EMPEROR Vs. GANESH DAMODAR

JUDGEMENT

(1.) WE agree with the learned Sessions Judge that Section 544 of the Code of Criminal Procedure and Rule No. XI made by the Government of Bombay under that section regulating the payment, on the part of Government, of the expenses of complainants and witnesses in cases coming before the criminal Courts, invest the Magistrate trying a warrant case with a discretionary power exercisable by him within the limits specified in the rule itself. The question, then, is whether in the present case, the offences charged against the accused being admitted to be bailable, " the prosecution has been instituted or is being carried on by, or under the orders of, or with the sanction of Government, or of any Judge, Magistrate, or other public officer." There is no material before us on which we should be justified in holding that the prosecution has been instituted or carried on by, or under the orders of, or with the sanction of Government. But Mr. Khare, appearing for the accused, argues that it is a prosecution instituted by a public officer, because the complainant here is the Police Inspector. But the record shows that the police are acting merely in exercise of the authority vested in them as to cognizable offences. A Police Constable reported the alleged offence to the Police Inspector. The accused were arrested by the Police and then placed before the Magistrate. Upon these facts it cannot be said that the prosecution falls within the terms of the rule above quoted, especially having regard to the Note, appended to the rule, which runs as follows: -

(2.) THE question, however, remains whether though the prosecution was not instituted by or under the orders of Government or of any Judge, Magistrate or other public officers, it is after institution, being "carried on " by or under the orders of any of them. Mr. Kharo for the accused having urged that a special pleader of this Court has been employed to conduct the prosecution, the learned Government Pleader has informed the Court that after the institution of the prosecution the Legal Remembrancer wired to him to send a special Counsel who would, on arrival at Nasik, take instructions from the District Magistrate and that a pleader has accordingly been appearing in the case and Conducting the prosecution. We think that this circumstance brings the case within the words "carried on " which are wide enough to cover it. We, therefore, hold that the Magistrate had discretion to order payment of bhatta in this case.