http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11  

PETITIONER: THE STATE OF BIHAR

       Vs.

RESPONDENT: RAM NARESH PANDEY(With Connected Appeal)

DATE OF JUDGMENT: 31/01/1956

BENCH:

ACT: Criminal   law-Prosecution-Application  for  withdrawal   by Public -Prosecutor-Consent of Court-Function of the Court in giving  such  consent-Case triable by  a  Court  of  Session Whether  application  for  withdrawal does not  lie  in  the committal  stage’  Tried’  ’judgment’,  Meaning  of-Code  of Criminal Procedure, 1898 (Act V of 1898), s. 494.

HEADNOTE: By  s.  494 Of the Code of Criminal Procedure, 1898:  "  Any Public  Prosecutor  may, with the consent of the  Court,  in cases tried by jury before the return of the verdict, and in other cases before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of  any one or more of the offences for which he is  tried,’ and upon such withdrawal,-(a) if it is made before a  charge has been framed, the accused shall be discharged in  respect of  such  offence or offences ; (b) if it is  made  after  a charge has been framed, or when under this Code no charge is required,  he shall be acquitted in respect of such  offence or offences." The  prosecution of M. and others was launched on the  first information of the first respondent, and when the matter was pending  before the Magistrate in the, committal  stage  and before any evidence was actually taken, and ’application for the  withdrawal of M. from the prosecution was made  by  the Public  Prosecutor  under  s. 494 Of the  Code  of  Criminal Procedure on the ground that " on the evidence available  it would  not  :be  just  and expedient  to  proceed  with  the prosecution  of M." The Magistrate was of the  opinion  that there was no reason to withhold the consent that was applied for  and accordingly he discharged the accused.  This  order was upheld by the Sessions judge, but on 280 revision, filed by the respondents, the High Court set aside the order and directed the Magistrate to record the evidence and  then   consider whether it established a  -Prima  facie case  against the accused.  The State appealed  against  the order  of  the  High Court    by special  leave,  while  the respondents  sought to support the order on the grounds  (1) that where the application for withdrawal of the prosecution is  made  on  the ground of no evidence or  no  adequate  or reliable  evidence  the Magistrate must hold  a  preliminary enquiry  into the relevant evidence, and (2) that in a  case tried  by jury by a Court of Session, an application by  the Public  Prosecutor under S. 594 Of the Code does not lie  in the committal stage. Held  : (1) Though the function of the Court in  giving  the consent  under s. 594 of the Code is a judicial one,  it  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11  

not  necessary that the discretion is to be  exercised  only with reference to material gathered by the judicial  method, and  what the Court has to do is to satisfy itself that  the executive function of the Public Prosecutor in applying for, withdrawal  of  the  prosecution  has  not  been  improperly exercised,  or that it is not an attempt to  interfere  with the  normal  course of justice for illegitimate  reasons  or purposes.  (2) The word " tried " in s. 494 Of the Code is not used in any  limited sense and the section is wide enough  to  cover every kind of inquiry and trial, and applicable to all cases which are capable of terminating either in a discharge or in an acquittal according to the stage at which the application for withdrawal is made. An order of committal which terminates the proceeding so far as the inquiring Court is concerned is a " judgment " within the meaning of s. 494 of the Code of Criminal Procedure. Giribala Dasee v. Mader Gazi, (1932) I.L.R. 60 Cal 233,  and Viswanadham   v.  Madan  Singh,,  I.L.R.  (1949)  Mad.   64, approved.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals  Nos.  53 and 54 of 1956. Appeals  by special leave from the judgment and order  dated May  31, 1955, of the Patna High Court in Criminal  Revision No. 102 of 1955, arising out of the judgment and order dated January  10,  1955, of the Court of the  Sessions  Judge  of Manbhum-Singhbhum of Purulia in Criminal Re-vision No. 43 of 1954. Mahabir  Prasad,  Advocate-General of Bihar,  Tarakesh.  war Nath and S. P. Verma, for the appellant in Appeal No, 53 and for respondent No, 3 in Appeal No. 54,                             281 H.   J. Umrigar and A. G. Ratnaparkhi, for the appellant  in Appeal No. 54. Jai Gopal Sethi and Govind Saran Singh, for the  respondents in Appeal No. 53 and for respondents’ Nos. 1 and 2 in Appeal No. 54. 1957.  January 31.  The Judgment of the Court was  delivered by JAGANNADHADAS  J.-These  appeals arise out of  an  order  of discharge  passed  by the  Subordinate  Judge-Magistrate  of Dhanbad  under s. 494 of the Code of Criminal  Procedure  on his  consenting to the withdrawal of the  Public  Prosecutor from  a prosecution pending before him in so far as  it  was against  the  appellant.  Mahesh Desai, one of  the  accused therein.    The  prosecution  was  launched  on  the   first information  of one Ram Naresh Pandey as against 28  persons about  the  commission  of  the murder  of  one  Nand  Kumar Chaubey,  a peon of a colliery in Bagdigi, committed in  the course  of  a serious riot on February 20, 1954.   This  was said  to  have resulted from differences between  two  rival labour-unions in connection with a strike.  The  prosecution as  against  most  of the other  persons  is  under  various sections  of the Indian Penal Code including s. 302, on  the ground  of their actual participation in the  commission  of the murder.  But as against the appellant, Mahesh Desai,  it is only under s. 302 /109 of the Indian Penal Code, the part ascribed  to him in the first information report being  that he  abetted  the murder by reason of  certain  speeches  and exhortations at meetings or group-talks the day previous  to the  murder.  The application for withdrawal as against  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11  

