1973 P Cr (PLP)

Magistrate Ist Class, Bagh "' It is against this order that the complainant doctor Sh. Rafique Ahmed has come up in revision before this Court. Mr. Hafeez learned counsel for the petitioner argued- (i) that on 10-5-72 only the Naib Court was present and that the Naib Court is not competent to withdraw the case; (ii) that even the Court Sub-Inspector is not a Public Prosecutor and only a Public Prosecutor is competent under section 494, Cr. P. C. to withdraw a case; . (iii) that the learned Magistrate had given no reason for allowing the withdrawal of the case; and (iv) that the withdrawal was not desirable at a stage when most of the prosecution evidencb had been recorded. The learned Advocate-General argued that the Court Subs Inspector was a Public Prosecutor within the meaning of section 494, Cr. P. C. and was, therefore, competent to withdraw the case and that it was not essential for the learned trial Magistrate to record any reasons for consenting to the withdrawal of the case. The learned Advocate-General produced Rules relating to the Law Department of the Jammu & Kashmir Government. He referred to Chapter I, rule

5. Rule 5 recites that: -- "In regard to all other Government case work the following officers of the Government shall be Public Prosecutors for the purpose mentioned against their names: (a) Senior Superintendent, District Superintendents and Assistant Superintendents of Police shall be ex officio Public Prosecutors in respect of cases committed from their districts for trial before the Court of Session. (b) Court Inspectors and Court Sub-Inspectors of Police shall be Public Prosecutors within the local area of their jurisdiction in the absence of Public Prosecutors . . . . . . ."' These Rules were published in- the Jammu & Kashmir Govern ment Gazette, 3rd Magh, 1992 Bikrimi, All laws of Jammu & Kashmir not inconsistent with any laws framed or adapted by the Azad Kashmir Government, are deemed to be in force in Azad Kashmir. Mr. Hafeez had not shown anything to, the contrary, therefore, the Court Sub-Inspector shall be taken to be a Public Prosecutor within the meaning of section 494, Cf. P. C. Besides there are judicial authorities also to the effect that the Court Sub-Inspector is also a Public Prosecutor. Reference may be made to A I R 1920 Pat. 362 and A I R 1920 Cal. 300 wherein the Court Sub-Inspector was treated as a Public Prosecutor. I hold that the Court Sub-Inspector was a Public Prosecutor within the meaning of section 494, Cr. P. C. and ' therefore, competent to withdraw the case. Now I take up the question whether it is necessary for the trial Magistrate consenting to the withdrawal of a case to record reasons for giving his consent. Learned counsel for the petitioner eked A I It 1932 Cal. 699, A I R 1930 tend 1516 and A I R 1932 Sind 92 while The learned Advocate-General cited A I R 1924 Pat. 283 and A I R 1932 Lab. 368 in support of his contention that it is not necessary for the trial Magistrate consenting to the withdrawal of the case to record any reasons for giving his consent. Section 494, Cr. P. C. provides that: - "Any "Any Public Prosecutor may, with the consent of the Court, in cases tried by jury before the return of the verdict, and in other cases before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and upon such withdrawal, . A I R 1924 Pat. 283 and A I R 1932 Lab. 368 lay down that section 494, Cr. P. C. does not expressly require the Court to give reasons for consenting to withdrawal. Giving of consent has been held in several Judicial Authorities to be a judicial act and, therefore, open to revision by the High Court. A I R 1943 Sind 161 lays down that: - "An order permitting the withdrawal of prosecution is a judicial order and therefore reasons must be given ' to justify it so as to enable the High Court to judge whether the Magistrate bas exercised his discretion rightly." Tea the same effect is A I R 1949 Sind

233. A I R 1948 Lab. 74 also lays down that the giving of a consent is also a judicial: It was similarly laid down in P L D 1959 Pesh. 186 that:

"From the language of section 494 of the Code it is clear that in the last analysis the responsibility is of the Court to decide, whether to grant or not to grant consent for with drawal, and the discretion can be properly exercised only if the application for withdrawal as considered judicially. Judicial exercise of the discretion means consideration of all the facts and circumstances of the case available to the Court and also of the grounds on which the withdrawal is sought. The very word 'consent' clearly indicates, that it is not to be given lightly on the application of the Public Prosecutor with out a careful and proper scrutiny of the grounds on which the application is based. It was further laid down in this judicial authority that: - "An order of discharge under section 494 is a judicial order, the Court must record reasons in order to enable the High Court to Judge whether the order of discharge has been rightly made. If the Court fails to record reasons in support of its consent to the withdrawal, the High Court can look into the matter in the exercise of its revisional jurisdiction. It is always open to the High Court and in some cases it will be even necessary to go into the matter and to judge for itself whether the order of discharge is proper or otherwise. It was further laid down in this judicial authority that where the Magistrate granting consent surrendered his own judgment to that