Raman Nayar, J.
1. This petition is for setting aside the acquittal of the 14 respondents under Section 494(h) of the Criminal P. C. consequent on the Public Prosecutor withdrawing from the prosecution with leave of the Court. The petitioner is the first informant in the case and one of the two victims of the alleged offences.
2. The charge sheet in the case was laid by the Sub-Inspector of Police, Irinjalakuda, on 8-4-57 and it charged the 14 accused persons (the present respondents) with offences under Sections 143, 147, 447, 341, 323 and 325 read with Section 149 of the Indian Penal Code. It alleged that the 14 accused persons had, of set purpose, gathered in a body near the petitioner's shop at about 8 P.M. on 13-3-1957 and, after shouting threats, trespassed into the shop and dragged out and beaten and fisted the petitioner and his brother, causing injuries to both and breaking a rib of the latter. It further alleged that the accused did this because the petitioner and his brother had worked for the Congress candidate in the general election to the State Assembly from the Irinjalakuda constituency. The accused persons had worked for the Communist candidate who had emerged victorious, and the accused wanted to teach the petitioner and his brother a lesson for having worked against their party.
3. The case was tried by the Second Class Magistrate, Irinjalaguda, in C. C. 618 of 1957. He framed charges and, after examining 19 witnesses for the prosecution and one witness for the defence, posted the case for arguments to 25-2-1958. On 13-2-1958 the Assistant Public Prosecutor, who was in charge of the prosecution, made an application for permission to withdraw from the case. When the case came on for hearing on the 25th, the learned Magistrate made an order allowing the application for withdrawal and, as a consequence thereof, acquitting tile accused.
4. It might be as well to set out the application made by the Public Prosecutor and the orderof the Magistrate in full. The application runs asfollows :
'The Government have been pleased to sanction to move the Court for the withdrawal of the above case by their order G. O. R. No. 310 dated 6-2-1958 Home (B). Hence the Court may be pleased to sanction the withdrawal of the case for the following reasons.
The case is as a result of a quarrel arising out of an election victory celebration and the action of the accused was not a premeditated or deliberate one. Now the evidence is over and except against two or three accused no overt act is proved. Even against the persons against whom there are some overt acts the defence evidence goes to show that one of them was not present at the spot. In order to keep up the cordial relationship between the parties and preserve peace it is necessary that the proceedings have to be dropped. Hence the Court may be pleased to sanction the withdrawal of the case'. And the order by the Magistrate thus : 'The case comes up today for final arguments. At this stage the prosecutor puts in report for permission to withdraw from prosecution. In this case, the State is the prosecutor. The prosecutor has said that the case arose in connection with the last general election and the exuberance of party spirit, and the State would, on question of general policy, see the case withdrawn. He would also say that the evidence is weak. It is true that the occurrence in this case took place following the announcement of the result of the last general election and it also appears that the party feeling was at the root of the incidents. On a question of policy the State wants to see the case dropped. This is also not opposed by anybody. Hence I do not see any reason why the sanction applied for should not be granted. I, therefore hereby permit the prosecutor to withdraw from, the prosecution and, in the result hereby acquit all the accused under Section 494 (b), Cri. P. C.'
5. Now, it seems to us that the reasons given by the Public Prosecutor for withdrawing from the case and by the learned Magistrate for permitting the withdrawal, can scarcely bear examination. Since neither learned counsel for, the accused nor the learned Advocate General who appeared to support the order of the Magistrate, has attempted to support it on the score of any inadequacy of evidence we are, for the present purpose, assuming without, of course, expressing any opinion in the matter, that the evidence adduced by the prosecution supports the allegations of fact made in the charge-sheet. The medical evidence in the case proves that both the petitioner and his brother (who were examined as P.Ws. 1 and 2 respectively) suffered hurt and that the hurt suffered by the latter was grievous because it involved the fracture of a rib and the dislocation of a joint.
Now, leaving aside those reasons reflecting on the merits of the case (and even here we fail to sea how, in a case of rioting, where there is a charge under Section 149, I. P. C., the fact that overt acts have been proved only as against two or three of the accused and that one defence witness has spoken to an alibi in respect of one of these accused can be said to affect the prosecution case as a whole) since no attempt has been made to show that the evidence cannot sustain a conviction, every one of the reasons given in the application by the Public Prosecutor is either irrelevant or opposed to the allegations in the charge-sheet. The first, and what seems to he the foremost reason, is that the Government 'have been pleased to sanction to move the Court for the withdrawal of the above case,' and hence it is that the Court is requested to sanction the withdrawal. Now, under Section 494, Cri. P. C. it is the Public Prosecutor and not the Government that withdraws from the prosecution.
