Full Judgment Text
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PETITIONER:
THE STATE OF BIHAR
Vs.
RESPONDENT:
RAM NARESH PANDEY(With Connected Appeal)
DATE OF JUDGMENT:
31/01/1956
BENCH:
ACT:
Criminal law-Prosecution-Application for withdrawal by
Public -Prosecutor-Consent of Court-Function of the Court in
giving such consent-Case triable by a Court of Session
Whether application for withdrawal does not lie in the
committal stage’ Tried’ ’judgment’, Meaning of-Code of
Criminal Procedure, 1898 (Act V of 1898), s. 494.
HEADNOTE:
By s. 494 Of the Code of Criminal Procedure, 1898: " 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."
The prosecution of M. and others was launched on the first
information of the first respondent, and when the matter was
pending before the Magistrate in the, committal stage and
before any evidence was actually taken, and ’application for
the withdrawal of M. from the prosecution was made by the
Public Prosecutor under s. 494 Of the Code of Criminal
Procedure on the ground that " on the evidence available it
would not :be just and expedient to proceed with the
prosecution of M." The Magistrate was of the opinion that
there was no reason to withhold the consent that was applied
for and accordingly he discharged the accused. This order
was upheld by the Sessions judge, but on
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revision, filed by the respondents, the High Court set aside
the order and directed the Magistrate to record the evidence
and then consider whether it established a -Prima facie
case against the accused. The State appealed against the
order of the High Court by special leave, while the
respondents sought to support the order on the grounds (1)
that where the application for withdrawal of the prosecution
is made on the ground of no evidence or no adequate or
reliable evidence the Magistrate must hold a preliminary
enquiry into the relevant evidence, and (2) that in a case
tried by jury by a Court of Session, an application by the
Public Prosecutor under S. 594 Of the Code does not lie in
the committal stage.
Held : (1) Though the function of the Court in giving the
consent under s. 594 of the Code is a judicial one, it is
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not necessary that the discretion is to be exercised only
with reference to material gathered by the judicial method,
and what the Court has to do is to satisfy itself that the
executive function of the Public Prosecutor in applying for,
withdrawal of the prosecution 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.
(2) The word " tried " in s. 494 Of the Code is not used in
any limited sense and the section is wide enough to cover
every kind of inquiry and trial, and applicable to all cases
which are capable of terminating either in a discharge or in
an acquittal according to the stage at which the application
for withdrawal is made.
An order of committal which terminates the proceeding so far
as the inquiring Court is concerned is a " judgment " within
the meaning of s. 494 of the Code of Criminal Procedure.
Giribala Dasee v. Mader Gazi, (1932) I.L.R. 60 Cal 233, and
Viswanadham v. Madan Singh,, I.L.R. (1949) Mad. 64,
approved.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 53
and 54 of 1956.
Appeals by special leave from the judgment and order dated
May 31, 1955, of the Patna High Court in Criminal Revision
No. 102 of 1955, arising out of the judgment and order dated
January 10, 1955, of the Court of the Sessions Judge of
Manbhum-Singhbhum of Purulia in Criminal Re-vision No. 43 of
1954.
Mahabir Prasad, Advocate-General of Bihar, Tarakesh. war
Nath and S. P. Verma, for the appellant in Appeal No, 53 and
for respondent No, 3 in Appeal No. 54,
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H. J. Umrigar and A. G. Ratnaparkhi, for the appellant in
Appeal No. 54.
Jai Gopal Sethi and Govind Saran Singh, for the respondents
in Appeal No. 53 and for respondents’ Nos. 1 and 2 in Appeal
No. 54.
