorney-General to enter nolle prosequi is s. 333 of the
Code of Criminal Procedure which refers to jury trials in High Court. The
procedure under s. 494 does not correspond to it. The phrase " in other
cases before the judgment is pronounced " in s. 494 would, in the context,
clearly apply to all cases other than those tried by jury. Now, there can be no
doubt that at least as regards these other cases, when the consent for
withdrawal is given by the Court, the result is either a discharge or an
acquittal, according to the stage to which that case has reached, having regard
to the two alternatives (a) and (b) of s. 494 of the Code of Criminal
Procedure. It follows that at least in every class of cases other than those
tried by jury, the withdrawal can be at any stage of the entire proceedings.
This would include also the stage of preliminary inquiry in a Sessions case
triable without a jury. But if the argument of the learned counsel for the
respondents is accepted, that power cannot be exerciser at the preliminary
inquiry stage, only as regards cases which must lead to a jury trial. We can
find no conceivable reason for any such discrimination having been intended and
prescribed by the Code. We are unable to construe s. 494 as involving any such
limitation.
The wording is perfectly wide and general and
would apply to all classes of cases which are capable of terminating either in
a discharge or in an acquittal, according to the stage at which the section is
invoked. The whole argument of the learned counsel is based upon the use of the
word ,tried' and he ehaphasises the 'well-known distinction between 'inquiry'
and 'trial' in the scheme of the Code. Our attention has also been drawn to the
definition of the word 'inquiry' in s. 4 (k) of the Code which runs as follows:
"'Inquiry includes every inquiry other
than a trial conducted under this Code by a Magistrate or Court." 289
There is hardly anything in this definition which throws light-on the question
whether the word 'trial', is used in the relevant section in a limited sense as
excluding an inquiry. The word 'trial' is not defined in the Code.
'Trial' according to Stroud's Judicial
Dictionary means "the conclusion, by a competent tribunal, of questions in
issue in legal proceedings, whether civil or criminal"(1) and according to
Wharton's Law Lexicon means "the hearing of a cause, civil or criminal,
before a judge who has jurisdiction over it, according to the laws of the land"(2).
The words 'tried' and 'trial' appear to have
no fixed or universal meaning. No doubt, in quite a number of sections in' the
Code to which our attention has been drawn the words 'tried' and trial' have
been used in the sense of reference to a stage after the inquiry. That meaning
attaches to the words in those sections having regard to the context in which
they are used.' There is no reason why where these words are used in another
context in the Code, they should necessarily be limited in their connotation
and significance. They are words which must be considered with regard to the
particular context in which they are used and with regard to the, scheme and
purpose of the provision under consideration.
An argument has also been advanced by the learned
Counsel for the respondents before us by referring to the word
"judgment" in the phrase "in other cases before the judgment is
pronounced" in s. 494 as indicating that the phrase "in other
oases" can refer only to proceedings which end in a regular judgment and
not in any interim order like commitment. Here again the difficulty in the way
of the contention of the learned Counsel being accepted, is that the word
"judgment" is not defined. It is a word of general import and means
only "judicial determination or decision of a Court". (See Wharton's
Law Lexicon, 14th Ed., p. 545).
There is no reason to think in the context of
this section that it is not applicable to an order of committal which
terminates the proceeding so far as the inquiring Court (1) Stroud's judicial
Dictionary, 3rd Ed., VOl. 4, P. 3092.
(2) Wharton's Law Lexicon, 14th Ed., p. 101.
37 290 is concerned. It may be, that in the
context of Chapter XXVI of the Code judgment may have a limited meaning. In any
view, even if 'judgment, in this context is to be understood in a limited
sense, it does not follow that an application during preliminary inquiry-which
is necessarily prior to judgment in the trial-is excluded.
The history of s. 494 of the present Code of
Criminal Procedure (Act V of 1898) confirms the above view. The provision for
withdrawal by the Public Prosecutor with the consent of the Court appears, for
the first time, in the Code of Criminal Procedure,; 1872 (Act X of 1872) as s.
