The main legal point established in the judgment is the requirement for the court to record reasons for allowing withdrawal of a prosecution and the need for the exercise of discretion based on correct legal principles.

JUDGMENT

Mitter, J. - This rule is directed against an order of the Chief Presidency Magistrate by which he allowed the Public Prosecutor to withdraw a criminal prosecution pending against Bijoy Bhusan Bose and further allowed him to be examined as a witness. The order discharging Bijoy was made u/s 494, Criminal P.C. It appears that the said Bijoy Bhusan Bose along with several others including Raman who is the petitioner before this Court was sent up to take his trial on a charge of conspiracy to cheat u/s 120-B read with Section 420, I.P.C. On 20th December 1928 before any evidence was gone into the Public Prosecutor wanted to withdraw the case against Bijoy and to examine him as a witness against the petitioner Raman. This prayer of the Public Prosecutor was allowed, Bijoy was discharged and he was subsequently examined for the prosecution.

2. It is contended in this rule: (i) that the order of withdrawal is bad in law as no reasons have been given by the Chief Presidency Magistrate and (ii) it was not open to the trying Magistrate to permit the withdrawal of the prosecution against Bijoy in order to examine him as a witness against his co-accused viz., the petitioner.

3. In support of ground 1 taken, two decisions of this Court have been referred to: they are the cases of Umesh Chandra Roy v. Satish Chandra Roy [1917] 26 C.L.J. 208, and Jagat Chandra Roy Vs. Kalimuddi Sardar and Others, AIR 1924 Cal 382 . These cases undoubtedly lay down that the order on an application for withdrawal made by the Public Prosecutor u/s 494, Criminal P.C., is passed by the Court in its judicial capacity and the Court must give and record its reason so that the High Court may be in a position to say whether the discretion vested in the Court has been properly exercised. The learned Deputy Legal Remembrancer appearing for the Crown has contended that these decisions are wrong as Section 494 nowhere says that reasons should be recorded and he relies on the decision of the Patna High Court in the case of Gulli Bhagat Vs. Narain Singh, AIR 1924 Patna 283 . We are bound, however, by the decisions of our own Court and we think that as the order u/s 494 is a judicial order the Court should record reasons in order to enable the High Court to judge whether the order of the withdrawal has been rightly made. In this case, however, the Magistrate has given his reasons for allowing the withdrawal and he states in effect that the withdrawal is allowed in order that Bijoy who was indicated jointly with the petitioner might give his evidence against the latter. This leads me to consider ground 2 raised as to whether this is a sufficient and good reason for allowing an withdrawal. The argument of the petitioner is put in this way :-It is said that S, 337, Criminal P.C., is the only section which lays down the procedure which is to be followed in the case of certain offences with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to the said offences and this provision seems to import the idea that it is only in particular cases that evidence of a co-accused is available against the other and is so available under certain conditions and safeguards and that it could not have been the intention of the legislature to allow a co-accused to depose against another except under the safeguards mentioned in Section 337. We are unable to agree with this contention. Section 494 of the Code stands by itself. The effect of the section is that as soon as an accused is discharged under that section he is taken away from the category of an accused parson and becomes under the general principles of law a competent witness against his co-accused. The question is :- Is there anything wrong in law in allowing the Public Prosecutor to withdraw the prosecution against Bijoy in order that he may call him as a witness for the prosecution.

4. It appears that so far back as 1840 Erskine, J., cited a passage from Hale P. C 11