1957. January 31. The Judgment of the Court was delivered
by
JAGANNADHADAS J.-These appeals arise out of an order of
discharge passed by the Subordinate Judge-Magistrate of
Dhanbad under s. 494 of the Code of Criminal Procedure on
his consenting to the withdrawal of the Public Prosecutor
from a prosecution pending before him in so far as it was
against the appellant. Mahesh Desai, one of the accused
therein. The prosecution was launched on the first
information of one Ram Naresh Pandey as against 28 persons
about the commission of the murder of one Nand Kumar
Chaubey, a peon of a colliery in Bagdigi, committed in the
course of a serious riot on February 20, 1954. This was
said to have resulted from differences between two rival
labour-unions in connection with a strike. The prosecution
as against most of the other persons is under various
sections of the Indian Penal Code including s. 302, on the
ground of their actual participation in the commission of
the murder. But as 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
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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
36
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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 to withhold
the consent that was applied for. He accordingly discharged
the accused. That-order was upheld by ’the learned Sessions
Judge on, revision petition against it filed jointly by the
first informant in the case and by the, widow of the
murdered person. These private parties pursued the matter
further and applied to the High Court’ in revision. The
learned Chief Justice who dealt with it was of the opinion
that the consent should not have been granted. Accordingly,
he set it aside. The learned Chief Justice recognised that
normally in a matter of this kind the High Court should not
interfere. But he felt called upon to set aside the order
on the ground that ,there’ wag’ no judicial exercise of
discretion in the present case." He, therefore, directed
that the Magistrate should record the evidence and then
consider whether it establishes a prima facie case against
the appellant, Mahesh Desai. The Advocate General of the
State has come up before this Court against the order of the
learned Chief Justice. Leave was granted because it was
urged that the view taken by the learned Chief Justice was
based on an erroneous appreciation of the legally
permissible approach in a matter of this kind and that the
decision of the learned Chief Justice was likely to have
repercussions in the State -beyond what was involved in the
particular case. The aggrieved party, Mahesh Desai, also
has come up by special leave and both these appeals are
disposed of by this judgment.
The,question of law involved may be gathered from the
following extracts from the learned Chief Justice’s
judgment.
"’This is not a case where there is no evidence; on the
contrary, this is a case where there is evidence which
require’s judicial consideration.......... The procedure
which the learned Special Magistrate followed was
283
tantamount to considering the sufficiency or otherwise of
evidence before the evidence has been heard........ The
function of the Court would be surrendered to the Public
Prosecutor. I do. not think that s. 494 of the Code of
Criminal Procedure justifies, such a procedure..
The legal question that arises from the above is whether
where an application for withdrawal under s. 494 of the Code
of Criminal Procedure is made ’on the ground of
insufficiency or meagreness of reliable evidence that is
available, it is an improper exercise of discretion for the
Court to grant consent ’before evidence is taken, if it was
reasonably satisfied, otherwise, that the evidence, if
actually taken, is, not likely to result in- conviction.
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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 returns of the verdict,
and in other cases; before the judgment is pronounced,
withdraw from the prosecutions 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 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 may make the’ application, or the considerations-
on, which the Court is -to grant its consent. There can be
no doubt, how ever, that the resultant order, on the
granting of the consent, being an order of I discharge’ or
’acuittal’, would attract the applicability of correction
by; the
284
High Court under es. 435, 436 and 439 or 417 of the Code of
Criminal Procedure. The function of the Court, therefore,
in granting its consent may well be ,taken to be a judicial
function. It follows that in granting the consent the Court
must exercise a judicial discretion. But it does not follow
that the discretion is to be exercised only with reference
to material gathered by the judicial method. Otherwise the
apparently wide language of s. 494 would become considerably
narrowed down in its application. In understanding and
applying the section, two main features thereof have to be
kept in mind, The initiative is that of the Public
Prosecutor and what the Court has to do is only to give its
consent and not to determine any matter judicially. As ;the
Privy Council has pointed out in Bawa Faqir Singh v. The
King Emperor(1) " It (section 494 of the Code of Criminal
Procedure) gives a general executive discretion (to the
Public Prosecutor) to withdraw from the prosecution subject
to the consent of the Court,, which may be determined on
many possible grounds." The judicial function, 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. In this
context it is right to remember that the Public Prosecutor
(though an executive officer as stated by the Privy Council
in Bawa Faqir Singh v. The King Emperor(1)) is, in a larger
sense, also an officer of the Court and that he is bound to
assist the Court with his fairly-considered view and the
Court is entitled to have the benefit of the fair exercise
of his function. It has also to be appreciated that in this
country, the scheme of the administration of criminal
justice is that the primary responsibility of prosecuting
serious offences (which are classified as cognizable
offences) is on the executive authorities. Once information
of the commission of any such offence reaches the
constituted
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(1) (1938) L. R. 65 I. A. 388, 395.
