# M. N. SANKARAYARAYANAN NAIR v. P. V. BALAKRISHNAN & ORS

- **Citation:** [1972] 2 S.C.R. 599
- **Court:** Supreme Court of India
- **Decided:** 1971-11-26
- **Case number:** Criminal Appeal No. 12 of 1969
- **Bench:** P. Jaganmohan Reddy, D. G. Palekar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-n-sankarayarayanan-nair-v-p-v-balakrishnan-ors-5677
- **Pages:** 10

## Headnote

Code of Criminal Procedure (Act 5 of 1898), s. 494--Grant of per111ission to Public Prosecutor to withdra1v from prosecutior1r-Cri~ria.
The respondents were committed to trial before the Sessions Court for
offences of forgery, cheating, etc. They challenged the committal order
but the High Court held that. there was a prima facie case. Thereafter,
the trial judge split up the char&es and this was •!lain questioned but the
High Court held that there was no illegality. The Public Prosecutor then
applied under s. 494, Cr. P .C., under instructions from the Government,
for J>\!rmission to withdraw from the prosecution, on the grounds, that the
transaction relating to the offence arose out of a contract and was of a
civil nature, that there had been enormous delay in proceeding with the
trial, and that the securing the evidence of witnesses would involve heavy
expense for the _State as the witnesses were in far off places. The trial
judge gave the permission and the order was
confirmed
by the
Hish
Court.
Allowing the appeal to this Court,
HELD :
(I) Section 494 of the Code is not in pari materia with
s. 333 under which th•! Advocate General m'.ly enter a no/le prosequi at
"ny sbge of a trial. It only gives power to the Public Prosecutor to withJra\'; from the p'rosccution subject to the consent of the Court. Though the
section is in genera] terms and does not circumscribe the powers of the
Public· Prosecutor the essential consideration which is implicit in the grant
of the power is that it should be exercised in the interests of justice which
may be, tither that it may not be possible to produce sufficient evidence
to sustain the charge, or that subsequent inform~tion before the prose~
cnting agency falsifies the pro!ccution evidence, or other similar circumstances depending on the facts
and circumstances of each case. The
power is subject to the permission of the Court and it is the duty of the
Court to see· that the per1nission is not sought on grounds extraneous to
the interests of justice or that offences against the State <lo not go unpunished merely because the Government as a matter of general policy or
expediency unconnecred with its duty to prosecute offenders directs a
Public Prosecutor to withdraw from the prosecution and the Public Prosecutor merely do.es so ~t its behest.
The
c.~ourt, while considering the
rcqll''8t to grant pzrmission. should not do so as a formality for the
mere
asking. It may grant
permission only if it is
satisfied on the
materials placed before it that the grant of it subserves the administration
of justice and that the permission was not sought. covertly with an ulterior
rm11ose unconnected with the vindication of the law. [60'.1 E-H; 604
A-D; 606 E]
State of Bihar v. Ram Naresh Pandey, [1957] S.C.R. 279, followed.
Deremlra Kumar Roy v. Syed Ya•r Bakht Choudhury & Ors. A.1 .R.
1939 Cal. 220, The KinR v. Pamwnand & Ors., A.T.R. 1949 Pat. 222 and
Dy. Accountant General (Admn.) Office of Accountant General, Kera/a
Trivandrum v. State of Kera/a & Ors., A.I.R. 1970 Kerala 158. referred
H
to.
(2) In the present case none of the grounds alleged or even
their
cumul~ive ~tfect would justify. the withdrawal from the. pros.ecution.
[906 GJ
600
SUPREME COURT REPORTS
[1972] 2 S.C.R.
(a) It may be that \be acts of the respondents may make them both
liable under the civil as well as the criminal laws. But that does not
justify either the seekina of the permission to withdraw from the prosecution or the granting of it unless the matter before the criminal court is
of a purely civil nature. The committal order and the judgments of the
High Court at the prior two •!ages show that there was a prima facie case
against the accused with respect to the charges framed against them.
