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Writ Petition No. 46 of 1979/BW P, decided on 25th February, 1979

--- S, 494‑--Withdrawal of case‑--Function of Public Prosecutor --‑Consent of District Magistrate necessary for actual withdrawal.

A. H. Gillani for Petitioner.

Authorities concerned, it appears, have not appreciated the provisions contained in section 494, Cr. P. C. The A. D. C. (G) though as if the withdrawal of the case is made by the District Magistrate himself ; that is why, he noted that it had twice been rejected earlier by the District Magistrate. The note of A. D. C. (G) was endorsed by the District Magistrate by the order that there was "no ground for reconsideration." Similarly the learned District Attorney, it appears, thought that he was making a recommendation to the District Magistrate to take a decision with regard to the withdrawal of the case. On the other hand according to section 494, Cr. P. C. it is the function of the learned Public Prosecutor (now D. A.) himself to withdraw the case. He is only to request the District Magistrate for consent for such a withdrawal. The responsibility A for making the withdrawal will be that of the Public Prosecutor while the consent will be that of the District Magistrate. If both the learned functionaries were made conscious of their respective functions in this behalf under the Code of Criminal Procedure, the result might have been different. The petitioners can even now make a direct application to the District Attorney for withdrawal, who if he thinks fit, would take a decision of his own for withdrawal and then seek the permission of the District Magistrate to make the actual withdrawal. In the circumstances of this case it is not a fit matter for being entertained in writ jurisdiction of the Court. This petition accordingly is disposed of.

Order Accordingly.

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