GURUPADA ROY Vs. PASHUPATINATH MALIA

JUDGEMENT

(1.) This is a Reference by the learned Sessions Judge of Burdwan recommending that an order of the Additional District Magistrate of the same district discharging two accused Kumar Pashupathi Nath Malia and Upendra Nath Ghatak passed on 8 May 1946, be set aside.

(2.) The two accused had been summoned under Section 379, Indian Penal Code, by Magistrate, Mr. P.C. Gope on 25 February 1946, on the complaint of one Gurupada Roy acting on behalf of Guru Prasanna Mukherjee. Eventually prosecution witnesses were directed to be summoned for 26th, 27 and 29 April. In the meantime the accused approached the Additional District Magistrate with a long petition on 19 April and he called for the records and stayed further proceedings. The prayer in the petition was that the record should be called for and the withdrawal of the case should be directed. The petition purported to be made to the District Magistrate in his judicial capacity. Thereafter the matter was dealt with by the Additional District Magistrate who appears to have confused his position as a judicial officer and his position as an executive officer responsible for the crime in the district. On the petition he took action really as a judicial officer in sending for the records, and as an executive officer in the orders that he passed. He had the papers examined by the Public Prosecutor. He maintained an order sheet for these proceedings in which he noted receipt of the petition and the request to the Public Prosecutor to examine the records; on 6 May he noted that the Public Prosecutor had examined the records and submitted a report recommending withdrawal under Section 494, Criminal P.C., and accords his agreement with this view and notes that the Public Prosecutor may apply for withdrawal under Section 494, Criminal P.C. In all this the Magistrate was, strictly speaking, acting purely as an executive officer.

(3.) The Magistrate on the same day, 6 May, noted in the order-sheet of the actual trial record that he had called for the records in connection with the petition filed before him on behalf of the accused that as the trying Magistrate was under orders of transfer the case was withdrawn to his own file and notice was issued to the complainant to appear on 8 May. Notice was also given to the Advocate who filed the petition on behalf of the accused. Then, on 8 May, the learned Additional District Magistrate noted the Public Prosecutor had filed a petition asking for consent to withdraw the prosecution, that the complainant appeared and expressed that he was unwilling to proceed with the case, that having carefully gone through the Public Prosecutor petition the Magistrate agreed with it that it was a fit case to withdraw and the accused persons were accordingly discharged. We may note that in fact in the actual record of the trial case which was withdrawn to the file of the Additional District Magistrate there is no petition whatever of the Public Prosecutor applying for the withdrawal. The document was kept with what may be called the executive file along with the report of the Public Prosecutor.