G '.

STATE OF PUNJAB

SURJIT SINGH & ANOTHER

January 6, 1967

(K. SUBBA RAO, C. J., J.C. SHAH, S. M. SIKRI, V. RAMASWAMI

AND C. A. VAIDIALINGAM, JJ.J

Cri111inal Procedure Code, 1898, s. 494-Prosecution on private coniplai11t heing conducted by complainant-Public Prosecutor not in charge of case-Whether can file application for withdrawal of case.

The first respondent instituted a complaint before the Magistrate of certain offences under the Penal Code and the Magistrate, after holding a preliminary enquiry, issued summons to the second respondent and another accused.

The Prosecuting Deputy •Superintendent of Police, in his capacity as Public Prosecutor for the District, filed an application before the Trial Magistrate under s. 494 Cr.P.C. for permission to withdraw from the prosecution of the case and for discharging the second respondent on the ground that it had come to his knowledge during an investigation of an earlier complaint that the second respondent was innocent and that he had been falsely involved in he case by the complainant. This application was opposed by the first respondent, but the trial iagistrate grantt'CI permission for the withdrawal of the case and the Session~ Judge, in revision, upheld this decision.

However, the High Court, iP, appeal, accepted the contentions of the first respondent and held that a Public Prosecutor cannot withdraw under s. 494 of the Code from the prosecution of a case pending before the Magistrate, instituted upon a private complaint despite the compiainanl's objection to the withdrawal of the case.

On a further appeal to this Court, HELD: As the prosecution was: being conducted by the complainant, the High Court was right in holding that the Public Prosecutor was not entitled to file an application for withdrawal. [360 E] The reasonable interpretation to be placed. upon s. 494 is that it is only the Public Prosecutor who is in charge of a particular case and is actually conducting the prosecution that can file an application Jnder that section seeking permission to withdraw from the µrosecution. (360 C-D]

There was no force in the conten.ti\1n that the' expression 'the Public Prosecutor' in s. 494 is to be understood as referring to any person who is a Public Prosecutor, whether he is a Public Prosecutor appointed generally. under s. 492(1) or for the purpose of a particular case, as contemplated under s. 492(2) of the Code. If any Public Prosecutor, who bad nothing to do with a particular case, is held entitled to file an apvlication under s. 494 the result will be very anomalous in that if there are two Public Prosecutors appointed for a particular Court, and one of the Public Prosecutors is conducting the prosecution in a particular case, and desi'res to go on with the proceedings, it will be open to the other Public Prosecu- Dr to ask for withdrawal from the prosecution. [359 F; 360 A-BJ

State of Bihar v. Ram Naresh Pandey [1957] S.C.R. 279; Queen Express v. Murarji Gokuldass I:L.R. (1889) 13 Born, 389; State v.

Atmaram M. Ghosale, I.L.R. [1965] Born. 103; referred to.

Gu/Ii Bhagat v. Narain Singh, l.L.R. (1923] 2 Pat. 708; Amar Narain A

v. State of Rajasthan A.l.R. 1952 Raj. 42; Pratap Chand v. Beharl Lal, A.LR. 1955 J & K 12; distinguished;

Sher Singh v. litendranat/J, A.LR. 1931 Cal. 607, disaporoved;

Ratansha Kal'asji v. Be/:ramsha Pardiwala, l.L .• t. (1945] Born. 141, approved.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 97 of 1966.

Appeal by special leave from the judgment and order dated December 20, 1965 of the Punjab High Court in Criminal Revision No. 671 of 1965.

Bishan Narain and R. N. Sachthey, for the appellant.

Nuruddin Ahmed, Ani/ Kumar Sab/ok and R. B. Datar, for respondent No. I. ·

S. V. Gupte, Solicitor-Genera/ and A. G. Pudissery, for the Advocate-General for the State of Kerala.

R. H. Dhebar and S. P. Nayyar, for the Advocate-General for the State of Gujarat.

O. P. Rana, for the Advocatt-Chneral for the State of U1tar Pradesh.

Naunit Lal, for the Advocate-General for the State of Assam.

A. V. Rangam, for the Advocate-General for the State of Madras.

The Judgment of the Court was delivered by

Vaidialingam, J. The question that arises for consideration in this criminal appeal, by special leave, is regarding the right of a Public Prosecutor to file an application, under s. 494 of the Code of Criminal Procedure (hereinafter called the Code), in respect of a complaint, filed by a private party, and which was being prosecuted by him as such.

The facts giving rise to this appeal are, briefly, as follow:;.

Harnek Singh lodged a complaint at the Police Station, Phu!, on October 15, 1964, at about 10.40 p.m., that while coming out of a picture house, along with Surjit Singh, first respondent herein, his foot accidentally struck against a third party, Avtar Singh, who was

also corning out of the picture house, along with Raj Pal, the second respondent. According to the complaint, A:tar Singh and the second respondent picked up a quarrel with Harnek Singh but they were pacified and separated by the Manager of the cinema, who intervened. It is also alleged that when later, Harnek Singh and the first respondent were near the Civil Hospital, Phu!, the scond

PUNJAB v. SURJIT SINGH (Vaidia/ingam, J.) 349

respondent fired a shot at Harnek Singh. The Police appears to have investigated this complaint and took the view that the second respondent had not participated in the occurrence and that he has been falsely implicated on account of enmity.· But, before the police actually filed a complaint before the Magistrate against A v\ar Singh alone, the first respondent instituted a complaint before the Magistrate under ss. 307, 504 and 323 read withs. 34, l.P.C., against both Avtar Singh and the second respondent. The Magistrate, after holding a preliminary enquiry, issued summons to both the accused.

On January 8, 1965, the Prosecuting Deputy Superintendent of Police, Bhatinda, Shri Harbans Singh, filed an application, in his capacity as Public Prosecutor, before the trial Magistrate, under s. 494 of the Code, for permission to withdraw from the prosecution of the case and for discharging the second respondent. According to that officer, the second respondent was innocent and had been falsely involved, in the case, by the compbnant and that this fact had come to his knowledge during the investigation.

The said application was opposed by the first respondent on two grounds : (I) that Shri Har bans Singh, Prosecuting Deputy Superintendent of Police, did not exercise the powers of a Public Prosecutor and therefore that he had no locus standi to file the application; and

(2) that the application was not bona fide. In consequence, the second respondent prayed that permission should not be granted for withdrawal.

The trial Magistrate, by hi; order dated February 8, 1965, over ruled the objections raised by the first respondent and held that the Prosecuting Deputy Superintendent of Police was the Public Prosecutor for the entire distrkt of Bhatinda, within whose jurisdiction the Magistrate's Court at Phu! was situated, and that the application was bona fide. In consequence, the Magistrate gave permission for the withdrawal of the case as against the second respondent, who

was one of the two accused.

This order was challenged by the first respondent, in revision before the learned Sessions, Judge, Barnala. Apart from contending that the officer, who presented the application under s. 494 of the Code, for withdrawal, was not a Public Prosecutor, the first respondent urged a slightly new ground of attack. That grrund of attack was that, even assuming 1hat the said Officer was a Public Prosecutor, nevertheless, he could not file an application under s. 494 of the Code, inasmuch as the Public Prosecutor was not in charge of the prosecution, which was being conducted by the complainant, a private party. The learned Sessions Judge held that the Officer, who filed the application under s. 494 of the Code, had been appointed as Public Prosecutor for the Magistrate's Court at Ph11l by the Government. The Sessions Judge also held that the said

Public Prosecutor could intervene in a criminal case, instituted on A a private c0mpk:nt and such Public Prcsccutor could be considered to be one who had take;: charge of the case when he made an application to withciraw frnm the p:osccution.

In this view, both the objections, raised by the first respondent, were ove.-- ruled. The learned Sessions Judge, on the merits, had also taken the view that, in giving permission to withdraw from the prose- B cut ion, the Magistrate had exercised his jurisdiction judicially, and not in any arb; trary manner, and that he gave permission only after considering the reasons given by the Public Prosecutor in the application filed by him.

Ultimately, the mder of the trial Magistrate was confirmed by the learned Sessions Judge.

The first respondent, again, went up in revision to the Punjab C High Court, challenging the two orders passe-: by the trial Magistrate and the learned Sessions Judge. A Division Bench of the Punjab High Court, consisting of Falsha .. v, C.J., and Khanna J., by their order dated December 20, 1965, have accepted the contentions of the first respondent herein and have, ultimately, held that a Public Prosecutor cannot withdraw, under s. 494 of the Code, from the D prosecution of a cas~ pending before a Magistrate, instituted upon a private complaint, despite the complainant's objection to the withdrawal of the case. The learned Judges, in consequence, directed the complaint filed by the first respondent, against both the acwscd, to be proceeded with.

h the High Court, the fir~: responde'1t has accepted the position that Shri Harbans Singh, Prosecuting Deputy Superintendent of Police, Bhatinda, has been vested with powers of a Public Prosecutor, and therefore he was a Public Prosecutor. But the main objection taken before the High Court to the legality of the orders of the learned Sessions Judge and the trial Magistrate, was that, as the case before the Magistrate haJ been started on a private complaint and the Public Prosecutor being nowhere in the picture, he had no locus standi to file an application under s. 494 of the Code.

The High Court, after a review of the decisions placed before it, has held that when a case is pending before a Magistrate ancl has been initiated on a police report, it is the State that nor:na lly :manges for the conduct of the prosecution; but, in the case of a private complaint before a Magistrate, which is conducted by the complainant or by his duly authorized counsel, the Public Prosecutor docs not come into the picture in the conduct of such cases, and therefore he has no locus standi to file an application under s. 494 or the C1)dc in respect of such case. It is the farther view of the High Court that

,-ihen neither the Public Prosecutor, nor, for the matter of thal, anv agency of the State, was in charge of the conduct of the P• osecutio~ it is difficult to hold that the Public Prosecutor can withdraw from such prosecution. The learned Judges have also held tht, if it is

PUNJAB v. SURJIT SINGH (Vt1idialingam, J.)

