V. RAMASWAMY NAIDU Vs. SHANKARLAL SHARMA AND OTHERS

JUDGEMENT

(1.) THE Petitioner, who was P.W. 1 in S.C No. 116 of 1971 on the file of the Assistant Sessions Judge, Coimbatore, has preferred this revision challenging the order of discharge passed by the Assistant Sessions Judge of Coimbatore, under Section 494 of the Crl. P.C. (Old Code) on his consenting to the withdrawal of the Special Public Prosecutor from the prosecution of the Respondents 1 and 2 (accused 1 and 2). The prosecution was launched on the first information of one Ramaswami Naidu (P.W. 1) as against the two Respondents. The two Respondents stood charge -sheeted by the Sub Inspector of Police, Pothanur in Crime No. 217 of 1971, Pothanur Railway Police station for offences punishable under Section 420, read with Section 34, I.P.C. and Section 406, 467 and 471, I.P.C. on the allegation that on 10th May 1971 between 1 p.m. and 5 p.m., in between Coimbatore and Singanallur goods yard, the Respondents joined together with the common intention of committing the offences of cheating, criminal breach of trust and using as genuine, forged documents namely the three railway receipts and in furtherance of the abovesaid common intention, the first Respondent cheated the complainant, P.W. 1, Ramaswami Naidu, Managing Director of Kadri Mills Co., Ltd by dishonestly inducing him to deliver the three railway receipts in respect of 196 bales of cotton against which the Bank of India, Coimbatore, advanced Rs. 2,58,000/ -by offering to obtain delivery of these bales and deposit them in the Bank of India Pledge Godown at the said mill premises. Believing the representations made by the first Respondents, the complainant handed over the said three railway receipts after affixing his signature on the blank forms. Both the Respondents have committed criminal breach of trust in respect of three railway receipts and the other allied offences.

(2.) THE preliminary enquiry was held by the learned Sub Magistrate, City No. 2, Coimbatore in P.R.C. No. 6 of 1971 and both the Respondents were committed to sessions on 23rd November 1971. This case was taken on file in S.C. No. 116 of 1971 by the First Additional Assistant Sessions Judge, Coimbatore, and the same was pending in that Court. It transpires from the records that while the case was pending before the First Additional Assistant Sessions Judge, P.W. 1 moved an application in Crl. M.P. No. 1147 of 1973 before this Court praying for transfer of this case from the file of the First Additional Assistant Sessions Judge's Court to the file of the Sessions Court, Madurai, on the ground that even though the committal Order has been made as early as 23rd November 1971, the First Additional Assistant Sessions Court has not disposed of the seme. But, Crl. M.P. No. 1147 of 1973 was dismissed by this Court 30th March 1973. During the pendency of that transfer petition, the Special Public Prosecutor, who was in charge of the case, filed a petition on 12th March 1973 under Section 494 Code of Criminal Procedure (old) on the basis of the order of the Government of Tamil Nadu passed in G.O. No. 772/MLCI/73 -3, dated 21st February 1973, for the withdrawal of the said prosecution and thereby requested the Court to permit him to withdraw from the prosecution of both the Respondents -accused with respect to all the charges for which they have been committed to sessions to take their trial. As a sequel to the said petition, the learned First Additional Assistant Sessions Judge permitted the Special Public Prosecutor to withdraw the prosecution and discharged both the Respondents under Section 494(a) of the Code of Criminal Procedure (Old). It is as against this that the revision Petitioner/comes to the Court challenging the order dated 13th March 1973 mainly on the following/three grounds. Firstly, the learned Public Prosecutor has not given any reason, much less cogent reasons, to satisfy the Court so that the Court can exercise its judicial discretion. Secondly, the Sessions Judge (First Additional Assistant Sessions Judge) has not given any reason whatsoever for granting the permission under Section 494 of the old Code of Criminal Procedure to withdraw the case, and thirdly the Government of Tamil Nadu did not authorise the Special Public Prosecutor to file an application under Section 494 Code of Criminal Procedure and as such the entire order is vitiated.

(3.) ON this question, though, in the past there were varying opinions of various High Court, the point is set at rest by the Supreme Court in its later rulings. So far as this Court is concerned in dealing with the powers of withdrawal under Section 494 Code of Criminal Procedure Govinda Menon, J. in a case reported in Kasi Viswanadhan v. Madan Singh : 1948, M.W.N. (Crl.) 49: A.I.R. 1948 Mad. 422 has discussed the scope of Section 494, Code of Criminal Procedure and held following the decision reported in In Re: Sadavari, 1908 (5) M.L.T 216 that: