Amaresh Roy, J.
1. This Rule is directed against an order passed by a Magistrate at Alipore on 15th of May, 1969, in G. R.
Case ________________ by which order he
has allowed the prayer for withdrawal of the case and discharged the accused persons. The order is purported to be made Under Section 494, Criminal P.C. The case was one in which several accused persons were prosecuted for alleged offences Under Sections 148, 379 and 323 of the Indian Penal Code over occurrence alleged to have happened in May, 1968.
2. When the case was pending before the learned Magistrate on 13 of May, 1969 as application was filed by the Officer-in-charge of prosecution stating therein,
I have been intimated by the S. D. P. O. Alipore to withdraw the case from the prosecution as per Government order No. 2872(14)-F/142/69 dated 30-4-1969. as Government has decided to withdraw the case.
The learned Magistrate thereupon made the order allowing the prayer to withdraw the prosecution.
3. Against that order Swapan Kumar Banerjee, on whose information the First Information Report in the case was recorded and the investigation had commenced, moved this Court Under Section 439, Criminal P.C. and obtained the present Rule.
4. Appearing in support of the Rule the learned Advocate for the petitioner Mr. Rathindra Prasanna Sanyal has referred to Section 494, Cr.PC and contended that the petition that was filed before the learned Magistrate does not come under that Section because by its own terms it is not an action by the Public Prosecutor but is one to which a superior police officer, the Sub-Divisional Police Officer of Alipore has directed the action. The Section says, 'Any Public Prosecutor may with the consent of the Court .................. withdraw from the prosecution ...............'. The Code does neither contemplate a Government order, far less an intimation by a police officer. As we have pointed out on a previous occasion in the case of Raj Kishore Rabidas v. The State, reported in A.I.R. 1069 Cal page 321, Code of Criminal Procedure amongst others gives the important functions (including Section 494, Criminal P.C.) to the Public Prosecutor and not to any outside agency, however, high that may be When it is made to appear before the learned Magistrate, as it is in this case, that the Public Prosecutor has not exercised his own mind but is carrying out only behest of any other authority, Section 494, Criminal P.C. is at once transgressed. Consent of the Court required by Section 494 is a judicial function which can be given only upon applying judicial mind of the Magistrate to the proper reasons in any particular case made to appear to him by proper application made by the Public Prosecutor. He cannot give his consent as a matter of course nor upon any order of executive government.
5. In the present case no reason has been mentioned and it is not a proper application Under Section 494, CrIPC. It is the duty of the learned Magistrate not to countenance such application, far less to allow prayers made therein. In the present case the learned Magistrate at Alipore has completely failed to perform his duty and has made the order which is not warranted by Section 494 Criminal P.C.
6. Appearing for the State Mr. Krishna Benode Roy has in his learning acceded that the Public Prosecutor needs to apply his own mind for performing his function Under Section 494, Criminal P.C. In the present case the record shows that the police officer who was conducting prosecution has made the application being directed by the S. D. P. O. and also referring to certain executive orders mentioned in the petition. That being so, Mr. Roy fairly and properly did not find any justifiable ground to support the order.
7. The Rule is made absolute, the order is set aside and the case is sent back to be dealt with by a competent Magistrate to be nominated by the District Magistrate at Alipore other than Shri T. P. Ghosh.
8. Let the records be sent down at once.