appellant was made on December 6, 1954, when the matter  was pending  before  the Magistrate in the committal  stage  and before any evidence was actually taken.  It was made by  the Public  Prosecutor  on  the ground  that"  on  the  evidence available it would not be just and expedient to proceed with the  prosecution of Sri Mahesh Desai and that  therefore  it was necessary to withdraw the case against Sri Mahesh  Desai only  ".  It  was elicited in the course  of  the  arguments before  the  learned Magistrate. that the  position  of  the Public 36 282 Prosecutor  was, that the evidence regarding the  complicity of this accused was meagre and that there WAS only, a single item of evidence of a dubious nature against him. which  was not  likely  to establish a prima facie case.   The  learned Magistrate dealt with the ,matter in a fairly reasoned order and was of the opinion that there was no reason to  withhold the consent that was applied for.  He accordingly discharged the accused.  That-order was upheld by ’the learned Sessions Judge on, revision petition against it filed jointly by  the first  informant  in  the  case and by  the,  widow  of  the murdered  person.  These private parties pursued the  matter further  and  applied to the High Court’ in  revision.   The learned  Chief Justice who dealt with it was of the  opinion that the consent should not have been granted.  Accordingly, he set it aside.  The learned Chief Justice recognised  that normally in a matter of this kind the High Court should  not interfere.   But he felt called upon to set aside the  order on  the  ground that ,there’ wag’ no  judicial  exercise  of discretion  in  the present case." He,  therefore,  directed that  the  Magistrate should record the  evidence  and  then consider  whether it establishes a prima facie case  against the  appellant, Mahesh Desai.  The Advocate General  of  the State has come up before this Court against the order of the learned  Chief  Justice.  Leave was granted because  it  was urged  that the view taken by the learned Chief Justice  was based   on   an  erroneous  appreciation  of   the   legally permissible  approach in a matter of this kind and that  the decision  of  the learned Chief Justice was likely  to  have repercussions in the State -beyond what was involved in  the particular  case.  The aggrieved party, Mahesh  Desai,  also has  come  up by special leave and both  these  appeals  are disposed of by this judgment. The,question  of  law  involved may  be  gathered  from  the following   extracts  from  the  learned   Chief   Justice’s judgment. "’This  is  not a case where there is no  evidence;  on  the contrary,  this  is  a case where there  is  evidence  which require’s  judicial  consideration..........  The  procedure which the learned Special Magistrate followed was                             283 tantamount  to considering the sufficiency or  otherwise  of evidence  before  the evidence has  been  heard........  The function  of  the Court would be surrendered to  the  Public Prosecutor.   I  do. not think that s. 494 of  the  Code  of Criminal Procedure justifies, such a procedure.. The  legal  question that arises from the above  is  whether where an application for withdrawal under s. 494 of the Code of    Criminal   Procedure  is  made  ’on  the   ground   of insufficiency  or  meagreness of reliable evidence  that  is available, it is an improper exercise of discretion for  the Court to grant consent ’before evidence is taken, if it  was reasonably  satisfied,  otherwise,  that  the  evidence,  if actually taken, is, not likely to result in- conviction.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11  

