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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: SURJIT SINGH & ANOTHER

DATE OF JUDGMENT: 06/01/1967

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. RAO, K. SUBBA (CJ) SHAH, J.C. SIKRI, S.M. RAMASWAMI, V.

CITATION:  1967 AIR 1214            1967 SCR  (2) 347  CITATOR INFO :  R          1983 SC 194  (17,50,55)

ACT:      Criminal  Procedure Code, 1898, s. 494--Prosecution  on private  complaint  being conducted  by  complainant--Public Prosecutor   not  in  charge  of  case--Whether   can   file application--for withdrawal of case.

HEADNOTE:      The first respondent instituted a complaint before  the Magistrate of certain offences under the Penal Code and  the Magistrate,  after  holding a  preliminary  enquiry,  issued summons to the second respondent and another accused. The  Prosecuting  Deputy Superintendent of  Police,  in  his capacity  as Public Prosecutor for the District,  filed  an. application before Trial Magistrate under s. 494 Cr.P.C. for permission to withdraw from the prosecution of the case  and for discharging the second respondent on the ground that  it had  come  to his knowledge during an  investigation  of  an earlier  complaint that the second respondent  was  innocent and  that  he had been falsely involved in the case  by  the complainant.   This  application was opposed  by  the  first respondent, but the trial Magistrate granted permission  for the  withdrawal  of  the case and  the  Sessions  Judge,  in revision, upheld this decision. However, the High Court, in appeal, accepted the contentions of  the first respondent and held that a  Public  Prosecutor cannot   withdraw  under  s.  494  of  the  Code  from   the prosecution  of  a  case  pending  before  the   Magistrate, instituted   upon   a   private   complaint   despite    the complainant’s objection to the withdrawal of the case. On a further appeal to this Court, HELD:     As  the  prosecution was being  conducted  by  the complainant,  the High Court was right in holding  that  the Public  Prosecutor was not entitled to file  an  application for withdrawal. [360 E] The  reasonable interpretation to be placed upon s.  494  is that it is only the Public Prosecutor who is in charge of  a particular  case and is actually conducting the  prosecution

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that  can  file an application under  that  section  seeking permission to withdraw from the prosecution. [360 C-D] There  was  no force in the contention that  the  expression ’the  Public  Prosecutor in s. 494 is to  be  understood  as referring to any person who is a Public Prosecutor,  whether he is a Public Prosecutor appointed gene under s. 492(1)  or for the purpose of a particular case, as contemplated  under s.  492(2) of the Code.  If any Public Prosecutor,  who  had nothing  to do with a particular case, is held  entitled  to file  an  application under s. 494 the result will  be  very anomalous  in  that  if there  are  two  Public  Prosecutors appointed  for  a particular Court, and one  of  the  Public Prosecutors  is conducting the prosecution in  a  particular case,  and desires to go on with the proceedings,it will  be open  to the other Public Prosecutor to ask  for  withdrawal from the prosecution. [359 F; 360 A-B]  State  of  Bihar v. Ram Naresh Pandey  [1957]  S.C.R.  279; Queen  Express  v. Murarji Gokuldass I.L.R. (1889)  13  Bom, 389;  State  v. Atmam M. Ghosale, I.L.R.  [1965]  Bom.  103; referred to. 348 Gulli Bhagat v. Narain Singh, I.L.R. [1923] 2 Pat. 708; Amar Narain  V.  State of Rajasthan A.I.R. 1952 Raj.  42;  Pratap Chand v. Behari Lal, A.I.R. 1955 J jas  K 12; distinguished; Sher Singh v.  Jitendranath,    A.I.R.   1931   Cal.    607, disapproved; Ratansha Kavasji v. Behramsha Pardiwala, I.L.R. [1945]  Bom. 141, approved.

JUDGMENT:  CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 97 of 1966. Appeal  by special leave from the judgment and  order  dated December  20,  1965 of the Punjab High Court  in  Criminal Revision No. 671 of 1965. Bishan Narain and R. N. Sachthey, for the appellant. Nuruddin Ahmed, Anil Kumar Sablok and R. B. Datar, for  res- pondent No. 1. S.   V.Gupte, Solicitor-General and A. G. Pudissery, for the Advocate-General for the State of Kerala. -R.   H. Dhebar and S. P. Nayyar, for  the  Advocate-General for the State of Gujarat. O.   P.  Rana,  for the Advocate-General for  the  State  of Uttar Pradesh. Naunit Lal, for the Advocate-General for the State of Assam. A.   V.  Rangam, for the Advocate-General for the State  ’of Madras. The Judgment of the Court was delivered by Vaidialingam, J. The question that arises for  consideration by   special  leave,  is  regarding  the  right  of   a   an application, under s. 494 of the Code of Criminal  Procedure (hereinafter   called the Code), in respect of a  complaint, filed by a private party, and which was being prosecuted  by him as such. The  facts  giving  rise to this  appeal  are,  briefly,  as follows.   Harnek  Singh lodged a complaint  at  the  Police Station,  Phul, oil October 15, 1964, at about  10.40  p.m., that while coming out of a picture house, along with  Surjit Singh, first respondent herein, his foot accidentally struck against a third party, Avtar Singh, who was also coming  out of  the  picture  house,  along with  Raj  Pal,  the  second respondent.  According to the complaint, Avtar Singh and the second respondent picked up a quarrel with Harnek Singh  but

