Proper exercise of discretion by the Sessions Judge, Examination of evidence, Addition of relevant charges under the Indian Penal Code

JUDGMENT

1. This Rule is directed against an order of acquittal made under the provisions of Section 494, Clause (b) of the Code of Criminal Procedure.

2. The accused, opposite party, one Idris Thakur, and one Abila Bewa were committed to the Court of Session to take their trial on charges of the commission of offences punishable under Sections 366 and 344 of the Indian Penal Code. Idris Thakur is a Muhammadan, while the woman Ujjalmani, whom he is alleged to have abducted and confined, is said to be the lawfully married wife of a Hindu neighbour Rajani Kanta Shaha.

3. When the case came on for trial, the Public Prosecutor, acting under the instructions of the District Magistrate, applied for permission to withdraw from the prosecution. The Sessions Judge gave his consent and thereupon followed the acquittal now in question.

4. For his order giving consent to the withdrawal from the prosecution, the learned Sessions Judge has recorded no reasons.

5. Now in the case of Umesh Chandra Roy v. Satis Chandra Roy 41 Ind. Cas. 998 : 22 C.W.N. 69 : 26 C.L.J. 208 : 18 Cr. L.J. 886. it has been held by a Divisional Bench of this Court, that an order, by which the Court acting u/s 494 of the Code accords consent to the withdrawal from a prosecution, is a judicial order and that for every such order the reasons should be given, so that this Court acting in its revisional jurisdiction may be in a position to examine into the matter and determine whether the discretion vested in the Court has been properly exercised.

6. In the present case, however, we may assume that the reason influencing the learned Sessions Judge was that put forward by the Public Prosecutor in his application, namely, that "the evidence of force is wanting."

7. Before accepting and acting upon this reason the learned Sessions Judge should have examined the commitment record for himself.

8. The order of commitment and the record in fact disclose the presence of evidence relating to the use of force. It would be improper for us at this stage to assess the value of that evidence. It is sufficient to say that there is evidence fit for the consideration of a Jury.

9. Moreover, in the present case there is a further reason for holding that the Sessions Judge's discretion has been improperly exercised. The husband's complaint was one not merely of offences involving the use of force, but was also a specific complaint of the offences punishable under Sections 497 and 498 of the Indian Penal Code. There was, therefore, nothing to prevent the addition of charges under the aforesaid sections, and the Sessions Judge should, therefore, have proceeded in the manner indicated in Section 226 and the following sections of the Code of Criminal Procedure.

10. For these reasons we set aside the order of the Sessions Judge granting consent to the Public Prosecutor's withdrawal from the prosecution in question, and the consequent order of acquittal. 'The accused will now be re-placed upon their trial and the case against them heard and disposed of in accordance with law.