Section  494  of  the Code of  Criminal  Procedure  runs  as follows: " Any Public Prosecutor may, with the consent of the  Court, in  cases tried by jury. before the returns of the  verdict, and  in  other  cases; before the  judgment  is  pronounced, withdraw   from  the  prosecutions  of  any  person   either generally  or in respect of any one or more of the  offences for which he is tried; and upon such withdrawal,- (a)if  it  is  made before a charge  has  been  framed,  the accused  shall be discharged in respect of such  offence  or offences; (b)if  it  is made after a charge has been framed,  or  when under this Code no charge is required, he shall be acquitted in respect of such offence or offences". The  section  is  an enabling one and vests  in  the  Public Prosecutor  the  discretion to apply to the  Court  for  its consent to withdraw from the prosecution of any person.  The consent,’  if  granted;  has  to  be,  followed  up  by  his discharge  or acquittal, as the case may be.   The  -section gives  no indication as to the, grounds on which the  Public Prosecutor may make the’ application, or the considerations- on, which the Court is -to grant its consent.  There can  be no  doubt,  how  ever,  that the  resultant  order,  on  the granting  of the consent, being an order of I discharge’  or ’acuittal’,  would attract the applicability  of  correction by; the 284 High Court under es. 435, 436 and 439 or 417 of the Code  of Criminal  Procedure.  The function of the Court,  therefore, in granting its consent may well be ,taken to be a  judicial function.  It follows that in granting the consent the Court must exercise a judicial discretion.  But it does not follow that  the discretion is to be exercised only with  reference to material gathered by the judicial method.  Otherwise  the apparently wide language of s. 494 would become considerably narrowed  down  in its application.   In  understanding  and applying  the section, two main features thereof have to  be kept  in  mind,  The  initiative  is  that  of  the   Public Prosecutor and what the Court has to do is only to give  its consent and not to determine any matter judicially.  As ;the Privy  Council  has pointed out in Bawa Faqir Singh  v.  The King  Emperor(1) " It (section 494 of the Code  of  Criminal Procedure)  gives  a general executive  discretion  (to  the Public Prosecutor) to withdraw from the prosecution  subject to  the  consent of the Court,, which may be  determined  on many  possible grounds." The judicial  function,  therefore, implicit  in  the exercise of the  judicial  discretion  for granting the consent would normally mean that the Court  has to satisfy itself that the executive function of the  Public Prosecutor has not been improperly exercised, or that it  is not  an  attempt  to interfere with  the  normal  course  of justice  for  illegitimate  reasons or  purposes.   In  this context  it is right to remember that the Public  Prosecutor (though an executive officer as stated by the Privy  Council in Bawa Faqir Singh v. The King Emperor(1)) is, in a  larger sense, also an officer of the Court and that he is bound  to assist  the  Court with his fairly-considered view  and  the Court  is entitled to have the benefit of the fair  exercise of his function.  It has also to be appreciated that in this country,  the  scheme  of  the  administration  of  criminal justice  is that the primary responsibility  of  prosecuting serious   offences  (which  are  classified  as   cognizable offences) is on the executive authorities.  Once information of   the  commission  of  any  such  offence   reaches   the constituted