[906 G-H; 907 G-HJ
(b) Neither the ground of delay nor the question of expenditure involved by themselves, could be a proper ground for granting permission
to the Public Prosecutor for withdrawing from the c-ase [60S B-C, F-0)

## Text

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599
M. N. SANKARAYARAYANAN NAIR
v.
P. V. BALAKRISHNAN & ORS.
November 26, 1971
[P. JAGANMOHAN REDDY AND D. G. PALEKAR, JJ.]
Code of Criminal Procedure (Act 5 of 1898), s. 494--Grant of per111ission to Public Prosecutor to withdra1v from prosecutior1r-Cri~ria.
The respondents were committed to trial before the Sessions Court for
offences of forgery, cheating, etc. They challenged the committal order
but the High Court held that. there was a prima facie case. Thereafter,
the trial judge split up the char&es and this was •!lain questioned but the
High Court held that there was no illegality. The Public Prosecutor then
applied under s. 494, Cr. P .C., under instructions from the Government,
for J>\!rmission to withdraw from the prosecution, on the grounds, that the
transaction relating to the offence arose out of a contract and was of a
civil nature, that there had been enormous delay in proceeding with the
trial, and that the securing the evidence of witnesses would involve heavy
expense for the _State as the witnesses were in far off places. The trial
judge gave the permission and the order was
confirmed
by the
Hish
Court.
Allowing the appeal to this Court,
HELD :
(I) Section 494 of the Code is not in pari materia with
s. 333 under which th•! Advocate General m'.ly enter a no/le prosequi at
"ny sbge of a trial. It only gives power to the Public Prosecutor to withJra\'; from the p'rosccution subject to the consent of the Court. Though the
section is in genera] terms and does not circumscribe the powers of the
Public· Prosecutor the essential consideration which is implicit in the grant
of the power is that it should be exercised in the interests of justice which
may be, tither that it may not be possible to produce sufficient evidence
to sustain the charge, or that subsequent inform~tion before the prose~
cnting agency falsifies the pro!ccution evidence, or other similar circumstances depending on the facts
and circumstances of each case. The
power is subject to the permission of the Court and it is the duty of the
Court to see· that the per1nission is not sought on grounds extraneous to
the interests of justice or that offences against the State <lo not go unpunished merely because the Government as a matter of general policy or
expediency unconnecred with its duty to prosecute offenders directs a
Public Prosecutor to withdraw from the prosecution and the Public Prosecutor merely do.es so ~t its behest.
The
c.~ourt, while considering the
rcqll''8t to grant pzrmission. should not do so as a formality for the
mere
asking. It may grant
permission only if it is
satisfied on the
materials placed before it that the grant of it subserves the administration
of justice and that the permission was not sought. covertly with an ulterior
rm11ose unconnected with the vindication of the law. [60'.1 E-H; 604
A-D; 606 E]
State of Bihar v. Ram Naresh Pandey, [1957] S.C.R. 279, followed.
Deremlra Kumar Roy v. Syed Ya•r Bakht Choudhury & Ors. A.1 .R.
1939 Cal. 220, The KinR v. Pamwnand & Ors., A.T.R. 1949 Pat. 222 and
Dy. Accountant General (Admn.) Office of Accountant General, Kera/a
Trivandrum v. State of Kera/a & Ors., A.I.R. 1970 Kerala 158. referred
H
to.
(2) In the present case none of the grounds alleged or even
their
cumul~ive ~tfect would justify. the withdrawal from the. pros.ecution.
[906 GJ
600
SUPREME COURT REPORTS
[1972] 2 S.C.R.
(a) It may be that \be acts of the respondents may make them both
liable under the civil as well as the criminal laws. But that does not
justify either the seekina of the permission to withdraw from the prosecution or the granting of it unless the matter before the criminal court is
of a purely civil nature. The committal order and the judgments of the
High Court at the prior two •!ages show that there was a prima facie case
against the accused with respect to the charges framed against them.
[906 G-H; 907 G-HJ
(b) Neither the ground of delay nor the question of expenditure involved by themselves, could be a proper ground for granting permission
to the Public Prosecutor for withdrawing from the c-ase [60S B-C, F-0)
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
12 of 1969.