35 J

accepted that any public prosecutor can file an application under s. 494, in a ease which is being proceede.d with' by the complainant, on a private complaint, it will lead to all kinds of abuses and mischief.

Before we advert to the contentions of the learned.counsel for the appellant and for the respondents, and the Advocates-General of some States, who have intervened in the matter, on notice issued to them, it will be convenient to refer to the material provisions of the Code, dealing with Public Prosecutors, contained in Chapter XXXVIII, Part IX of the Code. Those provisions are ss. 492 to

495. Public Prosecutors are appointed by the State Government under s. 492(1), or by the District Magistrate or the Sub-Divisional Magistrate, under sub-&. (2) of s. 492. The appointment, under sub-s. (1) of s. 492, can be a general appointment, or for a particular case, or for any specified class of cases, in any local area. Under this provision, more than o:i.e officer can be appointed as Public Prosecutors by the State Government. Under sub-s. (2), the appointment of the Public Prosecutor is only for the purpose of a single case. There is no question of a general appointment of the Public Prosecutor, under sub-s. (2). Therefore, it will be seen, that a Public Prosecutor or Public Prosecutors, appointed either generally, or for any case, or for any specified classes of cases, under sub-s. (!), and a Public Prosecutor appointed specifically for a single case, under sub-s. (2), are all Public Prosecutors' under the Code.

Section 493 dispenses with the necessity of the Public Prosecutor having to file any written authority, when he is in charge of a particular ci.se. That section clearly deals with a particular case and refers to the Public Prosecutor being in charge of that particular case. Under those circumstances, he is not required to file any written authority. That s. 493 deals with a single specified case and that it applies only tn the Public Prosecutor, who is actually in charge of that case, is also made clear by the later part of s. 493.

That is to the effect that if the Public Prosecutor is in charge of a particular case and, in that particular case, a private person instructs a pleader to prosecute any person, the Public Prosecutor alone is entitled to conduct the prosecution and the pleader appearing in that case for the private person is only to act under his instructions. The expression 'any person in any such case', occurring in the later part of s. 493, clearly leads to the conclusion that both the Public Prosecutor and the private person, through a pleader, are prosecuting the sa..-ne case. Hence it is, in oi..r view, that s. 493 deals with a particular case.

Section 494 deals with withrawal from prosecution.

The expression 'any case of which he has charge', occurring in s. 493; is not found in s. 494. But the expression 'withdraw from the

prosecution of any person,' occurring ins. 494, in our opinion, contemplates that the Public Prosecutor, who files the application for withdrawal under that section, must be Public Prosecutor, who is already in charge of that particular case, in which the application is filed.

Section 494 indicates the stage at which the Public Prosecutor can file an application for withdrawal and it also deals with the effect of such withdrawal. In cases tried by jury, the application must b" filed before the return of the verdict and, in all other cases, before the judgment is pronounced. The effect of such withdrawal is also indicated in clauses (a) and (b) of s. 494.

We may, at this stage, note that an argument was attempted to be raised by learned counsel for the appellant thats. 494, when it speaks of an application being filed 'in other cases before the judgment is pronounced', clearly contemplates that in all cases, which are not tried by a jury, whether a Public Prosecutor is in charge or not, he is entitled to file an application under s. 494. In our opinion, this contention has only to be stated to be rejected. As we have already pointed out, s. 494 deals only with the stage when an application can be filed, depending upon whether it is a case tried by a jury-in which case it must be filed before the return of the verdict-and, in other cases, before the judgment is pronounced. The expression 'in other cases' occurring in s. 494, must be understood in this context and, if so understood, it only means that it takes in cases, other than those tried by jury.

We then come to s. 495.

Under that section, power is given to a Magistrate, enquiring into or trying any case, to permit the prosecution to be conducted by any person, other than an officer of police below a rank to be prescribed by the State Government in that behalf; and such an officer, under s. 495 (2), is again clothed with the power of withdrawing from the prosecution, as provided by s. 494. It will be seen that s. 495 deals with a person permitted by the Magistrate to conduct the prosecution of a particular case.

But for the specific provision made in sub-s. (2) of s. 495, such an officer will not have the power, which could be exercised by a Public Prosecutor, under s. 494. Subs. (3) also indicates that a prosecution can be conducted by a private complainant, either by himself or by pleader. It will be noted, that both s. 492(2) and 495(1) deal with the appointment of a person to prosecute a particular case. The State Government can also appoint, under s. 492(1 ), a public Prosecutor for a particular case.

Mt. Bishan Narain, learned counsel for the appellant, has urged that the view taken by the learned Judges of the Punjab High Court, is quite opposed to the clear wording of s. 494 of the Code. Learned counsel points out that the said section is unambiguous, and that it gives an unqualified right to any person, who, in law, is a Public Prosecutor, to file an application to withdraw from the Prosecution.

Counsel also points out that all offences affect the public and that all prosecutions are conducted by the State, through its officer, viz., the Public Prosecutor; and, even though the criminal prosecution.

i:i the instant case, has been initiated on a private complaint by the first respondent, nevertheles3, the prosecution, in law, is in the hands of the State and so the Public Prosecutor, appointed under s. 492 is entitled to intervene at any stage and file an application under s. 494.

Mr. Bishan Narain further points out that there is no limitation, prescribed by s. 494 of the Code, that the application for withdrawal can be filed only by a Public Prosecutor, who is already in charge of the case. Even assuming that it is necessary that the Public Prosecutor, who files an application under s. 494 of the Code, should have charge of the case in question, that is amply satisfied in this case. According to learned counsel, the first respondent has accepted that the Public Prosecutor, who filed the application in question, is the Public Prosecutor appointed by the State Government to conduct cases in the Magistrate's Court at Phu!, where the first respondent's complaint was being enquired into. When the said Public Prosecutor intervened, in this case, by filing an application under s. 494, he must be considered to have taken charge of the case. If so, counsel points out, the Public Prosecutor amply statisfies the requirements of his being in charge of this case.

Counsel was also prepared to contend for the larger proposition that, even when a Public Prosecutor is appointed generally, by the E Government, for any local area, under s. 492( I) of the Code, by virtue of his appointment as such Public Prosecutor, he must be considered to be in charge of every prosecution thct is being conducted before .that Court, irrespective of the fact whether he actually conducts the prosecution or not. Counsel also pointed out that a _ duty is cast, in law, on the Public Prosecutor, who is an officer of F . Court, to bring to the notice of the Court that there is no case which

 has to go to trial as against a particular accused and it is, for that

; i1'tr~.i. that power is given to him, under s. 494, to file an application to withdraw from the prosecution. Therefore, according to learned counsel, the High Court has taken a very narrow view, when it held that, in this case, the Public Prosecutor, who filed an G application under s. 494, cannot be considered to be in charge of the case, inasmuch as it was initiated as a private complaint, filed by the first respondent, and was being conducted by him as such.

The learned Solicitor General, Mr. S. V. Gupte, has appeared on behalf of the Advocate-General of Kera la. The Advocates- Genera! of Assam, Uttar Pradesh and Madras. were also represen- H ted before us, by counsel.

Respondent No. I was represented by learned counsel, Mr. Nuruddin Ahmed. Counsel appearing for the Advocates-General of the States of Assam, Uttar Pradesh and Madras, have supported the appellant's contentions.

M!Sup. Cl/67-9

354 SUPREME COU!lT REPORTS

[1967] 2 S.C.R. ·

The learned Solicitor General, on the other hand, has supported the views expressed by the Punjab High Court. He pointed out that sub-s. (!) of s. 492, of the Code, provides for the appointment of Public Prosecutors. The appointment of a Public Prosecutor, by a State Government, can be a general one, or, for a particular case, or, for any specified classes of cases, for any local area.

Under sub-s. (2), the District Magistrate, or the Sub-Divisional Magistrate,

is given power to appoint, in circumstances mentioned therein, any person not being an Officer of the Police below such rank as the State Governme-it may prescribe in that behalf, to be Public Prose.:utor for the purpose of any case. Therefore there can be two types of Public Prosecutors, as contemplated in sub-ss. (I) and (2), i.e., Public Prosecutors appointed generally, and Public Prosecutor appointed for any particular case. Section 493 of the Code dispenses with the filing of any written authorily, by a Public Prosecutor appointed under sub-ss. (1) or (2) of s. 492. The learned Solicitor General points out that s. 493 deals with a Public Prosecutor, with specific reference to the particular case of which he has charge. It is pointed out that if the contention of the appellant that any Public Prosecutor can file an application under s. 494-even when he is not in charge of that case-is accepted, then the position will be that a Public Prosecutor, who is appointed for a particular case, say Case A, either by the State Government, under s. 492(1 ), or by the District Magistrate, under sub-s. (2) of that section, will become a Public Prosecutor and, as such, entitled to file an application, under s. 494, for permission to withdraw from the prosecution of Case B, with which he has nothing to do. That will lead, the Solicitor General points out, to very anomalous results, and such a situation is not contemplated by the provisions of the Code. The learned Solicitor points out that s. 494 must be interpreted in the light of s. 493 of the Code and, if so interpreted, it will follow that the Public Prosecutor, who is referred to, under s._ 494, as being entitled to file an application to withdraw from the prosecution, can only be the Public Prosecutor who is actually in charge of that particular case.

He points out that the expression 'withdraw from the prosecution', used in s. 494, shows that the Public Prosecutor is already in charge of that case. If he is not in charge of the case, in which the application under s. 494 is filed, there is no question of the Public Prosecutor withdrawing from the prosecution, in that case.

