# STATE OF PUNJAB v. SURJIT SINGH & ANOTHER

- **Citation:** [1967] 2 S.C.R. 347
- **Court:** Supreme Court of India
- **Decided:** 1967-01-06
- **Case number:** Criminal Appeal No. 97 of 1966
- **Bench:** K. Subba Rao, J.C. Shah, S. M. Sikri, V. Ramaswami, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-punjab-v-surjit-singh-another-3962
- **Pages:** 14

## Headnote

Cri111inal Procedure Code, 1898, s. 494-Prosecution on private coniplai11t heing conducted by complainant-Public Prosecutor not in charge
of case-Whether can file application for withdrawal of case.
The first respondent instituted a complaint before the Magistrate of
certain offences under the Penal Code and the Magistrate, after holding
a preliminary enquiry, issued summons to the second respondent and
another accused.
The Prosecuting Deputy •Superintendent of Police, in his capacity as
Public Prosecutor for the District, filed an application before the Trial
Magistrate under s. 494 Cr.P.C. for permission to withdraw from the
prosecution of the case and for discharging the second respondent on
the ground that it had come to his knowledge during an investigation of
an earlier complaint that the second respondent was innocent and that
he had been falsely involved in ~he case by the complainant. This application was opposed by the first respondent, but the trial ~iagistrate grantt'CI permission for the withdrawal of the case and the Session~ Judge, in
revision, upheld ·this decision.
However, the High Court, iP, appeal, accepted the contentions of the
first respondent and held that a Public Prosecutor cannot withdraw under
s. 494 of the Code from the prosecution of a case pending before the
Magistrate, instituted upon a private complaint despite the compiainanl's
objection to the withdrawal of the case.
On a further appeal to this Court,
HELD: As the prosecution was: being conducted by the complainant,
the High Court was right in holding that the Public Prosecutor was not
entitled to file an application for withdrawal. [360 E]
The reasonable interpretation to be placed. upon s. 494 is that it is
only the Public Prosecutor who is in cha·rge of a particular case and· is
actually conducting the prosecution that can file an application Jnder that ·
section seeking permission to withdraw from the μrosecution. (360 C-D]
There was no force in the conten.ti\1n that the' expression 'the Public
Prosecutor' in s. 494 is to be understood as referring to any person who is
a Public Prosecutor, whether he is a Public Prosecutor appointed generally.
under s. 492(1) or for the purpose of a particular case, as contemplated
under s. 492(2) of the Code. If any Public Prosecutor, who bad nothing
to do with a particular case, is held entitled to file an apvlication under
s. 494 the result will be very anomalous in that if there are two Public
Prosecutors appointed · for a particular Court, and one of the Public
Prosecutors is conducting the prosecution in a particular case, and desi'res
to go on with the proceedings, it will be open to the other Public ProsecuDr to ask for withdrawal from the prosecution. [359 F; 360 A-BJ
State of Bihar v. Ram Naresh Pandey [1957] S.C.R. 279; Queen
Express v. Murarji Gokuldass I:L.R. (1889) 13 Born, 389; State v.
Atmaram M. Ghosale, I.L.R. [1965] Born. 103; referred to.
348
SUPREME COURT REPORTS
[!967] 2 S.C.R.
Gu/Ii Bhagat v. Narain Singh, l.L.R. (1923] 2 Pat. 708; Amar Narain
A
v. State of Rajasthan A.l.R. 1952 Raj. 42; Pratap Chand v. Beharl Lal,
A.LR. 1955 J & K 12; distinguished;
Sher Singh v. litendranat/J, A.LR. 1931 Cal. 607, disaporoved;
Ratansha Kal'asji v. Be/:ramsha Pardiwala, l.L .• t. (1945] Born. 141,
approved.

## Text

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STATE OF PUNJAB
v.
SURJIT SINGH & ANOTHER
January 6, 1967
(K. SUBBA RAO, C. J., J.C. SHAH, S. M. SIKRI, V. RAMASWAMI
AND C. A. VAIDIALINGAM, JJ.J
Cri111inal Procedure Code, 1898, s. 494-Prosecution on private coniplai11t heing conducted by complainant-Public Prosecutor not in charge
of case-Whether can file application for withdrawal of case.
The first respondent instituted a complaint before the Magistrate of
certain offences under the Penal Code and the Magistrate, after holding
a preliminary enquiry, issued summons to the second respondent and
another accused.
The Prosecuting Deputy •Superintendent of Police, in his capacity as
Public Prosecutor for the District, filed an application before the Trial
Magistrate under s. 494 Cr.P.C. for permission to withdraw from the
prosecution of the case and for discharging the second respondent on
the ground that it had come to his knowledge during an investigation of
an earlier complaint that the second respondent was innocent and that
he had been falsely involved in ~he case by the complainant. This application was opposed by the first respondent, but the trial ~iagistrate grantt'CI permission for the withdrawal of the case and the Session~ Judge, in
revision, upheld ·this decision.
