Find a Lawyer

Reference to the Full Bench by Abdul Hamid Malik, J.

-----

-----S. 495 (1) (2). A. G. A. (Government Advocate) who was neither in charge of the case nor entered appearance to withdraw the case, cannot under the law withdraw from the prosecution of the accused by simply writing a yadasht to the trying Magistrate.

Present : Government Advocate:

(10th June 1954).‑This reference to the Full Bench has arisen out of a revision petition brought by one Peer Bakhsh against the order of the learned Magistrate 1st class of Haroonabad exercising the enhanced powers under section 30 Cr. P. C., granting permission to the withdrawal of a case against Ghulam Rasool etc. and accordingly discharging the accused. The facts pertaining to the case may be briefly stated as follows :‑

One Faqir Bakhsh lodged a report at the police station Allahabad stating that Ghulam Rasool along with eight other persons had broken open his residential quarter and ad abducted his daughter (Mst. Zuhran) with intent that she may be forced or seduced to illicit intercourse. The police eventually challaned Ghulam Rasool and the Magistrate after recording the prosecution evidence framed a charge under sections 366 and 376/511 P. P. C., against him oil 19th May, 1951. Besides, the trying Magistrate issued warrants against seven more persons in order that they might also tried for that offence. On the appearance of these latter accused the proceeding in the Court of Magistrate started de novo. In the meanwhile Faqir Bakhsh at whose instance the F. I. R. was lodged applied to the G. A. for the withdrawal of the case. The learned G. A. after obtaining the opinion of the police concerned with regard to the withdrawal of the case wrote the following yadasht to the trying Magistrate :‑

"Faqir Bakhsh has applied for the withdrawal of the case on the ground that the accused are his neighbours and that through the intervention of some respectable persons of the locality he has compounded the case with the accused.

I have inquired from the police and they are agreed that as the case relates to an offence involving moral terpitude and the parties have compromised, it may be withdrawn. Hence I withdraw from the prosecution of the accused. The accused may be discharged".

On the receipt of the above yadasht the Prosecuting Inspector formally moved the‑ Court for the withdrawal of the case on the ground that the Government Advocate had withdrawn from the prosecution of the accused. The trying Magistrate mechanically gave the consent for the withdrawal of the case without considering the matter and without recording his reasons for doing so. The Magistrate simply noted that "as the G. A. has withdrawn from the prosecution of the accused, I allow the withdrawal of the case". Accordingly the case was dismissed and the accused were discharged. Against the above order of the Magistrate discharging the accused, the petitioner, Peer Bakhsh, who is the brother of Faqir Bakhsh has come in revision before this Court: It is alleged by him that the case was withdrawn without any rhyme or reason and that his brother Faqir Bakhsh who applied for the withdrawal of the case is not in possession of full senses. In short he prayed that the order of the learned Magistrate whereby he directed the accused persons then before him to be discharged, should be vacated. Notices were issued to the accused respondents to show cause why the order complained of in the petition should not be set aside.

This petition first came up for hearing before me in Single Bench and as there was a conflict of opinion on the point "whether a G. A. or an Advocate‑General is empowered under the law to withdraw from the prosecution of a case pending in any court of law without assigning any reasons for the withdrawal", I referred it for consideration to a larger Bench. This has now come up for decision before this Full Bench.

It is not denied before us that the G. A. who applied for the withdrawal of the case in question was not in charge of the case. It is also not denied that there is no notification by the State Government appointing the G. A. a Public Prose cutor as contemplated by section ‑492 Cr. P. C. That being so, the provision of section 494 Cr. P. C., do not apply and extend to the case of the G. A. It is only section 495 clause 2 of the Cr. P. C. which empowers an Advocate‑General to withdraw from the prosecution of a case. This clause is interlinked with clause 1 of section 495 Cr. P. C., which lays down that an Advocate‑General, can conduct any case pending before any Magistrate without obtaining permission for doing so from the latter. The perusal of both the clauses referred to above lead us to one inevitable inference namely that, an Advocate‑General can withdraw that case of which he is in charge. It therefore follows that a G. A. cannot withdraw from the prosecution of a case unless he himself is conducting the prosecution.

It has been vehemently argued before us that, it is riot obligatory on the Court to record reason for permitting a withdrawal. At present we are not called upon to decide whether or not it is desirable that the Magistrate should record reasons where a case is permitted to be withdrawn. At present we are concerned with only one aspect of the matter namely whether withdrawal of the case could take place at the yadasht of the G. A. as done in the present case. The record does show that the Magistrate was, influenced by the yadasht of the G. A. and did not exercise his judicial discretion when allowing the withdrawal of the case. We are therefore convinced that the Magistrate did not properly give the consent. The learned G. A. cited 1924 Rangoon 168 in support of his plea that the only prosecutor who may under the Court withdraw from the prosecution of a case without the consent of the Court and without giving reasons is an Advocate General. With due respect to the learned judge who was responsible for the above ruling we cannot agree to his views. It is difficult for us to hold that a G. A. who was neither incharge of the case nor entered appearance to withdraw the case, could under the law withdraw from, the prosecution of the accused by simply writing a yadasht to the, trying Magistrate. We have not come across a single ruling where such a course as in the present case; was adopted by any prosecutor and considered legal. How a G. A. while sitting in his cosy room in the High Court could legally withdraw from the prosecution by simply writing a yadasht to the trial court. We have already stated that in the present case the learned G. A. was not incharge of the case and therefore section 494 Cr. P. C. did not extend to him.

For the foregoing reasons our answer to the reference is in the negative.

‑I agree.

A. H. Reference answered.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.