Tile learned Solicitor General also points out that the idea underlying s. 494 is that the Public Prosecutor, who is an officer of Co irt and who is conducting the prosecution, would have conside; ' the materials available in the case and formed an opinion, on that basis, to withdraw from the prosecution of any person. If a Public Prosecutor, who had nothing to do with the case, and who has not been in charge of that case, is allowed to step in and file an application under s. 494, in any case, the entire object and purpose

A for which that section has been enacted, the learnea Solicitor points out, will be completely defeated.

J-[e also points out that no general power, as such, is intended to be conferred by s. 494, on all Public Prosecutors. He further urges that, inasmuch as a privilege or a right is given to an officer under s. 494, the scope of authority, conferred by that section, must be very strictly limited to serve the pur- B pose for which that section has been enacted. '

Mr. Nuruddin Ahmed, learned counsel appearing for the first respondent, has also supported in full, the contentions advanced by the learned Solicitor General. Counsel for the appellant points out' that the scheme of the Code itself shows that a complainant is allowed to file a private complaint and prosecute the same.

That may be necessary, according to learned counsel, when, for some reason or the other, the police do not file a complaint, implicating a particular person as an accused. In such cases, when the complainant himself prosecutes the complaint, learned counsel points out, the Public Prosecutor is nowhere in the picture and he cannot be considered to be in charge of the case, so as to give him a right to file an application under s. 494. Counsel also points out that s. 493, when it refers to a Putlic Prosecutor in conjunction with a case of which he has charge, it refers to the Public

Prosecutor, not in the abstract, but to the Public Prosecutor who is actually in charge of a particular case. Under s. 494 also, counsel points out, the Public Prosecutor, who can ask for wifhdrawing from the prosecution, must be the cne who is in charge of the particular case in which he asks for such permission from the Court.

Therefore, according to Mr. Nuruddin Ahmed, in this case, when his client had filed a cri, ninal complaint and was prosecuting the same, the public Prosecutor, who was nowhere ii} fhe picture, had no right to ask for withdrawal from the prosecution under s. " 494 of the Code, as held by the High Court in the order under attack.

--·--·""" After giving due consideration to the contentions raised before us, and referred to above, in our opinion, the contentions of the learned Solicitor General and of Mr. Nuruddin Ahmed will have to be accepted. We have already referred to the relevant provisions of the Code and pointed out their salient features. We will refer, now, to some of the decisions placed before us by counsel for the appellant, Mr. Bishan Narain.

Before we refer to those decisions, however, it is necessary to advert to the decision of this Court in The State of Bihar v. Ram Naresh Pandey(') where, after tracing the history of the present s. 494, the Court has ooserved fhat it is right to remember that the Public Prosecutor, though an executive officer, is, in a larger sense. also an officer of the Court and that he is bound to assist the Court

(I) [1957] S.C.R. 279.

with his fairly considered view and the Court is entitled to have the benefit of the fair exercise of his function. But the question which is posed, in the present case, did not arise for consideration in that decision.

In Queen Empress v. Murmji Gokuldas(•), there are no doubt observations to the effect-that all offences affect the public and that in all prosecutions the Crown is the Public Prosecutor and that a proceeding is always treated as a proceeding between the Crown and the accused. In our opinion, these general observations will not, in any manner, assist the contentions of the appellant.

In State v. Atmaram M. Ghosa/e(2), the learned Judges have observed that it is very obvious to think that all prosecutions, however initiated, are always to be deemed as prosecutions by the State. That decision also does not advance the case of the appellant any further.

In Gul/i Bhagat v. Narain Smgh( ), the learned Judges had to consider, whether a permission granted under s. 494 of the Code, to the Public Prosecutor, to withdraw from the prcsecution, can be challenged in revision, by a private party. Rejecting the revision, the learned Judges have, no doubt, observed that

"there is a deeper and indeed a fundamental reason for non-interference which turns upon the pt, sition of a private prosecutor in prosecutions for cognizable offences."

The learned Judges also state that the Crown is the prosecutor and the custodian of the public peace and if it decides to let an offender go, 'no other aggrieved party can be heard to object. A careful study of the facts, in that case, will show that the learned Judges were dealing with a case where the Public Prosecutor was conducting the prosecution and he was in charge of the particular case in which he asked for leave to withdraw the prosecution as aiainst some of the accused, and leave was granted. Th3t order, was challenged by a private party, by way of revision, before the High Court. That decision, again, does not assist the appellant.

In Amar Narain v. State of Rajasthan(4), tile learned Judges had occasion to deal with a matter similar to the one that came up before the Patna High Court in Gulli Bhiigat's Casel). A private party had chal!enged, before the High Court, in revision, the order of the Magistrate permitting the public prosecutor to withdraw from the prosecution under s. 494 of the Code. That again was a case, as will be seen from the facts gathered from the judgment, in which the prosecution was launched by the State and it was also being

(1l l.L.R. (1889) 13 Born. 389.

(3) 1.1.R. (1923) 2 Pat. 708.

(2) I.LR (1965) Bern. H13.

(4) A.l.R. 1952 Raj. 42.

A conducted by the Public Prosecutor and the Public Prosecutor filed an application under s. 494 for withdrawal from the prosecution and that was allowed. Wanchoo, C.J., in dismissing the revision petition of the private party, challenging the order of the Magistrate, observed that the private party, under those circumstances, had no right to go to the High Court in revision. The learned Chief Justice B also states that in a criminal case, it is the State which is in control of proceedings, particularly where the prosecution is launched at the instance of the State, and observes, at p. 43;

"Jn cases, therefore, in which the Public Prosecutor appears it is for him to decide whether he would continue wi•h the prosecution or withdraw from it. If he decides to withdraw, he has the power to apply to the Cou1t under s. 494 Criminal, P.C., for giving consent to his withdrawal.

This power cannot, in our opinion, be subject to the wishes of a third person even though he might be interesed directly in the case."

The Rajasthan High Court, in the above decision, had no occasion to consider as to whether a Public Prosecutor, who is not in charge of a particular case, has got a right to apply •mder s. 494 of the Code.

Therefore, this decision also, is not, in our opinion, in any way, helpful to the appellant.

In Sher Singh v. Jitendranath('), the learned Judges had occasion to consider the question as to the legality of an application for withdrawal of prosecution filed by a Public Prosecutor, entering appearance for that purpose only. Ghose, J., expresses the view that such an application filed by a Public Prosecutor, who has not """ been in charge of the case, though not regular, cannot be considered to be illegal. On the other hand, Lord Williams, J., the other member of the Bench, was prepared to take the view'that the

ajon of the Public Prosecutor, in entering appearance simply for the purpose of withdrawal, though unusual, is neither illegal nor irregular. No doubt, this decision of the Calcutta High Court, prima facie, supports the contention of the appellant. But we are not inclined to accept the reasoning, adopted by the lea.med Judges, in this case.

In Pratap Chand v. Bihari La/(2), the P'ublic Prosecutor entered appearance, in a case instituted on a private complaint, which was being prosecuted by the said private complainant, and asked for withdrawal from the prosecution, under s. 494 of the Code, and that application was granted by the Additional District Magistrate.

That order was challenged on the ground that the Public Prosecutor had no right to intervene in the proceedings, initiated on a private complaint, and ask for withdrawal from the prosecution and that,

(1) A.l.R. 1931Cal.6Cl7.

(2) A.LR. 1955 J&K 12.

in any event, the Public Prosecutor should not have asked for such withdrawal without consulting the complainant. The learned Judges were not prepared to accept this contention and they held that the Public Prosecutor, in that case, had taken charge of the case, under instructions of the District Magistrate, on a date much earlier to the date when the application for withdrawal from the prosecution was made by the Public Prosecutor. On this ground, the learned Judges dismissed the revision filed by the private complainant. This decision, again, in oar opinion, must be restricted to the facts of the case and as one based upon the finding that the Public Prosecutor had taken charge of the case long before the date on which he filed the application under s. 494. If that is so the Public Prosecutor can be considered to be in charge of the case in which he filed an application under s. 494. Therefore, this decision also, in our opinion, docs not assist the appellant.

But, if, on the other hand, the effect of this decision is to lay down, as is contended before us, that a Public Prosecutor, merely by virtue of his office, is entitled to file an application under s. 494, even in a case of which he is not in charge, in our opinion, that decision cannot be accepted as lying down the correct law.

Mr. l\uruddin Ahmed, learned counsel for the first res., ondcnt, has referred us to the observations of the Bombay High Court

in Ratansha Karnsji v. Be/trams/ta Pardiuala(1).

In that case it will be seen that in .respect of a complaint filed by the police before a Magistrate, the Public Prosecutor applied for permission to withdraw the complaint and the Court granted the same and allowed the case to be withdrawn, and discharged the accused under s. 494 of the Code.

Immediately after the withdrawal of the said complaint, a private complaint was filed by the revision-,, titioner ,- before the High Court, against the same accused, on the same facic and before the same Magistrate. The Magistrate dismissed the complaint on the ground that, as the police case on the same facts has been allowed to be withdrawn, the second complaint wasnot maintainable. This order of the Magistrate was challenged, in revision, before the High Court, by the complainant. No doubt, ultimately, the learned Judges set aside the order of the Magistrate and remanded the proceedings as, in their opinion, there has been no sufficient compliance with the provisions of s. 203 of the Code.