However, the High Court, iP, appeal, accepted the contentions of the
first respondent and held that a Public Prosecutor cannot withdraw under
s. 494 of the Code from the prosecution of a case pending before the
Magistrate, instituted upon a private complaint despite the compiainanl's
objection to the withdrawal of the case.
On a further appeal to this Court,
HELD: As the prosecution was: being conducted by the complainant,
the High Court was right in holding that the Public Prosecutor was not
entitled to file an application for withdrawal. [360 E]
The reasonable interpretation to be placed. upon s. 494 is that it is
only the Public Prosecutor who is in cha·rge of a particular case and· is
actually conducting the prosecution that can file an application Jnder that ·
section seeking permission to withdraw from the μrosecution. (360 C-D]
There was no force in the conten.ti\1n that the' expression 'the Public
Prosecutor' in s. 494 is to be understood as referring to any person who is
a Public Prosecutor, whether he is a Public Prosecutor appointed generally.
under s. 492(1) or for the purpose of a particular case, as contemplated
under s. 492(2) of the Code. If any Public Prosecutor, who bad nothing
to do with a particular case, is held entitled to file an apvlication under
s. 494 the result will be very anomalous in that if there are two Public
Prosecutors appointed · for a particular Court, and one of the Public
Prosecutors is conducting the prosecution in a particular case, and desi'res
to go on with the proceedings, it will be open to the other Public ProsecuDr to ask for withdrawal from the prosecution. [359 F; 360 A-BJ
State of Bihar v. Ram Naresh Pandey [1957] S.C.R. 279; Queen
Express v. Murarji Gokuldass I:L.R. (1889) 13 Born, 389; State v.
Atmaram M. Ghosale, I.L.R. [1965] Born. 103; referred to.
348
SUPREME COURT REPORTS
[!967] 2 S.C.R.
Gu/Ii Bhagat v. Narain Singh, l.L.R. (1923] 2 Pat. 708; Amar Narain
A
v. State of Rajasthan A.l.R. 1952 Raj. 42; Pratap Chand v. Beharl Lal,
A.LR. 1955 J & K 12; distinguished;
Sher Singh v. litendranat/J, A.LR. 1931 Cal. 607, disaporoved;
Ratansha Kal'asji v. Be/:ramsha Pardiwala, l.L .• t. (1945] Born. 141,
approved.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 97
of 1966.
Appeal by special leave from the judgment and order dated
December 20, 1965 of the Punjab High Court in Criminal Revision
No. 671 of 1965.
Bishan Narain and R. N. Sachthey, for the appellant.
Nuruddin Ahmed, Ani/ Kumar Sab/ok and R. B. Datar, for respondent No. I.
·
S. V. Gupte, Solicitor-Genera/ and A. G. Pudissery, for the
Advocate-General for the State of Kerala.
R. H. Dhebar and S. P. Nayyar, for the Advocate-General for
the State of Gujarat.
O. P. Rana, for the Advocatt-Chneral for the State of U1tar
Pradesh.
Naunit Lal, for the Advocate-General for the State of Assam.
A. V. Rangam, for the Advocate-General for the State of
Madras.
The Judgment of the Court was delivered by
Vaidialingam, J. The question that arises for consideration
in this criminal appeal, by special leave, is regarding the right of a
Public Prosecutor to file an application, under s. 494 of the Code of
Criminal Procedure (hereinafter called the Code), in respect of a
complaint, filed by a private party, and which was being prosecuted
by him as such.
The facts giving rise to this appeal are, briefly, as follow:;.
Harnek Singh lodged a complaint at the Police Station, Phu!, on
October 15, 1964, at about 10.40 p.m., that while coming out of a
picture house, along with Surjit Singh, first respondent herein, his
foot accidentally struck against a third party, Avtar Singh, who was
also corning out of the picture house, along with Raj Pal, the second
respondent. According to the complaint, A:tar Singh and the
second respondent picked up a quarrel with Harnek Singh but they
were pacified and separated by the Manager of the cinema, who intervened. It is also alleged that when later, Harnek Singh and the
first respondent were near the Civil Hospital, Phu!, the s~cond
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PUNJAB v. SURJIT SINGH (Vaidia/ingam, J.)
349
respondent fired a shot at Harnek Singh. The Police appears to have
investigated this complaint and took the view that the second respondent had not participated in the occurrence and that he has
been falsely implicated on account of enmity.· But, before the police
actually filed a complaint before the Magistrate against A v\ar Singh
alone, the first respondent instituted a complaint before the Magistrate under ss. 307, 504 and 323 read withs. 34, l.P.C., against both
Avtar Singh and the second respondent. The Magistrate, after
holding a preliminary enquiry, issued summons to both the accused.
On January 8, 1965, the Prosecuting Deputy Superintendent of
Police, Bhatinda, Shri Harbans Singh, filed an application, in his
capacity as Public Prosecutor, before the trial Magistrate, under s.
