S B SHARRAF Vs. K P SINGH

JUDGEMENT

(1.) This is a reference under Section 438 of the Code of Criminal Procedure from the Sessions Judge of Motihari against an order of acquittal passed by the Judicial Magistrate of Bettiah on 15-12-61 under Section 494 (b) of the Code of Criminal (Procedure. An information about an occurrence near the factory of Harinagar Sugar Mills Limited was sent by petitioner No. 1, S.B. Starraf, who was the Cane Manager of Harinagar Sugar Mills Limited. It was stated in the information that at about 5.15 p.m. on 23-9-60, opposite party K.P. Singh held a workers' meeting in front of the factory and incited and provoked the workers to take the law in their own hands and assault the personnel of the Management and also that of the Watch and Ward Department of the Mills; and in pursuance of that provocation, the opposite party, who were fifteen in number, led an excited mob of about 200 workers armed with lathis and entered the main gate forcibly, broke open the doors, entered the office, threw brickbats and stones at the closed windows and doors and assaulted the members of the staff, inside and outside the office, They also threw away some of the office records and created an atmosphere of terrorism and anarchy. Some employees of the factory received injuries besides an outsider, namely, Ramekbal Prasad. The rioters are said to have threatened the people when they were taking the injured to the doctor for treatment in the vehicle of the factory. After the investigation, the police submitted charge-sheet against fifteen opposite parties and they were put on trial, under different sections of the Penal Code, namely, 447, 147, 337, 427 and 323. In the Court eleven prosecution witnesses were produced, four of whom were tendered and cross-examined and the rest were examined and cross-examined fully. The other witnesses were to be examined on 25-11-1961. But on that date a petition for withdrawal of the case was filed by the Additional District Prosecutor. It read thus:

(2.) The learned Sessions Judge has observed that the learned magistrate seems to have passed an order of acquittal without exercising his own judicial discretion and he acted merely on the representation that in the interest of the good feeling in between both patties the State Government did not like to proceed with the case.

(3.) Mr. A.B.N. Sinha submitted in support of the reference that the learned magistrate was wrong in his view that the petitioners could not be heard in the matter. The order of the learned magistrate shows that he has relied on this point on a Bench decision of this Court in AIR 1924 Pat 283. But Mr. A.B.N. Sinha referred to another Bench decision of this Court in Jogendra Narain v. Ganga Prasad, AIR 1954 Pat 150, relied on by the learned Sessions Judge in his letter of reference. In the earlier case it was observed that it was for the Crown, who is the prosecutor and the custodian of public peace, to decide to let the offender go and no other aggrieved party should be heard to object to the request for withdrawal of the case on the ground that he had not taken his full toll of private vengeance. In the latter case Reuben C. J. observed that the complainant of a case was vitally concerned with the success or failure thereof and he ought to be given a chance to be heard in the matter of this kind. It is not difficult to reconcile the two decisions. What their Lordships meant in the former case was that strictly speaking the private party, at whose instance the case was started by the police, had no locus standi to object to the withdrawal of the case, but their Lordships never meant to say that the private party could not be heard at all when they had a genuine ground before the magistrate against the withdrawal of the case. That is why in the latter case Reuben C. J. said that the complainant should be heard on the principle that