VARKEY MATHAI Vs. PAILY KURIAKO

JUDGEMENT

(1.) The revision-petitioner before this Court is the counter petitioner in Miscellaneous Case No. 18 of 1124 on the file of the First Class Magistrate of Moovattupuzha. On the motion of the original petitioner the police charged the counter petitioner (the present petitioner) before the Magistrate under S.103, Criminal P.C. The Magistrate passed the preliminary order calling upon the present petitioner to show cause why he should not execute a bond with sureties for keeping the peace. Accordingly the petitioner appeared before the Magistrate and obtained bail. Subsequently he moved the District Superintendent of Police saying that the Police Inspector was acting under the influence of the original petitioner and that there was no justifiable ground for making action under S.103, Criminal P.C. The District Superintendent of Police after making some enquiry, directed the Prosecuting Inspector to withdraw the charge. The Magistrate before whom the application for withdrawal of the charges was made, rejected the application and directed the enquiry to continue. Hence this revision petition.

(2.) It is contended on behalf of the revision petitioner that since the enquiry in respect of the proceedings under S.103, Criminal P.C. are to be conducted like the proceedings in summons cases, it is open to the prosecutor in proceedings under S.103 to apply for withdrawal of such proceedings also. The section empowers the Magistrate to discharge the person proceeded against, provided the Magistrate is satisfied that no case has been made out against him. But the Magistrate is not bound to discharge the person on the mere application of the Prosecutor to withdraw the proceedings. When once proceeding under S.103 is started by the police and the Magistrate passes the preliminary order calling upon the counter petitioner to show cause why he should not execute a bond for keeping the peace, the jurisdiction left in the Magistrate to discharge the person proceeded against is discretionary jurisdiction, irrespective of the fact whether the Prosecutor wants to withdraw the case or not. The ruling in 1940 Rang 189 supports this position. It is held in that case that:

(3.) This ruling has been followed in 35 C.L.R. 163. S.406, Criminal P.C. does not apply to security proceedings under S.103 and the Magistrate is competent to proceed with the enquiry irrespective of the application to withdraw.