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11  

(1)  (1938) L. R. 65 I. A. 388, 395.                             285 authorities, the investigation, including collection of  the requisite evidence, and the prosecution for the offence with reference  to  such  evidence,  are  the  functions  of  the executive.   But  the  Magistrate  also  has  his   allotted functions  in the course of these stages.  For instance,  in the  course  of  investigation, a person  arrested  must  be brought  before  him within 24 hours (s. 61 of the  Code  of Criminal Procedure).  Continuance of the arrested person  in detention  for purposes of investigation from time  to  time has  to  be  authorised by him (s. 167).  A  search  can  be conducted   on  the  issue  of  warrant  by  him  (s.   96). Statements  of witnesses and confessions may be recorded  by him  (s.  164).   In  an  appropriate  case  he  can   order investigation  or;  further investigation  (ss.  155(2)  and 202).   In  all  these matters  he  exercises  discretionary functions in respect of which the initiative is that of  the executive but the responsibility is his.  His discretion  in such matters has necessarily to be exercised with  reference to such material as is by then available and is not a  prima facie  judicial determination of any specific  issue,.   The Magistrate’s  functions  in  these  matters  are  not   only supplementary,. at a higher level, to those of the executive but  are intended to prevent abuse.  Section  494  requiring the  consent  of  the Court for  withdrawal  by  the  Public Prosecutor  is more in line with this scheme, than with  the provisions  of the Code relating to inquiries and trials  by Court.   It  cannot  be  taken to place  on  the  Court  the responsibility for a prima facie determination of a  triable issue.   For instance the discharge that  results  therefrom need not always conform to the standard of " no prima  facie case " under ss. 209(1) and 253(1) or of " groundlessness  " under  ss.  209(2) and 253(2).  This is not to  say  that  a consent  is  to be lightly given on the application  of  the Public, Prosecutor, without a careful and proper scrutiny of the grounds on which the application for consent is made. A  large number of cases from the various High  Courts  have been cited before us.  We have carefully gone through  them. All of them recognise that the 286 function  of the Magistrate in giving consent is  a  judcial one  open  to correction.  But in some of them there  is  no sufficient  appreciation of the respective positions of  the Public prosecutor and the Court, in the discharge, of  their functions  under s. 494 as we conceive. them to  be.   There is,  however, a general concurrence-at least in  the,  later cases-that the. application for consent may legitimately  be made  by the Public Prosecutor for reasons not  confined  to the judicial prospects of the prosecution. [See The King  v. Moule  Bux(1) and.  The King v. Parmanand(2).] If so, it  is clear  that,  what  the  Court has  to  determine,  for  the exercise  of  its  discretion  in  granting  or  withholding consent, is not a triable issue on judicial evidence. Learned  counsel for the respondents has  strenuously  urged before  us  that while this may be so where the  consent  is applied  for  on other grounds, or for  other  reasons,  the position  would not be the same, where the  application  for consent is made on the ground of no. evidence or no adequate or reliable evidence.  It is urged that in such a case,  the Court  can  exercise  its,  judicial  function,  only  with, reference to judicially recorded evidence as in one or other of the appropriate situations contemplated by the Code  for’ judicial inquiry or trial.  If this argument means  anything it  must  mean  that in such a situation  the  Court  before

