BHUPENDRA NATH PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) On the basis of a First Information Report lodged by the petitioners before the Muzaffarpur Police Station, Case no. 44 dated 14 8-1973 was instituted by the police. After investigation, the police submitted charge-sheet against opposite-party nos. 2 to 6 under sections 147, 148,324 and 448 of the Indian penal Code. Cognizance of the offence was taken by the Sub-Divisional Officer, Muzaffarpur and the case was transferred for trial before the Sab-Divisional judicial Magistrate. The petitioners case was that on 14-8 1973 at 11 p.m. petitioner no, 1 was sitting with petitioner no. 2 and was taking his meal, when opposite-party DOS. 2 to 6 with several others came there variously armed with Bhala, Garasa etc., and started abusing the petitioners. They also threatened to kill them and assaulted them with Bhala. It may bo relevant here to state that a case was also filed against the petitioners and others at the instance of opposite party nos. 2 to 6 and cognizance has been taken under sections 147, 148 and 307 of the Indian Penal Code. That case is still pending.

(2.) On 23-4-19 '6 a petition for withdrawal of the case against opposite- party nos. 2 to 6 was filed by the Assistant Public Prosecutor in the Court of Sub-Divisional judicial Magistrate. In that petition it was merely stated that "in the interest of public policy and expediency" the case should be withdrawn. When the petition was put up on the next date fixed opposite party nos. 2 to 6 did not appear On account of their non-appearance the cas3 had to be adjourned on 15-5-1976, 166-1976, 28-6-1976, 10-8-1976, 1.3-9-1976 and 5-1-1977. On 5-1-1977 the petitioners filed a petition stating that a counter case against them was still pending and they opposed the prayer for withdrawal of the case against opposite party nos. 2 to 6. When opposite party nos. 2 to 6 did not appear even on the next date the Sub-Divisional Judicial Magistrate issued a non-bailable warrant of arrest on 15-7 1977 and 2-9-1977 for their appearance. On 2-9-1,77 opposite party nos. 2 to 6 again did not appear and a petition was filed by the Assistant Public Prosecutor to accord permission to withdraw the case. the Sub-Divisional Judicial Magistrate noted the absence of the accused persons as in spite of warrant of arrest they had chosen to be absent and ordered that no order could be passed in their absence. The accused persons were directed to appear on the next date, but they did not appear even then. On 22-3-1978 when neither of the parties appeared, the court adjourned the case to 10-8-1978. But four months earlier to that, i.e., on 6-4-1978 a petition was again filed by the Assistant Public Prosecutor for withdrawal of the case and the reasons given were the same, i. e., "in the interest of public policy and expediency". The learned Sub-Divisional Judicial Magistrate without hearing the petitioners accorded the permission to withdraw the case against opposite party nos. 2 to 6 by the impugned order. This order has been challenged by the petitioners in the present application.

(3.) Learned counsel appearing for the petitioners submitted that the permission granted by the learned court below to withdraw the case against opposite party nos. 2 to 6 is illegal and without jurisdiction. Learned counsel further submitted that in any view of the matter the Court below was not competent to hear the matter on 6-4-1978 in absence of the petitioners. Reliance was placed on a decision of the Supreme Court in All India Reporter 1972, Supreme Court 496 (M. N. Sandaranarayanan v. P. V. Balkrishnan). P. Jaganmohan Reddy, J. observed thus : -