494 of the Code, for permission to withdraw from the prosecution of
the case and for discharging the second respondent. According
to that officer, the second respondent was innocent and had been
falsely involved, in the case, by the compbnant and that this fact
had come to his knowledge during the investigation.
The said application was opposed by the first respondent on two
grounds : (I) that Shri Har bans Singh, Prosecuting Deputy Superintendent of Police, did not exercise the powers of a Public Prosecutor
and therefore that he had no locus standi to file the application; and
(2) that the application was not bona fide. In consequence, the
second respondent prayed that permission should not be granted for
withdrawal.
The trial Magistrate, by hi; order dated February 8, 1965, over
ruled the objections raised by the first respondent and held that the
Prosecuting Deputy Superintendent of Police was the Public Prosecutor for the entire distrkt of Bhatinda, within whose jurisdiction
the Magistrate's Court at Phu! was situated, and that the application
was bona fide. In consequence, the Magistrate gave permission for
the withdrawal of the case as against the second respondent, who
was one of the two accused.
This order was challenged by the first respondent, in revision
before the learned Sessions, Judge, Barnala. Apart from contending that the officer, who presented the application under s. 494 of
the Code, for withdrawal, was not a Public Prosecutor, the first
respondent urged a slightly new ground of attack. That grrund of
attack was that, even assuming 1hat the said Officer was a Public
Prosecutor, nevertheless, he could not file an application under s.
494 of the Code, inasmuch as the Public Prosecutor was not in
charge of the prosecution, which was being conducted by the complainant, a private party. The learned Sessions Judge held that the
Officer, who filed the application under s. 494 of the Code, had been
appointed as Public Prosecutor for the Magistrate's Court at Ph11l
by the Government. The Sessions Judge also held that the said
350
SUPREME COURT REPORTS
[ 196 7] 2 S.C.R.
Public Prosecutor could intervene in a criminal case, instituted on
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a private c0mpk:nt and such Public Prcsccutor could be
considered to be one who had take;: charge of the case when he
made an application to withciraw frnm the p:osccution.
In this
view, both the objections, raised by the first respondent, were ove.--
ruled. The learned Sessions Judge, on the merits, had also taken
the view that, in giving permission to withdraw from the proseB
cut ion, the Magistrate had exercised his jurisdiction judicially, and
not in any arb;trary manner, and that he gave permission only after
considering the reasons given by the Public Prosecutor in the application filed by him.
Ultimately, the mder of the trial Magistrate was
confirmed by the learned Sessions Judge.
The first respondent, again, went up in revision to the Punjab
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High Court, challenging the two orders passe-: by the trial Magistrate and the learned Sessions Judge. A Division Bench of the Punjab High Court, consisting of Falsha .. v, C.J., and Khanna J., by
their order dated December 20, 1965, have accepted the contentions
of the first respondent herein and have, ultimately, held that a Public Prosecutor cannot withdraw, under s. 494 of the Code, from the
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prosecution of a cas~ pending before a Magistrate, instituted upon
a private complaint, despite the complainant's objection to the withdrawal of the case. The learned Judges, in consequence, directed the
complaint filed by the first respondent, against both the acwscd, to
be proceeded with.
h the High Court, the fir~: responde'1t has accepted the position that Shri Harbans Singh, Prosecuting Deputy Superintendent
of Police, Bhatinda, has been vested with powers of a Public Prosecutor, and therefore he was a Public Prosecutor. But the main
objection taken before the High Court to the legality of the orders
of the learned Sessions Judge and the trial Magistrate, was that, as
the case before the Magistrate haJ been started on a private complaint and the Public Prosecutor being nowhere in the picture,
he
had no locus standi to file an application under s. 494 of the Code.
The High Court, after a review of the decisions placed before it,
has held that when a case is pending before a Magistrate ancl has
been initiated on a police report, it is the State that nor:na lly :manges for the conduct of the prosecution; but, in the case of a private
complaint before a Magistrate, which is conducted by the complainant or by his duly authorized counsel, the Public Prosecutor docs
not come into the picture in the conduct of such cases, and therefore
he has no locus standi to file an application under s. 494 or the C1)dc
in respect of such case. It is the farther view of the High Court that
,-ihen neither the Public Prosecutor, nor, for the matter of thal, anv
agency of the State, was in charge of the conduct of the P• osecutio~
it is difficult to hold that the Public Prosecutor can withdraw from
such prosecution. The learned Judges have also held th~t, if it is
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PUNJAB v. SURJIT SINGH (Vt1idialingam, J.)
35 J
accepted· that any public prosecutor can file an application under s.
494, in a ease which is being proceede.d with' by the complainant,
on a private complaint, it will lead to all kinds of abuses and
mischief.