61 thereof and runs as follows:
The public prosecutor may, with the consent
of the Court withdraw -any charge against any person in any case of which he is
'Charge; and upon such withdrawal, if it, is made whilst the case is under
inquiry, the accused person shall be discharged. If it is made when he is under
trial, the accused person shall be acquitted." In the next Code of 1882
(Act X of 1882) this appears as s. 494 thereof and runs as follows:
"Any Public Prosecutor appointed by the Governor-General
in Council or the Local Government may, with the consent of the Courts, 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;
and, upon such withdrawal, (a) if it is made
before a charge has been framed, the accused shall 'be discharged;
(b) if it is made after a charge has been
framed, or when under this Code, no charge is required, he shall be
acquitted." It may be noticed that there has been a complete redrafting of
the section which brings about two alterations. this section seems to have
remained as such in the 1898 Code (Act V of 1898). The next modification in the
section appears to have been made by Act XVIII of 1923 -which inserted the
phrase "either generally or in respect of any one or more of the offences
for which he is tried" in the appropriate place 291 in s. 494 as it stood
in the 1882 Code (in addition to omitting' the phrase "appointed by the
Governor General in Council or Local Government"). The present s. 494 is
the corresponding section in the 1882 Code as so altered. It will be thus seen
there are altogether three substantial changes in between 1872 and 1923 in the
corresponding s. 61 of the 1872 Code. The first two changes made in 1882 were
obviously intended to indicate that the result by way of discharge or acquittal
should depend not on the distinction between inquiry and trial but, on the fact
of a charge having been framed or not having been framed. The second was to
clarif that the application can be made generally up to tie point when judgment
is pronounced but to provide for an exception thereto in respect of cases which
in fact have gone up for a jury trial, in which case the application can be
made only up to the point of time before the verdict is pronounced. The third
change in 1923 was to make it clear that the withdrawal need not be in respect
of the entire case against a particular individual but in respect of one or
more only of the charges for which he is being prosecuted. These three changes,
therefore, were introduced for specific purposes which are obvious. The section
as it originally stood in 1872 was quite wide enough to cover all classes of
cases not excluding even jury cases when it is in the stage of preliminary
inquiry. There is absolutely no reason to think that these successive, changes
were intended to exclude such a preliminary inquiry from the scope of s.
494 as it has finally emerged. It may also be
mentioned that the words " inquiry' and 'trial' were both defined in the
Code of 1872 but that the definition of the word 'trial' was omitted, in the
1882 Code and that latter on in the 1898 Code the definition of the word
inquiry' was slightly altered by adding the ,phrase "Other than a
trial" leaving the, word 'trial' undefined. These various legislative changes
from time to time with reference to s, 494 and the' definition of the 'word
inquiry' confirm the view above taken that s. 494 is wide enough to cover every
kind of inquiry and trial and that the word trial' in the, section 292 has not
been used in any limited sense. Substantially the same view has been taken in
Giribala Dasee v. Madar Gazi (1) and Viswanadham v. Madan Singh(2) and we are
in agreement with the reasoning therein as regards this question.
As regards the merits of the appeals, the
matter lies in a short compass. AB already stated the application by the Public
Prosecutor was made before any evidence was taken in the committal stage. The
only materials then available to the Public Prosecutor or to the Court were the
contents of the first information report and any statements of witnesses that
may have been taken by the police during investigation.
What is alleged against the appellant, Mahesh
Desai, in the first information report can be gathered from the following:
"These persons, viz., Mahesh Desai and
others,regularly held meetings and advocated for closing Bagdigi cable plant
and coke plant and assaulting the "dalals'. Yesterday, Friday morning when
some labourers were going to resume their work in 8 No. pit, at Lodna the
striking labourers created disturbance there and the labourers of that place
who were going to resume work could not do so. At about 11 a. m.
Mahesh Desai the leader of the Koyala Mazdoor
Panchayat came to Bagdigi and told the labourers of this place to stop all
work, to hold on to their posts and to see that no one worked. At the instance
of Mahesh Desai the labourers stopped the work. Last night at about 11-30 p.m.
when I was in my quarter at Lodna, Jadubans Tiwary, the overman of Bagdigi
Colliery, said that Sheoji Singh and Ramdhar Singh 'had told him that in the
evening at about 6-30 p.m. Mahesh Desai came to Bagdigi Mahabir Asthan Chala,
collected 120 to 125 labourers and held a meeting and Mahesh Desai said that he
had come to know that the company and its dalals would take some labourers to
pit No. 10 this morning to resume the work and they would get the work resumed
by them. In this' morning Phagu Dusadh, Jalo Dusadh, Chamari Dusadh and others
were (sic) took part. Mahesh Desai said to (1) [1932] I.L.R. 6o Cal. 233.