Appeal by special leave from the judgment and order dated
June 25, 1968 of the Kerala High Court in Criminal M.P. Nos.
175, 177 and 179 of 1968.
A. Sreedharan Nambyar, for the appellant.
Lily Thomas, for respQildent No. 2.
A. G. Pudissery, for respondent No. 3.
The Judgmtmt of the Court was delivered by
P . .Jaganmohan Reddy, .J. Respondent 1 and Responden~ 2
were committed on 15th June 1965 by the Second Class Magistrate,
Cannanore to stand trial before the Assistant Sessions Judge,
Tellichery, the former for offences under Sections 467, 478 and 420
read with Section 109 of the Indian Penal Code while the latter
under Sections 467 read with 109, 471 and 420. While the case
was pending before the Assistant Sessions Judge, the Public Prosecutor of Tellicherry filed a Memo on. 30-11-67 under Sec. 494 of
the Criminal Procedure Code for ]:!ermission to withdraw from the
prosecution which permission was accorded by the Assistant Sessions Judge on 2-12-67. The Appellant who was the Managing
Partner of Shree Narayana Transport Company, Calicut !iled a
Criminal Miscellaneous Petition on 19-2-68 in the High Court of
Kerala against the order of the Assistant Sessions Judge according
permission to the Public Prosecutor for withdrawing from the prosecution.
The High Cgurt held that the Public Prosecutor was
justified when he applied for the withdrawal of the case and accordingly dismissed the petition against which this appeal comes up
before us by Special Leave.
The 1st Respondent was the Agene of Shree Narayana Transport Company of one of its Branches namely at Baliapattom and
in that capacity it was one of his duties to accept goods from the
Public for transporting them by lorry service of the Company and
issue Way Bills. These Way Bills contained an undertaking that
in the event of any of the Bank~ discounting them and if goods are
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M. N. s. NAIR v. P. v. B/\L/\KRISHNAN (Jaganmohan Reddy,/.) 601
Jost or damaged d!Jring transport., the Transport Company will be
responsibl~ to the Bank. It is alleged that the 1st Respondent
issued nine Way Bills on different dates in favour of the 2nd Respondent, as if the goods were received but in fact no such goods
were accepted for transport nor were any such goods despatched.
These Way Bills were duly discounted by the second Respondent
the consigner who drew about Rs. 84,000 against them from bis
Bank. This fraud was detected on a check made by the G'neral
Manager of Shree Narayana Transport Co., Kozhikode and it
appears that the 1st accused (1st Respondent) executed an agreement in favour of the Transport Company undertaking to make
good the loss suffered by it, after which he was suspended on
l 0-4-63. On the same day a complaint was filed before Baliapattom
Police and a case was accordingly registered against both Accused
1 and Accused 2. After investigation the Sub-Inspector of Police,
Baliapattom filed a chargesheet.
The Magistrate on the materials
disclosed in the report nuder Sec. 173 committed the accused to
stand trial before the ASsistant Sessions Court on 15-6-65 against
which a Revision was filed in the High Court of Kerala on 9-7-65.
It was contended before the High Court that the committal was
illegal as no evidence had been adduced in the case, as such it
would be premature at that stage to say whether any and if so,
what offence could be disclosed. The High Court dismissed this
Revision Petition on 20-10-66 holding that the procedure adopted
in rhe committal proceedings instituted on a Police report is prescribed in Sec. 207-A of the Criminal Procedure Code under which
the Magistrate had the power to commit even without recording the
evidences of witnesses. The High Court drew support for this condusion from a decision ot this Court in Ramanarayan Mor & Anr.,
v. State of Maharashtra(') where it was held that though normally in a c1iminal trial, the Court can proceed on documents which
are duly proved, or by the rules of evidence made admissible with·
out formal proof, the Legislature had under the amended code in
Sec. 207-A presc1ibed a special procedure for commitment of the
accused. The record under the said provision consists of the oral
evidence recorded under sub-s. (4) of Sec. 173, and it. would be
di~cult to reg~rd; only .those. documents which are duly proved or
which are adm1ssrble without proof as "evidence" within the meanmg of Cl. (6) and not the rest. On this view it was observed that
there :vas no legal impedim7n.t in the Magistrate using the case
diary for the purpose of dec1dm,1?: whether there was a case for committal. and accordingly dismissed the Revision Petition. After this
Revision was disposed of the Assistant Sessions Judge to whom the
case stood committed ordered the splitting up the 'charges into 8
ca.scs agamst which the second respondent filed a Revision in the
High Court. under Sec. 561-A Criminal Procedure Code where it
"(ii[J;1:..i1 isl s~c: R~ 10M.