But, it is necessary to note that, on behalf of the respondents before the High Court, one of the grounds urged, fer not interfering with the order of the Magistrate, was that even the second prosecution, initiated by the private complainant, can, in law, be withdrawn by the Public Prosecutor. On this ground, it was further urged that the mere circumstance that a fresh complaint has been privately lodged by the revision-petitioner on the same facts as the policeprosecuion bad been based, would not be sufficient ground for pro- (Il l.L.R. 1945 Bom. 1,-1.-

c •

ceeding with the complaint. In rejecting this contention, the learned Judges observed, as follows :

"We may at once say that we 'do not agree with the ' contention that in the second case the Public Prosecutor or the Police .Prosecutor could have withdrawn from the prosecution. The remarks that Mr. Thakor has relied on in Queen Empress v. Murariji Gokuldas (1888 13 Born.

389) appear to have been made with reference to cases in which the prosecution is conducted by the Public Prosecutor.

The words 'any Public Prosecutor may withdraw from the prosecution' in s. 494 clearly imply that the prosecution referred to must be one which is already being conducted by the Public Prosecutor and it seems clear to us that unless the Public Prosecutor is already in charge of the prosecution, he cannot withdraw from it, and that the Public Prosecutor was here not in charge of the second

prosecution." The learned Judges of the Bombay High, Court quite rightly emphasised that an application under s. 494 can be made only when the prosecution referred to therein is one which.is already being condu.:ted by the Public Prosecutor and that, unless the Public Prosecutor is already in charge of the prosecution, he cannot withdraw from it.

We are in entire agreement with th, ese observations of the learned Judges of the Bombay High Court as, in our opinion, that is the correct interpretation to be placed on s. 494 of the Code.

In our opinion the Public Prosecutor, who can file an application under s. 494 of the Code; must be the Public Prosecutor who is already in charge of the particular case in which that application is filed. We are not inclined to accept that contention of the learned counsel for the appellant that the expression 'the Public Prosecutor' in s. 494 is to be 'understood as referring to any person who is a Public Prosecutor, whether he is a Public Prosecutor

appointed generally, under s. 492(1) or for the purpose under of a particular case, as contemplated s. 492(2) of the Code.

Section 492 only deals with the appointment of Public Prosecutors by the Government or by the District Magistrate, in circumstances mentioned therein and s. 493 specifically refers to the Public Prosecutor who is in charge of the case which is under enquiry, trial or appeal, when appearing and pleading before such Court. Section 493 only dispenses with the Public Prosecutor having to file any written authority. .That section also makes it clear that if any private person is instructing a pleader to prosecute any person 'in any such case'-which must have reference to the case of which the Public Prosecutor is in charge-nevertheless the Public Prosecutor shall conduct the prosecution and the pleader is to act under his directions. Section 494 also, in our opinion, must refer. only to the Public Prosecutor who is in charge of the particular case

in which he makes a request to withdraw from the prosecution. Some of these aspects have been already adverted to by us earlier. If any Public Prosecutor, who had nothing to do with a particular case is held entitled to file an application under s. 494, in our opinion, the result will be very anomalous. For instance, if there are two Public Prosecutors appointed for a particular Court, and one of the Public Prosecutors is ccaducting the prosecution in a particular case, and desires to go on with the proceedings, it will be open to the other Public Prosecutor to ask for withdrawal from the prosecution.

Similarly, a Public Prosecutor appointed for case A, before a particular Court, can, by virtue of his being a Public Prosecutor, file an application in case B, with which he has nothing to do, and ask for permission of the Court to withdraw from the prosecution.

The reasonable interpretation to be placed upon s. 494, in our opinion' is that it is only the Public Prosecutor, who is incharge of a particular case and is actually conducting the prosecution, that can file an application under that section, seeking permission to withdraw from the prosecution. If a Public Prosecutor is not in charge of a particular case and is not conducting the prosecution, he will not be entitled to ask for withdrawal from prosecution, under s. 494 of the Code.

In the case on hand, it is found by the High Court, that the prosecution is being conducted b, y the complainant, viz. the first respondent herein, and the Prosecuting Deputy Superintendent of Police, Bhatinda, was nowhere in the picture, when he filed the application under s. 494 of the Code. The view of the High Court that such a Public Prosecutor is not entitled to file an application for withdrawal, in the circumstances is perfectly correct.

The appeal therefore fails and is dismissed.

R.K.P.S.

Appeal dismissed.

STATE OF PUNJAB

SURJIT SINGH & ANOTHER

January 6, 1967

K. SUBBA RAO

C. SHAH

S. M. SIKRI

V. RAMASWAMI

Procedure Code, 1898

s. 494

Penal Code

s. 494

Cr.P.C

s. 494

s. 494

s. 494

s. 492(1)

s. 492(2)

s. 494

Bishan Narain

R. N. Sachthey

Nuruddin Ahmed

R. B. Datar

S. V. Gupte

A. G. Pudissery

R. H. Dhebar

S. P. Nayyar

O. P. Rana

Naunit Lal

A. V. Rangam

Vaidialingam

s. 494

Code of Criminal Procedure

Harnek Singh

Police Station, Phu

October 15, 1964

Surjit Singh

Avtar Singh

Raj Pal

A:tar Singh

Harnek Singh

Civil Hospital, Phu

ss. 307, 504 and 323

Avtar Singh

January 8, 1965

Harbans Singh

s. 494

Har bans Singh

February 8, 1965

Bhatinda

Magistrate's Court at Phu

Barnala

s. 494

s. 494

s. 494

Punjab C High Court

Punjab High Court

Khanna

December 20, 1965

s. 494

s. 494

s. 494

s. 494

Part IX of the Code

ss. 492 to

495

s. 492(1)

s. 492

s. 492

Section 493

s. 493

s. 493

s. 493

s. 493

Section 494

s. 493

s. 494

Section 494

s. 494

s. 494

s. 494

s. 494

s. 495

s. 495

s. 494

s. 495

s. 495

s. 494

s. 492(2) and 495(1)

s. 492(1 )

Bishan Narain

s. 494

s. 492

s. 494

s. 494

s. 494

s. 494

s. 492( I)

s. 494

s. 494

S. V. Gupte

s. 492

Section 493

s. 492

s. 493

s. 494

s. 492(1 )

s. 494

s. 494

s. 493

s. 494

s. 494

s. 494

s. 494

s. 494

s. 494

s. 494

s. 493

s. 494

Nuruddin Ahmed

s. 494

s. 494

Patna High Court

Gulli Bhiigat's Casel

s. 494

s. 494

Wanchoo

s. 494

Rajasthan High Court

s. 494

Ghose

Williams

Calcutta High Court

s. 494

s. 494

s. 494

s. 494

l\uruddin Ahmed

Bombay High Court

s. 494

s. 203

Thakor

s. 494

Bombay High, Court

s. 494

s. 494

s. 494

s. 494

s. 492(1)

s. 492(2)

Section 492

s. 493

Section 493

Section 494

s. 494

s. 494

s. 494

s. 494


STATE OF MYSORE

H. SANJEEVIAH

January 16, 1967

[K. SUBBA RAO, C. J., J.C. SHAH, S. M. SIK.RI, V. RAMASWAMI AND C. A. VAIDIALINGAM, JJ.j

Madras Forest Act (II of 1900), s. 37-Power to make rules regulating transit of forest produce-Rule 2, provisor-:-1 hese pro.h.ibiiing removal of forest produce b!!tween 10 p.1n. and un-r1e and condtionally permitting removal between sun-set and 10 0.111.-.Sucll restrlction..r; <>n contractors whether prohibitory .or regulatory-Whether within rule making power.

Constitution of India, Arts. 301, 304, 305-Freedom of trade-Proviso to Rule 2 framed under s. 37 of Madras Forest Act whether restrictive of such freedom, whet Im saved by Art. 304-W hetlier 'existing /aw' for the purpose of Art. 305.

Section 37 of the Madras Forest Act, 1900, gave power to the State Government to make rules regulating the transit of forest produce. Rule :Z. fr;.med thereunder prohibited the removal of forest produce without a permit. After the promulgation of the Constitution in 1950 two provisos were added to the said rule the first of which prohibited the issue of permits allowing forest produce to be removed between sun-set and sunrise, while the second permitted such removal between sun-set and !O p.m. on certain conditions. The respondent who was a forest contractor filed a writ petition in the High Court challenging the validity of the provisos on the ground that they were beyond the rule making power under s. 37 of the Madras Forest Act and were restrictive of his freedom of trade and commerce declared by Art. 301 of the Constitution. The petition was allowed and the State appealed.

HELD: (i) Power to impose restrictions of the nature contemplated by the two provisos to r. :Z. is not to be found in any of the clauses of sub-s. (2) of s. 37. By sub-s, (l) the State Government is invested with the power to "egulate transport of forest produce "in transit by land or water." The power which ti-c State Government may exercise is however power to regulate transport of forest produce, and not the power to prohibit or restrict transport. Prima facie, a rule which totally prohibits the movement of forest produce during the period between sun-set and sunrise is prohibitory or restrictive of the right to transport forest produce.

A rule regulating transport in its essence permits transport, subject to certain

i conditions devised to pwmote transport: such a rule aims at making transport orderly so that it does not harm or endanger other persons following a similar vocation or the public. and enables transport to function for the public good. [364 G-H; 365 A] Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan, [1963] 1 S.C.R. 491, relied on. If the ll_rovisos are in truth restrictive of the right of transport of the

ores! produce, however good the grounds apparently may be for restrictmg the transport of forest produce. they cannot on that account tramform the power conferred by the provisos into a power merely regulatory ~~ - .

