SUPERINTENDENT AND REMEMBRANCER OF LEGAL AFFAIRS, GOVERNMENT OF WEST BENGAL Vs. HAJI HABIB HAJI PIR MOHAMMAD

JUDGEMENT

(1.) THIS rule must be discharged. The -rule is against an order passed by a learned Presidency Magistrate refusing to consent to the withdrawal of the prosecution from a case against Gopi Mohan Roy one of several accused.

(2.) THE facts briefly are as follows: The case was started against Gopi Mohon be y and eight other persons charging them with having committed offences punishable under Section 81 (4), Defence of India Rules, read with Section 8, Essential Supplier (Temporary Powers) Ordinance (xxvin [18] of 19d6) and Section 7(l), Essential Supplies (Temporary Powers) Act (XXIV [24] of 1946) and Section 120B, Penal Code. Put shortly, the charge against the accused was that they were members of a criminal conspiracy to sell salt at a rate higher than that permitted by the Ordinance. Some of the accused were sellers and some were the buyers. The accused Gopi Mohan Roy was the broker who brought the two groups together and who took his commission on the price obtained by the sale. The case was started on 12th August 1947 and dragged on without any hearing till 15th December 1917 when it was set; down for evidence on 10th January 1948 with a warning that no further adjournment would be allowed. On that date, the Public Prosecutor moved the learned Magistrate to consent to his withdrawing from the prosecution of Gopi Mohan Roy. The application was made under Section 494, Criminal P. C. Under that section the Public Prosecutor may. withdraw from the prosecution of any accused person but it must be with the consent of the Court. The petition for withdrawal is in the following terms:

(3.) IN my opinion there is no force in this argument. The learned Magistrate in his order refusing the withdrawal and discharging the other accused has very clearly stated that it was never represented to him that Gopi Mohan be y was the only witness in the case and that his was the only evidence. He says that the ground for the application for withdrawal was not grounded on any Such allegation. It was grounded on two allegations, namely that the extent and nature of Gopi Mohan be y's complicity was less than that of others and that he was likely to give material evidence. The learned Magistrate held that these two grounds were not sufficient and I have expressed my view to the same effect, In a case of this description, the mere fact that one of the accused is likely to give material evidence is not sufficient ground for withdrawing the case against him where there is other evidence. In biB explanation the learned Magistrate says the same thing and he says that nothing else was placed before him except the grounds mentioned in the application for withdrawal. It seems to me that upon the materials before the learned Magistrate he had no option but to refuse his consent to the withdrawal. It was the duty Of the Public Prosecutor to give more cogent reasons. It seems that the Public Prosecutor thought that the consent of a Magistrate to an application for withdrawal by him would be given as a matter of course. It is time that Public Prosecutors were disabused of this notion. It is the duty of the Public Prosecutor to a the Court that the withdrawal is in the best interest of justice. The attitude of the Public Prosecutor is disclosed in the last paragraph of the - Magistrate's order. As soon as he was asked to go on with the case he refused to examine any other witness and stated that he had no other witness to examine although he had filed a hajira of several other witnesses. Even at this stage he did not tell the Magistrate that there could be no conviction without the evidence of Gopi Mohan be y.