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Criminal Revision No. 58 of 1966, decided on 12th April 1968.

S. 494‑Withdrawal, from prosecution‑Discretion of Court to be exercised judicially --Consent of Court to withdraw case on prayer of Public Prosecutor --Not an automation or a matter of course affair‑Recording reasons for consent to withdrawal‑Desirable but not essential‑Consent fop withdrawal legal if given after considering reasonable grounds appearing on record‑Record of case neither shoeing any material indicating actual reason for withdrawal nor such material brought to, notice of Court‑Order of withdrawal in circumstances, held illegal.

Consent of the Court is not an automatic or a matter of course affair which must be given as soon as the Public Prosecutor has asked for withdrawal ; had it been so the consent of the Court was entirely out of place and redundant. The Code has not given the police or for the matter of that the Public Prosecutor the last say in the matter and that it has given a discretionary power to the Court to enable it to prevent any abuse of the right of the Public Prosecutor to withdraw a case from prosecution. As long as there is some material on record to show that there is a reasonable ground to ask for withdrawal and the Court must of necessity have considered such ground before it has given its consent to withdrawal the withdrawal is legal. The consent of the Court has been provided for evidently with a view to prevent an arbitrary exercise of the right of withdrawal with a view to interfere with the ordinary course of justice. The Court, therefore, is not merely an automation in this respect and must use its discretion on judicial principles.

Requiring the Court to state its reason for consenting to the withdrawal is overstating the law inasmuch as section 494 does not require that such reason should be stated. The trend of High Court shows that if there be some materials on record which show what the reason was for withdrawal, no reason need be stated by the Court although such a course is desirable.

Rajani Kanta Shaha v. Idris Thakur I L R 48 Cal. 1105 ; Makhan Lal Saha v. The Crown 2 D L R 223 ; Sachi Nandan Kandu v. The Crown and another 7 D L R 216 and A I R 1957 S C 389 rel.

Azizuddin Ahmed for Petitioner.

Muhammad Ali for Akhtaruddin Ahmed for the Opposite -Parties.

.‑This Rule is directed against an order of acquittal made under the provisions of section 494 of the Criminal Procedure Code.

2. It appears that on a First Information Report lodged by the petitioner at Jahlakati Police Station alleging that the accused opposite‑parties along with all other persons entered the house of the former by cutting Sind and that he was assaulted by opposite‑parties Ensab Ali Kazi and Yusuf Ali Kazi on the head by a Shovel and was injured on his neck by opposite- party Santi Ranjan who tightened a rope round the neck of the petitioner. It was further alleged that opposite‑party Ensab Ali Kazi took away Rs. 550 which was in a cloth purse tied up round the waist of the petitioner. After investigation by the police a charge‑sheet was submitted against all the three accused opposite‑parties under section 394 of the Pakistan Penal Code. As all the accused were found absconding, proclamation of arrest was directed to be issued against them on the 24‑9‑65. Before, however, the accused persons surrendered in Court on the 9‑10‑65 the Court Sub‑Inspector made a prayer for withdrawal of the case against the accused persons under section 494 of the Criminal Procedure Code whereupon the learned Magistrate at once allowed the withdrawal and discharged the accused and recalled the processes issued against them.

3. Mr. Azizuddin Ahmed appearing on behalf of the petitioner has strenuously contended that the impugned order of withdrawal is illegal inasmuch as neither the learned Magistrate has given any reason for allowing such withdrawal nor is there anything on record to show what influenced the Court Sub‑Inspector to ask for withdrawal and for the learned Magistrate to consent to it.

4. On a perusal of the records we find that the Court Sub‑Inspector on the 9‑10‑65 addressed an application to the Sub‑Divisional Officer, Bakerganj in the following terms:‑

"I beg to submit that as directed by S. P., Bakergarij under his Office Memo. No. 7079, dated 7‑10‑65 I beg to withdraw the marginally noted case under section 494, Cr. P. C.

I therefore pray that the case may kindly be withdrawn and the accused may kindly be discharged from charge."