(ii) Article 301 in terms prohibits the impos; tion of any restriction on trade, commerce and intercourse throughout the territory of India and

by the enactment of the two provisos clearly restriction is imposed on the freedom of trade. The provisos to the rule must therefore be deemed to be invalid as infringing the guarantee under Art. 30 I of the freedom of trade commerce. and intercourse. (366 C-D]

The provisos were not protec:ed by Art. 305. Section 37 which conferred power to make rules was .. existing law" within the moaning of that expression in Art. 305 but the rules made in exercise of that power after the Constitution cannot be deemed to be

0 cxisting law". The mere fact that there was authority in the State under a pre-Constitution Act to make rules which may impose restrictioQS o_n trade, commerce and

intercour~. but which was not exercised, will not make the rule made in exercise of the authority after the Constitution .. existing law" within the meaning of the Constnution. (366 G]

Ka/vat1i Stores v. Stale of Orissa, A.LR. (1966) S.C. 1686, relied on.

Kasi Prasad v. Sate of Orissa, A.1.R. <!963) Orissa 24, disapproved.

Article 304 which is an exception to Art. 301 had no application to the case because that Article saved cenain laws from the operation of An. 301 if the law was passed by the Legislature of a State. The provisos to -J. 2 were not made by the Legislature of the Stale; they were made by the Executive Goverrunent in exercise of delegated authority.

Moreover they had not been shown to be reasonable restriction on the freedom of trade commerce and intercourse imposed in the public interest so u to satisfy the terms of Art. 304(b). 1367 D-EJ

CML APPELLATE JURISDICTION : Civil Appeal No. 1010 of 1965.

Appeal by special leave from the judgment and order dated July 11, 1963 of the Mysore High Court in Writ Petition No. 1601 of

1962.

E S. V. Gupte, Solicitor-Genera/, R. Ganapathy Iyer and Dhebar, for the appellant.

G. R. Ethiarajulu Naidu, K. Rajendra Chaudhuri and Chaudhuri, for the respondent.

The Judgment of the Court was delivered by

R. 1j. _,/

K.R.

Shah, J. By s. :7 of the Mysore Forest Act 11 of 1900 the State Government is authorized to make rules to regulate the "transit of ... forest produce". In exercise of the powers conferred by s. 37 the State Government of Mysore has framed rules to regulate the "transit of timber, firewood, charcoal and bamboos from all lands." By r. 2 framed on October 13, 1952 it was provided that no person shall import forest produce into, export forest produce from, or move forest produce within, any of the areas specified in Sch. 'A' (hereinafter referred to as the Scheduled area), unless -.uch forest produce is accompanied by a permit prescribed in r. 3. •_ J April 15, 1959 the State of Mysore issued a notification adding a proviso to r. 2 which read as follows :

"Provided that no such permit shall authorise any person to transport forest produce between sun-set and sun-rise in any of the areas specified in Schedule "A".

A By another notification dated September 14, 1960, the State Government introduced the second proviso to r. 2 which read :

"Provided further that permission may be granted to timber merchants on their requisition to transport timber up to IO P.M. (22 hrs.) under the following conditions :-

(i) the party who wishes to avail of the concessions should pay a cash deposit of Rs. 1,000 as security for due "compliance with the timber transit rules as in force;

(ii) that the deposit may be forfeited to Government for breach of any of the conditions of the Timber Transit Rules." ·

The respondent who is a dealer in timber filed a petition under Art. 226 of the Constitution for an order quashing the two provisos to r. 2, on the grounds inter alia that the two provisos were beyond the rule-making authority conferred upon the State Government by s. 37 of the Mysore Forest Act II of 1900, and that in any event the provisos imposed unauth01ised restrictions on the freedom of trade, commerce and intercourse. The High Court of Mysore lield that by the provisos inserted in r. 2 the State Government had while seeking to regulate the transport of timber "stopped transport altogether", and in doing so the State Government acted in excess of the powers conferred upon it by s. 37 of the Act. The High Court also held that the two provisos were not saved by Art.

305 of the ConGtitution and since the function of the two provisos was not regulatory but prohibitory, they were violative of Art. 301 of the Constitution and must be struck down as unconstitutional.

With special leave granted by this Court, the State of Mysore has appealed to this Court.

Section 37(1) of the Mysore Forest Act 11 of 1900 provides :

"The control of all rivers and their banks as regards the floating of timber, as well as ihe control of all forest produce in transit by land or water, is vested in the State Government which may make rules to regulate the transit of any forest produce."

Sub-section (2) provides :

"Such rules may, among other matters,

(a)

(b) prohibit the import, export, collection, or moving of forest tiroduce without a pass from an officer au:horised

to issue the same, or otherwise than in accordance with the conditions of such pass;"

By r. 2 which is framed in exercise of the power under s. 37 (2) (b), a person intending to transport forest produce must obtain a pass from an authorised officer. The rule so made is clearly regulatory of the right to transport forest produce.

But a restriction is imposed on the right to transport forest produce by the two provisos incorporated in the rule in 1959 & 1960.

By the first proviso the holder of a pass is not authorised to transport forest produce between the hours of sun-set and sun-rise in any area specified in Sch. 'A', and by the second proviso it is provided that the restriction imposed by the first proviso may be relaxed between the hours of sun-set and IO P.M. if the person wishing to avail of the concession makes a cash deposit of Rs. 1,000 as security for due compliance with the "timber transit rules".

By the terms ofthe two provisos there is an absolute prohibition against transportation of forest produce between the hours of 10

P.M. and sun-rise, and a qualified prohibition between the hours of sun-set and I 0 P.M. If a transporter of forest produce makes a cash deposit of Rs. 1,000 as security, he may be permitted to transport forest produce between the hours of sun-set iuid IO P.M.

It was contended on behalf of the State that the two provisos were regulatory and not prohibitory. It was urged that every injunction in the form of a prohibition cannot be regarded as a restriction upon the right to transport, and reliance was placed upon the form of els. (b), (j) and (I) of sub-s. (2) of s. 37. What is decisive in each case, .: it was submitted, is not the form of the rule, but the substance thereof, and that the provisos sought merely to regulate transport of .(Qrst produce. Clause (b) of s. 37(2) prohibits import, export, collCCtron and movement of forest produce without a pass. The prohibition is, it is common ground, regulatory of the right to transport fotest produce.

Under cl. Ul rules may be made imposing prohibition against the closing up or obstruction of the channel, or banks of any river used for the transport of forest produce, and under cl. (1) rules may be made prohibiting absolutely or subject to conditions, the establishment of sawpits, or saw mills or any other sawing contrivance.

But els. (j) & (I) do not operate to prohibit or restrict the transport of any forest produce.

Power to impose restrictions of the nature contemplated by the two provisos to r. 2 is not to be found in any of the clauses of subs. (2) of s. 37.

By sub-s. (I) the State Government is invested with the power to regulate transport of forest produce "in transit by land or water." The power which the State Government may exercise is however power to regulate transport of forest produce, and not the power to prohibit or restrict transport. Prima facie, a rule which totally prohibits the movement of forest produce during the period between sun-set and sun-rise is prohibitory or restrictive of the right to transport forest produce. A rule regulating transport in its essence permits transport, subject to certain conditions devised to promote transport : such a rule aims at making transport orderly so that it does not harm or endanger other persons following a similar vocation or the public, and enables transport to functign for the public good. It was observed by one of us (Subba Rao, J.) in Automobile Transport (Rajasrhan) Ltd. v. State of Rajasthan.(')

"Restrictions obstruct the freedom, whereas regulations promote it. Police regulations, though they may superficially appear to restrict the freedom of movement, in fact provide the necessary conditions for the free movement. Regulations such as provision for lighting, speed, good conditions of vehicles, timings, rule of the road and similar others, really facilitate' the freedom of movement rather than retard it. So too, licensing system with compensatory fees would not be restrictions but regulatory provisions: for without it, the necessary lines of communications, such as roads, water-ways and air -ways c&.mot effectively be maintained and the freedom declared may in practice turn out to be an empty one. So too, regulations providing for necessary services to enable the free movement of traffic, whether charged or not cannot also be described as restrictions impeding the freedom."

\ It was asserted in the affidavit filed on behalf of the State in rep\y to the petition that the restriction imposed by the rules on the freiaom of citizens to transport timber, fire-wood, charcoal and bamboos is a reasonable restriction and in the public interest, i.e. to prevent unauthorised felling of trees and bamboos and smuggling them from the State forests. It was said that checking transport of the forest produce during nights would require enormous increase in the number of checking staff of the Forest Department, that such staff will have to work in two or three shifts every day if they have to check transport of forest produce during nights also, further that such staff will have to be equipped with lanterns and.warm clothings if they have to work during nights, that persons who indulge in smuggling of timber find nights more convenient to avoid detection, and that smuggling of forest produce is a serious menace to preservation of forests in the State and safeguarding of the property of the State. Whether or not these are good grounds for imposing restrictions on transport of forest produce is not a matter with which we are concerned in dealing with the power of the State by rules tL restrict the right to transport forest produce. The power conferred upon the State Government is merely "to regulate the transit" of forest produce and not to restrict it. If the provisos are in truth restrictive of the right to transport the forest produce, however, good the grounds apparently may be for restricting the transport of forest

(I) [1963] l S.C.R. 491, 549.

366 SUPREME COURT lll!PORTS

produce, they cannot on that account transform the power conferred by the provisos into a power merely regulatory. The High Court was, therefore, in our view, right in holding that the two provisos to r. 2 are not regulatory in character, but are restrictive.

The alternative ground on which the High Court has decided against the State Government must also be sustained. Article

301 provides:

"Subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free."

