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Lingaraj Routrai Vs. Lakshmidhar Routrai and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1961CriLJ693
AppellantLingaraj Routrai
RespondentLakshmidhar Routrai and ors.
Cases ReferredState of Bihar v. Ram Naresh
Excerpt:
.....430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - in that petition, it was alleged by one upendra nath patnaik that the tank known as padan pada was a deep tank in which good water remained throughout the year and that the villagers used to take water from that tank for drinking purposes. 5. the records mentioned above clearly show (that there was no abuse of process of court, or that the exercise of the power under section 494 cr. the learned magistrate might as well have given his reason as to why he considered the withdrawal to be bona fide and not for improper purposes. but even if he failed to give..........sadar, puri on the basis or which a regular case was started against them.2. as regards padan pada tank he alleged that on 11-6-58 at about noon the opposite party came in a mob and prevented him from catching fish from that tank. he reported the incident at the delang police station and in due course charge sheet under section 143 i.p.c. was filed against the members of the opposite party. the case was, in. due course, transferred to the file of shri m.d. pradhan for disposal. on 3-6-59 the prosecuting inspector, sadar, acting under the instructions of the district magistrate, puri filed a petition stating that he wanted to withdraw from the prosecution. the petitioner however objected to the withdrawal. the learned magistrate ignored his objection saving that he had no locus standi and.....
Judgment:
ORDER

R.L. Narasimham, C.J.

1.This is a petition, in revision challenging an order of withdrawal under Section 494 Cr.P.C. dated 8-5-59 passed by a First Class Magistrate of Puri. The petitioner claimed to have taken fishery lease of two tanks, named Padan Pada and Hazari Pokhari from Ghoradia Gram Punchayet. He alleged that some of the members of the opposite party forcibly caught fish from Hazari Pokhari on 19-12-57 and that he filed a complaint against them before the Sub Divisional Officer, Sadar, Puri on the basis or which a regular case was started against them.

2. As regards Padan Pada tank he alleged that on 11-6-58 at about noon the opposite party came in a mob and prevented him from catching fish from that tank. He reported the incident at the Delang Police Station and in due course charge sheet under Section 143 I.P.C. was filed against the members of the opposite party. The case was, in. due course, transferred to the file of Shri M.D. Pradhan for disposal. On 3-6-59 the Prosecuting Inspector, Sadar, acting under the instructions of the District Magistrate, Puri filed a petition stating that he wanted to withdraw from the prosecution. The petitioner however objected to the withdrawal. The learned Magistrate ignored his objection saving that he had no locus standi and then permitted the withdrawal of the case and acquitted the persons under Section 494 Cr.P. Code.

3. Neither the Magistrate nor the Prosecuting Inspector gave the reasons for the withdrawal of the case. That is one of the main grounds for the admission of this revision petition, But on scrutinising the record I find that the original petition of the opposite party before the District Magistrate of Puri for withdrawal of the case containing a note of the then Sub-divisional Officer and the Superintendent of Police, is on record. In that petition, it was alleged by one Upendra Nath Patnaik that the tank known as Padan Pada was a deep tank in which good water remained throughout the year and that the villagers used to take water from that tank for drinking purposes.

He further alleged that on the representation of the villagers the Collector of Puri cancelled the lease of the tank with the petitioner and that notwithstanding such cancellation the petitioner attempted to pollute the water by catching fish and that thereupon the matter was reported to the higher authorities. The present case was alleged to be a false one and a prayer was made for withdrawal of the same. The Superintendent of Police reported that he had no objection to the withdrawal and then the District Magistrate directed the Prosecuting Inspector to take necessary steps for withdrawal of the case.

4. The principles to be observed in giving consent to the withdrawal of a case in exercise of the powers under Section 494 Cr.P.C. have been laid down in a recent decision of the Supreme Court, State of Bihar v. Ram Naresh (S) : 1957CriLJ567 . There it was pointed out that though in granting consent to the withdrawal of a case under Section 494 Cr.P.C. the Court must exercise judicial discretion, it does not necessarily follow that in the exercise of such discretion only judicial methods should be used.

The Public Prosecutor has general executive discretion to withdraw from the prosecution and the Court while granting consent is concerned only to see whether in exercising this executive function the Public Prosecutor acted properly or whether there was any attempt to interfere with the normal course of justice for illegitimate reasons or purposes or there was an abuse of process of the Court.

5. The records mentioned above clearly show (that there was no abuse of process of Court, or that the exercise of the power under Section 494 Cr.P.C. was for an illegitimate or improper purpose. If the tank in question is really the only source of drinking water in the locality and the villagers objected to the petitioner's catching fish from the tank and thereby polluting the water and the District Magistrate cancelled the lease in favour of the petitioner, it was open to the villagers to approach the District Magistrate for the purpose of withdrawal of the case; and the District Magistrate may after consulting the Superintendent of Police direct the Public Prosecutor to withdraw from the prosecution.

The learned Magistrate might as well have given his reason as to why he considered the withdrawal to be bona fide and not for improper purposes. But even if he failed to give such reasons I am satisfied on a perusal of the records that the discretion, has been properly exercised in this case and I do not think it will be proper to set aside the order of the Magistrate.

In declining to interfere, however, I am not saying anything as to how far the allegations made in the petition of Upendra Nath Patnaik before the District Magistrate are true. This is essentially a matter for the District Magistrate but if the District Magistrate after consulting the Superintendent of Police acts on that petition and directs the withdrawal it is sufficient to say that there is nothing improper in that order.

The revision petition is therefore dismissed.


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