1. This Rule is directed against an order discharging nine accused persons, opposite parties, in a case brought against them under the provisions of Section 147, Indian Penal Code. The order of discharge followed upon an application made by the Public Prosecutor for permission to withdraw from the prosecution of these accused persons and upon the consent of the Court given to that application. In the case reported as Umesh Chunder Roy v. Satis Chandra Roy (1917) 22 C.W.N. 69 it has been held that in according or withholding sanction to an application for withdrawal made by the Public Prosecutor under the provisions of Section 494(a) the Court acts in a judicial capacity, and, for such order so judicially made, the Court must give and record its reasons, so that the High Court may be in a position to say whether the discretion vested in the Court has been properly exercised. In the present case for the order giving sanction to the Public Prosecutor's application for permission to withdraw no reasons have been given. But from the subsequent proceedings we are enabled to gather that the main reason, or indeed the only reason for the withdrawal from this prosecution was that on a previous trial in connection with the riot in question six persons had already been convicted and punished, being sentenced to various terms of imprisonment. It appears that the riot was of a somewhat serious nature resulting in some 28 injuries upon seven persons, the riot again, it being said, having arisen out of the opposition of certain persons to what were thought to be innovations in connection with certain religious ceremonies celebrated by the complainant. At the time of the trial of persons previously convicted it is stated that the present nine accused were absconding. The conviction of the first six persons was had on the 7th August, 1920, while the present accused, opposite parties, surrendered or were arrested on various dates extending from 7th July, 1920, to the 15th October of that year. Whether these nine accused were or were not absconding it is not for us to say, but it is obviously not advisable that a premium should be placed upon absconding, and it cannot be held that the imprisonment of the first six is to be regarded as a vicarious atonement for the sins, if any, committed by the present accused, opposite parties.
2. We set aside the order of consent made by the Trying Magistrate under the provisions of Section 494 of the Code of Criminal Procedure and the discharge consequent thereupon, and we direct that the present accused, opposite parties, be re-placed upon their trial and that the case be dealt with and disposed of in accordance with law.