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Anantharama Vadhiar Vs. Muthia Tevan and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1915Mad234; 25Ind.Cas.841
AppellantAnantharama Vadhiar
RespondentMuthia Tevan and ors.
Excerpt:
criminal procedure code (act v of 1998), section 495 - circle inspector permitted to conduct prosecution, whether can withdraw. - .....be conducted by any person other than an officer of police below a, rank to be prescribed by the local government etc., but that no person other than the advocate-general, standing counsel, a government solicitor, public prosecutor or other officer generally or specially empowered by the local government in this behalf shall be entitled to conduct the prosecution without such permission. clause 2 ' of section 495 says that 'any' such officer' shall have the like power of withdrawing from the prosecution as is provided by section 494.4. i take it that the first sentence in the first clause of section 495, which sentence (i agree with the learned public prosecutor in thinking) is worded awkwardly, means (a) that a magistrate may permit the prosecution to be conducted by any person other.....
Judgment:
ORDER

Sadasiva Aiyar, J.

1. In this case the Police of Shermadevi on the information of the petitioner, Anantharama Vadhiar, submitted a charge-sheet to the Joint First Class Magistrate of Shermadevi charging four persons, three of them with robbery under Section 394, Indian Penal Code, and the fourth with the abetment of that offence. After four witnesses had been examined for the prosecution by the Police Circle Inspector and after certain other proceedings and after an infructuous petition for the transfer of the case made to the District Magistrate, the said Police Inspector of Ambasamudram Circle put in a petition on the 10th April 1913 to the Joint First Class Magistrate for permission to withdraw the charge against the accused. The Joint Magistrate on the 12th April 1913 accepted the petition as one filed under Section 494 of the Criminal Procedure Code read with Section 495, Clause 2, and granted the permission sought for and discharged the accused under Section 494, Clause (a). It is against this order of discharge that the present revision petition has been filed by Anantharama Vadhiar.

2. I admitted the revision petition because the 2nd ground mentioned in the revision memorandum, namely, that the Police had no power to withdraw from the prosecution and that the lower Court had no power to sanction such withdrawal, appeared to raise an arguable point of law. Notice was accordingly given to the Public Prosecutor and to the accused,

3. I have now heard again the learned Vakil who appeared for Anantharama Vadhiar and have also heard the learned Public Prosecutor and the learned Vakil for the accused and I have further considered the matter. Section 494 of the Criminal Procedure Code says that any Public Prosecutor appointed by the Government may, with the consent of the Court, withdraw from the prosecution before the case reaches what may be called the final stage. Section 495 is divided into two clauses, 1 and 2. The first Clause says that any Magistrate may permit the prosecution to be conducted by any person other than an officer of Police below a, rank to be prescribed by the Local Government etc., but that no person other than the Advocate-General, Standing Counsel, a Government Solicitor, Public Prosecutor or other officer generally or specially empowered by the Local Government in this behalf shall be entitled to conduct the prosecution without such permission. Clause 2 ' of Section 495 says that 'any' such officer' shall have the like power of withdrawing from the prosecution as is provided by Section 494.

4. I take it that the first sentence in the first Clause of Section 495, which sentence (I agree with the learned Public Prosecutor in thinking) is worded awkwardly, means (a) that a Magistrate may permit the prosecution to be conducted by any person other than a Police Officer, (b) that the Magistrate might permit the prosecution to be conducted even by a Police Officer if he is not below a rank prescribed by the Local Government with the previous sanction of the Governor-General in Council.

5. On the 30th June 1887, the Government of India gave sanction to the Local Government empowering Police Officers in the Madras Presidency not below the rank of a first class Head Constable in charge of a Police Station to conduct the prosecution of cases. The Local Government on the 19th July 1887 accordingly empowered all officers of Police of and above the rank of a first class Police Head Constable in charge of a Police Station to conduct prosecutions. I take it that by this notification all such superior Police Officers were generally empowered by the Local Government to conduct 'prosecution without even the permission of the Magistrate under the 2nd sentence of Clause 1 of Section 495.

6. When I admitted this petition, I was not aware of this notification of 1887. ' If this notification is still in force, the Circle. Inspector who withdrew the prosecution in the present case is an officer generally empowered within the meaning of the second sentence, Clause 1, of Section 495 and he is, therefore, entitled under Clause 2 of that, same section to withdraw from the prosecution with the permission of the Court as mentioned in Section 494. It was, however, suggested by the petitioner's Vakil that the Local Government's order of 19th July 1887 was cancelled by subsequent proceedings passed at or about the time when special Prosecuting Inspectors were appointed. He was, however, unable to refer me to say such repealing order or notification and I find on a perusal of Rule 38 of the Criminal Rules of Practice and also Appendex III, page 299, in the authorised edition of 1910, that Government order of. 19th July 1887 seems to be still in force. I am, therefore, of opinion that the Circle. Inspector of Police who conducted the prosecution in this case had the power, with the consent of the trying Magistrate, to withdraw the case.

7. Then it was argued by Mr. L.S. Veerara-ghava Aiyar who appeared for Anantharama Vadhiar that the Magistrate was wrong in the circumstances of this case in having given his consent to the withdrawal of the prosecution and that I ought to revise the action of the Magistrate in giving such consent. Mr. T. Rangachariar who appeared for the accused contended on the other side that the High Court had no power to interfere in revision with the discretion of the Magistrate in giving his consent to the withdrawal. In a similar case In re Sadayan 4 Ind. Cas. 1126 : 5 M.L.T. 216 a Division Bench of this Court held that as the Judge is not called on to give any reasons for his action, the High Court had no means of ascertaining what the reasons were and the High Court has no power to interfere with the order of acquittal', which had been passed in that case. I find, however, that the learned Judges who constituted the Division Bench did not sanction decision in that case being reported in the authorized reports. In their judgment they referred to an earlier decision in Criminal Revision Case No. 274 of 1907 in which this Court did interfere in revision with the consent granted by the lower Court to the withdrawal of a prosecution, but the learned Judges dissented from that earlier ruling. In these circumstances, I do not wish to express any final opinion on the question whether this Court has got the power to interfere in revision with the discretion of the Magistrate in giving the consent to the withdrawal.

8. Assuming, then, without deciding that this Court has got such power, I am not satisfied that this is a fit case in which that power should be exercised for the purpose of re-starting the withdrawn prosecution. I, therefore, reject this petition.


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