STATE OF ORISSA Vs. CHANDRIKA MOHAPATRA

JUDGEMENT

(1.) This group of three Criminal Appeals by Special Leave can be divided broadly into two categories:one category consisting of Criminal Appeals Nos. 308 and 309 of 1975 and the other, consisting of Criminal Appeal No. 310 of 1975. We are disposing of them by a common judgment since the question which arises for consideration in both sets of appeals is as to what is the extent of the power of the Court to give consent to withdrawal of prosecution and discharge of the accused under Section 494 of the Criminal Procedure Code.

(2.) Taking up first Criminal Appeals Nos. 308 and 309 of 1975, both these criminal appeals arise out of prosecutions launched in respect of offences alleged to have been committed in the course of the same incident. The police filed a case against nine respondents in Criminal Appeal No. 308 of 1975 charging them for offences under Sections 143, 341 and 188 of the Indian Penal Code and Section 7 of the Criminal Law Amendment Act. It appears that before the trial could proceed against the respondents, an application was made by Court Sub-Inspector, who was in charge of the prosecution, praying for permission for withdrawal of the prosecution on two grounds. One ground was that it was considered inexpedient to proceed with the case while the other was that the evidence collected during investigation was meagre to proceed against the respondents and that no useful purpose would be served by proceeding with the case against them. The learned Magistrate took the view that it was not sufficient ground for according consent that the prosecution considered it inexpedient to proceed further with the case. But so far as the second ground was concerned, the learned Magistrate held that it was a valid ground and he did not rest this conclusion merely on the averment made by the Court Sub-Inspector but he also perused the case diary for the purpose of satisfying himself that the evidence was not sufficient to proceed against the respondents. The learned Magistrate felt that in this situation it was proper to accord consent for withdrawal of the prosecution, since compelling the State to go on with the prosecution in these circumstances would involve unnecessary expenditure and waste of public time, which could otherwise be profitably utilised for other judicial work. The learned Magistrate accordingly allowed the Court Sub-inspector to withdraw the prosecution and discharged the respondents under Section 494 of the Criminal Procedure Code.

(3.) It seems that this order of the learned Magistrate according consent to the withdrawal came to the notice of the High Court and prima facie taking the view that it was not a proper order, the High Court suo moto issued notices to the State as well as the respondents calling upon them to show cause why this order should not be quashed and set aside. The matter was heard by a single Judge of the High Court and the learned Judge quashed and set aside the order passed by the learned Magistrate with the following observations:-