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they  were  pacified  and separated by  the  Manner  of  the cinema, who intervened.  It is also alleged that when later, Harnek  Singh and the first respondent were near  the  Civil Hospital, Phul, the second                             349 respondent fired a shot at Harnek Singh.  The Police appears to  have invested this complaint and took the view that  the second respondent had not participated in the occurrence and that he, has been falsely implicated on account of enmity  . But, before the police actually filed a complaint before the Magistrate  against Avtar Singh alone, the first  respondent instituted a  complaint before the Magistrate under  ss.307, 504  and  323 read with S.34, I.P.C.,  against  both  Avthar Singh and the second   respondent. The Magistrate, after holding  a preliminary enquiry, issued summons to  both  the accused. On January 8, 1965, the Prosecuting Deputy Superintendent of Police, Bhatinda, Shri Harbans Singh, filed an  application, in  his  capacity  as Public Prosecutor,  before  the  trial Magistrate,  under  s. 494 of the Code,  for  permission  to withdraw   from  the  prosecution  of  the  case   and   for discharging  the  second  respondent.   According  to   that officer,  the  second respondent was innocent and  had  been falsely  involved, in the case, by the complainant and  that this   fact   hid  come-  to  his   knowledge   during   the investigation. The said application was opposed by the first respondent  on two  grounds  :  (1) that Shri  Harbans  Singh,  Prosecuting Deputy Superintendent of Police, did not exercise the powers of  a Public Prosecutor and therefore that he had  no  locus standi to file the application; and (2) that the application was  not bona fide.. In consequence, the  second  respondent prayed that permission should not be granted for withdrawal. The  trial Magistrate, by his order dated February 8,  1965, over ruled the objections raised by the first respondent and held  that the Prosecuting Deputy Superintendent  of  Police was  the  Public  Prosecutor  for  the  entire  district  of Bhatinda,  within whose Jurisdiction the Magistrate’s  Court at  Phul  was situated, and that the  application  was  bona fide.   In consequence, the Magistrate gave  permission  for the   withdrawal  of  the  case,  as  against   the   second respondent, ’who was one of the two accused.’ This  order  was  challenged by  the  first  respondent,  in revision before the learned Sessions, Judge, Barnala.  Apart from   contending  that  the  officer,  who  presented   the application  under s. 494 of the Code, for  withdrawal,  was not  a  public  Prosecutor, the  first  respondent  urged  a slightly  new ground of attack.  That ground of  attack  was that,  even  assuming  that the said Officer  was  a  Public Prosecutor,  nevertheless, he could not file an  application under s. 494 of the Code, inasmuch as the Public  Prosecutor was  not  in  charge of the  prosecution,  which  was  being conducted by the complainant, a private party.  The  learned Sessions  Judge  held  that  the  Officer,  who  filed   the application under s. 494 of the Code, had been appointed  as Public Prosecutor for the Magistrate’s Court at Phul by  the Government.  The Sessions Judge also held that the said 3 50 Public  Prosecutor  could  intervene  in  a  criminal  case, instituted on a private complaint and such Public Prosecutor could  be considered to be one who had taken charge  of  the case  when  he  made an application  to  withdraw  from  the prosecution.   In this view, both the objections, raised  by the first respondent, were overruled.  The learned  Sessions Judge,  on  the  merits, had also taken the  view  that,  in