The provisos are undoubtedly restrictive of trade and commerce and on that account would prima facie be void, as derogating from the freedom declared by Art. 301. It has been held by this Court in Automobile Transport (Rajasthan) Ltd.'s case(') that regulatory measures, which do not hamper trade, commerce and intercourse, but facilitates them, are not hit by Art. 301 of the Constitution. But it cannot be said of the two provisos, that they are in any sense regulatory. The plea that Art. 301 does not come to the aid of the respondent because of the reservation made in Art. 305 has, in our judgment, no substance. Article 305, insofar, as it is material, provides :

I "Nothing in articles 301 and 303 shall affect the provisionsof any existing law except in so far as the PresideQt.. may by order otherwise direct;" ' ·

The expression "existing law" is defined in Art. 366(10) as meaning any Jaw, Ordinance, order, bye-law, rule or regulation i;.sssed or made before the commencement of the Constitution by any Legislature, authority or person having power to make such a law, Ordinance, order, bye-law, rule or regulation.

Undoubtedly the Forest Act was passed before the Constitution and it was brought into force before that date.

Rule 2 (as it stood originally) was promulgalcd after the Constitution, but that, as already observed, was regulatory of the right to transport forest produce. Sec•ion 37 which conferred power to make rules was undoubtedly "existing law"

within the meaning of that expression used in Art. 305, but the rules made in exercise of that power after the Constitution cannot be <leemed to be "existing law". The mere fact that there wan authority in the State under a pre-Constitution Act to make rules which may impose restrictions on trade, commerce and intercourse, but which was not exercised, will not make the rule made in exercise of the authority after the Constitution "existing law" within the meaning of the Constitution. This Court in Kalvani Stores

v. 11re State of Orlssa (2) held that a notification issued after the Con-

(I) (1963] I S.C R. 491, 549.

(2) A.I R. 1966 S.C. 1686.

stitution imposing additional duty under the power reserved under s. 90 read with s. 27 of the Bihar & Orissa Act, 1915, was not existing Jaw within the meaning of Art. 305 of the Constitution read with Art. 366(10) and the notification was invalid unless it cornplied with the requirements of Arts. 302, 303 or 304 of the Constitution. It was held by a majority of the Court that "existing law within the meaning was therefore the provision contained ln s. 27 of the Bihar & Orissa Act 2of1915 authorising the State Government to issue a notification imposing a duty at the rate fixed thereby, and the notification issued pursuant thereto before the Constitution." The decision of the Orissa High Court in Kasi Prasad v. StateofOrissa(I) in which it was held that rules framed in 1958 after the coming into force of the Constitution in exercise of the power conferred by s. 41 of the Orissa Forest Act, 1927, were existing law," and on that account not open to challenge because of Art. 305 of the Constitution, even though they violated the guarantee under Art. 301, cannot be regarded as correct.

Article 304 which is an exception to Art. 301 has no application to this case, because that Article saves certain laws from the operation of Art. 301 if the law is passed by the Legislature of a State.

The provisos to r. 2 are not made by the Legislature of the State; 'they are made by the executive Government in exercise of delegated authority.

The rules have the force of law, but when made did not become part of the Act : (see s. 77 of the

Myse Forest Act). Again Art. 304(b) exempts from the operation of Art. 301 reasonable restrictions on the freedom of trade, commerce and intercourse with or within the State as may be required in the public interest. There is no evidence of an enquiry made by the State before the provisos were framed, and no case is made out that they are reasonable restrictions on the freedom of trade, commerce and intercourse imposed in the public interest.

Article 301 in terms prohibits the imposition of any restriction on trade, commerce and intercourse throughout the territory of India, and by the enactment of the two provisos clearly a restriction is imposed upon the freedom of trade. The provisos to the rule enacted by the State Government must thereft>re be deemed to be invalid as infringing the guarantee under Art. 301 on the freedom of trade, commerce and intercourse.

The appeal fails and is dismissed with costs.

G.C.

Appeal dismissed.

(I) A.I.R. 1963 Orissa, 24.

STATE OF MYSORE

H. SANJEEVIAH

January 16, 1967

K. SUBBA RAO

C. SHAH

V. RAMASWAMI

Madras Forest Act

s. 37

Constitution of India

Arts. 301, 304, 305

s. 37

Madras Forest Act

Art. 304

Art. 305

Section 37

Madras Forest Act, 1900

s. 37

Art. 301

s. 37

[1963] 1 S.C.R. 491

Article 301

India

Art. 30

Art. 305

Section 37

Art. 305

Article 304

Art. 301

Art. 304(b)

E S. V. Gupte

R. Ganapathy Iyer

Dhebar

G. R. Ethiarajulu Naidu

K. Rajendra Chaudhuri

Chaudhuri

K.R.

Shah

s. 37

State Government of Mysore

October 13, 1952

April 15, 1959

State of Mysore

September 14, 1960

Art. 226

s. 37

Forest Act II of 1900

High Court of Mysore

s. 37

Art.

305

Art. 301

Section 37(1)

s. 37

s. 37

s. 37(2)

s. 37

Subba Rao

Article

301

Art. 301

Automobile Transport (Rajasthan) Ltd.

Art. 301

Art. 301

Art. 305

Article 305

articles 301 and 303

Art. 366(10)

Undoubtedly the Forest Act

Art. 305

s. 90

s. 27

Orissa Act, 1915

Art. 305

Art. 366(10)

Arts. 302, 303

s. 27

Orissa High Court

s. 41

Orissa Forest Act, 1927

Art. 305

Art. 301

Article 304

Art. 301

Art. 301

s. 77

Art. 304(b)

Art. 301

Article 301

Art. 301


RAMEKBAL TIWARY

\'.

MADAN MOHAN TIW ARY & ANR.

January 17, 1967 [K. SueBA RAO, C.J., J. c. SHAH, s. M. SIKRI, v. RAMASWAMI

AND C. A. VAIDIALINGAM, JJ.)

Code of Criminal Procedure (Act 5 of 1898). ss. 209(1), 403, 437 and 439-Police comploint of major offence triable by Sessions Court- Magistrate framing charge for minor offence-Accused tried and acquitted of minor offence by Magistrate-Sessions Court setting aside acquittal and directing committal for major offence-Order of Sessions Court confirmed by High Corm-Jurisdiction of Sessions Court-Acquittal of minor ofience, if res judicata regurding tnajor offence.

The police filed a charge sheet against the 3ppdlon1 and 01hers for an offence under s. 307, read wiih ss. 148 and 149 of Ihe Penal Code.

The Maeistra1e, after examining the prosecution witnesses passed an order under s. 209( I) Criminal Procedure Code, that no case under s. 307 was made out, and decided to try the accused for offences under ss. 326 and 338, l.P.C.

After a regular trial for 1hose offences, the Magistrale passed another order acquitting the accused.

The prosecution moved the Sessions Judge under s. 437 Cr. P.C .. and he held that the accused were improperly discharged of the offence under s. 307 l.P.C., set aside the . order of acquittal for the offence under SS. 326 and 338 J.P.C., and directed the Magistr<?IC to commit the accused to Se5sions on charges under ss. 307, 148 and 149 l.P.C.

The High Court in revision, onfirmed the order of the Sessions Judge with respect to •he appellant'ftone and directed his committal under s. 307 l.P.C.

In appeal to this Court, the jurisdiction of the Sessions Judge to set aside the acquittal and to direct committal was questioned.

HELD : (I) The Sessions Judge had jurisdiction to set aside the first order of the Magistrate and to direct the committal. [373 A) ·

The order of the Magistrate is not an express order of di.charge of the appellant for the offence under s. 307, 1.P.C. Uut i< tantamount •o an implied order of discharge. The language of s. 437 Cr. P.C .. however, is wide. and there is nothing to indicate that the power of the Sessions Court can be exercised only wheft the :\iagistrate had made an express order of discharge.

In fact, under s. 209( I) Cr. P.C., such an express order is contemplated only in a case where the Magistrate comes to the conclusion that the allegations against the accused do not amount to any offence at all; and not in a case where-, upon the same facts, it is possible to say that though no offence exclusively triable by a Court of Session was made out. an offence triable by a Magistrate is nevertheless made out. [372

B-EJ , Nahar Singh v. State,

A.LR. 1952 All. 23l(F.B.) and Sambhu Charan v. State 60 C.W.N. 709. overruled.

(2) The Sessions Court hld no a•Jthority to set aside the acquittal with respect to the offences under ss. 326 and 338, but since the order was affirmed by the High Court, the High Court must be deemed to have itself set aside the order of acquiual by the Magistrate, under s. 439 Cr, P.C. [375 G]

E -

(3) In view of s. 403 ( 4) Cr.P.C. there could be a fresh charge and trial under s. 307 l.P.C. in spite of the acquittal of the appellant on the mindr charges, because~ the Magistrate was not competent to try the offence under s. 307 1.P.C. The general principle of res judicata also, would not apply, because, the order of acquittal by the Magistrate must be deemed to have been validly set aside by the High Court. [376 C;

377 CJ

CRIMINAL APPFLLATE JURISDICTION : Criminal Appeal No. 213 of 1964.

Appeal by 3pecial leave from the judgment and order dated May 8, 1964 of the Patna High Court in Criminal Revision No. 162 of 1961.

Nur-ud-din Ahmed and R. C. Prasad, for the appellant.

U. P. Singh, for respondent No. I.

B. P. Jha, for respondent No. 2.

The Judgment of the Court was delivered by

Ramaswami, J. This appeal is brought, by special leave, from i)le judgment of the Patna High Court dated May 8, 1964 in Criminal Revision No. 162 of 1961 affirming the order of the Additional Se5si?ns Judge pf Arrah in Criminal Revision No. 194 of 1960 ordering the appellant to be committed to Sessions for being tried on a E charge under s. 307, Indian Penal Code.

It appears that the police submitted a charge-sheet against the appellant and 8 others in respect of offences under s. 307, read with ss. 148 and 149, Indian Penal Code on the information lodged by Gourishankar Tiwari, alleging that the accused had formed an unlawful assembly and, in prosecution of the common object, the F appellant Ramekbal Tiwary injured the informant with a gunshot.