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11  

granting  consent  must hold a kind of  preliminary  inquiry into  the  relevant evidence in much the same  way  as,  for instance’. when a Magistrate acting under s. 202 of the Code of  Criminal  Procedure may direct or it must mean  that  no consent  can at all be given on such a ground and  that  the Court   must  proceed  with  the  prosecution,  and   either discharge or acquit under one or other of the other sections in  the Code enabling hereunto.  It appears to us that  this would  be  engrafting,  on  the, wide terms  of  s.  494  an exception  or  &  proviso limited to such a  case.   In  our opinion, this would not be a permissible construction of the section.  We are, therefore, unable, with great respect,  to subscribe to the view taken by the learned Chief (1) A.I.R. 1949 Pat’233 (F.B.). (2) A.I.R. 1949 Pat. 222, 226 (F.B.). 287 Justice  whose  judgment  is under appeal,  that  where  the application  is  on  the ground of  inadequacy  of  evidence requiring  judicial  consideration, it would  be  manifestly improper  for  the Court to -consent to  withdrawal  before’ recording  the evidence and taking ’it  into  consideration. We are not to be understood, however, as implying that  such evidence as may already have been recorded by the, time  the application is made is not to be looked into and  considered in such cases, in order to determine the impropriety of  the withdrawal as amounting to abuse or an improper interference with the normal course of justice. Learned counsel for the respondents has raised a fresh point before  us  for  maintaining the order  of  the  High  Court setting  aside  the  discharge  of  the  appellant  by   the -Magistrate.   The  point being purely one of law,  we  have allowed  it to be argued.  His contention is that in a  case triable by a Court of Session, an application by the  Public Prosecutor for withdrawal with the consent of the Court does not  lie  in the committal stage.’ He lays emphasis  on  the wording of s. 494 which says that " in cases tried by  jury, any  Public, Prosecutor may, with the consent of the  Court, withdraw  from  the  prosecution of any  person  before  the return  of  the verdict." This, according  to  him,  clearly implies  that such withdrawal cannot be made until the  case reaches  the  trial stage in the Sessions  Court.   He  also relies  on  the  further  phrase in  the  section  "  either generally  or in respect of any one or more of the  offenses for which he is tried." The use’ of the word ’tried’ in this phrase.  confirms, according to him, the contention that  it is only when the case reaches the stage of trial that s. 494 can  be availed of.  He draws our attention to a passage  in Archbold’s  Criminal Pleading, Evidence and  Practice  (32nd Ed.),pp.  108,  109, s. 12, that "a nolle prosequi  to  stay proceedings  upon an indictment -or information  pending  in any Court may be entered, by leave of the Attorney  General, at the instance of either the prosecutor or the defendant at any time after the bill of indictment is signed, and  before judgment." He urges that it is this principle that has  been recognised in the first portion 288 of s. 494 of the Code of Criminal Procedure.  It appears  to us  that  the  analogy  of the  English  practice  would  be misleading  as  an aid to the construction of s.  494.   The scheme  of  our  Criminal Procedure  Code  is  substantially different.  The provision corresponding to the power of  the Attorney-General  to enter nolle prosequi is s. 333  of  the Code  of Criminal Procedure which refers to jury  trials  in High Court.  The procedure under s. 494 does not  correspond to  it.  The phrase " in other cases before the judgment  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11  

pronounced " in s. 494 would, in the context, clearly  apply to all cases other than those tried by jury.  Now, there can be no doubt that at least as regards these other cases, when the consent for withdrawal is given by the Court, the result is  either  a discharge or an acquittal,  according  to  the stage  to which that case has reached, having regard to  the two  alternatives  (a)  and (b) of s. 494  of  the  Code  of Criminal Procedure.  It follows that at least in every class of cases other than those tried by jury, the withdrawal  can be  at  any  stage of the entire  proceedings.   This  would include also the stage of preliminary inquiry in a  Sessions case  triable  without a jury.  But if the argument  of  the learned counsel for the respondents is accepted, that  power cannot  be exerciser at the preliminary inquiry stage,  only as  regards cases which must lead to a jury trial.   We  can find  no  conceivable  reason for  any  such  discrimination having  been  intended and prescribed by the Code.   We  are unable to construe s. 494 as involving any such  limitation. The wording is perfectly wide and general and would apply to all classes of cases which are capable of terminating either in a discharge or in an acquittal, according to the stage at which  the  section is invoked.  The whole argument  of  the learned  counsel is based upon the use of the  word  ,tried’ and  he  ehaphasises  the  ’well-known  distinction  between ’inquiry’  and  ’trial’  in the scheme  of  the  Code.   Our attention has also been drawn to the definition of the  word ’inquiry’ in s. 4 (k) of the Code which runs as follows: "’Inquiry   includes  every  inquiry  other  than  a   trial conducted under this Code by a Magistrate or Court."                             289 There  is  hardly anything in this definition  which  throws light-on  the question whether the word ’trial’, is used  in the  relevant  section in a limited sense  as  excluding  an inquiry.   The  word  ’trial’ is not defined  in  the  Code. ’Trial’ according to Stroud’s Judicial Dictionary means "the conclusion,  by a competent tribunal, of questions in  issue in  legal  proceedings, whether civil  or  criminal"(1)  and according  to Wharton’s Law Lexicon means "the hearing of  a cause,   civil   or  criminal,  before  a  judge   who   has jurisdiction over it, according to the laws of the land"(2). The  words  ’tried’ and ’trial’ appear to have no  fixed  or universal meaning.  No doubt, in quite a number of  sections in’ the Code to which our attention has been drawn the words ’tried’ and trial’ have been used in the sense of  reference to a stage after the inquiry.  That meaning attaches to  the words  in  those sections having regard to  the  context  in which  they  are used.’ There is no reason why  where  these words  are used in another context in the Code, they  should necessarily   be   limited   in   their   connotation    and significance.  They are words which must be considered  with regard to the particular context in which they are used  and with  regard  to the, scheme and purpose  of  the  provision under consideration. An  argument has also been advanced by the  learned  Counsel for  the  respondents  before us by referring  to  the  word "judgment" in the phrase "in other cases before the judgment is  pronounced" in s. 494 as indicating that the phrase  "in other  oases" can refer only to proceedings which end  in  a regular   judgment  and  not  in  any  interim  order   like commitment.   Here  again the difficulty in the way  of  the contention  of the learned Counsel being accepted,  is  that the word "judgment" is not defined.  It is a word of general import and means only "judicial determination or decision of a  Court".  (See Wharton’s Law Lexicon, 14th Ed.,  p.  545). There  is no reason to think in the context of this  section