Before we advert to the contentions of the learned.counsel for
the appellant and for the respondents, and the Advocates-General
of some States, who have intervened in the matter, on notice issued
to them, it will be convenient to refer to the material provisions of the
Code, dealing with Public Prosecutors, contained in Chapter
XXXVIII, Part IX of the Code. Those provisions are ss. 492 to
495. Public Prosecutors are appointed by the State Government
under s. 492(1), or by the District Magistrate or the Sub-Divisional
Magistrate, under sub-&. (2) of s. 492. The appointment, under
sub-s. (1) of s. 492, can be a general appointment, or for a particular
case, or for any specified class of cases, in any local area. Under
this provision, more than o:i.e officer can be appointed as Public
Prosecutors by the State Government. Under sub-s. (2), the
appointment of the Public Prosecutor is only for the
purpose of a single case. There is no question of a general appointment of the Public Prosecutor, under sub-s. (2). Therefore, it
will be seen, that a Public Prosecutor or Public Prosecutors, appointed either generally, or for any case, or for any specified classes of
cases, under sub-s. (!),and a Public Prosecutor appointed specifically for a single case, under sub-s. (2), are all Public Prosecutors'
under the Code.
Section 493 dispenses with the necessity of the Public Prosecutor having to file any written authority, when he is in charge of
a particular ci.se. That section clearly deals with a particular case
and refers to the Public Prosecutor being in charge of that particular
case. Under those· circumstances, he is not required to file any
written authority. That s. 493 deals with a single specified case and
that it applies only tn the Public Prosecutor, who is actually in
charge of that case, is also made clear by the later part of s. 493.
That is to the effect that if the Public Prosecutor is in charge of a
particular case and, in that particular case, a private person instructs a pleader to prosecute any person, the Public Prosecutor alone
is entitled to conduct the prosecution and the pleader appearing
in that case for the private person is
only to act under
his instructions. The expression 'any person in any such case',
occurring in the later part of s. 493, clearly leads to the conclusion
that both the Public Prosecutor and the private person, through a
pleader, are prosecuting the sa..-ne case. Hence it is, in oi..r view,
that s. 493 deals with a particular case.
Section 494 deals with withrawal from prosecution.
The
expression 'any case of which he has charge', occurring in s. 493;
is not found in s. 494. But the expression 'withdraw from the
SUPREME COURT REPORTS
[!967] 2 S.C.R,
prosecution of any person,' occurring ins. 494, in our opinion, contemplates that the Public Prosecutor, who files the application for
withdrawal under that section, must be Public Prosecutor, who is
already in charge of that particular case, in which the application is
filed.
Section 494 indicates the stage at which the Public Prosecutor can file an application for withdrawal and it also deals with the
effect of such withdrawal. In cases tried by jury, the application must
b" filed before the return of the verdict and, in all other cases, before
the judgment is pronounced. The effect of such withdrawal is
also indicated in clauses (a) and (b) of s. 494.
We may, at this stage, note that an argument was attempted to
be raised by learned counsel for the appellant thats. 494, when it
speaks of an application being filed 'in other cases before the judgment is pronounced', clearly contemplates that in all cases, which
are not tried by a jury, whether a Public Prosecutor is in charge or
not, he is entitled to file an application under s. 494. In our
opinion, this contention has only to be stated to be rejected. As we
have already pointed out, s. 494 deals only with the stage when an
application can be filed, depending upon whether it is a case tried by
a jury-in which case it must be filed before the return of the verdict-and, in other cases, before the judgment is pronounced. The
expression 'in other cases' occurring in s. 494, must be understood
in this context and, if so understood, it only means that it takes in
cases, other than those tried by jury.
We then come to s. 495.
Under that section, power is given
to a Magistrate, enquiring into or trying any case, to permit
the prosecution to be conducted by any person, other than an officer
of police below a rank to be prescribed by the State Government
in that behalf; and such an officer, under s. 495 (2), is again clothed
with the power of withdrawing from the prosecution, as provided by
s. 494. It will be seen that s. 495 deals with a person permitted by
the Magistrate to conduct the prosecution of a particular case.
But for the specific provision made in sub-s. (2) of s. 495, such an
officer will not have the power, which could be exercised by a Public
Prosecutor, under s. 494. Subs. (3) also indicates that a prosecution
can be conducted by a private complainant, either by himself or by
pleader. It will be noted, that both s. 492(2) and 495(1) deal with the
appointment of a person to prosecute a particular case. The
State Government can also appoint, under s. 492(1 ), a
public
Prosecutor for a particular case.
Mt. Bishan Narain, learned counsel for the appellant, has urged
that the view taken by the learned Judges of the Punjab High Court,
is quite opposed to the clear wording of s. 494 of the Code. Learned
counsel points out that the said section is unambiguous, and that it
gives an unqualified right to any person, who, in law, is a Public
Prosecutor, to file an application to withdraw from the Prosecution.
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PUNJAB v. SURJIT SINGH (Vaidialingam, J.)