(2) I.L.R. [1949] Mad. 64.
293 them " You go to your respective
works and see that no one works there happen what may. You remain, prepared in
every respect. The labourers of Lodna will also come to your help. The police
will not be able to do any harm to you ".
The meeting dispersed at about 7-30 o'clock.
Mahesh Desai went by his Jeep from Mahabir Asthan to pit No. 10 and told the
labourers there to stick to their strike. Then Phagu, Jalo and Haricharan
Dusadh of Bagdigi began to talk with him near the Jeep. Jadubans Tewary heard
Mahesh Desai saying " It is necessary for us to finish the dalals for
achieving victory. You remain prepared for this". Saying this he boarded
his Jeep and at the end Mahesh Desai said to Phagu, Haricharan and Jalo Dusadh
" Finish all. What will happen will be seen ". Thereafter Mahesh
Desai went away by his Jeep and Phagu. Jalo and Haricharaa came back." The
first information report continues to state what all happened the next day by
way of rioting, etc. in the course of which Phagu, Jalo and Haricharan Dusadh,
along with others were said to have chased Nand Kumar Chaubey and wherein Phaou
gave a pharsa blow and Haricharan a lathi blow to him and Nand Kumar Chaubey
fell down dead. In the closing portion of the first information report the
informant states as follows:
I make this statement before you that
(having, instigated) yesterday evening in the meeting and having instigated
Phagu Dusadh, Jalo Dusadh and Haricharan Dusadh near pit No. 10, and having got
a mob of about one thousand persons collected to-day in the morning by Harbans
Singh and other workers of his union Mahesh Desai got the murder of Nand Kumar
Chaubey committed by Phagu Dusadh, Jalo Dusadh and Haricharan Dusadh to-day at
8-15 a.m. with lathi and pharsa." It is clear from this that what is
ascribed to Mahesh Desai is that he is alleged to have exhorted the laborers
once in -the morning at 11 a.m. and again in the night at 6-30 p.m.
as also at 7-30 p.m. As regards the
exhortation at 11 a. m.
it is not quite clear from the first
information report whether the 294 informant speak,% to his personal knowledge
or what he heard from the labourers. As regards what is said to have transpired
at 6-30 p.m. and 7-30 p.m., it appears to be reasonably clear that the person who
gave the information to the informant was Jadubans Tiwary and that his
information itself was probably based on what Sheoji Singh and Ramdhar Singh
had told him. It would be seen, therefore, that the prosecution must depend
upon the evidence of Jadubans Tiwary, and possibly of Sheoji Singh and Ramdhar
Singh and that what these three persons could speak to was at best only as to
the exhortation made by Mahesh Desai at the various stages. Presumably, these
witnesses were examined by the police in the course of the investigation. Now,
on this material, we find it difficult to appreciate why the opinion arrived at
by both the trial court and the Sessions Court that the' view taken of that
material by the Public Prosecutor, viz., that it was meagre evidence on which
no conviction could be asked for, should be said to be so improper that the
consent of the Court under s. 494 of the Code of Criminal Procedure has to be
withheld. Even the private complainant who was allowed to participate in these
proceedings in all its stages, does not, in his objection petition, or revision
petitions, indicate the availability of any other material or better material.
Nor, could the complainant's counsel, in the course of arguments before us
inform us that there was any additional material available.
In the situation, therefore, excepting for
the view that no order to withdraw should be passed in such cases either as a
matter of law or as a matter of propriety but that the matter should be
disposed of only after the evidence, is judicially taken, we apprehend that the
learned Chief Justice himself would not have felt called upon to interfere with
the order of the Magistrate in the exercise of his revisional jurisdiction., We
are, therefore, clearly of the opinion, for all the above reasons, that the
order of the High Court should be set aside and the appeals allowed.
Accordingly, the order of the trial court is hereby restored.
295 There -was some question raised before us
as to whether the private complainants could be allowed,' to participate in
these proceedings at the various stages. Nothing that we have -said is intended
to indicate that the private complainant has a locus standi.
It is unfortunate that this prosecution which
is still pending at its very early stages has got to be proceeded with against
all the rest of the accused, after the lapse of nearly three years from the
date of the murder. It is to be hoped that the proceedings which must- follow
will be speeded up.
Appeals allowed.
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