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11  

that  it  is not applicable to an order of  committal  which terminates the proceeding so far as the inquiring Court (1)  Stroud’s judicial Dictionary, 3rd Ed., VOl. 4, P. 3092. (2)  Wharton’s Law Lexicon, 14th Ed., p. 101. 37 290 is  concerned.   It may be, that in the context  of  Chapter XXVI  of the Code judgment may have a limited  meaning.   In any  view,  even  if ’judgment, in this  context  is  to  be understood  in a limited sense, it does not follow  that  an application during preliminary inquiry-which is  necessarily prior to judgment in the trial-is excluded.  The  history  of  s. 494 of the present  Code  of  Criminal Procedure  (Act  V of 1898) confirms the  above  view.   The provision  for withdrawal by the Public Prosecutor with  the consent  of  the Court appears, for the first time,  in  the Code  of Criminal Procedure,; 1872 (Act X of 1872) as s.  61 thereof and runs as follows: The  public  prosecutor may, with the consent of  the  Court withdraw -any charge against any person in any case of which he  is  ’Charge; and upon such withdrawal, if  it,  is  made whilst  the case is under inquiry, the accused person  shall be  discharged.  If it is made when he is under  trial,  the accused person shall be acquitted." In the next Code of 1882 (Act X of 1882) this appears as  s. 494 thereof and runs as follows: "Any Public Prosecutor appointed by the Covernor-General  in Council or the Local Government may, with the consent of the Courts,  in  cases tried by jury before the  return  of  the verdict,   and  in  other  cases  before  the  judgment   is pronounced,  withdraw from the prosecution. of  any  person; and, upon such withdrawal, (a)  if  it  is made before a charge has  been  framed,  the accused shall ’be discharged; (b)  if  it is made after a charge has been framed, or  when under  this  Code,  no  charge  is  required,  he  shall  be acquitted." It may be noticed that there has been a complete  redrafting of  the  section which brings about  two  alterations.  this section seems to have remained as such in the 1898 Code (Act V of 1898).  The next modification in the section appears to have  been  made by Act XVIII of 1923  -which  inserted  the phrase "either generally or in respect of any one or more of the    offences  for which he is tried" in  the  appropriate place                             291 in  s.  494  as it stood in the 1882 Code  (in  addition  to omitting’  the phrase "appointed by the Governor General  in Council  or Local Government").  The present s. 494  is  the corresponding  section in the 1882 Code as so  altered.   It will  be  thus seen there are altogether  three  substantial changes in between 1872 and 1923 in the corresponding s.  61 of  the 1872 Code.  The first two changes made in 1882  were obviously  intended  to indicate that the result by  way  of discharge or acquittal should depend not on the  distinction between  inquiry  and  trial but, on the fact  of  a  charge having  been framed or not having been framed.   The  second was to clarif that the application can be made generally  up to tie point when judgment is pronounced but to provide  for an exception thereto in respect of cases which in fact  have gone up for a jury trial, in which case the applicati on can be  made only up to the point of time before the verdict  is pronounced.   The third change in 1923 was to make it  clear that  the  withdrawal need not be in respect of  the  entire case  against a particular individual but in respect of  one