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giving  permission  to withdraw from  the  prosecution,  the Magistrate  had exercised his jurisdiction  judicially,  and not  in  any arbitrary manner, and that he  gave  permission only  after  considering  the reasons given  by  the  Public Prosecutor in the application filed by him.  Ultimately, the order  of the trial Magistrate was confirmed by the  learned Sessions Judge. The  first  respondent, again, went up in  revision  to  the Punjab High Court, challenging the two orders passed by  the trial Magistrate and the learned Sessions Judge.  A Division Bench of the Punjab High Court, consisting of Falshaw, C.J., and Khanna J., by their order dated December 20, 1965,  have accepted the contentions of the first respondent herein  and have,  ultimately,  held  that a  Public  Prosecutor  cannot withdraw, under s. 494 of the Code, from the prosecution  of a  case  pending  before a  Magistrate,  instituted  upon  a private  complaint, despite the complainant’s  objection  to the  withdrawal  of  the  case.   The  learned  Judges,   in consequence,  directed  the  complaint filed  by  the  first respondent, against both the accused, to ,be proceeded with. In  the  High Court, the first respondent has  accepted  the position  that  Shri  Harbans Singh,  Prosecuting   Deputy Superintendent  of  Police, Bhatinda, has been  vested  with powers of a Public Prosecutor, and therefore he was a Public Prosecutor.   But the main objection taken before  the  High Court to the legality of the orders of the learned  Sessions Judge and the trial Magistrate, was that, as the case before the  Magistrate had been started on a private complaint  and the  Public Prosecutor being nowhere in the picture, he  had no  locus standi to file an application under s. 494 of  the Code.   The  High  Court, after a review  of  the  decisions placed  before  it,  has held that when a  case  is  pending before  a  Magistrate  and has been initiated  on  a  police report,  it  is  the State that normally  arranges  for  the conduct  of the prosecution; but, in the case of  a  private complaint  before  a Magistrate, which is conducted  by  the complainant  or by his duly authorized counsel,  the  Public Prosecutor does not come into the picture in the conduct  of such cases, and therefore he has no locus standi to file  an application  under  s. 494 of the Code in  respect  of  such case.   It is the further view of the High Court  that  when neither the Public Prosecutor, nor, for the matter of  that, any agency of the State, was in charge of the conduct of the prosecution  it  is  difficult  to  hold  that  the   Public Prosecutor can withdraw from such prosecution.  The  learned Judges have also held that, if it is                             351 accepted that any public prosecutor can file an  application under s. 494, in a case which is being proceeded with by the complainant,  on  a private complaint, it will lead  to  all kinds of abuses and mischief. Before  we advert to the contentions of the learned  counsel for   the  appellant  and  for  the  respondents,  and   the Advocates-General of some States, who have intervened in the matter,  on notice issued to them, it will be convenient  to refer  to the material provisions of the Code, dealing  with Public Prosecutors, contained in Chapter XXXVIII, Part IX of the  Code.   Those provisions are ss. 492  to  495.   Public Prosecutors  are appointed by the State Government under  s. 492(1), or by the District Magistrate or the  Sub-Divisional Magistrate,  under sub-s. (2) of s. 492.   The  appointment, under sub-s. (1) of s. 492, can be a general appointment, or for a particular case, or for any specified class of  cases, in  any  local area.  Under this provision,  more  than  one officer can be appointed as Public Prosecutors by the  State

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Government.  Under sub-s. (2), the appointment of the Public Prosecutor is only for the purpose of a single case.   There is  no  question  of a, general appointment  of  the  Public Prosecutor,  under sub-s. (2).  Therefore, it will be  seen, that  a Public Prosecutor or Public  Prosecutors,  appointed either  generally,  or for any case, or  for  any  specified classes of cases, under sub-s. (1), and a Public  Prosecutor appointed specifically for a single case, under sub-s.  (2), are all Public Prosecutors, under the Code. Section  493  dispenses  with the necessity  of  the  Public Prosecutor having to file any written authority, when he  is in charge of a particular case.  That section clearly  deals with  a particular case and refers to the Public  Prosecutor being  in  charge  of that  particular  case.   Under  those circumstances,  he  is  not required  to  file  any  written authority.   That s. 493 deals with a single specified  case and  that it applies only to the Public Prosecutor,  who  is actually  in charge of that case, is also made clear by  the later  part  of s. 493.  That is to the effect that  if  the Public Prosecutor is in charge of a particular case and,  in that  particular case, a private person instructs a  pleader to  prosecute  any person, the Public  Prosecutor  alone  is entitled   to  conduct  the  prosecution  and  the   pleader appearing in that case for the private person is only to act under  his instructions.  The expression ’any person in  any such  case’, occurring in the later part of s. 493,  clearly leads to the conclusion that both the Public Prosecutor  and the  private person, through a pleader, are prosecuting  the same case.  Hence it is, in our view, that s. 493 deals with a particular case. Section  494  deals with withdrawal from  prosecution.   The expression  ’any case of which he has charge’, occurring  in s.  493,  is-not  found  in  s.  494.   But  the  expression ’withdraw from the 352 prosecution  of  any person,’ occurring in s.  494,  in  our opinion, contemplates that the Public Prosecutor, who  files the  application for withdrawal under that section, must  be Public  Prosecutor,  who  is  already  in  charge  of   that particular case, in which the application is filed.  Section 494  indicates the stage at which the Public Prosecutor  can file  an application for withdrawal and it also  deals  with the effect of such withdrawal.  In cases tried by jury,  the application  must be filed before the return of the  verdict and, in all other cases, before the judgment is  pronounced. The  effect of such withdrawal is also indicated in  clauses (a) and (b) of s. 494. We  may, at this stage, note that an argument was  attempted to  be raised by learned counsel for the appellant  that  s. 494, when it speaks of an application being filed ’in  other cases   before   the  judgment   is   pronounced’,   clearly contemplates  that  in all cases, which are not tried  by  a jury, whether a Public Prosecutor is in charge or not, he is entitled  to  file  an application under  s.  494.   In  our opinion,  this  contention  has  only to  be  stated  to  be rejected.  As we have already pointed out, s. 494 deals only with  the stage when an application can be filed,  depending upon  whether it is a case tried by a jury-in which case  it must be filed before the return of the verdict and, in other cases,  before the judgment is pronounced.   The  expression ’in other cases’ occurring in s. 494, must be understood in, this  context and, if so understood, it only means  that  it takes in cases, other than those tried by jury. We then come to s. 495.  Under that section, power is  given to  a  Magistrate, enquiring into, or trying  any  case,  to