602
SUPREME COURT REPORTS
(1972] 2 S.CR.
was contended that all tht; 8 charges should have been consolidated
into one case as otherwise there would be 8 distinct offences leading
to multiplicity of trials. The High Court by its Judgment dated
30-10-67, following a decision of this·Court in Ranchhodlal v.
State of Madhya P ... adesh (1), said that the order of the Magistrate
splitting up the charge into 8 cases was proper and while it does
not call {or any 'interference, it left it open for the prosecution as
provided under Sec. 240 Criminal Procedure Code to withdraw the
other charges ·if one of the trials should end in a conviction.
After this petition was dismissed' the Respondents seem to have
moved the State Government to withdraw the prosecution and
accordingly, as would appear from the Memo. filed by the Public
Prosecutor on 30-11-67, the Government passed an order G.O. Rt
No. 1589/67 Home (B) dat.ed 22-11-67 directing the withdrawal
of the case with the sanction of the Court, in the interest of public
policy as also because there was no likelihood of the case being
persued to a successful issue. It was stated in the Memo. filed by
the Public Prosecutor that the alleged offences charged against the
accused arose out of a contract agreed to between the accused and
the defacto complainant viz., the General Manager, Shree Narayana
Transport; that the subject mat~r of the case had been decided
by the Subordinate Judge's Court, Calicut in a Civil suit; that the
case was registered as early as 1963 and the trial has not yet begun;
that the witnesses from far off places such as Bombay and Calcutta
are cited and the securing of their eV:idence would involve heavy
expenses for the State and that the case is one of Civil nature.
It is contended before us that under Sec. 494 Criminal Procedure Code it is the Pubiic Prosecutor and the Public Prosecutor
alone who should make up his mind to withdraw from the prosecution without any reference to the State Government, that it was the
State Government which ..directed the Public Prosecutor to seek
permission as such the Public Prosecutor has not adverted his mind
nor did he exercise his independent judgment in deciding whether
the case is one in which oermission of the Court tlo withdraw from
the prosecution ought to' have been asked for.
In any case it is
submitted on the grounds disclosed in the Memo filed by the Public
Prosecutor that no perm ;ssion ought to have been given as even
prior t'o the filing of the said Memo. the High Court had said that
there was a prima facie case for the trial to go on and therefore
the present order directing the Public Prosecutor to withdraw from
the prosecution is manifestly contrary to the views earlier expressed
by it.
The Appellant's Advocate later during the course of the argument conceded that there is no force in the first of his contentions
(1) [1965] (2) S.C.R. 283.
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M. '.'/, s. NAIR v. P. v. BALAKRISHNAN (Jaganmohan Reddy, J.) 603
namely that the Public Prosecutor cannot either be asked by the
State Govt., to consider the filing of a petition under Sec. 494 nor
would it be proper for him if he was of the opinion that the prosecution ought not to proceed to get the consent of the Government to
the filing of a petition under that Section for obtaining permission
of the Court to withdraw from the prosecution. Sec. 494 which
empowers the Public Prosecutor with the consent of the Court to
withdraw from the prosecution is as follows :
"Any Public Prosecutor may, with the consent·of thr
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 qne or more of the
offences for which he is tried; and, upon such withdrawal-
(a) ii' 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 po11 er contained in the Section gives
a general
executive
direction to withdraw from the prosecution subject to the consent
of the Court which may be determined .on many possible grounds
and is therefore wide and uncontrolled by any other provision in
the Code nor is it in pnri-materia with Sec. 333 which enables
the Advocate General at any stage in a Trial by the High Court
and before the return of the verdict to inf01m the Court if he
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thinks fit on behalf of the Government that he will not fuither
prosecute the Defendant upon the charge and on such information being given the case against the accused comes to an end.