of the District Magistrate, the 11ction of the Magistrate granting consent is arbitrary and not judicial. It was similarly held in A I R'1929 Cal. 319 that: - "Order under section 494 is a judicial order and the Court should record reasons in order to enable the High Court to judge whether the order of the, withdrawal has been rightly made." It was further laid down in this judicial authority that: - "The language of section 494 is very wide and gives a discretion to the Magistrate as to whether he would consent to the withdrawal of a prosecution by the Public Prosecutor but such discretion to be exercised not arbitrarily but must be based on correct legal principles." It was also laid down in A I R 1949 Pat. 222 that: "The giving or withholding of the consent is a judicial act and the discretion conferred on the Court must be exercised judicially. There is no justification whatsoever for the view that the Prime Minister or any other Minister or executive officer has the power to usurp the functions of the Court or to take the case out of the seism of the Magistrate before whom it is pending for trial. Where the trying Magistrate makes no attempt to exercise his discretion at all and permits the with drawal of the prosecution merely in consequence of the order of the Government the High Court will interfere. The High Court, however, would be reluctant to direct the prosecu tion of persons against whom Government, does not desire to proceed, unless there is evidence which requires judicial consideration. It was laid down in A I R 1949 Pat. 449 that the words 'with the consent of the Court' means consent by free -and indepen dent Magistrate anal that a Magistrate merely passing an order of discharge on orders of the superiors does not exercise his discretion judicially and the High Court carp interfere in revision, It was further laid down in this judicial authority that:- "Section 494 does not anywhere mention either the District Magistrate or the Provincial Government. The person who may withdraw from the prosecution with the consent of the Court is the Public Prosecutor. The Public Prosecutor may, however, act under instructions from the District Magistrate or the Provincial Government. They are, however, executive instructions, and High Court should not ordinarily be-concerned with them. But when such instructions are communicated to the trying Magistrate who obviously is influenced by them, they become relevant for the purpose of deciding whether the Magistrate exercised his discretion judicially." On page 450 of the report is written:- "The expression 'with the consent of the Court' occurring in section 494 must mean a consent freely given by a free and independent Magistrate. A discretion is given to the Magistrate in the; matter of giving his consent, but the discretion must be based on correct legal principles and must not be exercised arbitrarily. High Court can and will interfere if, on the face of the record, it appears that the discretion has been arbitrarily exercised, or the Court had failed to apply its mind, or had been unduly influenced. Where the Magistrates merely regard themselves as instruments for recording such orders as they may receive from superior authority without considering the propriety of those orders, and an order of discharge under section 494 is passed in such circumstances, it is obvious that there is no judicial exercise of the Magistrate's discretion. When this becomes apparent from the record of a case, High Court will not hesitate to set aside an order of discharge when satisfied that the matter is one which, in the public interests, requires further judicial investigation." The use of the word 'consent' in section 494, Cr. P. C. simple that the final power of withdrawal of a case rests with the Court and not with the Public Prosecutor. The Public Pro secutor should give reasons for withdrawal of a case and the Court giving the consent should also record its reason for giving the consent. I beg to differ most respectfully with the view that there is no mention id section 494 of giving the reasons by a Magistrate while giving his consent. Giving or withholding of consent by trial Magistrate is a judicial act and the power of giving a consent has to be exercised judicially and not arbitrarily. Since the giving of a consent is a judicial a it is open to revision by the High Court. Unless reasons are recorded, how can the High Court decide whether the learned trial Magistrate has exercised his discretion judicially or arbitrarily. The view that the Magistrate giving the consent should give reasons is based on commonsense. While giving consent the Magistrate should not be influenced by what hi superiors say `the consent should be of a free and independent Magistrate. He should not subordinate his authority to that of the District Magistrate or the Government. He should look into the reasons advanced for the withdrawal of the case and come to his own independent judgment whether he should allow withdrawal or not. It was held in A I R 1940 Sind 233 that:- "An order under section 494, Cr. P. C., consenting to the withdrawal of a case is a judicial order; to be a judicial order there must be reasons underlying it. These reasons should be capable of articulate expressions. Hence in the interests of justice reasons should be given by 'h subordinate Magistrate so that the High Court can judge whether the Magistrate's discretion has been rightly exercised. Consent within the meaning of section 494 means