EMPEROR Vs. JANKE GOPAL KOLI

JUDGEMENT

(1.) There is a case under Section 324 of the Indian Penal Code proceeding in the Court of the Second Class Magistrate at Bassein. One Pedru, the person alleged to have been injured, instructed an advocate of this-Court Mr. Kondkar to appear for him. The case was sent up by the Police, and a police-officer who is styled the Court Jamadar (it appears that he is a first grade head constable) was also present in Court, and to begin with the prosecution was conducted partly by Mr. Kondkar and partly by the Court Jamadar. Later on, when the witnesses for the defence were to be cross-examined, the Court Jamadar claimed the right to conduct the prosecution for the rest of the case instead of Mr. Kondkar. This claim was upheld by the Magistrate who declined to allow Mr. Kondkar to take any further part in the; case. Then an application was made on Pedru's behalf to the Sessions Judge. He is of opinion that the Magistrate had no right to stop Mr. Kondkar conducting the prosecution, and he refers the case to this Court recommending that the Magistrate should be directed to allow Mr. Kondkar to-appear and conduct the prosecution from the stage at which he was stopped.

(2.) In our opinion the point in issue is settled by a certain Government resolution which was not known to the trial Magistrate nor to the learned Sessions Judge at the time when he referred the case, though he subsequently discovered it and mentioned it in a supplementary letter. The resolution which is dated. February 6, 1923, and is No. 179 in the Home Department is in these terms :- Under the provisions of section 495 of the Criminal Procedure Code, 1898, and in supersession of the orders contained in Government Resolution No, 179 of the 6 May, 1922, the Governor in Council is pleased to prescribe that no prosecution in a Magistrate's Court shall be conducted by a Police Officer below the rank of 2nd Grade Head Constable. That obviously has reference to the first part of Clause (I) of Section 495 and it means-that a police-officer below the rank of a second grade head constable cannot conduct a prosecution even with the Magistrate's permission. Then the resolution goes on in para 2 to set out an amendment which has been made in the Bombay District Police Manual. The rule in the manual was amended as follows :- Subject to the condition contained in sub-cl. 4 of Section 495 of the Criminal Procedure Code, 1898, a prosecution in a Magistrate's Court may be conducted by a Police Officer not lower in rank than a second grade Head Constable. The sanction of the District Magistrate shall be obtained before any prosecution is withdrawn under Clause 2 of Section 495. Now the words "a prosecution may be conducted" are capable of two interpretations. They might mean that officers of the rank indicated are authorised to conduct prosecutions provided they obtain the permission of the Magistrate under sub.-s. (1) of Section 495. On the other hand the words may also mean that this rule made by Government Resolution empowers the police-officers who are specified to conduct prosecutions. In our opinion the latter appears to be the correct construction of the rule. In the first place it would be superfluous for Government to make a rule that officers not below the prescribed rank may be permitted by the Court to conduct prosecutions, for that is stated in the section. In the second place it is important to compare the resolution which I have just set out with the preceding Government Resolution No. 179 of May 6, 1922, which is superseded by the later one. The rule laid down in that resolution was as follows :- Police Officers of and above the rank of Sub-Inspectors have been empowered under Section 495 (2) to conduct prosecution in a Magistrate's Court subject to the restriction in Clause (4) of Section 495, Criminal Procedure Code. (2) Magistrates may permit Head Constables, 1 Grade, to conduct cases in their Court. (3) Police Officers of and above the rank of Sub-Inspectors are also competent under Section 495 (2) of the Criminal Procedure Code to withdraw from a prosecution.

(3.) That rule, therefore, empowered certain police-officers, Sub-Inspectors and those of higher rank, to conduct prosecutions, and that clearly had reference to the latter part of Sub- section (I) of Section 495 and the rule meant that those officers were entitled to conduct prosecutions without permission of the Magistrate and it then went on to say that officers of lower rank, that is 1 grade head constables, could conduct prosecutions with the Magistrate's permission.