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permit the prosecution to be conducted by any person,  other than  an officer of police below a rank to be prescribed  by the  State Government in that behalf; and such  an  officer, under  s.  495  (2),  is again clothed  with  the  power  of ’withdrawing  from the prosecution, as provided by  S.  494. It will be seen that s. 495 deals with a person permitted by the  Magistrate to conduct the prosecution of  a  particular case.  But for the specific provision made in sub-s. (2)  of s. 495, such an officer will not have the power, which could be  exercised by a Public Prosecutor, under s. 494.  Sub  s. (3) also indicates that a prosecution can be conducted by  a private  complainant, either by himself or by  pleader.   It will be noted, that both s. 492(2) and 495(1) deal with  the appointment of a person to prosecute a particular case.  The State Government can also appoint, under s. 492(1), a public Prosecutor for a particular case. Mr.  Bishan Narain, learned counsel for the  appellant,  has urged  that  the  view taken by the learned  Judges  of  the Punjab High Court, is quite opposed to the clear wording  of s.  494  of the Code.  Learned counsel points out  that  the said   section  is  unambiguous,  and  that  it   gives   an unqualified  right to any person, who, in law, is  a  Public Prosecutor;  to  file an application to  withdraw  from  the Prosecution. 353 Counsel also points out that all offences affect the  public and  that  all  prosecutions are  conducted  by  the  State, through its officer, viz., the Public Prosecutor; and,  even though  the criminal prosecution, in the instant  case,  has been   initiated  on  a  private  complaint  by   the   fig$ respondent, nevertheless, the prosecution, in law, is in the hands  of the State and so the Public Prosecutor,  appointed under s. 492 is entitled to intervene at any stage and  file an application under s. 494. Mr.  Bishan  Narain  further points out  that  there  is  no limitation,  prescribed  by  s. 494 of the  Code,  that  the application  for  withdrawal can be filed only by  a  Public Prosecutor,  who  is already in charge of  the  case.   Even assuming  that it is necessary that the  Public  Prosecutor, who  files an application under s. 494 of the  Code,  should have charge of the case in question, that is amply satisfied in  this  case.   According to learned  counsel,  the  first respondent  has  accepted that the  Public  Prosecutor,  who filed the application in question, is the Public  Prosecutor appointed  by the State Government to conduct cases  in  the Magistrate’s  Court  at Phul, where the  first  respondent’s complaint  was  being enquired into.  When the  said  Public Prosecutor  intervened,  in this case, by filing  an  appli- cation  under  s. 494, he must be considered to  have  taken charge  of the case.  If so, counsel points out, the  Public Prosecutor amply satisfies the requirements of his being  in charge of this case. Counsel  was  also  prepared  to  contend  for  the   larger proposition that, even when a Public Prosecutor is appointed generally,  by the Government, for any local area, under  s. 492(1)  of  the Code, by virtue of his appointment  as  such Public Prosecutor, he must be considered to be in charge  of every prosecution that is being conducted before that Court, irrespective  of the fact whether he actually  conducts  the prosecution or not.  Counsel also pointed out that a duty is cast, in law, on the Public Prosecutor, who is an officer of Court, to bring to the notice of the Court that there is  no case  which  has  to go to trial  as  against  a  particular accused and it is, for that purpose, that power is given  to him,  under s. 494, to file an application to withdraw  from