285
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 determination of any specific issue,. The
Magistrate’s functions in these matters are not only
supplementary,. at a higher level, to those of the executive
but are intended to prevent abuse. Section 494 requiring
the consent of the Court for withdrawal by the Public
Prosecutor is more in line with this scheme, than with the
provisions of the Code relating to inquiries and trials by
Court. It cannot be taken to place on the Court the
responsibility for a prima facie determination of a triable
issue. For instance the discharge that results therefrom
need not always conform to the standard of " no prima facie
case " under ss. 209(1) and 253(1) or of " groundlessness "
under ss. 209(2) and 253(2). This is not to say that a
consent is to be lightly given on the application of the
Public, Prosecutor, without a careful and proper scrutiny of
the grounds on which the application for consent is made.
A large number of cases from the various High Courts have
been cited before us. We have carefully gone through them.
All of them recognise that the
286
function of the Magistrate in giving consent is a judcial
one open to correction. But in some of them there is no
sufficient appreciation of the respective positions of the
Public prosecutor and the Court, in the discharge, of their
functions under s. 494 as we conceive. them to be. There
is, however, a general concurrence-at least in the, later
cases-that the. application for consent may legitimately be
made by the Public Prosecutor for reasons not confined to
the judicial prospects of the prosecution. [See The King v.
Moule Bux(1) and. The King v. Parmanand(2).] If so, it is
clear that, what the Court has to determine, for the
exercise of its discretion in granting or withholding
consent, is not a triable issue on judicial evidence.
Learned counsel for the respondents has strenuously urged
before us that while this may be so where the consent is
applied for on other grounds, or for other reasons, the
position would not be the same, where the application for
consent is made on the ground of no. evidence or no adequate
or reliable evidence. It is urged that in such a case, the
Court can exercise its, judicial function, only with,
reference to judicially recorded evidence as in one or other
of the appropriate situations contemplated by the Code for’
judicial inquiry or trial. If this argument means anything
it must mean that in such a situation the Court before
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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 hereunto. It appears to us that this
would be engrafting, on the, wide terms of s. 494 an
exception or & 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
(1) A.I.R. 1949 Pat’233 (F.B.).
(2) A.I.R. 1949 Pat. 222, 226 (F.B.).
287
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 have been recorded by the, time the
application is made is not to be looked into and considered
in such cases, in order to determine the impropriety of the
withdrawal as amounting to abuse or an improper interference
with the normal course of justice.
Learned counsel for the respondents has raised a fresh point
before us for maintaining the order of the High Court
setting aside the discharge of the appellant by the
-Magistrate. The point being purely one of law, we have
allowed it to be argued. His contention is that in a case
triable by a Court of Session, an application by the Public
Prosecutor for withdrawal with the consent of the Court does
not lie in the committal stage.’ He lays emphasis on the
wording of s. 494 which says that " in cases tried by jury,
any Public, Prosecutor may, with the consent of the Court,
withdraw from the prosecution of any person before the
return of the verdict." This, according to him, clearly
implies that such withdrawal cannot be made until the case
reaches the trial stage in the Sessions Court. He also
relies on the further phrase in the section " either
generally or in respect of any one or more of the offenses
for which he is tried." The use’ of the word ’tried’ in this
phrase. confirms, according to him, the contention that it
is only when the case reaches the stage of trial that s. 494
can be availed of. He draws our attention to a passage in
Archbold’s Criminal Pleading, Evidence and Practice (32nd
Ed.),pp. 108, 109, s. 12, that "a nolle prosequi to stay
proceedings upon an indictment -or information pending in
any Court may be entered, by leave of the Attorney General,
at the instance of either the prosecutor or the defendant at
any time after the bill of indictment is signed, and before
judgment." He urges that it is this principle that has been
recognised in the first portion
288
of s. 494 of the Code of Criminal Procedure. It appears to
us that the analogy of the English practice would be
misleading as an aid to the construction of s. 494. The
scheme of our Criminal Procedure Code is substantially
different. The provision corresponding to the power of the
Attorney-General to enter nolle prosequi is s. 333 of the
Code of Criminal Procedure which refers to jury trials in
High Court. The procedure under s. 494 does not correspond
to it. The phrase " in other cases before the judgment is
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pronounced " in s. 494 would, 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 exerciser 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 stage at
which the section is invoked. The whole argument of the
learned counsel is based upon the use of the word ,tried’
and he ehaphasises the ’well-known distinction between
’inquiry’ and ’trial’ in the scheme of the Code. Our
attention has also been drawn to the definition of the word
’inquiry’ in s. 4 (k) of the Code which runs as follows:
"’Inquiry includes every inquiry other than a trial
conducted under this Code by a Magistrate or Court."
