# 1-- Ratan Rai v. State of Bihar Bhagwatij - **Citation:** [1957] 1 S.C.R. 279 - **Court:** Supreme Court of India - **Decided:** 1955-05-31 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1-ratan-rai-v-state-of-bihar-bhagwatij-1340 - **Pages:** 17 ## Headnote S.C.R. SUPREME COURT REPORTS 279 not think that that is the proper procedure to adopt and we therefore · allow the appeal, and remand this matter to the High Court to act in accord.ance with the provisions of s. 307(3) of the Code of Criminal Procedure and deal with the same in accordance with law. The appellants will continue on the same bail as before. Appeal allowed. THE STATE OF BIHAR tJ. RAM NARESH PANDEY (With Connected Appeal) [JAGANNADHADAS, JAFER lMMAM and GovINDA MENON JJ.] c,.iminal latl'-Proseetttion-Application for withdrawal by Pubiic Prosecutor-Consent of Court-Ftmdio11 of the Court in giving such consent--Case t1·iable by a Court of Session-Whether appiic111io11 for ll'ithdrawal does not lie in the committal stage- 'Tria/', 'judgment', Meaning of-Code of Criminal Procedure, 1898 (.let V of 1898), s. 494. Hy 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 Ye1dict, and in other cases before the judgment i~ pronounced, withdraw from the prosecution o( 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 ; (h) if it is made after a charge h1s 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 bunched 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, an application for the withdrawal of M. from the prosecution wa.s made by the Public Prosecutor under s. 494 of the Code of Criminal Procedure on the ground that "on the evidence aYailable it would not be just and expedient to proceed with the prosecution of M.'' The Magistrate was of the opinion tha~ 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 4-100 S. C. lndia/59 1957 1-- Ratan Rai v. State of Bihar Bhagwatij. 1957 January 31. 1957 Tiu Stat• of Bihar v. Ram Nartsh Pandt)' 280 SUPREME COURT REPORTS [1957] rcv1sron, filed· by the respondents, the High Court set aside the order and directed the Magistrate to record the evidence and then consider whether it establishe:d 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 ( l) 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 enguiry 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 : ( l) Though the function of the Court in giving the consent under s. 594 of the Code is a judicial one, it is not neces~ sary that the discretion is to be exercised only with reference to 1naterial gathered by the judicial 1nethod, 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 inter~ fere with the nonnal 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 inquir ## Text S.C.R. SUPREME COURT REPORTS 279 not think that that is the proper procedure to adopt and we therefore · allow the appeal, and remand this matter to the High Court to act in accord.ance with the provisions of s. 307(3) of the Code of Criminal Procedure and deal with the same in accordance with law. The appellants will continue on the same bail as before. Appeal allowed. THE STATE OF BIHAR tJ. RAM NARESH PANDEY (With Connected Appeal) [JAGANNADHADAS, JAFER lMMAM and GovINDA MENON JJ.] c,.iminal latl'-Proseetttion-Application for withdrawal by Pubiic Prosecutor-Consent of Court-Ftmdio11 of the Court in giving such consent--Case t1·iable by a Court of Session-Whether appiic111io11 for ll'ithdrawal does not lie in the committal stage- 'Tria/', 'judgment', Meaning of-Code of Criminal Procedure, 1898 (.let V of 1898), s. 494. Hy 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 Ye1dict, and in other cases before the judgment i~ pronounced, withdraw from the prosecution o( 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 ; (h) if it is made after a charge h1s 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 bunched 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, an application for the withdrawal of M. from the prosecution wa.s made by the Public Prosecutor under s. 494 of the Code of Criminal Procedure on the ground that "on the evidence aYailable it would not be just and expedient to proceed with the prosecution of M.'' The Magistrate was of the opinion tha~ 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 4-100 S. C. lndia/59 1957 1-- Ratan Rai v. State of Bihar Bhagwatij. 1957 January 31. 1957 Tiu Stat• of Bihar v. Ram Nartsh Pandt)' 280 SUPREME COURT REPORTS [1957] rcv1sron, filed· by the respondents, the High Court set aside the order and directed the Magistrate to record the evidence and then consider whether it establishe:d 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 ( l) 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 enguiry 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 : ( l) Though the function of the Court in giving the consent under s. 594 of the Code is a judicial one, it is not neces~ sary that the discretion is to be exercised only with reference to 1naterial gathered by the judicial 1nethod, 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 inter~ fere with the nonnal 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 Dasu v. Mad<1· Gazi, {1932) I.L.R. 60 Cal. 233, and Viswanadham v. Madan Singh, I.L.R. (1949) Mad. 64, approved. CRIMINAL APPELLATE JURISD!crION: Criminal Appeals Nos. 53 and 54 of 1956. Appe~ls 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 Revision No. 43 of 1954. Mahabir Prasad, Advocate-General of Bih11r, T arakesh111ar Nath and S. P. Verma, for the appellant in Appeal No. 53 and for respondent No. 3 in Appeal No. 54. S.C.R. SUPREME COURT REPORTS 281 H. /. 