This power of entering a 11ol/e prosecui under Sec. 333 Criminal
Procedure Code is not dependent upon any pennission of the
G
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Court.
A reading of Sec. 494 would show that it is the Public
Prosecutor who is incharge of the case that must ask for permission of the Court to withdraw from the pros~cution of a.ny person either generally or in respect of one or more of the offences
for which he is tried.
This permission can be sougl.t by him at
any stage either during the enquiry or after committal or even
before the Judgment is pronounced.
The section does not, however, indicate the reasons which should weigh with the Public
Prosecutor to move the Court for permission nor the grounds on
which the Court will grant or refuse permission.
Though the
Section is in general te1ms and does not circumscribe the powers
604
SUPREME COURT REPORTS
[1972] 2 S.C.R.
of the Public Prosecutor to seek permission to withdraw from the
prosecution the essential consideration which is implicit in the
grant of the power is that it should be in the interest of administration of justice which may be either that it will not be able to
produce sufficient evidence to sustain the charge or that subsequent information before prosecuting agency would falsify the
prosecutioJJ evidence or any other similar circumstances which
it is difficult to predicate as they are dependent entirely on the
facts and circumstances of each case.
Nonetheless it is the duty
of the Court also to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice
or that offences which are offences against the State go unpunished merely because the Government as a matter of general policy
or expediency unconnected with its duty to prosecute offenders
undet the law, directs the public prosecutor to withdraw from the
prosecution and the Public Prosecutor merely does so at its
.behest.
A large number of cases have been referred to but it is
unnecessary to consider them except for a few as typifying the
approach in cases where permission to withdraw from the prosecution was sought on grounds extraneous to and not germane to
the maintenance and enforcement of the law and which permission though given by the Trial Court was quashed by the High
Court.
A Special Bench of the Calcutta High Court in Devendra
Kumar Roy v. Syed Yar Bakht Choudhury & Or:s.(1), was considering the validity of the permission granted by the Magistrate
to the Government Pleader to withdraw from the prosecution in a
case where the accused were charged with offences under Sections 193, 467, 477, 109 and 120-A of the Penal Code.
The
prosecution had been started a11d after some evidence had been
recorded, the. rcicord of the case was called for by the Government which having kept itlor six months returned it to the Government Pleader who filed a petition for withdrawal from the
prosecution under Sec. 494 Criminal Procedure Code on certain
grounds which were not substantial namely that the original complainant had withdrawn from the prosecution; that on an independent examirration of the records of the Provincial Government considered that the evidence was insufficient to warrant
further proceeding with the case; and that the Provincial Government would not in view of the uncertainty of a successful prosecution be justified in incurring heavy expenses in the fees, the
. travelling allowances of the handwriting expert and in lawyers'
expenses.
The Magistrate though considering that these grounds
are not sufficient for not committing the accused persons but on
the other hand was of the view that there was ample substantial
evidence to show that serious offences were actually committed,
(I) AIR 1939 C'alcutta 220. '
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~,f; N. s. NAIR v. P. v. BALAKRISHNAN (Jaga11mohan Reddy,!.) 605
nonetheless granted permission to the Government Pleader to
withdraw from the prosecution.
It was held by the High Court
that the consent of the Trying Magistrate for the discharge had
not been properly given and therefore quashed the proceedings.
lt also appeared that some of the accused in the case were related
to one of the Minister's as found proved by the High Court and
the action of the Government in calling for the record of the case
from the Magistrate while it was still proceeding and retaining it
for six months was quite illegal and utterly improper.
A Full
Bench of the Patna High Court· in The King v. Parmanand &
Ors. (1) also held that there was no justification whatever for the
view that the Prime Minister or any other Minister or ex~cutive
officer has the power to usurp .the functions of the Court or to
take the case out of the seisin of the Magistrate before whom it
is pending for trial and that where the Trying Magistrate makes
no attempt to exercise his discretion at all and permits the. withdrawal of the prosecution merely in consequence of the order of
the Government the High Court will interfere.