353
Counsel also points out that all offences affect the public and that
all prosecutions are conducted by the State, through its officer, viz.,
the Public Prosecutor; and, even though the criminal prosecution.
i:i the instant case, has been initiated on a private complaint by the
first respondent, nevertheles3, the prosecution, in law, is in the
hands of the State and so the Public Prosecutor, appointed under
s. 492 is entitled to intervene at any stage and file an application
under s. 494.
Mr. Bishan Narain further points out that there is no
limitation, prescribed by s. 494 of the Code, that the application for
withdrawal can be filed only by a Public Prosecutor, who is already
in charge of the case. Even assuming that ·it is necessary that the
Public Prosecutor, who files an application under s. 494 of the Code,
should have charge of the case in question, that is amply satisfied
in this case. According to learned counsel, the first respondent has
accepted that the Public Prosecutor, who filed the application in
question, is the Public Prosecutor appointed by the State Government to conduct cases in the Magistrate's Court at Phu!, where the
first respondent's complaint was being enquired into. When the
said Public Prosecutor intervened, in this case, by filing an application under s. 494, he must be considered to have taken charge of
the case. If so, counsel points out, the Public Prosecutor amply
statisfies the requirements of his being in charge of this case.
Counsel was also prepared to contend for the larger proposition
that, even when a Public Prosecutor is appointed generally, by the
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Government, for any local area, under s. 492( I) of the Code, by
virtue of his appointment as such Public Prosecutor, he must be
considered to be in charge of every prosecution thct is being conducted before .that Court, irrespective of the fact whether he actually
conducts the prosecution or not. Counsel also pointed out that a
_
duty is cast, in law, on the Public Prosecutor, who is an officer of
F . Court, to bring to the notice of the Court that there is no case which
· has to go to trial as against a particular accused and it is, for that
;i1'tr~.i. that power is given to him, under s. 494, to file an application to withdraw from the prosecution. Therefore, according to
learned counsel, the High Court has taken a very narrow view, when
it held that, in this case, the Public Prosecutor, who filed an
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application under s. 494, cannot be considered to be in charge
of the case, inasmuch as it was initiated as a private complaint, filed
by the first respondent, and was being conducted by him as such.
The learned Solicitor General, Mr. S. V. Gupte, has appeared
on behalf of the Advocate-General of Kera la. The AdvocatesGenera! of Assam, Uttar Pradesh and Madras. were also represenH
ted before us, by counsel.
Respondent No. I was represented by
learned counsel, Mr. Nuruddin Ahmed. Counsel appearing for
the Advocates-General of the States of Assam, Uttar Pradesh and
Madras, have supported the appellant's contentions.
M!Sup. Cl/67-9
354
SUPREME COU!lT REPORTS
[1967] 2 S.C.R. ·
The learned Solicitor General, on the other hand, has supported
the views expressed by the Punjab High Court. He pointed out that
sub-s. (!) of s. 492, of the Code, provides for the appointment of
Public Prosecutors. The appointment of a Public Prosecutor, by a
State Government, can be a general one, or, for a particular case,
or, for any specified classes of cases, for any local area.
Under
sub-s. (2), the District Magistrate, or the Sub-Divisional Magistrate,
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is given power to appoint, in circumstances mentioned therein, any
person not being an Officer of the Police below such rank as the
State Governme-it may prescribe in that behalf, to be Public Prose.:utor for the purpose of any case. Therefore there can be two
types of Public Prosecutors, as contemplated in sub-ss. (I) and (2),
i.e., Public Prosecutors appointed generally, and Public Prosecutor
appointed for any particular case. Section 493 of the Code dispenses
with the filing of any written authorily, by a Public Prosecutor
appointed under sub-ss. (1) or (2) of s. 492. The learned Solicitor
General points out that s. 493 deals with a Public Prosecutor, with
specific reference to the particular case of which he has charge. It
is pointed out that if the contention of the appellant that any Public
Prosecutor can file an application under s. 494-even when he is not
in charge of that case-is accepted, then the position will be that a
Public Prosecutor, who is appointed for a particular case, say Case
A, either by the State Government, under s. 492(1 ), or by the District
Magistrate, under sub-s. (2) of that section, will become a Public
Prosecutor and, as such, entitled to file an application, under s. 494,
for permission to withdraw from the prosecution of Case B,
with
which he has nothing to do. That will lead, the Solicitor General
points out, to very anomalous results, and such a situation is not
contemplated by the provisions of the Code. The learned Solicitor points out that s. 494 must be interpreted in the light of s. 493
of the Code and, if so interpreted, it will follow that the Public
Prosecutor, who is referred to, under s._ 494, as being entitled to file
an application to withdraw from the prosecution, can only be the
Public Prosecutor who is actually in charge of that particular case.
He points out that the expression 'withdraw from the prosecution',
used in s. 494, shows that the Public Prosecutor is already in charge
of that case. If he is not in charge of the case, in which the application under s. 494 is filed, there is no question of the Public Prosecutor withdrawing from the prosecution, in that case.