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 ]AGANNADHADAS J.-These appeals arise out of an order of discharge passed by the Subordinate JudgeMagistrate 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 wa~ 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 iu 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 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 1957 Th• State of Bihar v. Ram N aresh Pant!ey 1957 The State of Bihar v. Ram NartJh Pandey JagnnaJhadas J. 282 SUPREME COURT REPORTS [1957j 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 dis,harged the accused. That order was upheld by the learned Sessions Judge on a 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 iearned 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 was no judicial exercise of discretion in the present case." He, therfore, directed that the Magistrate should record the evidence and then consider whether it establishes a prima facie case against the appellant, Mahesh Desai. The AdvocateGeneral 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 requires judicial consideration ........ The procedure which the learned Special Magistrate followed was S.C.R. SUPREME COURT REPORTS 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. Section 494 of the Code of Criminal Procedure runs as follows : , "Any Publi0 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 ,c 1ffences 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 •>r 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 thr. application, or. the considerations on which the Court is to grant its consent. There can be no doubt, however, that the resultant order, on the granting of the consent, being an order of 'discharge' or 'acquittal', would :.ttract the applicability of correction by the 1957 The State of Bihar v. Ram N aresh Pandty Jagannadhadas J. 1957 The State of Bihar v. Ram N are sh Pandey Jagannadhadas j .. 284 SUPREME COURT REPORTS [1957} High Court under ss. 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 Prostcutor 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( '), "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 th.at the Public Prosecutor (though an executive officer. as stated by the Privy Council in Bawa Faqir Singh v. The King Emperor(' ) 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 Co\)rt is entitled to have the benefit of the fair exercise of his function. It has also to be appreciated that in tlu&; .1:ountry 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 (1) (1938) L.R. 65 I.A. 388, 395· S.C.R. SUPREME COURT REPORTS 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 f acie 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 alwavs conform to the standard of "no prim a f acie case" under ss. 209(0 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 scrutmy 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 1957 T ht State of Bihar v. Ram Naresh Pandey J agannadhadas J. 1957 T ht State of iJihar v. Ram ]'{ aresh P«ndey ,]agannadlj_adas ) ~ 286 SUPREME COURT REPORTS [1957] function of the Magistrate in giving consent is a judicial one open to correction. But in some of them there is no sufficient appreciation of the respective pos1t10ns 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-c-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(').J If so, it is clear that, what the Court has to determine, for the exercise cif 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 Ho evidence or no adequate or reliable evidence. It is urged that in such a case; the Court c.an 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 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 thereunto. It appears to us that this would be engrafting on the wide terms of s. 494 an exception or a proviso limited to such a ·case. In our ·opinion, this would not be a permissible construction of the section. We are, therefore, unable, with grc~t respect, to subscribe to the view taken by the learned Chief (1) A.LR. 1949 Pat. •33 (F.B.). (o) A.LR. 1949 Pat. ••>, 226 (II. B.). " S.C.R. SUPREME COURT REPORTS 287 Justice whose judgment is under appeal, that where the application is on · · the ground of inadequacy of ev.idence 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 byen recorded by the time .the application is made · is not to be looked into and considered in such cases, in order tci determine the impropriety of the withdrawal as amounting to abuse or an improper iP.terference with the normal eourse 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 po;nt 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 01 in respect of any one or more of the offences 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