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PATNA HIGH COURT
Reuben and Misra JJ.
Jogendra Narain Chaudhry
Versus
Ganga Prasad Sah
Criminal Revision No. 125 of 1952 ;
Decided On : APRIL 14, 1953
CRIMINAL PROCEDURE CODE - SECTION 494 - WITHDRAWAL OF PROSECUTION - DISCRETION OF COURT - JUDICIAL EXERCISE - RELEVANT CONSIDERATIONS - INTERFERENCE BY HIGHER AUTHORITIES - IMPROPRIETY - LOCUS STANDI OF INFORMANT - RIGHT TO BE HEARD - ADMISSIBILITY OF MATERIAL - JUDICIAL REVIEW.
Fact of the Case:
The petitioner, Jogendra Narain Choudhry, filed a petition challenging an order passed by a Magistrate allowing a petition under Section 494 of the Criminal Procedure Code (CrPC) and acquitting the accused persons in a case of theft. The petitioner had lodged a first information report on 31st January 1951, alleging that the accused persons had stolen certain items from his house. The case was transferred to a first-class Magistrate, Mr. R. K. P. Sinha, for trial. However, due to Mr. Sinha's transfer, the case was transferred to another Magistrate, Mr. D. Prasad. During the trial, the Court Sub-Inspector filed a petition seeking permission to withdraw from the prosecution, citing instructions from higher authorities. The petitioner opposed the withdrawal, but the Magistrate, Mr. I. C. Pandey, allowed the withdrawal and acquitted the accused persons without assigning any reason.
Finding of the Court:
The Court held that the Magistrate's order allowing the withdrawal of the prosecution was improper and could not be sustained. The Court found that the Magistrate had not exercised his discretion judicially and had failed to consider relevant factors, such as the petitioner's opposition to the withdrawal and the evidence already recorded in the case. The Court also held that the Magistrate had erred in relying on inadmissible material, such as administrative instructions from the District Magistrate, in reaching his decision. Additionally, the Court found that the petitioner had a locus standi to oppose the withdrawal and should have been given an opportunity to be heard.
Issues: 1. Whether the Magistrate exercised his discretion judicially in allowing the withdrawal of the prosecution? 2. Whether the Magistrate erred in relying on inadmissible material in reaching his decision? 3. Whether the petitioner had a locus standi to oppose the withdrawal? 4. Whether the petitioner was given an opportunity to be heard?
Ratio Decidendi: 1. The Court held that the Magistrate had not exercised his discretion judicially in allowing the withdrawal of the prosecution. The Magistrate had failed to consider relevant factors, such as the petitioner's opposition to the withdrawal and the evidence already recorded in the case. Additionally, the Magistrate had relied on inadmissible material, such as administrative instructions from the District Magistrate, in reaching his decision. 2. The Court held that the Magistrate had erred in relying on inadmissible material in reaching his decision. The administrative instructions from the District Magistrate were not relevant to the issue of whether the prosecution should be withdrawn and should not have been considered by the Magistrate. 3. The Court held that the petitioner had a locus standi to oppose the withdrawal. The petitioner was the informant in the case and had a vital interest in the outcome of the prosecution. The Magistrate should have given the petitioner an opportunity to be heard before allowing the withdrawal. 4. The Court held that the petitioner was not given an opportunity to be heard. The Magistrate had allowed the withdrawal without fixing a date for hearing, and there was no evidence that the petitioner had been given an opportunity to file a petition opposing the withdrawal before the order was passed.
Final Decision: The Court allowed the petition, set aside the Magistrate's order, and directed that the case against the accused persons be proceeded with according to law. The Court also directed that the rehearing of the case be conducted by a Munsif-Magistrate of the first class at Sitamarhi, to be selected by the District Magistrate.
Reuben, J.
1. This petition is directed against an order of Mr. I. C. Pandey, a Magistrate of the second class, allowing a petition under Sec. 494, Criminal P. C. and acquitting the accused persons, opposite party, in case No. G. R. 58 of 1951 of the Sitamarhi Court.
2. The occurrence to which the case relates is said to have taken place about 16-1-1951, when the petitioner Jogendra Narain Choudhry was detained in jail custody in connection with a proceeding under Sec.107, Criminal P. C. He was released from jail custody on 29-1-1951, and on 31st January lodged the first information report on which a case under Sec.379/411, I. P, C. was instituted against the opposite party. The charge-sheet in the case was submitted by the Sub-Inspector of Police on 8-2-1951, and the case was transferred to Mr. R. K. P. Sinha, a first class Magistrate, for trial. Mr. Sinha being out of the station, an order was recorded directing the prosecution witnesses to be summoned for 10-3-1951. On that date in the presence of the accused persons six prosecution witnesses were examined and three tendered and on this evidence the Magistrate framed charges under Sec. 411/379, I. P. C. The accused persons having pleaded not guilty, 31-3-1951 was fixed for cross-examination after charge. On that date, however, only the complainant and the accused persons were present. The case was, therefore, adjourned to 23-4-1951, and the Magistrate passed proper orders for enforcing the attendance of the absent prosecution witnesses. He also directed summons to issue for certain other witnesses whom the prosecution wished to examine. On 23rd April one more witness was examined and his cross-examination after charge was declined. The cross-examination of the tendered witnesses after charge was also declined. These witnesses were, therefore, discharged and 24-4-1951 was fixed for further cross-examination. On that date an adjournment was granted on the ground that the lawyer for the accused was ill and the case was fixed for further evidence and cross-examination on 23-5-1951, and 24-5-1951.
On 14-5-1951, however, the case was recalled to the general file by the Sub-Divisional Magistrate and transferred to Mr. D. Prasad, another Magistrate of the first class. No reason was given in the order of the Sub-Divisional Magistrate for the transfer from the file of Mr. R. K. P. Sinha -- a fact which was commented upon in the petition for revision. Although this comment seems to have been intended to convey a reflection on the public authorities and to support the petitioners case that there was something improper in the steps taken for Securing the order of withdrawal, no attempt was made by the District Magistrate to furnish an explanation on the point. We have, therefore, been at great pains to discover the reason, and owing to the industry of the Government Pleader who appeared before us on behalf of the State, have discovered from the Civil Lists of that time that case was probably taken from the file of Mr. Sinha and given to another Magistrate because Mr. Sinha was transferred from Sitamarhi. Had the District Magistrate given the necessary explanation much time of this Court would have been saved.
3. The case was put up before Mr. D. Prasad on 23-5-1951 on which day the accused persons intimated that they did not wish for a de novo trial. Instead of proceeding to take further evidence and to allow the accused persons to cross-examine the witnesses already examined, as has been provided for by the order of 24th April, Mr. Prasad adjourned the case to 20th June. No reason is given why the case was not taken up for trial on 23rd and 24th May. On 20th June six prosecution witnesses were present, five of them already examined and one not. On this date Jogendra Choudhry was recalled and proved certain papers. Also the sixth witness who had not yet been examined was examined and his cross-examination was declined. A further adjournment was then given to the accused persons
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