1. This is a reference by the Additional Sessions Judge of Burdwan in a case in which the Sub-Divisional Magistrate of Asansol has permitted the Public Prosecutor to withdraw a case under Section 379, Penal Code against the two accused named Kumar Pashupati Nath Malia of the Searsole Raj family and Upendra Nath Ghatak, his Manager. The complainant in the case was a clerk acting on behalf of a Muktear Guru Prasanna Banerjee who was the real complainant in the case, the offence alleged being one of paddy cutting.
2. The complaint was filed on 7-1-1946 (though dated 1945). It was sent for a judicial enquiry by a Magistrate of the first class who reported on the 25th February that a prima facie case had been made out against the two persons named above; whereupon summons under Section 379 of the Code was issued against them. The Kumar was allowed to appear by an agent.
3. On the 19th April before any witnesses had been examined in the case a long petition was filed on behalf of the accused before the Additional District Magistrate of Burdwan asking that the proceedings should be quashed. The District Magistrate called for the records and asked the Public Prosecutor to examine them. The Public Prosecutor then submitted a long report recommending that the case be withdrawn under Section 494, Criminal P.C. The Additional District Magistrate then withdrew the ease from the file of the trial Magistrate to his own file. A petition for withdrawal was filed before him and he consented to the withdrawal and the accused was discharged.
4. This Court was then moved against this order and the illegality of the proceeding was commented upon and it was directed that the case should proceed, the Public Prosecutor being at liberty, if he chose, to make an application for withdrawal before the Sub-Divisional Magistrate who was to act independently. Accordingly, the case went back and on 4-1-1947, the Sub-Divisional Magistrate summoned the accused raider Section379, Penal Code. Strictly this was not a correct order because the effect of this Court's order was chats the proceedings were already before him, All that was required was that a notice should be issued on the accused to appear. The case was fixed on 18th January. On 15th January an application far withdrawal was made by the Public Prosecutor, Burdwan, in which he repeated almost verbatim in many parts, the report submitted to the Additional District Magistrate previously. The case was adjourned till the 25th January when the Sub-Divisional Magistrate Mr. Ross heard the Public Prosecutor, the pleader for the complainant and the accused on the matter of the withdrawal and finally on 10th February he consented to the withdrawal and the accused was discharged. It is this order that has been referred to us by the Additional Sessions Judge of Burdwan.
5. We have heard the learned advocate on behalf of the parties and have perused the order of the Sub-Divisional Magistrate. In our opinion of the special circumstances of this case, the learned Magistrate should not have consented to the withdrawal of the case without himself having examined at least some of the witnesses. He gave certain reasons for differing from the view of the enquiring Magistrate, Mr. Lahiri, that a prima facie case had been made out but verlooked the fact that Mr. Lahiri had the advantage of seeing the witnesses. He also overlooked the fact that the record of the statements of the witnesses made by Mr. Lahiri was not of detailed character and therefore, failed to see the proper course in the case where the question of the credibility and reliability of the witnesses came into question was for himself to see and hear those witnesses. We may refer in particular to the evidence of witness No. 5. The earned Magistrate says:
He is a day labourer and I do not consider his testimony as specially reliable the more so as be was not named originally by the complainant.
6. In the circumstances of this case, we think that the order of discharge ought not to be upheld and should be set aside. The reference is accepted. The order of discharge is set aside and the case is sent back for disposal by the Sub-Divisional Magistrate of Asansol.
7. I agree.