Judgement

JAGANNADHADAS, J.- These appeals arise out of an order of discharge passed by the Subordinate Judge Magistrate of Dhanbad under S. 494 Criminal P.C., 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 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 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 appellant was made, on December 6th 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 Shri 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 argument before the learned Magistrate that the position of the Public 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 a 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 was no judicial exercise of discretion in the present case". He therefore, directed that the Magistrate should record the evidence and then consider whether it establish 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.

2. 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 requires judicial consideration.....The procedure which the learned special Magistrate followed was tantamount to considering the sufficiency or otherwise of evidence before the evidence has been h