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the  prosecution.  Therefore, according to learned  counsel, the  High Court has taken a very narrow view, when  it  held that,  in  this case, the Public Prosecutor,  who  filed  an application  under  s. 494, cannot be considered  to  be  in charge  of  the  case, inasmuch as it  was  initiated  as  a private  complaint, filed by the first respondent,  and  was being conducted by him as such. The learned Solicitor General, Mr. S. V. Gupte, has appeared on behalf of the Advocate-General of Kerala.  The Advocates- General  of  Assam,  Uttar Pradesh  and  Madras,  were  also represented  before  us, by counsel.  Respondent No.  1  was represented by learned counsel, Mr. Nuruddin Ahmed.  Counsel appearing for the Advocates-General of the States of Assam, Uttar  Pradesh  and Madras, have supported  the  appellant’s contentions. M1Sup.  CI/67-9 354 The  learned  Solicitor  General, on  the  other  hand,  has supported the views expressed by the Punjab High Court.   He pointed out that sub-s. (1) of s. 492, of the Code, provides for the appointment of Public Prosecutors.  The  appointment of  a  Public Prosecutor, by a State Government,  can  be  a general  one,  or,  for  a particular  case,  ,or,  for  any specified classes of cases, for any local area.  Under  sub- s.  (2),  the  District Magistrate,  or  the  Sub-Divisional Magistrate,  is  given power to  appoint,  in  circumstances mentioned  therein, any person not being an Officer  of  the Police below such rank as the State Government may prescribe in  that behalf, to be Public Prosecutor for the purpose  of any  case.   Therefore  there can be  two  types  of  Public Prosecutors,  as contemplated in sub-ss. (1) and (2),  i.e., Public   Prosecutors   appointed   generally,   and   Public Prosecutor  appointed for any particular case.  Section  493 of  the  Code  dispenses  with the  filing  of  any  written authority,  by a Public Prosecutor appointed  under  sub-ss. (1) or (2) of s. 492.  The learned Solicitor General  points out  that  S.  493  deals with  a  Public  Prosecutor,  with specific  reference to the particular case of which  he  has charge.  It is pointed out that if the contention  of  the appellant that any Public Prosecutor can file an application under  S. 494-even when he is not in charge of that  case-is accepted,   then  the  position  will  be  that   a   Public Prosecutor, who is appointed for a particular case, say Case A,  either by the State Government, under s. 492(1),  or  by the  District Magistrate, under sub-s. (2) of that  section, will  become a Public Prosecutor and, as such,  entitled  to file  an  application,  under  s.  494,  for  permission  to withdraw  from the prosecution of Case B, with which he  has nothing to do.  That will lead, the Solicitor General points out, to very anomalous results, and such a situation is  not contemplated  by  the provisions of the Code.   The  learned Solicitor points out that s. 494 must be interpreted in  the light of s. 493 of the Code and, if so interpreted, it  will follow that the Public Prosecutor, who is referred to, under s. 494, as being entitled to file an application to withdraw from the prosecution, can only be the Public Prosecutor  who is  actually in charge of that particular case.   He  points out  that  the expression ’withdraw from  the  prosecution’, used in S. 494, shows that the Public Prosecutor is  already in charge of that case.  If he is not in charge of the case, in which the application under s. 494 is filed, there is  no question  of  the  Public Prosecutor  withdrawing  from  the prosecution, in that case. The learned Solicitor General also points out that the  idea underlying  s. 494 is that the Public Prosecutor, who is  an