Tile learned Solicitor General also points out that the idea
underlying s. 494 is that the Public Prosecutor, who is an officer of
Co irt and who is conducting the prosecution, would have conside; ' the materials available in the case and formed an opinion, on
that basis, to withdraw from the prosecution of any person. If a
Public Prosecutor, who had nothing to do with the case, and who
has not been in charge of that case, is allowed to step in and file an
application under s. 494, in any case, the entire object and purpose
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PUNJAB v. SURJIT SINGH (Vaidialingam, J.)
355
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for which that section has been enacted, the learnea Solicitor points
out, will be completely defeated.
J-[e also points out that no general
power, as such, is intended to be conferred by s. 494, on all Public
Prosecutors. He further urges that, inasmuch as a privilege or a
right is given to an officer under s. 494, the scope of authority, conferred by that section, must be very strictly limited to serve the purB
pose for which that section has been enacted.
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Mr. Nuruddin Ahmed, learned counsel appearing for the first
respondent, has also supported in full, the contentions advanced
by the learned Solicitor General. Counsel for the appellant points
out' that the scheme of the Code itself shows that a complainant
is allowed to file a private complaint and prosecute the same.
That may be
necessary,
according
to
learned
counsel,
when, for some reason or the other, the police do not file a complaint, implicating a particular person as an accused. In such cases,
when the complainant himself prosecutes the complaint, learned
counsel points out, the Public Prosecutor is nowhere in the picture
and he cannot be considered to be in charge of the case, so as to
give him a right to file an application under s. 494. Counsel also
points out that s. 493, when it refers to a Putlic Prosecutor in conjunction with a case of which he has charge, it refers to the Public
Prosecutor, not in the abstract, but to the Public Prosecutor who is
actually in charge of a particular case. Under s. 494 also, counsel
points out, the Public Prosecutor, who can ask for wifhdrawing
from the prosecution, must be the cne who is in charge of the
particular case in which he asks for such permission from the Court.
Therefore, according to Mr. Nuruddin Ahmed, in this case, when
his client had filed a cri,ninal complaint and was prosecuting the
same, the public Prosecutor, who was nowhere ii} fhe picture,
had no right to ask for withdrawal from the prosecution under s.
"
494 of the Code, as held by the High Court in the order under
attack.
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After giving due consideration to the contentions raised before
us, and referred to above, in our opinion, the contentions of the
learned Solicitor General and of Mr. Nuruddin Ahmed will have to
be accepted. We have already referred to the relevant provisions
of the Code and pointed out their salient features. We will refer,
now, to some of the decisions placed before us by counsel for the
appellant, Mr. Bishan Narain.
Before we refer to those decisions, however, it is necessary to
advert to the decision of this Court in The State of Bihar v. Ram
Naresh Pandey(') where, after tracing the history of the present
s. 494, the Court has ooserved fhat it is right to remember that the
Public Prosecutor, though an executive officer, is, in a larger sense.
also an officer of the Court and that he is bound to assist the Court
(I) [1957] S.C.R. 279.
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[l l/67] 2 S.C.R.
with his fairly considered view and the Court is entitled to have the
benefit of the fair exercise of his function. But the question which is
posed, in the present case, did not arise for consideration in that
decision.
In Queen Empress v. Murmji Gokuldas(•), there are no doubt
observations to the effect-that all offences affect the public and that
in all prosecutions the Crown is the Public Prosecutor and that a
proceeding is always treated as a proceeding between the Crown and
the accused. In our opinion, these general observations will not,
in any manner, assist the contentions of the appellant.
In State v. Atmaram M. Ghosa/e(2), the learned Judges
have observed that it is very obvious to think that all prosecutions,
however initiated, are always to be deemed as prosecutions by the
State. That decision also does not advance the case of the appellant
any further.
In Gul/i Bhagat v. Narain Smgh( ), the learned Judges had to
consider, whether a permission granted under s. 494 of the Code,
to the Public Prosecutor, to withdraw from the prcsecution, can be
challenged in revision, by a private party. Rejecting the revision,
the learned Judges have, no doubt, observed that
"there is a deeper and indeed a fundamental reason
for non-interference which turns upon the pt,sition of a
private prosecutor in prosecutions for cognizable offences."
The learned Judges also state that the Crown is the prosecutor and
the custodian of the public peace and if it decides to let an
offender go, 'no other aggrieved party can be heard to object. A
careful study of the facts, in that case, will show that the learned
Judges were dealing with a case where the Public Prosecutor was
conducting the prosecution and he was in charge of the particular
case in which he asked for leave to withdraw the prosecution as
aiainst some of the accused, and leave was granted. Th3t order,
was challenged by a private party, by way of revision, before the
High Court. That decision, again, does not assist the appellant.