a consent freely given by a free and independent Magistrate. The Magistrate must not surrender his authority to the District Magistrate, but must act judiciously and come to his own independent conclusion as to whether withdrawal ought to be permitted or not upon a consideration of all the relevant circumstances. The Magistrate also must not surrender his authority and discretion, as such, to the Executive Government. Reasons extraneous to the case are not proper reasons for the with drawal of the case." It was further laid down in this authority that: - "An order made by a Magistrate under section 494, Cr. P. C. can be set aside in revision, even if the revision application is made by a witness in the case who is the aggrieved person. It was laid down in A I R 1940 Rang. 189 that: - "The Magistrate must not surrender his authority under section 494 to the District Magistrate, but must act judicially and come to his own independent conclusion as to whether withdrawal of a case ought to be permitted, or not upon a consideration of all the relevant circumstances. The fact that the District Magistrate has instructed the Public Prosecutor to apply for withdrawal is no reason for a Magistrate giving his consent to such withdrawal. The Public Prosecutor acts with grave impropriety in showing his instructions to the trial Magistrate and the Magistrate acts with equal impropriety in looking at them." It has been laid down in P L D 1966 Kar. 331 that: "An order under section 494, Cr. P. C., consenting to with drawal of the case is a judicial order and so to be a judicial order there must be reasons underlying it. These reasons should be capable of articulate expressions, and there must be an indication in the order itself whether the Magistrate's discretion has been rightly exercised. The consent within meaning of section 494, Cr. P. C. means consent freely given by a free and independent Magistrate who must not surrender his authority to the District Magistrate, but must act judiciously and arrive at his own independent conclusion on consideration of all the relevant circumstances whether that withdrawal ought to be permitted. Where, therefore, an order under section 494, Cr. P. C. by a Resident Magistrate was no given with due considerations to all aspects of the case but was primarily occasioned by the order of the District Magistrate which in turn gave no considerations nor took into account the seriousness of the prima facie case against the accuse and of the injury on the person of one of the complainer party it was held that there was no justification in law ft the withdrawal of the prosecution case and the order parse under section 494, Cr. P. C. was, therefore, illegal." It was held in A I R 1934 Lah. 169 that: "There is nothing to debar the injured person from filing a complaint against the accused merely because the Crown has chosen to withdraw the case, and the Courts are legally entitled to ignore the orders of discharge passed on the withdrawal of the complaint if they are satisfied that the case is otherwise a fit one to be proceeded with." In the case before me there is not an order of discharge but an order of acquittal passed against the accused, therefore, the complainant cannot bring a fresh complaint but he has his remedy by way of moving the High Court in revision. It was laid down in A I R 1921 Cal. 259 that: - "'An order by which a Court acting under section 494 accords consent to the withdrawal from a prosecution, is a judicial order and for every such order the reasons should be given so that the High 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." In the case before me a copy of the Government Order passing the direction for the withdrawal of the case and requiring the District Magistrate, Poonch, to pass on to the concerned prosecuting agency necessary instructions to withdraw from the prosecution was passed on by the District Magistrate, Poonch, to the Sub-Judge, Bagh, who is the trial Magistrate. Even the Court Sub-Inspector recording his statement for with drawal of the case referred to the order of the District Magistrat and the learned trial Magistrate dismissed the case. Obviously the learned trial Magistrate was influenced in dismissing the case by the copy of the Government Order which formed pa of his record and also by the endorsement made thereon by the District Magistrate. I am constrained to hold that the consen given for the withdrawal of the case was not given by a free and independent Magistrate acting on his own. This was a serious case where a high Government officer was assaulted by his subordinates for censuring the work of a subordinate and for requiring a subordinate to explain why he had disregarded his instructions and allowing another subordinate to enter his presence in the register kept for the purpose despite the fact that he had ordered him to report to the Staff Officer, D. H. S., Muzaffarabad. The statements of five eye-witnesses have been recorded. Since the Government does not desire to prosecute the accused, I would have been reluctant in ordering a retrial but there is sufficient evidence on record which requires judicial consideration. Accepting the revision petition the order of the learned trial Magistrate dated 10-5-72 is set aside and the case is remanded back to him for retrial from the stage the case had reached on the date of the said order. The accused are directed to appear before the trial Magistrate on 5-3-1973. Revision accepted. Case remanded for retrial,