M N SANKARAYARAYANAN NAIR Vs. P V BALAKRISHNAN

JUDGEMENT

(1.) Respondent 1 and Respondent 2 were committed on 15th June 1965 by the Second Class Magistrate, Cannanore to stand trial before the Assistant Sessions Judge, Tellicherry the former for offences under Sections 467, 478 and 420 read with Section 109 of the Indian Penal Code while the latter under Sections 467 read with 109, 471 and 420. While the case was pending before the Assistant Sessions Judge, the Public Prosecutor of Tellicherry filed a Memo on 30-11-67 under Section 494 of the Criminal Procedure Code for permission to withdraw from the prosecution which permission was accorded by the Assistant Sessions Judge on 2-12-67. The Appellant who was the Managing Partner of Shree Naravana Transport Company, Calicut filed a Criminal Miscellaneous Petition on 19-2-68 in the High Court of Kerala against the order of the Assistant Sessions Judge according permission to the Public Prosecutor for withdrawing from the prosecution. The High Court held that the Public Prosecutor was justified when he applied for the withdrawal of the case and accordingly dismissed the petition against which this appeal comes up before us by Special Leave.

(2.) The 1st Respondent was the Agent of Shree Narayana Transport Company of one of its Branches namely at Baliapattom and in that capacity it was one of his duties to accept goods from the Public for transporting them by lorry service of the Company and issue Way Bills. These Way Bills contained an undertaking that in the event of any of the Banks discounting them and if goods are lost or damaged during transport the Transport Company will be responsible to the Bank. It is alleged that the 1st Respondent. Sued nine Way Bills on different dates in favour of the 2nd Respondent. As if the goods were received but in fact no such goods were accepted for transport nor were any such goods despatched. These Way Bills were duly discounted by the second Respondent the consigner who drew about Rs. 84,000/- against them from his Bank,. This fraud was detected on a check made by the General Manager of Shree Narayana Transport Co., Kozhikode and it appears that the 1st accused (1st Respondent) executed an agreement in favour of the Transport Company undertaking to make good the loss suffered by it, after which he was suspended on 10-4-63. On the same day a complaint was filed before Baliapattom Police and a case was accordingly registered against both Accused 1 and Accused 2. After investigation the Sub Inspector of Police. Baliapattom filed a chargesheet. The Magistrate on the material disclosed in the report under Sec. 173 committed the accused to stand trial before the Assistant Sessions Court on 15-6-65 against which a Revision was filed in the High Court of Kerala on 9-7-65. It was contended before the High Court that the committal was illegal as no evidence had been adduced in the case, as such it would be premature at that stage to say whether any and if so. what offence could be disclosed. The High Court dismissed this Revision Petition on 20-10-66 holding that the procedure adopted in the committal proceedings instituted on a Police report is prescribed in Sec. 207-A of the Criminal Procedure Code under which the Magistrate had the power to commit even without recording the evidences of witnesses. The High Court drew support for this conclusion from a decision of this Court in Ramnaravan Mor v. State of Maharashtra, (1964) 5 SCR 1064 . Where it was held that though normally in a criminal trial, the Court can proceed on documents which are duly proved, or by the rules of evidence made admissible without formal proof, the Legislature had under the amended code in Sec 207-A prescribed a special procedure for commitment of the accused. The record under the said provision consists of the oral evidence recorded under sub-s. (4) of Section 173, and it would be difficult to regard only those documents which are duly proved for which are admissible without proof as "evidence" within the meaning of Cl. (6) and not the rest. On this view it was observed that there was no legal impediment in the Magistrate using the case diary for the purpose of deciding whether there was a case for committal and accordingly dismissed the Revision was disposed of the Assistant Sessions Judge to whom the case stood committed ordered the splitting up the charges into 8 cases against which the second respondent filed a Revision in the High Court under Sec. 561-A. Criminal Procedure Code where it was contended that all the 8 charges should have been consolidated into one case as otherwise there could be 8 distinct offences leading to multiplicity of trials. The High Court by its Judgment dated 30-10-67, following a decision of this Court in Ranchhodlal v. State of Madhya Pradesh, (1965) 2 SCR 283 , said that the order of the Magistrate splitting up the charge into 8 cases was proper and while it does not call for any interference, it left it open for the prosecution as provided under Sec. 240 Criminal Procedure Code to withdraw the other charges if one of the trials should endin a conviction.

(3.) After this petition was dismissed the Respondents seem to have moved the State Government to withdraw the prosecution and accordingly, as would appear from the Memo filed by the Public Prosecutor on 30-11-67, the Government passed an order G. O. Rt. No. 1589/67 Home (B) dated 22-11-67 directing the withdrawal of the case with the sanction of the Court, in the interest of public policy as also because there was no likelihood of the case being pursued to a successful issue. It was stated in the Memo filed by the Public Prosecutor that the alleged offences charged against the accused arose out of a contract agreed to between the accused and the de facto complainant viz., the General Manager, Shree Narayana Transport; that the subject matter of the case had been decided by the Subordinate Judge's Court, Calicut in a Civil suit that the case was registered as early as 1963 and the trial has not yet begun; that the witnesses from far off places such as Bombay and Calcutta are cited and the securing of their evidence would involve heavy expenses for the State and that the case is one of Civil nature.