In Amar Narain v. State of Rajasthan(4), tile learned Judges
had occasion to deal with a matter similar to the one that came up
before the Patna High Court in Gulli Bhiigat's
Case~l). A private
party had chal!enged, before the High Court, in revision, the order
of the Magistrate permitting the public prosecutor to withdraw from
the prosecution under s. 494 of the Code. That again was a case,
as will be seen from the facts gathered from the judgment, in which
the prosecution was launched by the State and it was also being
(1l l.L.R. (1889) 13 Born. 389.
(3) 1.1.R. (1923) 2 Pat. 708.
(2) I.LR (1965) Bern. H13.
(4) A.l.R. 1952 Raj. 42.
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PUNJAB v. SURJIT SINGH (Vaidialingam, J.)
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conducted by the Public Prosecutor and the Public Prosecutor filed
an application under s. 494 for withdrawal from the prosecution and
that was allowed. Wanchoo, C.J., in dismissing the revision petition
of the private party, challenging the order of the Magistrate, observed that the private party, under those circumstances, had no
right to go to the High Court in revision. The learned Chief Justice
B
also states that in a criminal case, it is the State which is in control of
proceedings, particularly where the prosecution is launched at the
instance of the State, and observes, at p. 43;
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"Jn cases, therefore, in which the Public Prosecutor
appears it is for him to decide whether he would continue
wi•h the prosecution or withdraw from it. If he decides to
withdraw, he has the power to apply to the Cou1t under
s. 494 Criminal, P.C., for giving consent to his withdrawal.
This power cannot, in our opinion, be subject to the
wishes of a third person even though he might be interesed
directly in the case."
The Rajasthan High Court, in the above decision, had no occasion
to consider as to whether a Public Prosecutor, who is not in charge
of a particular case, has got a right to apply •mder s. 494 of the Code.
Therefore, this decision also, is not, in our opinion, in any way,
helpful to the appellant.
In Sher Singh v. Jitendranath('), the learned Judges had occasion to consider the question as to the legality of an application for
withdrawal of prosecution filed by a Public Prosecutor, entering
appearance for that purpose only. Ghose, J., expresses the view
that such an application filed by a Public Prosecutor, who has not
""" been in charge of the case, though not regular, cannot be consiF
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dered to be illegal. On the other hand, Lord Williams, J., the
other member of the Bench, was prepared to take the view'that the
a~jon of the Public Prosecutor, in entering appearance simply for
the purpose of withdrawal, though unusual, is neither illegal nor
irregular. No doubt, this decision of the Calcutta High Court,
prima facie, supports the contention of the appellant. But we
are not inclined to accept the reasoning, adopted by the lea.med
Judges, in this case.
In Pratap Chand v. Bihari La/(2), the P'ublic Prosecutor entered
appearance, in a case instituted on a private complaint, which was
being prosecuted by the said private complainant, and asked for
withdrawal from the prosecution, under s. 494 of the Code, and
that application was granted by the Additional District Magistrate.
That order was challenged on the ground that the Public Prosecutor
had no right to intervene in the proceedings, initiated on a private
complaint, and ask for withdrawal from the prosecution and that,
(1) A.l.R. 1931Cal.6Cl7.
(2) A.LR. 1955 J&K 12.
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SUPREME COURT REPORTS
[1967] 2 S.C.R.
in any event, the Public Prosecutor should not have asked for such
withdrawal without consulting the
complainant. The learned
Judges were not prepared to accept this contention and they held
that the Public Prosecutor, in that case, had taken charge of the
case, under instructions of the District Magistrate, on a date much
earlier to the date when the application for withdrawal from the
prosecution was made by the Public Prosecutor. On this ground,
the learned Judges dismissed the revision filed by the private complainant. This decision, again, in oar opinion, must be restricted to
the facts of the case and as one based upon the finding that the Public
Prosecutor had taken charge of the case long before the date on which
he filed the application under s. 494. If that is so the Public Prosecutor can be considered to be in charge of the case in which he
filed an application under s. 494. Therefore, this decision also, in
our opinion, docs not assist the appellant.
But, if, on the other
hand, the effect of this decision is to lay down, as is contended before us, that a Public Prosecutor, merely by virtue of his office, is
entitled to file an application under s. 494, even in a case of which he
is not in charge, in our opinion, that decision cannot be accepted
as lying down the correct law.
Mr. l\uruddin Ahmed, learned counsel for the first res.,ondcnt, has referred us to the observations of the Bombay High Court
in Ratansha Karnsji v. Be/trams/ta Pardiuala(1).
In that case it
will be seen that in .respect of a complaint filed by the police
before a Magistrate, the Public Prosecutor applied for permission to
withdraw the complaint and the Court granted the same and allowed
the case to be withdrawn, and discharged the accused under s. 494
of the Code.