At the same time
it was observed that the High Court would be reluctant to direct
the prosecution of persons against whom Government does not
desire to proceed, unless there is evidence which requires judicial
consideration.
The permission granted by the Magistrate in that
case was held to be 'wrong, so also was the action of the Government in a case which is
subjudice irrespective of the question
whether the prosecution is likely to end in conviction as interfering with the even and ordjnary course of justice, by usurping the
function of the Court and taking it out of its seisin.
In a recent case the Full Bench of the Kerala High Court in
Deputy Accountant General (Admn.) Office of Accountant
General, Kera/a Trivandr11111 v. State elf Kera/a and Ors.('). was
considering the application for withdrawal filed by the Public
Prosecutor under the directions of the Government to withdraw
from the prosecution against the strikers for offences under Sections 4 & 5 of the Essential Services Maintenance Ordinance, 1968,
and other laws snch as the Penal Code and Telegraph Act mentioning as a ground the withdrawal order of the State Govern"
ment which stated, that consistent-wjth the Policy of the Government in relation to mass agitation and strike it has been decided
to withdraw with the leave of the Court, the cases registered in
connection with the Central Government Employees strike on
the 19th September, 1968 except those involving serious personal violence or destruction of property. It was held that the
policy set out therein being a policy opposed to the law coUld
not be taken· into consideration.
Apart from the order being io.
(I) AIR 1949 Patna 222,
8-L643 SupCI/72•
(2) Affi. 1970 Kerala 158,
606
SUPREME COURT REPORTS
[1972] 2 S.C.R.
disregard of the duty and the responsibility of the State Government to enforce the law, the Full Bench said there could be no
question of the executive policy in a region covered by the law.
In that view it quashed the permission granted by the Trial
Court. In the State of Bihar v. Ram Narash Pandey( 1), it was
pointed out by this Court that though the Section does not give
any indication as to the ground on which the Public Prosecutor
may make an application on the consideration of which the
Court is to grant its consent, it must noneth~less satisfy itself that
the executive function of the Public Prosecutor has not been
improperly exercised and that it is not an attempt to interfere with
the normal course of justice for illegitimate reasons or purposes.
It appears to us that the wide and general powers which are
conferred under Sec. 494 on the Public Prosecutor to withdraw
from the prosecution though they are subject to the permission
of the Court have to be exercised by him in relation to the facts
and circumstances of that case in furtherance of, rather than as
a hindrance to the object of the law and justified on the material
in the case which substantiate the grounds alleged, not necessarily
from those gathered by the judicial method but on other materials which may not be strictly on legal or admissible evidence.
The Court also while considering the request to grant permission
under the said Section should not do so as a necessary formalitythe grant of it for the mere asking.
It may do so only if it is
satisfied on the materials placed_ before it that the grant of it subserves the administration of justice and that permission was not
being. sought covertly with an ulterior purpose unconnected with
the vindication of the law which the executive organs are in duty
bound to further and maintain.
What then are the circumstances in which the permission has
been sought in this case .and the considerations that weighed
with the Courts in granting that permission.
The Public Prosecutor as we have seen thought that the matter was of a civil
nature, that the subject matter of the case before the Magistrate
had been decided in a Civil suit, that witnesses are from far off
places and their evidence will incur huge expenses for the State;
that the case was registered as early as 1963 and the trial has not
yet begun.
It is clear that prima facie none of these grounds or
even the cumulative effect of all these grounds would justify the
withdrawal from the prosecution.
It m~y be that the acts of the
Respondent may make them both liable under the Civil law as
well a, under the Criminal law but it does l)Ot justify either the
seeking of the permission to withdraw from the prosecution or
granting of it unless the matter before the Criminal Court is of
a purely civil nature.
The accused in this case have been
(I) [1957] S.C. R. 279.
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M. N. s. NAIR v. P. v. BALAKRlSHNAN (Jaganmohatz Reddy. J.) 607
charged with offences of cheating, of the forgery of valuable
securities with the intention that the documents forged shall be
used for the purpose of cheating, and/ or also for using them as
genuine which they know or have reason to believe to be forged
documents.