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officer  of  Court and who is  conducting  the  prosecution, would  have considered the materials available in  the  case and  formed an opinion, on that basis, to withdraw from  the prosecution of any person.  If a Public Prosecutor, who  had nothing to do with the case, and who has not been in  charge of that case, is allowed to step in and file an  application under S. 494, in any case, the entire object and purpose 355 for  which  that  section  has  been  enacted,  the  learned Solicitor points out, will be completely defeated.  He  also points out that no general power, as such, is intended to be conferred by s. 494, on all Public Prosecutors.  He  further urges  that, inasmuch as a privilege or a right is given  to an  officer under s. 494, the scope of authority,  conferred by that section, must be very strictly limited to serve  the purpose for which that section has been enacted. Mr. Nuruddin Ahmed, learned counsel appearing for the  first respondent,  has  also supported in  full,  the  contentions advanced by the learned Solicitor General.  Counsel for  the appellant  points  out that the scheme of  the  Code  itself shows  that  a  complainant is allowed  to  file  a  private complaint  and prosecute the same.  That may  be  necessary, according  to learned counsel, when, for some reason or  the other,  the  police do not file a complaint,  implicating  a particular  person  as an accused. in such cases,  when  the complainant   himself  prosecutes  the  complaint,   learned counsel points out, the Public Prosecutor is nowhere in  the picture  and he cannot be considered to be in charge of  the case, so as to give him a right to file an application under s. 494.  Counsel also points out that s. 493, when it refers to  a Public Prosecutor in conjunction with a case of  which he  has charge, it refers to the Public Prosecutor,  not  in the  abstract, but to the Public Prosecutor who is  actually in charge of a particular case.  Under s. 494 also,  counsel points   out,  the  Public  Prosecutor,  who  can  ask   for withdrawing from the prosecution, must be the one who is  in charge  of  the particular case in which he  asks  for  such permission  from  the Court.  Therefore,  according  to  Mr. Nuruddin  Ahmed, in this case, when his client had  filed  a criminal complaint and was prosecuting the same, the  public Prosecutor, who was nowhere in the picture, had no right  to ask for withdrawal from the prosecution under S. 494 of  the Code, as held by the High Court in the order under attack. After  giving  due consideration to the  contentions  raised before  us,  and  referred to above,  in  our  opinion,  the contentions  of  the learned Solicitor General  and  of  Mr. Nuruddin  Ahmed will have to be accepted.  We  have  already referred to the relevant provisions of the Code and  pointed out their salient features.  We will refer, now, to some  of the decisions placed before us by counsel for the appellant, Mr. Bishan Narain. Before we refer to those decisions, however, it is necessary to  advert  to the decision of this Court in  The  State  of Bihar  v.  Ram  Naresh Pandey(1) where,  after  tracing  the history  of the present s. 494, the Court has observed  that it  is right to remember that the Public Prosecutor,  though an executive officer, is, in a larger sense, also an officer of the Court and that he is bound to assist the Court (1)  [1957] S.C.R. 279. 356 with his fairly considered view and the Court is entitled to have the benefit of the fair exercise of his function.   But the  question which is posed, in the present case,  did  not arise for consideration in that decision. In Queen Empress v. Murarji Gokuldas(1), there are no  doubt

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observations  to  the effect that all  offences  affect  the public and that in all prosecutions the Crown is the  Public Prosecutor  and  that a proceeding is always  treated  as  a proceeding  between  the  Crown and  the  accused.   In  our opinion, these general observations will not, in any manner, assist the contentions of the appellant. In  State v. Atmaram M. Ghosale(2), the learned Judges  have observed  that  it  is  very  obvious  to  think  that   all prosecutions, however initiated, are always to be deemed  as prosecutions  by  the State.  That decision  also  does  not advance the case of the appellant any further. In  Gulli Bhagat v. Narain Singh(3), the learned Judges  had to  consider, whether a permission granted under s.  494  of the  Code,  to the Public Prosecutor, to withdraw  from  the prosecution,  can  be challenged in revision, by  a  private party.  Rejecting the revision, the learned Judges have,  no doubt, observed that                "there  is a deeper and indeed a  fundamental               reason  for non-interference which turns  upon               the  position  of  a  private  prosecutor   in               prosecutions for cognizable offences." The  learned  Judges  also  state  that  the  Crown  is  the prosecutor  and the custodian of the public peace and if  it decides to let an offender go, no other aggrieved party  can be  heard to object.  A careful study of the facts, in  that case, will show that the learned Judges were dealing with  a case   where  the  Public  Prosecutor  was  conducting   the prosecution  and he was in charge of the particular case  in which  he  asked for leave to withdraw  the  prosecution  as against  some of the accused, and leave was  granted.   That order,  was  challenged  by  a  private  party,  by  way  of revision, before the High Court.  That decision, again, does not assist the appellant. In Amar Narain v. State of Rajasthan(4), the learned  Judges had  occasion to deal with a matter similar to the one  that came  up  before  the Patna High  Court  in  Gulli  Bhagat’s CaSe(3).   A private party had challenged, before  the  High Court,  in revision, the order of the Magistrate  permitting the public prosecutor to withdraw from the prosecution under s. 494 of the Code.  That again was a case, as will be  seen from  the  facts gathered from the judgment,  in  which  the prosecution was launched by the State and it was also being (1)  I.L.R. (1889) 13 B om. 389. (3)  I.L.R. (1923) 2 Pat. 708. (2)  I.L.R. (1965) Bom. 103. (4)  A.I.R. 1952 Raj. 42. 357 conducted by the Public Prosecutor and the Public Prosecutor filed  an application under s. 494 for withdrawal  from  the prosecution   and  that  was  allowed,  Wanchoo,  C.J.,   in dismissing  the  revision  petition of  the  private  party, challenging the order of the Magistrate,, observed that  the private party, under those circumstances, had no right to go to  the High Court in revision.  The learned  Chief  Justice also  states that in a criminal case, it is the State  which is  in  control  of  proceedings,  particularly  where   the prosecution  is launched at the instance of the  State,  and observes, at p. 43;                "In  cases,  therefore, in which  the  Public               Prosecutor  appears  it is for him  to  decide               whether he would continue with the prosecution               or  withdraw  from  it.   If  he  decides   to               withdraw,  he  has the power to apply  to  the               Court under s. 494 Criminal, P.C., for  giving               consent to his withdrawal.  This power cannot,

