TMI Blog1957 (1) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t consent before evidence is taken, if it was reasonably satisfied, otherwise, that the evidence, if actually taken, is not likely to result in conviction. 4. 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 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 . 5. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 thereunto. It appears to us that this would be engrafting on the wide terms of s. 494 an exception or a 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 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 hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld, 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 exercised 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 stag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 11. 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 in charge; and upon such withdrawal, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 word '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 later 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 has not been used in any limited sense. Substantially the same view has been taken in Giribala Dasee v. Madar Gazi [[1932] I.L.R. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Haricharan came back. 15. 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 Phagu 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 mu ..... 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