TMI Blog1971 (11) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... ellaneous Petition on 19-2-68 in the High Court of Kerala against the order of the Assistant Sessions Judge according permission to the Public Prosecutor for withdrawing from the prosecution. The High Court held that the Public Prosecutor was justified when he applied for the withdrawal of the case and accordingly dismissed the petition against which this appeal comes up before us by Special Leave. 2. The 1st Respondent was the Agent of Shree Narayana Transport Company of one of its Branches namely at Baliapattom and in that capacity it was one of his duties to accept goods from the Public for transporting them by lorry service of the Company and issue Way Bills. These Way Bills contained an undertaking that in the event of any of the Banks discounting them and if goods are lost or damaged during transport, the Transport Company will be responsible to the Bank. It is alleged that the 1st Respondent issued nine Way Bills on different dates in favour of the 2nd Respondent, as if the goods were received but in fact no such goods were accepted for transport nor were any such goods despatched. These Way Bills were duly discounted by the second Respondent the consigner who drew about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted ordered the splitting up the charges into 8 cases against which the second respondent filed a Revision in the High Court under Section 561-A Criminal Procedure Code where it was contended that all the 8 charges should have been consolidated into one case as otherwise there would be 8 distinct offences leading to multiplicity of trials. The High Court by its Judgment dated 30-10-67, following a decision of this Court in Ranchhodlal v. State of Madhya Pradesh [1965]2SCR283 , said that the order of the Magistrate splitting up the charge into 8 cases was proper and while it does not call for any interference, it left it open for the prosecution as provided under Section 240 Criminal Procedure Code to withdraw the other charges if one of the trials should end in a conviction. 3. After this petition was dismissed the Respondents seem to have moved the State Government to withdraw the prosecution and accordingly, as would appear from the Memo, filed by the Public Prosecutor on 30-11-67, the Government passed an order G.O. Rt. No. 1589/67 Home (B) dated 22-11-67 directing the withdrawal of the case with the sanction of the Court, in the interest of public policy as also because ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent 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 power contained in the Section gives a general executive direction to withdraw from the prosecution subject to the consent of the Court which may be determined on many possible grounds and is therefore wide and uncontrolled by any other provision in the Code nor is it in pari-materia with Section 333 which enables the Advocate General at any stage in a Trial by the High Court and before the return of the verdict to inform the Court if he thinks fit on behalf of the Government that he will not further prosecute the Defendant upon the charge and on such information being given the case against the accused come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the permission granted by the Magistrate to the Government Pleader to withdraw from the prosecution in a case where the accused were charged with offences under Sections 193, 467, 477, 109 and 120A of the Penal Code. The prosecution had been started and after some evidence had been recorded, the record of the case was called for by the Government which having kept it for six months returned it to the Government Pleader who filed a petition for withdrawal from the prosecution under Section 494 Criminal Procedure Code on certain grounds which were not substantial namely that the original complainant had withdrawn from the prosecution; that on an independent examination of the records of the Provincial Government considered that the evidence was insufficient to warrant further proceeding with the case; and that the Provincial Government would not in view of the uncertainty of a successful prosecution be justified in incurring heavy expenses in the fees, the travelling allowances of the handwriting expert and in lawyers' expenses. The Magistrate though considering, that these grounds are not sufficient for not committing the accused persons but on the other hand was of the vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment which stated, that consistent with the Policy of the Government in relation to mass agitation and strike it has been decided to withdraw with the leave of the Court, the cases registered in connection with the Central Government Employees strike on the 19th September, 1968 except those involving serious personal violence or destruction of property. It was held that the policy set out therein being a policy opposed to the law could not be taken into consideration. Apart from the order being in disregard of the duty and the responsibility of the State Government to enforce the law, the Full Bench said there could be no question of the executive policy in a region covered by the law. In that view it quashed the permission granted by the Trial Court. In the State of Bihar v. Ram Narash Pandey 1957CriLJ567 , it was pointed out by this Court that though the Section does not give any indication as to the ground on which the Public Prosecutor may make an application on the consideration of which the Court is to grant its consent, it must nonetheless satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised and that it is not an attem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have reason to believe to be forged documents. The case of the Respondents was that all this was done with the knowledge of the complainant with a view to further the practice prevailing to popularise the transport business. It appears that after the complaint was filed and the police took cognizance of the offence and investigated it but before the charge-sheet was filed the Public Prosecutor seems to have expressed the view on 8-6-63 that a successful prosecution may not be possible under Section 467 and 420 because the matter for which the Respondents were sought to be charged related to a practice which seems to have prevailed in that Transport Company and in other Companies as well and in the light of that practice mens rea may not be established but this opinion did not prevail as he was directed to file the charge sheet and accordingly the case proceeded. 10. A perusal of the committal order will make this conclusion of ours clear. Before the Magistrate, the learned Advocate had contended that there was a normal practice that the Company used to issue way bills without obtaining the goods from the party for the sake of popularising the Company and that in the circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e nothing had happened since the committal order except that the several revisions filed by Respondent 1 and Respondent 2 had delayed the trial which delay by itself cannot be made a ground for according permission. On the other consideration which weighed with the High Court that a prosecution would involve a huge expenditure there is no material to show what amount would be involved if the case was prosecuted nor how many witnesses would be required to be called from Calcutta and Bombay. On the other hand the case appears to be mostly hinged on the issue of the Way Bills to Respondent 2 by Respondent 1 without receipt of goods from Respondent 2 which the Respondents say was due to the practice followed by the complainant to popularise its transport business. The execution of the Way Bills by Respondent 1, their issue by him without receipt of the goods and the obtaining of money by the second Respondent from the Bank by discounting them with it are some of the elements and except perhaps for the non-receipt of the goods by the people to whom they were alleged to have been booked, are all dependent on local witnesses. In any case the expenditure involved is not the sole criterion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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