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Superintendent and Remembrancer of Legal Affairs, Government of West Bengal Vs. Haji Habib Haji Pir Mohammad and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in1949CriLJ444
AppellantSuperintendent and Remembrancer of Legal Affairs, Government of West Bengal
RespondentHaji Habib Haji Pir Mohammad and ors.
Excerpt:
- .....presidency magistrate refusing to consent to the withdrawal of the prosecution from a case against gopi mohan roy one of several accused.2. the facts briefly are as follows: the case was started against gopi mohon be y and eight other persons charging them with having committed offences punishable under section 81 (4), defence of india rules, read with section 8, essential supplier (temporary powers) ordinance (xxvin [18] of 19d6) and section 7(l), essential supplies (temporary powers) act (xxiv [24] of 1946) and section 120b, penal code. put shortly, the charge against the accused was that they were members of a criminal conspiracy to sell salt at a rate higher than that permitted by the ordinance. some of the accused were sellers and some were the buyers. the accused gopi mohan roy was.....
Judgment:
ORDER

Sen, J.

1. This rule must be discharged. The-rule is against an order passed by a learned Presidency Magistrate refusing to consent to the withdrawal of the prosecution from a case against Gopi Mohan Roy one of several accused.

2. The facts briefly are as follows: The case was started against Gopi Mohon be y and eight other persons charging them with having committed offences punishable under Section 81 (4), Defence of India Rules, read with Section 8, Essential Supplier (Temporary Powers) Ordinance (xxvin [18] of 19d6) and Section 7(l), Essential Supplies (Temporary Powers) Act (XXIV [24] of 1946) and Section 120B, Penal Code. Put shortly, the charge against the accused was that they were members of a criminal conspiracy to sell salt at a rate higher than that permitted by the Ordinance. Some of the accused were sellers and some were the buyers. The accused Gopi Mohan Roy was the broker who brought the two groups together and who took his commission on the price obtained by the sale. The case was started on 12th August 1947 and dragged on witheut any hearing till 15th December 1917 when it was set; down for evidence on 10th January 1948 with a warning that no further adjournment would be allowed. On that date, the Public Prosecutor moved the learned Magistrate to consent to his withdrawing from the prosecution of Gopi Mohan Roy. The application was made under Section 494, Criminal P. C. Under that section the Public Prosecutor may. withdraw from the prosecution of any accused person but it must be with the consent of the Court. The petition for withdrawal is in the following terms:

Application under 8. 494, CriminahP. C, for leave to withdraw tie case against accused 9, Gopi Mohan be y on the ground that he acted as a broker on behalf of the firm of which the other accused persons were members and as such the extent and nature of his complicity was much smaller and that he is likely to give material evidence against the actual offenders.

After hearing the Public Prosecutor, the learned Magistrate refused to consent to the withdrawal. He held that the guilt of the broker was hardly less than that of the other parties if the facts alleged were true. I entirely agree with this view.

He was also of opinion that the case against any Such person should not be allowed to be with, drawn unless for a very good reason. This is also a view with which I entirely agree. The reason stated before the learned Magistrate was that Gopi Mohan Roy was likely to give material evidence. The learned Magistrate was of opinion that this is not sufficient reason for allowing a withdrawal and he asked the Public Prosecutor to go on with the once. Thereupon the Public Prosecutor said he had no other witness to exa-mine, the Magistrate bad no option but to hold that the charge was groundless and he discharged the accused under the provisions of s, 253 (a), Criminal P. C.

3. It is now stated on behalf of the Legal Remembrancer who has made this application that witheut the evidence of Gopi Mohan be y there could be no conviction. The learned advocate appearing for the Legal Remembrancer aays that it is true there was other evidence but that evidence would not be of any value to the prosecution unless Gopi Mohan be y was examined as a witness to connect the persons with the crime, On this ground it is contended that the learned Magistrate should have allowed the case against Gopi Mohan be y to be withdrawn, and that his order refusing to give his consent resulted in a miscarriage of justice inasmuch as all the accused have had to be discharged.

4. In my opinion there is no force in this argument. The learned Magistrate in his order refusing the withdrawal and discharging the other accused has very clearly stated that it was never represented to him that Gopi Mohan be y was the only witness in the case and that his was the only evidence. He says that the ground for the application for withdrawal was not grounded on any Such allegation. It was grounded on two allegations, namely that the extent and nature of Gopi Mohan be y's complicity was less than that of others and that he was likely to give material evidence. The learned Magistrate held that these two grounds were not sufficient and I have expressed my view to the same effect, In a case of this description, the mere fact that one of the accused is likely to give material evidence is not sufficient ground for withdrawing the case against him where there is other evidence. In biB explanation the learned Magistrate says the same thing and he says that nothing else was placed before him except the grounds mentioned in the application for withdrawal. It seems to me that upon the materials before the learned Magistrate he had no option but to refuse his consent to the withdrawal. It was the duty Of the Public Prosecutor to give more cogent reasons. It seems that the Public Prosecutor theught that the consent of a Magistrate to an application for withdrawal by him would be given as a matter of course. It is time that Public Prosecutors were disabused of this notion. It is the duty of the Public Prosecutor to a the Court that the withdrawal is in the best interest of justice. The attitude of the Public Prosecutor is disclosed in the last paragraph of the - Magistrate's order. As soon as he was asked to go on with the case he refused to examine any other witness and stated that he had no other witness to examine altheugh he had filed a hajira of several other witnesses. Even at this stage he did not tell the Magistrate that there could be no conviction witheut the evidence of Gopi Mohan be y.

5. In these circumstances I am of opinion that the order of the learned Magistrate is unavailable, it is upheld and this rule is discharged.


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