1. This is a Reference by the learned Sessions Judge of Burdwan recommending that an order of the Additional District Magistrate of the same district discharging two accused Kumar Pashupathi Nath Malia and Upendra Nath Ghatak passed on 8th May 1946, be set aside.
2. The two accused had been summoned under Section 379, Penal Code, by Magistrate, Mr. P.C. Gope on 25th February 1946, on the complaint of one Gurupada Roy acting on behalf of Guru Prasanna Mukherjee. Eventually prosecution witnesses were directed to be summoned for 26th, 27th and 29th April. In the meantime the accused approached the Additional District Magistrate with a long petition on 19th April and he called for the records and stayed further proceedings. The prayer in the petition was that the record should be called for and the withdrawal of the case should be directed. The petition purported to be made to the District Magistrate in his judicial capacity. Thereafter the matter was dealt with by the Additional District Magistrate who appears to have confused his position as a judicial officer and his position as an executive officer responsible for the crime in the district. On the petition he took action really as a judicial officer in sending for the records, and as an executive officer in the orders that he passed. He had the papers examined by the Public Prosecutor. He maintained an order sheet for these proceedings in which he noted receipt of the petition and the request to the Public Prosecutor to examine the records; on 6fch May he noted that the Public Prosecutor had examined the records and submitted a report recommending withdrawal under Section 494, Criminal P.C., and accords his agreement with this view and notes that the Public Prosecutor may apply for withdrawal under Section 494, Criminal P.C. In all this the Magistrate was, strictly speaking, acting purely as an executive officer.
3. The Magistrate on the same day, 6th May, noted in the order-sheet of the actual trial record that he had called for the records in connection with the petition filed before him on behalf of the accused that as the trying Magistrate was under orders of transfer the case was withdrawn to his own file and notice was issued to the complainant to appear on 8th May. Notice was also given to the Advocate who filed the petition on behalf of the accused. Then, on 8th May, the learned Additional District Magistrate noted the Public Prosecutor had filed a petition asking for consent to withdraw the prosecution, that the complainant appeared and expressed that he was unwilling to proceed with the case, that having carefully gone through the Public Prosecutor' petition the Magistrate agreed with it that it was a fit case to withdraw and the accused persons were accordingly discharged. We may note that in fact in the actual record of the trial case which was withdrawn to the file of the Additional District Magistrate there is no petition whatever of the Public Prosecutor applying for the withdrawal. The document was kept with what may be called the executive file along with the report of the Public Prosecutor.
4. The whole shows the total confusion in the learned Additional District Magistrate's mind of his two capacities as executive head and as judicial officer. In the letter of Reference it appears to be suggested that the learned Magistrate's note that the trial Magistrate has under orders of transfer was a somewhat specious reasoning given merely to justify the abrupt removal of the case from the file of Mr. Gope to the file of the District Magistrate, so that. the latter could see that his intentions as executive officer were carried out by the judicial officer concerned, namely, himself in the other capacity. We are informed that in fact Mr. Gope handed over charge on 8th May 1946, so that this charge against the Additional District Magistrate is not justified. Nevertheless, the fact that the trial Magistrate had been transferred was no real justification for the Additional District; Magistrate taking the original case on to his own file, His proper course was to allow the case to go from the file of Mr. Gope to that of the Sub-Divisional Magistrate or the successor of Mr. Gope as the case may be in the ordinary course and for the Public Prosecutor to file his petition, (as 'he himself must evidently in the first place [intended), before that Magistrate who would be open to consider. anything submitted by the Public Prosecutor and decide independently whether or not to allow the withdrawal of the ease. In these circumstances we think that this is the procedure that should still now be followed.
5. The result is that we accept the Reference and set aside the order of the Additional District Magistrate discharging the accused. We send the case to the Sub-Divisional Magistrate of Asansol to proceed with according to law. If the Public Prosecutor chooses to file a petition for withdrawal the Sub-divisional Magistrate will consider it, grant or withhold his permission as in his discretion he thinks fit and proceed with the case according to law.
6. We are informed that Mr. Gope in whose file the case was when it was withdrawn by the Additional District Magistrate has returned to Asansol. If this be so, there will be no objection if the Sub-divisional Magistrate thinks fit to do so, to his transferring the case to Mr. Gope for disposal in accordance with the directions we have given.