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             in our opinion, be subject to the wishes of  a               third person even though he might be interesed               directly in the case." The  Rajasthan  High Court, in the above  decision,  had  no occasion to consider as to whether a Public Prosecutor,  who is  not in charge of a particular case, has got a  right  to apply  under s. 494 of the Code.  Therefore,  this  decision also,  is  not, in our opinion, in any way, helpful  to  the appellant. In  Sher  Singh v. Jitendranath(1), the learned  Judges  had occasion  to consider the question as to the legality of  an application for withdrawal of prosecution filed by a  Public Prosecutor,  entering  appearance  for  that  purpose  only. Ghose, J., expresses the view that such an application filed by  a Public Prosecutor, who has not been in charge  of  the case,  though  not  regular,  cannot  be  considered  to  be illegal.   On the other hand, Lord Williams, J.,  the  other member of the Bench, was prepared to take the view that  the action  of  the Public Prosecutor,  in  entering  appearance simply  for  the purpose of withdrawal, though  unusual,  is neither  illegal nor irregular.  No doubt, this decision  of the   Calcutta  High  Court,  prima  facie,   supports   the contention  of  the appellant.  But we are not  inclined  to accept the reasoning, adopted by the learned Judges, in this case. In  Pratap  Chand v. Bihari Lal(2),  the  Public  Prosecutor entered  appearance,  in  a case  instituted  on  a  private complaint,  which was being prosecuted by the  said  private complainant, and asked for withdrawal from the  prosecution, under  S. 494 of the Code, and that application was  granted by  the  Additional  District Magistrate.   That  order  was challenged  on the ground that the Public Prosecutor had  no right  to  intervene  in the  proceedings,  initiated  on  a private   complaint,  and  ask  for  withdrawal   from   the prosecution and that, (1) A.I.R. 1931 Cal. 607. (2) A.I.R. 1955 J & K 12. 358 in  any event, the Public Prosecutor should not  have  asked for such withdrawal without consulting the complainant.  The learned  Judges were not prepared to accept this  contention and they held that the Public Prosecutor, in that case,  had taken charge of the case, under instructions of the District Magistrate,  on  a date much earlier to the  date  when  the application for withdrawal from the prosecution was made  by the  Public Prosecutor.  On this ground, the learned  Judges dismissed  the  revision filed by the  private  complainant. This decision, again, in our opinion, must be restricted  to the facts of the case and as one based upon the finding that the  Public  Prosecutor had taken charge of  the  case  long before  the date on which he filed the application under  S. 494.  If that is so the Public Prosecutor can be  considered to be in charge of the case in which he filed an application under  S.  494.   Therefore,  this  decision  also,  in  our opinion,  does  not assist the appellant.  But, if,  on  the other  hand, the effect of this decision is to lay down,  as is contended before us, that a Public Prosecutor, merely  by virtue  of  his office, is entitled to file  an  application under  S. 494, even in a case of which he is not in  charge, in  our opinion, that decision cannot be accepted  as  lying down the correct law. Mr.  Nuruddin Ahmed, learned counsel for the  first  respon- dent, has referred us to the observations of the Bombay High Court  in  Ratansha Kavasji v. Behramsha  Pardiuala(1).   In that  case  it will be seen that in respect of  a  complaint