289
There is hardly anything in this definition which throws
light-on the question whether the word ’trial’, is used in
the relevant section in a limited sense as excluding an
inquiry. The word ’trial’ is not defined in the Code.
’Trial’ according to Stroud’s Judicial Dictionary means "the
conclusion, by a competent tribunal, of questions in issue
in legal proceedings, whether civil or criminal"(1) and
according to Wharton’s Law Lexicon means "the hearing of a
cause, civil or criminal, before a judge who has
jurisdiction over it, according to the laws of the land"(2).
The words ’tried’ and ’trial’ appear to have no fixed or
universal meaning. No doubt, in quite a number of sections
in’ the Code to which our attention has been drawn the words
’tried’ and trial’ have been used in the sense of reference
to a stage after the inquiry. That meaning attaches to the
words in those sections having regard to the context in
which they are used.’ There is no reason why where these
words are used in another context in the Code, they should
necessarily be limited in their connotation and
significance. They are words which must be considered with
regard to the particular context in which they are used and
with regard to the, scheme and purpose of the provision
under consideration.
An argument has also been advanced by the learned Counsel
for the respondents before us by referring to the word
"judgment" in the phrase "in other cases before the judgment
is pronounced" in s. 494 as indicating that the phrase "in
other oases" can refer only to proceedings which end in a
regular judgment and not in any interim order like
commitment. Here again the difficulty in the way of the
contention of the learned Counsel being accepted, 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
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that it is not applicable to an order of committal which
terminates the proceeding so far as the inquiring Court
(1) Stroud’s judicial Dictionary, 3rd Ed., VOl. 4, P. 3092.
(2) Wharton’s Law Lexicon, 14th Ed., p. 101.
37
290
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.
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 ’Charge; and upon such withdrawal, if it, is made
whilst the case is under inquiry, the accused person shall
be discharged. If it is made when he is under trial, the
accused person shall be acquitted."
In the next Code of 1882 (Act X of 1882) this appears as s.
494 thereof and runs as follows:
"Any Public Prosecutor appointed by the Covernor-General in
Council or the Local Government may, with the consent of the
Courts, 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;
and, upon such withdrawal,
(a) if it is made before a charge has been framed, the
accused shall ’be discharged;
(b) if it is made after a charge has been framed, or when
under this Code, no charge is required, he shall be
acquitted."
It may be noticed that there has been a complete redrafting
of the section which brings about two alterations. this
section seems to have remained as such in the 1898 Code (Act
V of 1898). The next modification in the section appears to
have been made by Act XVIII of 1923 -which inserted the
phrase "either generally or in respect of any one or more of
the offences for which he is tried" in the appropriate
place
291
in s. 494 as it stood in the 1882 Code (in addition to
omitting’ the phrase "appointed by the Governor General in
Council or Local Government"). The present s. 494 is the
corresponding section in the 1882 Code as so altered. It
will be thus seen there are altogether three substantial
changes in between 1872 and 1923 in the corresponding s. 61
of the 1872 Code. The first two changes made in 1882 were
obviously intended to indicate that the result by way of
discharge or acquittal should depend not on the distinction
between inquiry and trial but, on the fact of a charge
having been framed or not having been framed. The second
was to clarif that the application can be made generally up
to tie point when judgment is pronounced but to provide for
an exception thereto in respect of cases which in fact have
gone up for a jury trial, in which case the applicati on can
be made only up to the point of time before the verdict is
pronounced. The third change in 1923 was to make it clear
that the withdrawal need not be in respect of the entire
case against a particular individual but in respect of one
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or more only of the charges for which he is being
prosecuted. These three changes, therefore, were introduced
for spcific 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 words " 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 latter 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
292
has not been used in any limited sense. Substantially the
same view has been taken in Giribala Dasee v. Madar Gazi (1)
and Viswanadham v. Madan Singh(2) and we are in agreement
with the reasoning therein as regards this question.
As regards the merits of the appeals, the matter lies in a
short compass. AB already stated the application by the
Public Prosecutor was made before any evidence was taken in
the committal stage. The only materials then available to
the Public Prosecutor or to the Court were the contents of
the first information report and any statements of witnesses
that may have been taken by the police during investigation.
