C.C. Ghose, J.
1. In this case we are of opinion that the rule must be made absolute. The facts are somewhat peculiar and it is necessary therefore to set out the same at some length. The accused in this case were convicted by the Sub-Divisional Officer of Jangipur under Sections 143, 150, 153, 506 and 298, I.P.C., and were sentenced to various terms of imprisonment by his judgment dated the 29th September 1926. Jangipur is a sub-division in the district of Murshidabad, and the accused, after conviction, preferred an appeal to the Sessions Judge of Murshidabad. When the appeal came on for hearing on the 4fch March 1927, it appears that the public prosecutor was instructed by the then magistrate of the district, Mr. M.S. Adie, to inform the Court that the Grown had decided to withdraw from the prosecution of the accused who, as stated above, had already been convicted by the Sub-Divisional Officer of Jangipur, and he prayed for the Court's sanction under Section 494, Criminal P.C. The Sessions Judge of Murshidabad allowed the application of the public prosecutor although the complainant objected to the same, (it was not a Crown prosecution), and he forthwith proceeded to acquit the accused under Section 494(b), Criminal P.C. Against the order of the Sessions Judge the present rule is directed.
2. Now reading the words of Section 494, it is reasonably clear that it contemplates the case of withdrawal of a prosecution by the public prosecutor, in cases tried by jury before the return of the verdict and in other cases before the judgment is pronounced and that it does not contemplate the case of withdrawal, by the public prosecutor after the conviction of the accused by the first Court and in the appellate stage of a case. It is, however, argued on behalf of the Crown as also on behalf of the accused that the last words 'before judgment is pronounced' may be held applicable to the pronouncement of the judgment by the appellate Court. That argument has no substance whatsoever as is apparent from the concluding words of Section 494. Therefore it seems to us that reading Section 494 as a whole it is only in cases indicated therein, that is to say, in cases to be tried by jury before the return of the verdict and in other cases in the Court of first instance before the judgment is pronounced that the public prosecutor may with the consent of the Court withdraw from the prosecution of any person. To say that the public prosecutor is authorized under the terms of this section to withdraw from the prosecution after the accused had been convicted is to state something which is not only on the face of it startling but absurd, having regard to the words of Section 494, Criminal P.C.
3. We are, therefore, constrained to hold that the entire proceedings before the Sessions Judge relating to the withdrawal of the prosecution were misconceived and illegal from start to finish. The public prosecutor had no right at the appellate stage of the case to present any petition for withdrawal under Section 494, Criminal P.C., even though the petition was inspired by the District Magistrate; nor was the Sessions Judge entitled to stretch the words of Section 494 beyond their legitimate meaning and to allow the Public Prosecutor to put in such an application and to proceed to acquit the accused before be even attempted to judicially determine their appeal.
4. The result therefore, is that the order of the Sessions Judge, dated 16th March 1927, must ha set aside and the matter must go back in order that the appeal of the accused may be judicially determined. The appeal will be heard by the Additional Sessions Judge of Murshidabad.