He does this in his own right and not on behalf of the Government unlike the Advocate General acting under Section 333, Cri. P. C., and, although he functions in an executive capacity and is therefore: not precluded from acting at the instance of the Government, the withdrawal itself can only be by him and, since it is a matter on which the Court must give or refuse consent in the exercise of its judicial discretion, he must give adequate reasons in support of his withdrawal. That he has acted under the directions, or with the approval of the Government, is something with which the Court is not concerned, and the first and foremost reason given in the application in the present case is irrelevant.
6. For the rest, although it would appear from the charge-sheet that this was the way in which the accused chose to celebrate their election victory according to the allegations therein, the attack was altogether one sided and was both deliberate and pre-planned. The statement in the application for withdrawal that the case was the result of a quarrel and that the action of the accused was not a premeditated or deliberate one is quite contradictory to the case in the charge-sheet that the accused gathered and lay in wait near the petitioner's shop at closing time with the common and pre-meditated purpose of causing him and his brother bodily harm.
7. The only other reason given, namely, that in order to keep up the cordial relationship between the parties and preserve peace it is necessary that the proceedings have to be dropped,' seems to us equally flimsy. It is so vague as to he meaningless, ft is not said who the parties are, and so far as the parties to the present case are concerned, it does not appear that there is any cordial relationship between them to be preserved. How the withdrawal of the case will tend to preserve peace is again very difficult to understand. In the absence of the least suggestion of a settlement or even of an attempted settlement, one should have thought the withdrawal would have just the contrary effect and would only encourage the accused to repeat their conduct or spur the victims to wreak vengeance on their own since the process of the law had failed them.
8. If we turn next to the reasons given by the learned Magistrate for granting his consent, we find that they are equally unsupportable. He seems to have been impressed by the assertion of the Public Prosecutor that the State would, on a question of general policy, see the case dropped, without caring to ascertain what was this general policy or stopping to consider what bearing it could have on the question which was before him for judicial determination. We find it difficult to conceive of any legitimate general policy by which cases of rioting involving the breaking of bones are to be dropped although in individual cases there might be special facts justifying such a course.
Victory in a general election is not a cloak covering all sins and that an exuberance of party spirit and party feeling was at the root of the incident seems to us a reason against, rather than for, a withdrawal. There is, as we have already remarked, not even a whisper that tho parties have come to terms, or that the feelings have abated and that the withdrawal is based on some assurance of peace and good conduct in the future.
9. Although we do not accept the argument advanced on behalf of the petitioner that the application for withdrawal is not really by the Public Prosecutor but by the Government, we are afraid that the Public Prosecutor has been able to state no reason for which consent to the withdrawal can properly be given. That the Government were 'pleased to sanction to move the Court for withdrawal' deems to have sufficed for him. It can hardly suffice for the Court.
10. The scope of Section 494, Cri. P. C., and the powers of interference of the High Court with an order made under that section, have been fully considered by the Supreme Court in State of Bihar v. Ram Naresh, AIR 1957 SC 389. It is there laid down that although the section gives a general executive discretion to the Public Prosecutor to withdraw from a prosecution, yet since the withdrawal can only be with the consent of the Court, given in exercise of its judicial discretion, good reason must be shown for the withdrawal, and the Court must bo satisfied that the executive function of the Public Prosecutor has not been improperly exercised and that there is no attempt to interfere with the normal course of justice for illegitimate reasons or purposes.
The Public Prosecutor is no doubt an executive officer but he is in a larger sense also an officer of the Court and is bound to assist the Court with fairly considered view, and the Court is entitled to have the benefit of the fair exercise of his function. The reasons for the withdrawal need not be confined to the judicial prospects of the prosecution or based on the record in the case. But they must be such as to satisfy the judicial conscience of the Court.
Consent is not to be lightly given, merely because the Public Prosecutor has asked for it, without a careful and proper scrutiny of the grounds on which it is sought. And where consent has been improperly given, the order of consent, and of discharge or acquittal consequent thereto, is open to correction by the High Court in exercise of its powers of appeal or revision as the case may be.
11. In view of this clear and authoritative exposition of the law, we think it unnecessary to refer to the numerous other authorities cited at the Bar.
12. We have seen that the reasons given by the Public Prosecutor for withdrawing from the prosecution and by the learned Magistrate for consenting to the withdrawal are not proper reasons, and it follows that the withdrawal, and the acquittal consequent thereto, were improper. It is little consolation to the victims, or to the community as a whole, or to the authorities charged with the duty of upholding the law, to be told that the petitioner and his brother were beaten and the latter's house broken in an excess of party feeling, and that this was the way in which the accused thought fit to celebrate the election, victory of their party.
13. We allow the petition and set aside the order of the learned Magistrate consenting to the withdrawal of the prosecution and acquitting the accused of the charges against them. We direct that the accused be retried by some other Magistrate, either by the District Magistrate Trichur or by such other Magistrate of competent jurisdiction as the District Magistrate may direct.
14. We wish to emphasise that we express no opinion whatever about the merits of the case.