The application for splitting charges did not constitute withdrawal from the prosecution under S.494 Cr. P. C. and the splitting of charges and separate trials were permissible under the Criminal Procedure Code.

1. This is a petition filed by the accused in Calendar Case 74 of 1962 on the file of the Additional First Class Magistrate of Shertallai against the order of the learned First Class Magistrate splitting the charges and registering three separate cases. The charge against the accused was that on 7 31962 they jointly collected lime shells and removed the same in three boats without a licence in contravention of S.3 of the Kerala Lime Shells (Control) Act XVIII of 1958 an offence punishable under S.10 of the Act.

2. The Assistant Public Prosecutor in charge of the case filed a petition before the Magistrate that as the case involved three different transactions for which three separate trials have to be conducted, the court might split up the charge and proceed with the trial of the accused in three separate cases. The learned Magistrate allowed the petition and split up the case and directed that the accused be proceeded against in three separate cases C. C. Nos. 224, 225 and 226. The accused challenges the correctness of this order in this revision petition. In view of the importance of the question of law involved, the case has been referred for decision to the Bench.

3. Learned counsel for the accused argues that where after the charge has been framed in a warrant case or the plea has been recorded in a summons case, as in this case, the trial can culminate either in a conviction or in an acquittal and the petition by the Public Prosecutor in this case virtually amounts to a withdrawal of the case and when the petition is allowed the accused must be deemed to have been acquitted of the original charge and he cannot be proceeded against in the three cases as ordered by the Magistrate.

In support of the argument strong reliance was placed on the decision in In re Billa Masthan (AIR. 1955 Andhra 33). In that case the accused was charged with two distinct offences, one for offence under S.408 I. P. C., and another for an offence under S.477A. I. P. C.. The Assistant Public Prosecutor in that case presented a petition to the court that as the two offences were distinct and should not be tried together fresh proceedings be permitted to be started against the accused in respect of the offence under S.408 I. P. C. The learned Magistrate accepted the prayer and ordered separate cases to be registered against the accused for the offence under S.477A. A further petition was filed that as the charge under S.477A had been separated the charge already framed by the court be amended. That prayer was also allowed.

The case finally ended in conviction and when the matter was taken up to the High Court it was contended that the application made to the Magistrate for the separation of the trial on the two charges was to all intents and purposes an application for the withdrawal of the case as contemplated under S.494 Cr. P. C. and if the withdrawal was effected it would operate as an order of acquittal under clause (2) of S.494 Cr. P. C.

The High Court held that there was no power in the Criminal Procedure Code permitting the withdrawal of a case with permission to file a fresh complaint and that the withdrawal of the charge under S.477 would amount to an order of acquittal. In arriving at this decision reliance was placed on a decision of the Madras High Court in re Velayudha Mudali (AIR. 1949 Mad. 508). That decision is clearly distinguishable on the facts inasmuch as an application had been made avowedly under S.494 Cr. P. C. That case cannot have any bearing on the case before us, where no application for withdrawal has been made or proposed to be made and what was asked for was only for the splitting of the charges.

4. The crux of the question is whether an application of the kind made by the Public Prosecutor properly falls within the ambit of S.494 Cr. P. C. We are clearly of opinion that it does not. What S.494 lays down is that any Public Prosecutor may with the consent of the court before the judgment is pronounced, withdraw fr