SWAN J.-

In this case the appellant was charged by the Borella Police under Section 370 of the Penal Code with theft of six packets of cat-gut, property in possession of the Government, valued at Rs.15, alternatively under Section 392 with Criminal Breach of Trust of the said packets.

Before the trial the prosecuting Inspector moved to withdraw the charge alleging that he was making the application as he "had been directed to do so as the Attorney-General, who originally directed the Police to file plaint in the above case, has after consideration thought it advisable to deal with this matter Departmentally ".

The application was made by way of a written motion dated 24th August, 1951. On this motion the learned Magistrate made the following order :-

" Support on Bench giving reasons for this application."

When the case was called on the Bench, Mr. J. M. H. Toussaint, A. S. P., supported the application reiterating the grounds set out in the motion.

The learned Magistrate informed the A. S. P. that " sufficient grounds should be shown " and refixed the matter for hearing. On the next date Mr. Toussaint again appeared in support of the motion and stated:-

" The Attorney-General on further consideration has advised the Police to withdraw this case as there is not sufficient evidence to prove that the cat-gut in question was serviceable, or that the cat-gut was removed for the purpose of sale. Therefore no value can be attached to the cat-gut."

The learned Magistrate then made order refusing the application, stating that he was not satisfied that sufficient grounds had been shown.

In my opinion no better grounds could have been shown than that the application to withdraw the case was made on the advice of the Attorney-General. But the learned Magistrate resolutely and obdurately refused to be satisfied. In the course of his order the learned Magistrate made the following observation:-

" Even if sufficient grounds are shown the discretion still lies with this Court whether it would permit a withdrawal of this case."

Section 195 of the Criminal Procedure Code provides as follows :-

" If a complainant, at any time before judgment is given, in any case under this chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw the case, the Magistrate may permit him to withdraw the same and shall thereupon acquit the accused, but he shall record his reasons for doing so.

Provided, however, that nothing herein contained shall be taken to extend the powers of a Magistrate to allow the compounding of cases under the provisions of Section 290."

In the context the words " the Magistrate may " only mean " it shall be lawful for the Magistrate to " and nothing more. It is not correct to say that if the grounds are sufficient the Magistrate has a further choice in the matter. The sufficiency of the grounds may be within the discretion of the Magistrate but, if the grounds are sufficient, he is not merely empowered to permit the withdrawal of the case but obliged to do so. When a power is granted to a judicial officer to do a certain thing for a person for whose benefit the power is to be exercised, that power may make it his duty to exercise that power when called upon to do so.

The case then took a curious turn. The learned Magistrate charged the accused afresh. The fresh charge appears in Summary Form 1B and involves certain new matter, namely, that the accused committed theft or, alternatively, breach of trust of " one B. D. Yale G. 5020 syringe with two needles, two bulbs of strychnine hydrochloride, two bulbs of emetin hydrochloride and a bottle containing carminative mixture".

From what source the learned Magistrate obtained the material upon which he framed the added charges one is unable to gather. If he obtained it by looking into the Information Book I would say it was highly improper. Section 122 (3) of the Criminal Procedure Code tells us when a criminal Court may send for the statements made to a Police officer