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filed  by  the  police  before  a  Magistrate,  the   Public Prosecutor applied for permission to withdraw the  complaint and  the Court granted the same and allowed the case  to  be withdrawn,  and discharged the accused under S. 494  of  the Code.   Immediately  after the withdrawal of the  said  com- plaint,  a  private  complaint was filed  by  the  revision- petitioner before the High Court, against the same  accused, on  the  same  facts and before the  same  Magistrate.   The Magistrate  dismissed the complaint on the ground  that,  as the  police  case on the same facts has been allowed  to  be withdrawn, the second complaint was not maintainable.   This order of the Magistrate was challenged, in revision,  before the  High Court, by the complainant.  No doubt,  ultimately, the learned Judges set aside the order of the Magistrate and remanded  the  proceedings as, in their opinion,  there  has been no sufficient compliance with the provisions of S.  203 of  the Code.  But, it is necessary to note that, on  behalf of the respondents before the High Court, one of the grounds urged, for not interfering with the order of the Magistrate, was  that  even  the second prosecution,  initiated  by  the private complainant, can, in law, be withdrawn by the Public Prosecutor.   On this ground, it was further urged that  the mere circumstance that a fresh complaint has been  privately lodged  by the revision-petitioner on the same facts as  the police  prosecution had been based, would not be  sufficient ground for pro- (1)  I.L.R. 1945 Bom. 141. 359 ceeding  with the complaint.  In rejecting this  contention, the learned Judges observed, as follows :                "We may at once say that we do not agree with               the  contention that in the second  case  the               Public  Prosecutor  or the  Police  Prosecutor               could  have  withdrawn from  the  prosecution.               The  remarks that Mr. Thakor has relied on  in               Queen  Empress v. Murariji Gokuldas  (1888  13               Bom.  389)  appear  to  have  been  made  with               reference to cases in which the prosecution is               conducted by the Public Prosecutor.  The words               ’any  Public Prosecutor may withdraw from  the               prosecution’ in s. 494 clearly imply that  the               prosecution  referred to must be one which  is               already   being   conducted  by   the   Public               Prosecutor  and  it  seems clear  to  us  that               unless  the  Public Prosecutor is  already  in               charge of  the prosecution, he cannot withdraw               from  it, and that the Public  Prosecutor  was               here not in charge of the second prosecution." The learned Judges of the Bombay High Court quite rightly em phasised  that an application under s. 494 can be made  only when  the  prosecution referred to therein is one  which  is already being conducted  by the Public Prosecutor and  that, unless  the  Public Prosecutor is already in charge  of  the prosecution,  he cannot withdraw from it. We are  in  entire agreement with these observations of the learned  Judges  of the  Bombay  High  Court as, in our  opinion,  that  is  the correct  interpretation to be placed on s. 494 of the  Code. In  our  opinion  the Public Prosecutor,  who  can  file  an application  under  s. 494 of the Code, must be  the  Public Prosecutor  who is already in charge of the particular  case in which that application is  filed. We are not inclined  to accept  that  contention  of the  learned  counsel  for  the appellant  that the expression ’the Public Prosecutor’ in s. 494 is to be understood as referring to any person who is  a Public  Prosecutor,  whether  he  is  a  Public   Prosecutor

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appointed  generally,  under s. 492(1) or  for  the  purpose under  of a particular ’case, as contemplated s.  492(2)  of the Code. Section  492  only deals with the  appointment  of Public Prosecutors  by  the  Government or by  the  District Magistrate,  in circumstances mentioned therein and  s.  493 specifically refers to the    Public  Prosecutor who  is  in charge of the case which is under enquiry, trial or  appeal, when  appearing and pleading before such Court. Section  493 only dispenses with the Public Prosecutor having to file any written authority. That section also makes it clear that  if any private person is instructing a pleader to prosecute any person  in any such case’-which must have reference  to  the case   of  which  the  Public  Prosecutor  is   in   charge- nevertheless   the  Public  Prosecutor  shall  conduct   the prosecution and the pleader is to act under his  directions. Section  494  also, in our opinion, must refer only  to  the Public Prosecutor who is in charge of the particular case 360 in   which  he  makes  a  request  to  withdraw   from   the prosecution.   Some  of  these  aspects  have  been  already adverted  to by us earlier.  If any Public  Prosecutor,  who had nothing to do with a particular case is held entitled to file an application under s. 494, in our opinion, the result will  be  very anomalous.  For instance, if  there  are  two Public Prosecutors appointed for a particular Court, and one of the Public Prosecutors is conducting the prosecution in a particular case, and desires to go on with the  proceedings, it  will be open to the other Public Prosecutor to  ask  for withdrawal  from  the  prosecution.   Similarly,  a   Public Prosecutor appointed for case A, before a particular  Court, can,  by  virtue of his being a Public Prosecutor,  file  an application in case B, with which he has nothing to do,  and ask  for  permission  of  the Court  to  withdraw  from  the prosecution. The  reasonable interpretation to be placed upon s. 494,  in our opinion is that it is only the Public Prosecutor, who is incharge of a particular case and is actually conducting the prosecution,  that  can  file  an  application  under   that section,   seeking   permission   to   withdraw   from   the prosecution.   If a Public Prosecutor is not in charge of  a particular  case and is not conducting the  prosecution,  he will not be entitled to ask for withdrawal from prosecution, under S.  494 of the Code. In the case on hand, it is found by the High Court, that the prosecution is being conducted by the complainant, viz.  the first   respondent  herein,  and  the   Prosecuting   Deputy Superintendent  of  Police,  Bhatinda, was  nowhere  in  the picture,  when he filed the application under s. 494 of  the Code.   The  view  of  the High Court  that  such  a  Public Prosecutor  is  not  entitled to  file  an  application  for withdrawal, in the circumstances is perfectly correct. The  appeal  therefore  fails and  is  dismissed.  R.K.P.S. Appeal dismissed. 361