Immediately after the withdrawal of the said complaint, a private complaint was filed by the
revision-,,~titioner ,-
before the High Court, against the same accused, on the same facic
and before the same Magistrate. The Magistrate dismissed the
complaint on the ground that, as the police case on the same facts
has been allowed to be withdrawn, the second complaint was- not
maintainable. This order of the Magistrate was challenged, in revision, before the High Court, by the complainant. No doubt, ultimately, the learned Judges set aside the order of the Magistrate and
remanded the proceedings as, in their opinion, there has been no
sufficient compliance with the provisions of s. 203 of the Code.
But, it is necessary to note that, on behalf of the respondents before
the High Court, one of the grounds urged, fer not interfering with
the order of the Magistrate, was that even the second prosecution,
initiated by the private complainant, can, in law, be withdrawn
by the Public Prosecutor. On this ground, it was further urged that
the mere circumstance that a fresh complaint has been privately
lodged by the revision-petitioner on the same facts as the policeprosecu~ion bad been based, would not be sufficient ground for pro-
(Il l.L.R. 1945 Bom. 1,-1.-
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PUNJAB v. SURJIT SINGH ( Vaidialingam, J.)
3 5 9
ceeding with the complaint. In rejecting this contention, the learned Judges observed, as follows :
"We may at once say that we 'do not agree with the
'
contention that in the second case the Public Prosecutor
or the Police .Prosecutor could have withdrawn from the
prosecution. The remarks that Mr. Thakor has relied
on in Queen Empress v. Murariji Gokuldas (1888 13 Born.
389) appear to have been made with reference to cases in
which the prosecution is conducted by the Public Prosecutor.
The words 'any Public Prosecutor may withdraw from the
prosecution' in s. 494 clearly imply that the prosecution
referred to must be one which is already being conducted
by the Public Prosecutor and it seems clear to us that
unless the Public Prosecutor is already in charge of
the prosecution, he cannot withdraw from it, and that the
Public Prosecutor was here not in charge of the second
prosecution."
The learned Judges of the Bombay High, Court quite rightly emphasised that an application under s. 494 can be made only when the
prosecution referred to therein is one which.is already being condu.:ted
by the Public Prosecutor and that, unless the Public Prosecutor is
already in charge of the prosecution, he cannot withdraw from it.
We are in entire agreement with th,ese observations of the learned
Judges of the Bombay High Court as, in our opinion, that is the
correct interpretation to be placed on s. 494 of the Code.
In our opinion the Public Prosecutor, who can file an application under s. 494 of the Code; must be the Public Prosecutor who is
already in charge of the particular case in which that application is
filed. We are not inclined to accept that contention of the learned
counsel for the appellant that the expression 'the Public Prosecutor'
in s. 494 is to be 'understood as referring to any person
who
is a Public Prosecutor, whether he is a Public Prosecutor
appointed generally, under s. 492(1) or for the purpose under
of a particular case, as contemplated s. 492(2) of the Code.
Section 492 only deals with the appointment of Public Prosecutors
by the Government or by the District Magistrate, in circumstances mentioned therein and s. 493 specifically refers to the
Public Prosecutor
who is in charge of the case which is
under enquiry, trial or appeal, when appearing and pleading before
such Court. Section 493 only dispenses with the Public Prosecutor
having to file any written authority. .That section also makes it
clear that if any private person is instructing a pleader to prosecute
any person 'in any such case'-which must have reference to the case
of which the Public Prosecutor is in charge-nevertheless the Public Prosecutor shall conduct the prosecution and the pleader is to act
under his directions. Section 494 also, in our opinion, must refer.
only to the Public Prosecutor who is in charge of the particular case
360
SUPREME COURT REPORTS
[1967] 2 s.c.R.
in which he makes a request to withdraw from the prosecution. Some
of these aspects have been already adverted to by us earlier. If any
Public Prosecutor, who had nothing to do with a particular case is
held entitled to file an application under s. 494, in our opinion, the
result will be very anomalous. For instance, if there are two Public
Prosecutors appointed for a particular Court, and one of the Public
Prosecutors is ccaducting the prosecution in a particular case, and
desires to go on with the proceedings, it will be open to the other
Public Prosecutor to ask for withdrawal from
the prosecution.
Similarly, a Public Prosecutor appointed for case A, before a particular Court, can, by virtue of his being a Public Prosecutor, file an
application in case B, with which he has nothing to do, and ask for
permission of the Court to withdraw from the prosecution.
The reasonable interpretation to be placed upon s. 494, in our
opinion' is that it is only the Public Prosecutor, who is incharge of a
particular case and is actually conducting the prosecution, that can
file an application under that section, seeking permission to withdraw
from the prosecution. If a Public Prosecutor is not in charge
of a particular case and is not conducting the prosecution, he
will not be entitled to ask for withdrawal from prosecution, under
s. 494 of the Code.
In the case on hand, it is found by the High Court, that the prosecution is being conducted b,y the complainant, viz. the first respondent herein, and the Prosecuting Deputy Superintendent of
Police, Bhatinda, was nowhere in the picture, when he filed the application under s. 494 of the Code.