The defence of the appellant was that Gourishankar Tiwari had raided his house with several other persons and in self-defence he used his gun inside his house as a result of which Gourishanker Tiwari received injuries. The Magistrate to whom the case was transferred by the subdivisional Magistrate, started an enquiry under Ch. XVIII G of the Criminal Procedure Code and, having examined eleven prosecution witnesses and heard the arguments of the parties, decided to try the accused under s. 251A of the Criminal Procedure Code for offences under ss. 326 and 338 of the Indian Penal Code, because in his opi;1ion, the evidence did not make out an offence under s. 307, Indian Penal Code. This order was made by the Magistrate H on March 19, 1960. Thereafter the Magistrate held a regular trial with regard to charges under ss. 326 and 338, Indian Penal Code a!o.d acquitted the appellant and the other accused of those charges by his order dated July 13, 1960. On behalf of the prosecution, an MISup. C!/67-10

370 SUPallMll C:OtlaT UPOl.TI

[1967] 2 S.C.R.

application in revision was made to the Additional Sessions Judge who allowed the application and set aside the two orders of the Magistrate dated March 19, 1960 and July 13, 1960 and directed the Magistrate to commit the appellant and the other accused to the Court of Sessions on charges under ss. 307 and J 48, and. 307 read with s. 149 of the Indian Penal Code. The appellant took the matter in revision in Revision No. 162of1961 before the Patna High Court which, by its judgment dated May 8, 1964 held that the appellant was improperly discharged by the Magistrate and the order of the Additional Sessions Judge for his commitment under s. 307,

Indian Penal Code was therefore justified. With regard to the other accused persons, the High Court held that there was no evidence to justify their commitment and the order of the Additional Sessions Judge with regard to these accused persons was set aside.

The first question involved in this appeal is whether the Additional Sessions Judge had jurisdiction under s. 437, Criminal Procedure Code to direct the commitment of the appellant to Sessions Court on a charge under s. 307, Indian Penal Code in the 'circumstances of this case.

In order to decide this question it is desirable to examine thCJ relevant provisions of the Criminal Procedure Code. Section 417 Criminal Procedure Code states : ; ·

"When, on examining the record of any ease under s. 435 or otherwise, the Sessions Judge or District Magistrate considers that such case is triable exclusively by the Court of Session and that an accused person has been improperly discharged by the inferior Court, the Sessions Judge or District Magistrate may ca•1se him to be arrested, any may thereupon, instead of directing a fresh inquiry, order him to be committed for trial upon the matter of which he has been, in the opinion of the Sessions Judge or District Magistrate, improperly discharged :

Provided as follows :

(a) that the accused has had an opportunity of showing cause to such Judge or Magistrate why the commitment should not be made;

(b) that if such Judge or Magistrate thinks that the evidence shows that some other offence has been committed by the accused, such Judge or Magistrate may direct the inferior Court to inquire into such offence."

Section 207, Criminal Procedure Code provides that in every inquiry before a Magistrate where the case. is tiable excls.ively by a Court of Session or Htgh Court, or, which m the opm1on of the

' '

llAMEKllAL v. MADAN MOHAN (Ramaswami, J.) 371

A Magistrate, ought to be tried by such Court, the Magistrate must in any proceeding instituted on a police report, follow the procedure prescribed in s. 207-A. Under s. 207-A the Magistrate, after persuing the police report forwarded under s. 173, has to fix a date for hearing and require the production of the accused on that date.

He has also the power to compel the attendance of such witnesses B or the production of any document or thing on that date if an application is made in that behalf by the officer conducting the prosecution. On the date of hearing, the Magistrate, after satisfying himself that copies of the documents referred to in s. 173 have been furnished, has to proceed to take the evidence of such persons, if any, as are produced as witnesses to the actual commission of the offence. \, After the examination of those witnesses and aftertheircross-exami- C nation by the accused the Magistrate may, if he thinks it necessary \ ~- to do so in the interest of justice, take the evidence of any one or \ more of the other witnesses for the prosecution. He will then \ examine the accused for the purpose of enabling him to explain the circumstances appearing in the evidence against him and hear both the prosecution as well as the accused. If at that stage he is of 1 opinion that no ground for committing the accused for trial exists D the Magistrate can, after recording his reasons, discharge the accused.

If,, however, it appears to the Magistrate that such person should be tried by himself or some other Magistrate he must proceed accordingly. This contingency will arise if the Magistrate forms an opinion that no case exclusively triable by Court of Session is 'disclosed E but a less serious offence which it is within the competence of the Magistrate to try is disclosed. In that case the Magistrate has to proceed to try the accused himself or send him for trial before another Magistrate. Section 209(1), Criminal Procedure Code states :

~209. {I) When the evidence referred to in s. 208, sub-sections (I) and (3) have been taken and he has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, such Magistrate, shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly."

lt was submitted on behalf of the appellant that if a person is accused of a major offence, for example under s. 307, Indian Penal Code, and the Magistrate frames a charge of minor offence, for example under s . .326 or s. 338, lndian Penal Code, the order of the Magistrate is not tantamount to an order of discharge, became the criminal case is proceeding a, gainst the accused on the same facts and therefore the Sessions Judge is not competent, under s. 437,

372 SUPRBMB C:OWT JllBPORTS

Criminal Procedure Code, to direct the commitment of the accused A to the Court of Session in respect of the major offence. We are unable to accept this argument as correct. It is true that in the present case there is no express order of the Magistrate discharging the appellant of the charge under s. 307, Indian Penal Code, but in his order dated March 19, 1960 the Magistrate has given reasons for holding that no case is made out under B s. 307, Indian Penal Code in order to justify an order of commitment. It is manifest that the order of the Magistrate is tantamount to an implied order of discharge and the Additional Sessions Judge had therefore jurisdiction, under s. 437, Criminal Procedure Code, to set aside the order of the Magistrate and to order that the accused should be committed to trial in the Court of Session on the major charge unders. 307, Indian Penal Code. There C is nothing in the language of s. 437, Criminal Procedure Code from which it could be said that the power of the Sessions Court under that section can be exercised only when the Magistrate l has made an express order of discharge. It is apparent from the language of s. 209(1) Criminal Procedure Code that an express order of discharge is only contemplated in a case where the Magis- I trate comes to the conclusion that the allegations against the accus-,. ed do not amount to an offence at all and therefore no question arises of trying him either by himself or by any other Court. But the section docs not contemplate that an express order of discharge should be made in a case where upon the same facts it is possible to say that though no offence exclusively triable by a Court of E Session is made out, an offence triable by a Magistrate is nevertheless made out and the Magistrate thereafter proceeds with the trial of that offence. There is also another consideration to be taken into account. Take, for instance, a case where on a certain state of facts the accused is alleged by the prosecution to have committed a very grave offence, say under s. 302, Indian Penal Code exclusively triable by the Court of Session, but the Magistrate thinks F that the offence falls under s. 304-A which he can try and after trying the accused either convicts or acquits him. In either case the result would be that the appropriate Court will be prevented from trying the accused for the graver offence which those very facts disclose.

It is to obviate such a consequence and to prevent inferior Courts from exercising a jurisdiction which they do not possess that the pro- G visions of s. 437, Criminal Procedure Code have been enacted.

To say that these provisions can be availed of only where an express order of discharge is made by a Magistrate would be to render those provisions ineffective and inapplicable to the very class of cases for which they were intended. As we have already pointed out, the language used ins. 437, Criminal Procedure Code H is wide and there is nothing in that section from which it could be gathered that the power can be exercised only when the Magistrate has made an express order of discharge. We accordingly reject the

J ' / 1

A argument of Mr. Nurrudin Ahmed on behalf of the appellant and hold that the Additional Sessions Judge had jurisdiction to set aside the order of the Magistrate dated March 19, 1960 and to direct the commitment of the appellant to Sessions Court on a charge under s.

307, Indian Penal Code.

B The view that we have expressed is borne out by the decision of the Full Bench of the Madras High Court in Krishna Reddi v.

S11bbamma('). In that case, certain persons were charged before a First Class Magistrate under s. 379, Indian Penal Code with the theft of a promissory note. The prosecution applied for a further charge to be framed under s. 477, Indian Penal Code, but this the Magistrate declined to do, as in his opinion, there was no direct evidence C that the accused had destroyed or secreted the note. After hearing the evidence for the defence the Magistrate acquitted the accused under s. 258, Criminal Procedure Code. An application was then made to the Sessions Court to call for the records and direct the committal of the accused for trial for an offence under s. 477, Indian Penal Code. The Sessions Court ordered that a further enquiry D be made and that the accused be committed for trial. It was ' contended before the High Court that the order of the Sessions Court was illegal on the ground that the accused had been acquitted and not discharged. It was held by the Full Bench that the order of the Magistrate was, in substance, an order discharging the accused in respect of an alleged offence under s. 477, Indian Penal Code, E and that the Sessions Judge had jurisdiction to make the order sought to be revised. In the course of its judgment the Full Bench observed at page 146 of the Report as follows:

"If section 209 of the Criminal Procedure Code is to be construed as meaning that there can be no 'discharge' under that section in respect of an offence exclusively triable by a Court of Session in cases where it appears to the Magistrate that the accused should be tried before himself or some other Magistrate in respect of offences not so exclusively triable, there would be a deadlock, since there is no provision in the Code, other than that contained in section 209, for dealing with a case where the Magistrate is of opinion that there is no evidence of an alleged offence which is triable exclusively by a Court of Session, but considers that the accused should be tried before himself, or some other Magistrate in respect of alleged offences which are not so exclusively triable.

From the terms of the Magistrate's order it is clear that he adjudicated upon the question whether there was any evidence against the accused in respect of the major offence. The Magistrate came to the conclusion that

(1) I.L.R. 24 Madras 136.