What is alleged against the appellant, Mahesh Desai, in the
first information report can be gathered from the following:
"These persons, viz., Mahesh Desai and others,regularly held
meetings and advocated for closing Bagdigi cable plant and
coke plant and assaulting the "dalals’. Yesterday, Friday
morning when some labourers were going to resume their work
in 8 No. pit, at Lodna the striking labourers created
disturbance there and the labourers of that place who were
going to resume work could not do so. At about 11 a. m.
Mahesh Desai the leader of the Koyala Mazdoor Panchayat came
to Bagdigi and told the labourers of this place to stop all
work, to hold on to their posts and to see that no one
worked. At the instance of Mahesh Desai the labourers
stopped the work. Last night at about 11-30 p.m. when I was
in my quarter at Lodna, Jadubans Tiwary, the overman of
Bagdigi Colliery, said that Sheoji Singh and Ramdhar Singh
’had told him that in the evening at about 6-30 p.m. Mahesh
Desai came to Bagdigi Mahabir Asthan Chala, collected 120 to
125 labourers and held a meeting and Mahesh Desai said that
he had come to know that the company and its dalals would
take some labourers to pit No. 10 this morning to resume the
work and they would get the work resumed by them. In this’
morning Phagu Dusadh, Jalo Dusadh, Chamari Dusadh and others
were (sic) took part. Mahesh Desai said to
(1) [1932] I.L.R. 6o Cal. 233.
(2) I.L.R. [1949] Mad. 64.
293
them " You go to your respective works and see that no one
works there happen what may. You remain, prepared in every
respect. The labourers of Lodna will also come to your
help. The police will not be able to do any harm to you ".
The meeting dispersed at about 7-30 o’clock. Mahesh Desai
went by his Jeep from Mahabir Asthan to pit No. 10 and told
the labourers there to stick to their strike. Then Phagu,
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Jalo and Haricharan 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 Haricharaa came back."
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 Phaou 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 murder of Nand Kumar Chaubey
committed by Phagu Dusadh, Jalo Dusadh and Haricharan Dusadh
to-day at 8-15 a.m. with lathi and pharsa."
It is clear from this that what is ascribed to Mahesh Desai
is that he is alleged to have exhorted the laborers once in
-the morning at 11 a.m. and again in the night at 6-30 p.m.
as also at 7-30 p.m. As regards the exhortation at 11 a. m.
it is not quite clear from the first information report
whether the
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informant speak,% to his personal knowledge or what he heard
from the labourers. As regards what is said to have
transpired at 6-30 p.m. and 7-30 p.m., it appears to be
reasonably clear that the person who gave the information to
the informant was Jadubans Tiwary and that his information
itself was probably based on what Sheoji Singh and Ramdhar
Singh had told him. It would be seen, therefore, that the
prosecution must depend upon the evidence of Jadubans
Tiwary, and possibly of Sheoji Singh and Ramdhar Singh and
that what these three persons could speak to was at best
only as to the exhortation made by Mahesh Desai at the
various stages. Presumably, these witnesses were examined
by the police in the course of the investigation. Now, on
this material, we find it difficult to appreciate why the
opinion arrived at by both the trial court and the Sessions
Court that the’ view taken of that material by the Public
Prosecutor, viz., that it was meagre evidence on which no
conviction could be asked for, should be said to be so
improper that the consent of the Court under s. 494 of the
Code of Criminal Procedure has to be withheld. Even the
private complainant who was allowed to participate in these
proceedings in all its stages, does not, in his objection
petition, or revision petitions, indicate the availability
of any other material or better material. Nor, could the
complainant’s counsel, in the course of arguments before us
inform us that there was any additional material available.
In the situation, therefore, excepting for the view that no
order to withdraw should be passed in such cases either as a
matter of law or as a matter of propriety but that the
matter should be disposed of only after the evidence, is
judicially taken, we apprehend that the learned Chief
Justice himself would not have felt called upon to interfere
with the order of the Magistrate in the exercise of his
revisional jurisdiction.,
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We are, therefore, clearly of the opinion, for all the above
reasons, that the order of the High Court should be set
aside and the appeals allowed. Accordingly, the order of
the trial court is hereby restored.
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There -was some question raised before us as to whether the
private complainants could be allowed,’ to participate in
these proceedings at the various stages. Nothing that we
have -said is intended to indicate that the private
complainant has a locus standi.
It is unfortunate that this prosecution which is still
pending at its very early stages has got to be proceeded
with against all the rest of the accused, after the lapse of
nearly three years from the date of the murder. It is to be
hoped that the proceedings which must- follow will be
speeded up.
Appeals allowed.