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11  

or  more  only  of  the  charges  for  which  he  is   being prosecuted.  These three changes, therefore, were introduced for  spcific purposes which are obvious.  The section as  it originally stood in 1872 was quite wide enough to cover  all classes of cases not excluding even jury cases when it is in the  stage of preliminary inquiry.  There is  absolutely  no reason to think that these successive, changes were intended to  exclude such a preliminary inquiry from the scope of  s. 494  as  it has finally emerged.  It may also  be  mentioned that  the words " inquiry’ and ’trial’ were both defined  in the Code of 1872 but that the definition of the word ’trial’ was omitted, in the 1882 Code and that latter on in the 1898 Code  the  definition  of the  word  inquiry’  was  slightly altered  by adding the ,phrase "Other than a trial"  leaving the,  word  ’trial’ undefined.   These  various  legislative changes from time to time with reference to s, 494 and  the’ definition  of  the ’word inquiry’ confirm  the  view  above taken  that  s. 494 is wide enough to cover  every  kind  of inquiry and trial and that the word trial’ in the, section 292 has  not been used in any limited sense.  Substantially  the same view has been taken in Giribala Dasee v. Madar Gazi (1) and  Viswanadham v. Madan Singh(2) and we are  in  agreement with the reasoning therein as regards this question. As  regards the merits of the appeals, the matter lies in  a short  compass.   AB already stated the application  by  the Public Prosecutor was made before any evidence was taken  in the  committal stage.  The only materials then available  to the  Public Prosecutor or to the Court were the contents  of the first information report and any statements of witnesses that may have been taken by the police during investigation. What is alleged against the appellant, Mahesh Desai, in  the first information report can be gathered from the following: "These persons, viz., Mahesh Desai and others,regularly held meetings  and advocated for closing Bagdigi cable plant  and coke  plant and assaulting the "dalals’.  Yesterday,  Friday morning when some labourers were going to resume their  work in  8  No.  pit, at Lodna  the  striking  labourers  created disturbance  there and the labourers of that place who  were going  to  resume work could not do so.  At about 11  a.  m. Mahesh Desai the leader of the Koyala Mazdoor Panchayat came to Bagdigi and told the labourers of this place to stop  all work,  to  hold  on to their posts and to see  that  no  one worked.   At  the  instance of Mahesh  Desai  the  labourers stopped the work.  Last night at about 11-30 p.m. when I was in  my  quarter at Lodna, Jadubans Tiwary,  the  overman  of Bagdigi  Colliery, said that Sheoji Singh and Ramdhar  Singh ’had told him that in the evening at about 6-30 p.m.  Mahesh Desai came to Bagdigi Mahabir Asthan Chala, collected 120 to 125 labourers and held a meeting and Mahesh Desai said  that he  had come to know that the company and its  dalals  would take some labourers to pit No. 10 this morning to resume the work and they would get the work resumed by them.  In  this’ morning Phagu Dusadh, Jalo Dusadh, Chamari Dusadh and others were (sic) took part.  Mahesh Desai said to (1)  [1932] I.L.R. 6o Cal. 233. (2)  I.L.R. [1949] Mad. 64.                             293 them  " You go to your respective works and see that no  one works there happen what may.  You remain, prepared in  every respect.   The  labourers of Lodna will also  come  to  your help.  The police will not be able to do any harm to you  ". The  meeting dispersed at about 7-30 o’clock.  Mahesh  Desai went by his Jeep from Mahabir Asthan to pit No. 10 and  told the  labourers there to stick to their strike.  Then  Phagu,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11  