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[!967] 2 S.C.R.

ihcrc was not, and he declined to charge him with the A major offence. It seems to us that this is a 'discharge• within the meaning of section 209.

Chapter XVIII refates to enquiries into cases triable by the Court of Session or High Court. The primary object of section 209 is to make provision for the procedure in such cases. If in the opinion of the Magistrate, there is no evidence to warrant a charge for an offence exclusively triable by a Court of Session, he may 'discharge' the accused in respect of the alleged offence and, having done so, may proceed as regards the minor offence or offences under Chapter XXI or other appropriate chapter.

In fact, a Magistrate cannot proceed to act under the latter part of sub-section (1) of section 209 until he has 'discharged' the accused under the former part of the sub-section. This is the course which the Magistrate adopted in the present case."

The same view has been held by the Full Bench of the Madras High Court in In re Na/la Baligadu antf O!hers(') and it was held that where under s. 209(1) a Magistrate finds that there arc not sufiicient grounds for committing the accused for trial and directs such per.ion to be tried before himself or some other Magistrate, the revisional powers under s. 437 Criminal Procedure Code can be exercised by the Sessions Court. On behalf of the appellant Mr. Nuruddin Ahmed relied upon the Full Bench decision of the Allahabad High Court in Nahar Singh v. The State(2) in which it was held that the power under s. 437, Criminal Procedure Code is exercisable only in a case where the Magistrate, by an express order. discharges an accused person in respect of an offence exclusively triable by a Court of Session.

It was observed in that case that the failure of or refusal by a Magistrate to commit an accused person for trial by a Court of Session does not amount to an implied discharge of the accused person so as to attract the power of the Sessions Judge under s. 437, Criminal Procedure Code to direct the Magistrate to commil the accused person for trial by the Court of Session on the ground that the offence is exclusively triable by the Court of Session. The view taken in Nahar Singh

v. The State(Z), has been followed by the Calcutta High Court in Samblzu Charan Manda/ v. The State(3).

For the reasons already expressed, we hold that the view taken by the Madras High Court in Krishna Rec/div. Subbamma(•) and in In re Na/la Baligadu and Others(') as to the interpretation and effect of ss. 209 and 437, Criminal Procedure Code is correct.

(I) A.l.R. 1953 Mad. SOI.

(3) 60 C.W.N. 708.

(2) AJ.R. 1952 All. 231.

(4) l.L.R. 24 Mad. 136.

• " ' t

itAMEEBAL v. MADAN MOHAN (Ramaswami, /.) 375

We pass 'ln to consider the next coQ.tention raised on behalf of the appellant, namely, that the order of the Additional Sessions Judge dated July 13, 1960 is ultra vires since he had no jurisdiction to set aside the judgment of the Magistrtite acquitting the appellant of the charges under ss. 326 and 338, Indian Pen:U Code. We do not think there is any substance in this point. It is true that the Additional Sessions Judge has no authority to set aside the acquittal of the appellant under the provisions of s. 437, Criminal Procedure Code. But the order of the Additional Sessions Judge blls been affirmed by the High Court in its order under appeal and uuder s. 439, Criminal Procedure Code the High Court has juris diction to interfere with an order of acquittal in revision and to direct that the accused may be retried on the graver offence. Section 439, Criminal Procedure Code reads as follows :--

"439. (I) In th~ case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections -'\.23, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence; and when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 429.

(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) .......... ·-· ........................... .

(4) Nothing in this section applies to an enry made u:ider section 273, or shall be deemed to authonse a High Court to convert a finding of acquittal into one of conviction.

" ' .................................................................... .

In our opinion the High Court must be deemed to have itself .set aside the order of acquittal under this section and we therefore reject the argument advanced by the appellant on this aspect of the case.

It was lastly contended for the appellant that there can be no commitment for the offence under s. 307, Indian Penal Code in view of the acquittal on the charge under ss. 326 and 338, Indian Penal Code. Rel, iance was placed on s. 403 (!), Criminal Pro ced ure Code which states :

SUPREME

COURT

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(1967] 2 S.C.R.

403. ( 1) A person who has been once tried by a Court A of competent jurisdiction for an offence and convicted or acquitted of such offence shall. while such conviction or acquittal remains in force, not be liahle to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under s. 236, B or for which he might have been convicted under section 237." There is no substance in the argument of the appellant because s . .t03 (4) provides that a person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other ,, ffence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. In view of this sub-section it is obvious that there can be a fresh charge and trial under s. 307, Indian Penal Code in spite of the acquittal of the appellant on the minor charges. There is hence no reason why an order for commitment under s. 307, Indian Penal .Code cannot be made by the Additional Sessions Judge in spitef the acquittal of the appellant on the charges under ss. 326 and 338, Indian Penal Code.

It was also submitted by Mr. Nuruddin Ahmed that apar, from s. 403(1) of the Criminal Procedure Code the principle of res judicata applied to a criminal trial also and the effect of a verdict of acquittal pronounced by the Magistrate on the charges under ss. 326 and 338, Indian Penal Code was binding and conclusive in all subsequent proceedings between the parties and the effect of the finding of the Magistrate was that the prosecution had failed to establish that Gourishankar Tiwari was injured in the manner alleged by the prosecution and the prosecution case was not established. It was argued that the same facts could not be proved against the appellant in subsequent proceedings on the charge under s. 307, Indian Pnal Code. ln support of this proposition Counsel relied upon the decision of this Court in Prilam Singhv. The State of Punjab(') and also on the following observations of Lord MacDermottt in Sambasfram v. Public Prosecutor, Federation of Malaya(2) :

"The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same oF.ence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties

(I) A.l.R. 1956 S.C. 415.

(2) [1950) A.C. 458, 479.

c. )

1 f

to the adjudication. The maxim 'Res judicata pro veritate accipitur' is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence."

In our opinion, the principle does not apply to the present case because the order of acquittal of the appellant by the Magistrate must be dcmed to have been validly set aside by the High Court for the reasons we have already given. We accordingly reject the argument of the appellant on this point.

' For these reasons we are satisfied that the order of the High Cburt dated May 8, 1964 is not defective in law.

But in the circ-:Imstances of this <,:ase we think that it is not expedient that the appellant should be tried after this lapse of time before a Sessions Court for an offence committed as long back as September 30,

1958. We accordingly set aside the order of the Additional Ses, sions Judge, Arrah dated December 20, 1960 ordering the commitment of the appellant and also the judgment of the Patna High Court dated May 8, 1964 which affirms the order of the Additional Sessions Judge. The appeal is accordingly allowed.

V.P.S.

Appeal allowed

RAMEKBAL TIWARY

MADAN MOHAN TIW ARY & ANR

January 17, 1967

K. SueBA RAO, C.J.

c. SHAH

s. M. SIKRI

v. RAMASWAMI

Code of Criminal Procedure

ss. 209(1), 403, 437 and 439

s. 307

ss. 148 and 149

Ihe Penal Code

s. 209( I)

Criminal Procedure Code

s. 307

ss. 326 and 338

s. 437

s. 307

SS. 326 and 338

ss. 307, 148 and 149

s. 307

s. 307, 1

s. 437

s. 209( I)

ss. 326 and 338

s. 439

s. 403

Cr.P.C

s. 307

s. 307

Nur-ud-din Ahmed

R. C. Prasad

U. P. Singh

B. P. Jha

Ramaswami

s. 307

Indian Penal Code

s. 307

ss. 148 and 149

Indian Penal Code

Gourishankar Tiwari

Ramekbal Tiwary

Gourishanker Tiwari

XVIII G of the Criminal Procedure Code

s. 251A

ss. 326 and 338

Indian Penal Code

s. 307

Indian Penal Code

March 19, 1960

ss. 326 and 338

Indian Penal Code

July 13, 1960

ss. 307

s. 149

Indian Penal Code

Patna High Court

May 8, 1964

s. 307

Indian Penal Code

s. 437

Criminal Procedure Code

s. 307

Indian Penal Code

Section 417

Criminal Procedure Code

s. 435

Section 207

Criminal Procedure Code

s. 207

s. 207

s. 173

s. 173

Section 209(1)

Criminal Procedure Code

s. 208

s. 307

Indian Penal Code

s. 338

Penal Code

s. 437,

372

Criminal Procedure Code

s. 307

Indian Penal Code

s. 307

Indian Penal Code

s. 437

Criminal Procedure Code

Indian Penal Code

s. 437

Criminal Procedure Code

s. 209(1)

Criminal Procedure Code

s. 302

Indian Penal Code

s. 304

s. 437

Criminal Procedure Code

Criminal Procedure Code

Nurrudin Ahmed

s.

307

Indian Penal Code

Madras High Court

s. 379

Indian Penal Code

s. 477

Indian Penal Code

s. 258

Criminal Procedure Code

s. 477

Indian Penal Code

s. 477

Indian Penal Code

section 209

section 209

section 209

section 209

section 209

s. 209(1)

s. 437

Criminal Procedure Code

Nuruddin Ahmed

Allahabad High Court

s. 437

Criminal Procedure Code

s. 437

Criminal Procedure Code

Calcutta High Court

ss. 209 and 437

Criminal Procedure Code

ss. 326 and 338

s. 437

Criminal Procedure Code

s. 439

Criminal Procedure Code

Section 439

Criminal Procedure Code

section 338

section 429

section 273

s. 307

Indian Penal Code

ss. 326 and 338

Indian Penal Code

s. 403

Criminal Pro ced ure Code

(1967] 2 S.C.R.

403

s. 236

section 237

s. 307

Indian Penal Code

s. 307

ss. 326 and 338

Indian Penal Code

s. 403(1)

ss. 326 and 338

Indian Penal Code

s. 307

Indian Pnal Code

MacDermottt