The memorandum of the Superintendent of Police referred to in the Court Sub‑Inspector's application is on record and it reads as follows :‑

Copy of order passed by Addl. S. P. (N), Bkj. On the reports of C. I., Jhalakati and Court Inspector, Barisal in C/W Jhalakati P., S. Case No. 8(7)/65 under section 394, P. P. C.

Court Inspector

Please withdraw the case.

(Sd.) Illegible

5‑10‑65. Addl. S. P. (N) Bakj."

5. The report of the Circle Inspector referred to in the above memorandum is not on record and it does not appear to have been either sent to the Court Sub‑Inspector or produced before the learned Magistrate. It is, therefore, evident there is nothing on record to show what was the reason which influenced the Additional Superintendent of Police to direct the Court Sub‑Inspector to withdraw the case or upon what material the Court Sub‑Inspector made up his mind to ask for withdrawal of case or for the learned Magistrate to consent to such withdrawal.

6. It is now well settled that a Court acting under section 494 of the Criminal Procedure Code and according consent to the withdrawal from a prosecution is a judicial order, vide the case of Rajani Kanta Shaha v. Idris Thakur (I L R 48 Cal. 1105) and the decision of M.R. Khan and Talukdar, JJ., dated 3‑8‑66 in Criminal Reference No. 42 of 1966 (Azahar Ali v. Mansur Ali and others) (unreport ed). That being so, the discretion of the Court under section 494 of the Code should have been exercised on well‑known legal principle governing the exercise of discretion. In the case of Makhan Lal Saha. v. The Crown (2 D L R 223) and in the case of Sachi Nadan Kandu v. The Crown and another (7 D L R 216) it has been held by two Division Benches of this Court that it is desirable that the Court should give reasons for such withdrawal. In both these cases, however, there did appear on record materials which impelled the Public Prosecutor to ask for withdrawal and which influenced the trial Court to consent to such withdrawal. Although in the case reported in I L R 48 Cal. 1105, the Court observed that for every judicial order reasons should be given so that the High Court acting in its revisional jurisdiction may be in a position to examine the matter and determine whether the discretion vested in the Court has been properly exercised, so far as our Court is concerned, it is of the view that requiring the Court to state its reason for consenting to the withdrawal is overstating the law inasmuch as section 494 does not require that such reason should be stated. The trend of both decisions of our High Court shows that if there be some materials on record which show what the reason was for with drawal, no reason need be stated by the Court although such a course is desirable.

7. A careful examination of the provisions of section 494 of the Code indicates that the consent of the Court is not a automatic or a matter of course affair which must be given as soon as the Public Prosecutor has asked for withdrawal had been so the consent of the Court was entirely out of place and redundant. It seems to us that the Code has not given the police or for the matter of that the Public Prosecutor the last say in the matter and that it has given a discretionary power to the Court to enable it to prevent any abuse of the right of the Public Prosecutor to withdraw a case from prosecution. As long as there is some material on record to show that there is, a reasonable ground to ask for withdrawal and the Court must of necessity have considered such ground before it has given its consent to withdrawal the withdrawal is legal. The consent of the Court has been provided for evidently with a view to prevent an arbitrary exercise of the right of withdrawal with a view to interfere with the ordinary course of justice. The Court, therefore, is not merely an automation in this respect and must use its discretion on judicial principles ; in other words, there must appear somewhere on record a reasonable ground for such withdrawal though initiative for withdrawal lies entirely with the Public Prosecutor and he is solely responsible for adopting such a course. Our view finds support from the following observa tion of the Supreme Court of India in the case of the State of Bihar v. Rain Naresh Panday (1957 Cr. L J 565=A I R 1957 S C 389) :‑

"The function of the Court, therefore, in granting its consent may well be taken to be judicial function. It follows that in granting the consent the Court must exercise a judicial discretion . . . . . . 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."

8. In the case before us as we have already noticed there is neither any material on record which indicates the actual reason for withdrawal nor such material was brought to the notice of the Court.

9. We, therefore, hold that the impugned order of with drawal is illegal.

10. The rule is accordingly made absolute and the impugned order of the Magistrate is set aside and the case is sent back for disposal in accordance with law and in the light of the observations made above.

I agree.

Rule made absolute.

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