Jalo and Haricharan Dusadh of Bagdigi began to talk with him near the Jeep.  Jadubans Tewary heard Mahesh Desai saying  " It  is necessary for us to finish the dalals  for  achieving victory.   You  remain prepared for this".  Saying  this  he boarded his Jeep and at the end Mahesh Desai said to  Phagu, Haricharan  and Jalo Dusadh " Finish all.  What will  happen will  be  seen ". Thereafter Mahesh Desai went away  by  his Jeep and Phagu.  Jalo and Haricharaa came back." The  first  information report continues to state  what  all happened the next day by way of rioting, etc. in the  course of  which  Phagu,  Jalo and Haricharan  Dusadh,  along  with others  were  said  to have chased Nand  Kumar  Chaubey  and wherein Phaou gave a pharsa blow and Haricharan a lathi blow to  him  and  Nand Kumar Chaubey fell  down  dead.   In  the closing   portion  of  the  first  information  report   the informant states as follows: I  make this statement before you that (having,  instigated) yesterday evening in the meeting and having instigated Phagu Dusadh,  Jalo Dusadh and Haricharan Dusadh near pit No.  10, and having got a mob of about one thousand persons collected to-day in the morning by Harbans Singh and other workers  of his union Mahesh Desai got the murder of Nand Kumar  Chaubey committed by Phagu Dusadh, Jalo Dusadh and Haricharan Dusadh to-day at 8-15 a.m. with lathi and pharsa." It is clear from this that what is ascribed to Mahesh  Desai is that he is alleged to have exhorted the laborers once  in -the morning at 11 a.m. and again in the night at 6-30  p.m. as also at 7-30 p.m. As regards the exhortation at 11 a.  m. it  is  not quite clear from the  first  information  report whether the 294 informant speak,% to his personal knowledge or what he heard from  the  labourers.   As  regards what  is  said  to  have transpired  at  6-30 p.m. and 7-30 p.m., it  appears  to  be reasonably clear that the person who gave the information to the  informant was Jadubans Tiwary and that his  information itself  was probably based on what Sheoji Singh and  Ramdhar Singh  had told him.  It would be seen, therefore, that  the prosecution  must  depend  upon  the  evidence  of  Jadubans Tiwary,  and possibly of Sheoji Singh and Ramdhar Singh  and that  what  these three persons could speak to was  at  best only  as  to  the exhortation made by Mahesh  Desai  at  the various  stages.  Presumably, these witnesses were  examined by  the police in the course of the investigation.  Now,  on this  material, we find it difficult to appreciate  why  the opinion arrived at by both the trial court and the  Sessions Court  that the’ view taken of that material by  the  Public Prosecutor,  viz., that it was meagre evidence on  which  no conviction  could  be  asked for, should be said  to  be  so improper  that the consent of the Court under s. 494 of  the Code  of  Criminal Procedure has to be withheld.   Even  the private complainant who was allowed to participate in  these proceedings  in all its stages, does not, in  his  objection petition,  or revision petitions, indicate the  availability of  any other material or better material.  Nor,  could  the complainant’s counsel, in the course of arguments before  us inform us that there was any additional material  available. In the situation, therefore, excepting for the view that  no order to withdraw should be passed in such cases either as a matter  of  law  or as a matter of propriety  but  that  the matter  should  be disposed of only after the  evidence,  is judicially  taken,  we  apprehend  that  the  learned  Chief Justice himself would not have felt called upon to interfere with  the  order of the Magistrate in the  exercise  of  his revisional jurisdiction.,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11  

We are, therefore, clearly of the opinion, for all the above reasons,  that  the order of the High Court  should  be  set aside  and the appeals allowed.  Accordingly, the  order  of the trial court is hereby restored.                             295 There -was some question raised before us as to whether  the private  complainants could be allowed,’ to  participate  in these  proceedings at the various stages.  Nothing  that  we have  -said  is  intended  to  indicate  that  the   private complainant has a locus standi. It  is  unfortunate  that this prosecution  which  is  still pending  at  its very early stages has got to  be  proceeded with against all the rest of the accused, after the lapse of nearly three years from the date of the murder.  It is to be hoped  that  the  proceedings which  must-  follow  will  be speeded up. Appeals allowed.