The case of the Respondents was that all this was
done with the knowledge of the complainant with a view to further the practice prevailing to popularise the transport bT1siness.
It appears that after the complaint was filed and the police took
cognizance of the offence and investigated it but before the charge·
sheet was filed the Public Prosecutor seems to have expressed the
view on 8-6-63 that a successful prosecution may not be possible
under Sec. 467 and 420 because the matter for which the Respondents were sought to be charged related to a practice which
seems to have prevailed in tl;lat Transport Company and in other
Companies as well and in the light of that practice mens rea may
not be established but this opinion did not prevail as
he was
directed to file the charge sheet and accordingly the case proceeded.
A perusal of the committal order will make this conclusion
of ours clear.
Before the Magistrate, the learned Advocate had
contended that there was a normal practice that the Company
used to issue way bills without obtaining the goods from the
party for the sake of popularising the Company and that in the
circumstances Respondent 1 while issuing the way bill had no
intention to cause damage or to cheat.
The Magistrate negatived this contention and said that he was not able to believe that
the Company will resort to these practices for the sake of such
popularity and that it was the way bills that were issued in Accused 2's ·name and it was Accused 2 who obtained the money from
the Bank.
Therefore, there was prima facie evidence to show
that goods. were not produced at the time of issuing way_ bills by
Respondent 1 to Respondent 2 and that Respondent 2 was well
aware of it when he drew the money on the way bills from the
Bank for the goods he had never produced for booking. Knowing
that these receipts were forged one Respondent 2 had got them
li!scounted.
It also appears from the committal order that the
prosecution had produced a letter alleged to have been written
by Respondent 2 to Respondent 1 requesting him to issue the
wJy bills, a reading of which the Magistrate saio shows that it
W«i ;: Jetter written with the intention of obtaining them.
In this
view he thought that there was a prima facie case against the
accused and accordingly he framed the charges.
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The High Court ignoring the view taken by it in its previous
two Revisions referred to earlier that there was prima facia case
and that there was no illegality in the prosecution, thought that the
Public Pros~cutor was right when he applied to the Court for
608
SUPREME COURT REPORTS.
[1972] 2 S.C.R.
sanction to withdraw the prosecution on the ground that it might
not result in a conviction to which it further added that there was
a long delay of five years and that the witnesses were not in the
locality and have to be brought to Court from different places.
Though it thought that this la1ter reason may not justify the
abandonment of the prosecution but nevertheless it is said that
in view of the practice prevailing in this Transport Company as
well as in other Transport Companies the chances of successful
prosecution were remote.
It further thought that the question
of expenses would also become relevant.
We think that these
grounds are flimsy and do not justify the granting of permission
to withdraw from the prosecution.
In the first place there is
nothing to indicate what that practice was, how it was resorted
to and what elements were deficient to constitute the offences for
which the Respondents were entitled to be charged and in the
second place nothing had happened since the committal order
except that the several revisions filed by Respondent 1 and Respondent 2 had delayed the trial which delay by itself cannot be
made a ground for according permission.
On the other consideration which weighed with the High Court that a prosecution
would involve a huge expenditure there is no material to show
what amount would be involved if the case was prosecuted nor
how many witnesses would be required to be called from Calcutta
and Bombay. .On the other hand the case appears to be mostly
hinged on the issue of the Way Bills to Respondent 2 bty Respondent 1 without receipt of goods from Respondent 2 which the
Responden~s say was due to the practice followed by ' the complainant to popularise its transport business.
The execution of
the Way Bills by Respondent 1, their issue by him without receipt
of the goods and the obtaining of money by the second Respondent from the Bank by discounting them with it are some of the
elements and except perhaps for the non-receipt of the goods by
die people to whom they were alleged to have been booked, are
ill! dependent on local witnessi;s. In any case the expenditure
involved is nQt the sole criterion for granting permission.
In the view we have taken this appeal is allowed, the permission granted by the Trial Court and confirmed by the High Court
in Revision is set aside and we direct that the trial do proceed in
accordance with law.
v.:l>.s.
Appeal allowed.
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A
B
c
D
E
F
G