KARU MIAN Vs. KADAR LAL

JUDGEMENT

(1.) THE petitioners, who ate eighteen in number, are being tried along with eleven other persons on chargea under S3.143 and 379, Penal Code, in the Court of an Honorary Magistrate with powers of the third class at Nawada in the district of Gay a. The prosecution was instituted by one Kedar Lal, who is the patwari of the landlord of the petitioners, and was instituted in consequence of an incident which occurred in a struggle between the petitioners and their landlord over certain land. The petitioners have now come to some arrangement with the landlord under which they are to be given settlement of part of the land which they claim. Their co -accused have not as yet consented to enter into a similar arrangement. The pleader who was conducting the prosecution on behalf of Kedar Lal intimated to the Court that as a settlement bad been come to with the petitioners he wished to withdraw from the prosecution. The learned trying Magistrate referred the matter to the District Magistrate and, in doing so, indicated that, if he had thought that he had any discretion in the matter, he would have permitted the complainant to withdraw from the - prosecution. The matter was dealt with by the learned Additional District Magistrate and apparently the co -accused objected to the application being allowed and the learned Additional District Magistrate ultimately declined to accord his sanction. It is now con -tended that the oomplainant or his pleader was entitled to withdraw from the prosecution and that, as the learned trying Magistrate was of opinion that he should be allowed to do so, this Court ought to direct an order of acquittal to be passed. It is suggested that the words "any such officer", which occur at the beginning of Sub -section (2) of Section 495, Criminal P. C, must be deemed to include any person who has under Sub -section (l) of that section been permitted to conduct a prosecution. The power to withdraw from a prosecution is conferred on Public Prosecutors by Section 494 of the Code. Sub -section (l) of Section 495, after stating that a Magistrate enquiring or trying any case may permit the prosecution to be conducted by any person other than an officer of police below a rank to be prescribed by the Provincial Government in this behalf, goes on to state that no person other than the Advocate -General, Standing Counsel, Government Solicitor, Public Prosecutor -o other officer generally or specially empowered by the Provincial Government in this behalf, shall be entitled to do so without such permission.

(2.) REUBEN , J., I agree. A ground stated by Mahabir Prasad J. for making the reference is that, if the words "any such officer" in Sub -section (2) of a. 49S be interpreted not to include a private person permitted to conduct a prosecution, sub. a. (2) of Section 495 becomes superfluous. I am unable to agree with this argument. The meaning of the words "Public Prosecutor" as used in the Crimi -nal Procedure Code, is determined by definition in Section 4, Clause (1), and the provision for the appoint, ment of Public Prosecutor contained in Section 492. Under the latter section the Provincial Government is empowered to appoint generally, or in any case, or for any specified class of cases, in any local area one or more officers "to be called Public Prosecutors", and under Sub -section (2) of that section the District Magistrate and the Sub -divisional Magistrate are empowered in certain circumstances to appoint a Public Prosecutor for the purposes of a particular case, The definition in Section 4 provides that Public Prosecutor means any person so appointed and includes any person acting under the directions of a Public Prosecutor and any person conducting a prosecution on behalf of Her Majesty in any High Court in the exercise of its original criminal jurisdiction.