1963 Supreme(Cal) 126

HIGH COURT OF CALCUTTA
Amaresh Roy
V. K. GODHWANI - Appellant
Versus
STATE - Respondent
Criminal Revn.  1249  Of  1962
Decided On : JUNE 21, 1963

Headnote:

CRIMINAL PROCEDURE CODE - SECTION 494 - WITHDRAWAL OF PROSECUTION - PUBLIC PROSECUTOR - APPOINTMENT - ENGAGEMENT - SECTION 492 - SECTION 4 (1) (T) - INTERPRETATION - LEGAL REMEMBRANCER - POWER TO ENGAGE LAWYER - SANCTION - EXECUTIVE DECISION - ARTICLE 166 OF THE CONSTITUTION OF INDIA - APPLICABILITY - LEGALITY OF WITHDRAWAL - JURISDICTION OF THE COURT.

Fact of the Case:

The accused persons were complained against by the Assistant Collector of Customs and Superintendent, Preventive Service for alleged offences under Section 167 (81) of the Sea Customs Act, 1878, and Section 5 of the Imports and Exports (Control) Act, 1947. The complaint was filed before the Chief Presidency Magistrate, Calcutta, who transferred the case to the Presidency Magistrate for disposal. On July 12, 1962, an application was filed before the learned Presidency Magistrate by a learned Advocate Mr. S. C. Roy Choudhury describing himself as "public Prosecutor" stating that "he had been engaged by the State as the Public Prosecutor to conduct the prosecution of that case and he wanted to withdraw from, the prosecution 'through' Sankdhari in that case in order that he may be examined as a prosecution witness in the case." This petition was made under Section 494 of the Code of Criminal Procedure praying for consent of the Court for such withdrawal necessary under that section of the Code of Criminal Procedure. The learned Magistrate did not grant the adjournment prayed for and made an order saying: "i do not see any reason to adjourn for hearing on the petition for withdrawal and in the circumstances stated by the prosecution in the petition permission is given to withdraw the case and the accused Sankdhari is discharged under Section 494, Cri. P. C." Thereafter, on the same date, when the Magistrate on the prayer of the prosecution proceeded to examine the discharged accused Sankdhari, defence again prayed for adjournment. But that prayer was also disallowed and the discharged accused Sankdhari was examined-in-chief on that very day. Then only, August 1, 1962, was fixed for cross-examination. But that cross-examination has been adjourned at several instances thereafter and has not taken place in the Court of the Presidency Magistrate, when on November 5, 1962, this Court was moved for quashing the order dated July 12, 1962, and upon issue of the Rule the proceeding of the Presidency Magistrate was stayed.

Finding of the Court:

1. The learned Advocate Mr. S. C. Roy Choudhury was not appointed a Public Prosecutor by the State Government under Section 492 of the Code of Criminal Procedure. 2. Mr. S. C. Roy Choudhury was not engaged by any Public Prosecutor in the Court of the Presidency Magistrate, Calcutta, to conduct the prosecution under his directions. 3. The engagement of Shri S. C. Roy Choudhury to conduct the prosecution in the Court of the Presidency Magistrate was neither by the State or by any Public Prosecutor, nor by the Superintendent and Legal Remembrancer Shri K. K. Hazara, nor by the then Joint Superintendent and Remembrancer of Legal Affairs. It was an engagement by an officer of the Government of India, that is, the Collector of Customs who by no means is a Public Prosecutor. 4. The application made on July 12, 1962, not having been made by a Public Prosecutor; withdrawal from the prosecution in respect of the first accused has been illegal. His examination as a witness has been illegal too. 5. The entire order dated July 12, 1962, must, therefore, be set aside and the record of deposition of Sankdhari as P. W. 1 must be expunged from the records physically.

Issues: 1. Whether the learned Advocate Mr. S. C. Roy Choudhury was appointed a Public Prosecutor by the State Government under Section 492 of the Code of Criminal Procedure? 2. Whether Mr. S. C. Roy Choudhury was engaged by any Public Prosecutor in the Court of the Presidency Magistrate, Calcutta, to conduct the prosecution under his directions? 3. Whether the engagement of Shri S. C. Roy Choudhury to conduct the prosecution in the Court of the Presidency Magistrate was by the State or by any Public Prosecutor, or by the Superintendent and Legal Remembrancer Shri K. K. Hazara, or by the then Joint Superintendent and Remembrancer of Legal Affairs? 4. Whether the application made on July 12, 1962, was made by a Public Prosecutor? 5. Whether the withdrawal from the prosecution in respect of the first accused was illegal? 6. Whether the examination of the first accused as a witness was illegal?

Ratio Decidendi: 1. The definition of "public Prosecutor" in Section 4 (1) (t) of the Code of Criminal Procedure includes any person appointed under Section 492 and includes any person acting under the directions of a Public Prosecutor and any person conducting a prosecution on behalf of Government in High Court in exercise of its Original Criminal Jurisdiction. 2. Outside High Court besides Public Prosecutors appointed under Section 492 of the Code of Criminal Procedure, only other kind of Public Prosecutor recognised by law is a person who is engaged to act under the directions of the Public Prosecutor in that local area. 3. An act of appointment of a Public Prosecutor under Section 492 of the Code of Criminal Procedure which is an executive function of the State Government has to comply with the requirement of Article 166 (2) of the Constitution of India. 4. An executive decision is different from an executive action. 5. The matter of appointment of a Public Prosecutor under Section 492 of the Code of Criminal Procedure is more than an executive decision. It is a matter of executive action that requires to be made known.

Final Decision: The Rule is made absolute. The entire order dated July 12, 1962, must, therefore, be set aside and the record of deposition of Sankdhari as P. W. 1 must be expunged from the records physically. For ends of justice, it is necessary that the case shall be dealt with by another Presidency Magistrate to be nominated by the Chief Presidency Magistrate of Calcutta. The case should be proceeded with from the stage immediately before July 12, 1962, in accordance with law and in the light of the observations made above.