KARU MIAN Vs. KEDAR LAL

JUDGEMENT

(1.) THE petitioners, who are eighteen in number, are being tried along with eleven other persons on charges under Secs.143 and 379, Pena Code, in the Court of an Honorary Magistrate with powers of the third class at Nawada in the district of Gaya. 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 Lai intimated to the Court that as a settlement had 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 contended that the complainant 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 (1) 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 (1) 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 or other officer generally or specially empowered by the Provincial Government in this behalf, shall be entitled to do so without sub-permission. It seems quite clear that the words "any such officer" at the beginning of Sub-section (2), which immediately follow, include only the officers there specified. If it had been intended that any person permitted to conduct the prosecution should have power to withdraw from the prosecution, the legislature would at the beginning of Sub-section (2) have used the words "any such person or officer". Mr. Rai Paras Natb, for the petitioners, has pointed out that quite frequently the Public Prosecutor does not choose to enter appearance and that prosecutions are conducted by pleaders engaged by a complainant, and contends that it is very anomalous that such a pleader should not have power to withdraw from the prosecution. No serious inconvenience need, however, necessarily arise from this. If a pleader conducting a prosecution on behalf of a complainant is satisfied that there are good grounds for withdrawing from the prosecution, it is open to him to ask the Public Prosecutor to appear and formally withdraw from the prosecution, and if the Public Prosecutor declines to do so, it is still open to him to move the District Magistrate, and the District Magistrate, if satisfied with the reasons given by him, may instruct the Public Prosecutor to take the necessary action. It is obvious that, if complainants who have been permitted to conduct prosecutions are at liberty to withdraw from them, the effect would be to allow them, with the permission of the Court, to compound offences which are not compoundable. That this was very far from the intention of the legislature is made clear by the provisions contained in Section 248 and 259 of the Code. Section 248 in terms permits a complainant to withdraw in a summons case, and Section 259 permits a Magistrate, when the complainant is absent, to discharge an accused person. Even this latter power, however, is to be exercised only where the offence may be lawfully compounded or is not cognizable offence. THE case was referred to a Division Bench by Mahabir Prasad J. as he was not altogether satisfied as to the correctness of the reasoning in the only decision which was cited to him, namely, Nga Maung Gyi V/s. Naga Lu Gale 10 Cri. L.J. 14 . THEre is, however, a decision of a Division Bench of the Madras High Court in which the same view is taken and substantially the same line of reasoning is endorsed, V.P.L. Laksamana Ghetty V/s. Keelan Peria Karuppan 11 CrI L.J. 722. I do not myself think that there is any real ambiguity in the language used in Sub-section (2) of Section 495 of the Code, and I respectfully agree with the decisions I have just cited. THE only decision referred to by Mr. Rai Paras Nath, for the petitioners, was Mt. Janat Achar V/s. Emperor A.I.R.1935 sind 3. This decision is not, however, at all in point. In my opinion, there is no reason why the trial should not proceed and I would accordingly dismiss this application. Reuben J,

(2.) 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 Section 495 be interpreted not to include a private person permitted to conduct a prosecution, Sub-section (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 Criminal Procedure Code, is determined by definition in Section 4, Clause (t), and the provision for the appointment of Public Prosecutors 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