GIRIBALA DASI Vs. MADER GAZI

JUDGEMENT

(1.) This rule was directed against an order made by the Assistant Sessions Judge of Jessore on 23 November 1931 whereby he granted an application of the Public Prosecutor of that place under Section 494, Criminal P. C., to withdraw from the prosecution of two persons Mader Gazi and Arshad Sardar under Section 366, I. P. C., and acquitted them. What happened in the case was this : at the instance of complainant Giribala Dasi, Mader, Arshed and another man Aftab Mondal by name were summoned by the Magistrate under Section 366, I. P. C., and the Magistrate after examining a number of witnesses discharged Aftab but committed the other two men Mader and Arshad to take their trial in the Court of Session. An unsuccessful attempt was made to have the cass referred to the High Court in order that the commitment might be quashed under Section 215, Criminal P. C. Thereafter after some adjournments on 23 November 1931 an application of the Public Prosecutor to withdraw from the prosecution was granted and the two accused persons wore acquitted without the charge being road out and explained to them and with-out their being called on to plead. It is against this order that the present rule was directed.

(2.) The rule in my opinion should be made absolute. Under Section 494, Criminal P. C., the Public Prosecutor can withdraw from the prosecution, (1) in cases tried by jury before the return of the verdict, and (2) in other cases before the judgment is pronounced. In the present case, the case, cannot be said to be a case "tried by jury." Indeed no trial by jury had commenced and no jury had even been empanelled in the case. The contention on behalf of the opposite party was that the word tried" in the expression "tried by jury" should be taken to mean "triable." This in my opinion would be a somewhat violent interpretation without any justification. Mr. Bhattacharjee for the opposite party tried to support the Judge's action by saying that if the case would not come under Clause 1 cases tried by jury" it could come under Clause 2 "in other cases" inasmuch as the Judge could dispose of it without the help of a jury in the event of the accused pleading guilty under Section 271, Criminal P. C. But having regard to the words before judgment is pronounced" in this Clause 2, it would seem that the cases contemplated by this clause are those cases only which terminate with the pronouncement of a judgment. In the present case the Judge no doubt could dispose of the case without the aid of a jury in the event of the accused pleading guilty. But that would be no termination of the case with the pronouncement of a judgment--a judgment as contemplated by Section 367 of the Code.

(3.) There is another ground on which the order of the learned Judge cannot in my opinion be maintained. To allow the Public Prosecutor to come in and withdraw from the prosecution at the stage in which the case then was would be to render the provisions of Section 215 almost nugatory. If a Public Prosecutor is allowed to intervene in a Sessions case and withdraw, from the prosecution before the commencement of the trial when there is an order of commitment it would be tantamount to give the Sessions Court powers to quash the commitment--a power which the High Court and the High Court alone has got under Section 215 of the Code. The Rule therefore in my opinion should, as stated before, be made absolute. Remfry, J.