A Public Prosecutor, who is not in charge of a particular case, is not entitled to file an application under S. 494 of the Code.

Judgment

VAIDIALINGAM

( 1 ) THE question that arises for consideration, in this criminal appeal, by special leave, is regarding the right of a Public Prosecutor to file an application, under S. 494 of the Code of Criminal Procedure (hereinafter called the Code), in respect of a complaint, filed by a private party, and which was being prosecuted by him as such.

( 2 ) THE facts giving rise to this appeal are, briefly, as follows. Harneck Singh lodged a complaint at the Police Station, Phul, on 15/10/1964, at about 10-40 p. m. , that while coming out of a picture house, along with Surjit Singh, first respondent herein, his foot accidentally struck against a third party, Avtar Singh, who was also coming out of the picture house along with Raj Pal, the second respondent. According to the complaint Avtar Singh and the second respondent picked up a quarrel with Harneck Singh, but they were pacified and separated by the Manager of the cinema who intervened. It is also alleged that when later, Harneck Singh and the first respondent were near the Civil Hospital, Phul, the second respondent fired a shot at Harnek Singh. The Police appears to have investigated this complaint and took the view that the second respondent had not participated in the occurrence and that he had been falsely implicated on account of enmity. But, before the police actually filed a complaint before the Magistrate against Avtar Singh alone, the first respondent instituted a complaint before the Magistrate under Sections 307, 504 and 323 read with S. 34, I. P. C. , against both Avtar Singh and the second respondent. The Magistrate, after holding a preliminary enquiry, issued summons to both the accused.

( 3 ) ON 8/01/1965, the Prosecuting Deputy Superintendent of Police, Bhatinda, Sri Harbans Singh, filed an application, in his capacity as Public Prosecutor, before the trial Magistrate, under S. 494 of the Code for permission to withdraw from the prosecution of the case and for discharging the second respondent. According to that officer, the second respondent was innocent and had been falsely involved, in the case by the complainant and that this fact had come to his knowledge during the investigation.

( 4 ) THE said application was opposed by the first respondent on two grounds : (i) that Shri Harbans Singh, Prosecuting Deputy Superintendent of Police, did not exercise the powers of a Public Prosecutor and therefore, that he had no locus standi to file the application; and (ii) that the application was not bona fide. In consequence, the second respondent prayed that permission should not be granted for withdrawal.

( 5 ) THE trial Magistrate, by his order, dated 8/02/1965, overruled the objections raised by the first respondent and held that the Prosecuting Deputy Superintendent of Police was the Public Prosecutor for the entire district of Bhatinda, within whose jurisdiction the Magistrates Court at Phul was situated, and that the application was bona fide. In consequence, the Magistrates gave permission for the withdrawal of the case as against the second respondent, who was one of the two accused.

( 6 ) THIS order was challenged by the first respondent, in revision, before the learned Sessions Judge, Barnala. Apart from contending, that the officer, who presented the application under S. 494 of the Code, for withdrawal, was not a Public Prosecutor, the first respondent urged a slightly new ground of attack. That ground of attack was that, even assuming that the said Officer was a Public Prosecutor, nevertheless, he could not file an application under S. 494 of the Code, inasmuch as the Public Prosecutor was not in charge of the prosecution, which was being conducted by the complainant, a private party. The learned Sessions Judge held that the Officer, who filed the application under S. 494 of the Code, had been appointed as Public Prosecutor for the Magistrates Court at Phul, by the Government. The Sessions Judge also held that the said Public Prosecutor could in