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Petitioner: THE SUPERINTENDENT AND REMEMBRANCER OF LEGAL AFFAIRS, EAST PAKISTAN VS Respondent: AMINUL HAQ
P L D 1960 Dacca 783
P L D 1960 Dacca 783
Before Hasan, J
THE SUPERINTENDENT AND REMEMBRANCER OF LEGAL AFFAIRS, EAST PAKISTAN‑Appellant
versus
AMINUL HAQ AND ANOTHER‑Respondents
Government Appeal No. 5 of 1959, decided on 22nd Decem ber, 1959.
(a) Criminal Procedure Code (V of 1898), Ss. 494 & 226‑ Sessions Judge granting permission to withdraw case before approving or modifying charge framed by committing Magistrate- Order passed by Judge amounts to order of discharge and not acquittal‑Appeal not competent‑Criminal Procedure Code (V of 1898), S. 271.
Unless and until there is commencement of trial before the Court of Session, as provided under section 271 of the Criminal Procedure Code, 1898, and unless the charge as framed by the committing Magistrate is approved or modified by the Sessions Judge under section 226 of the Code, there is no charge which can be deemed to be charge for the purpose of the Sessions trial. Where, therefore, the Judge grants permission under section 494 to withdraw a case before modifying or approv ing under section 226 of the Code the charge as framed by the committing Magistrate, the Sessions Judge can pass only an order of discharge against which revision lies but no appeal can be preferred.
Ranjha and another v. Emperor A I R 1948 Lah. 73; Sachi Nandan Kundu v. The Crown & Ramani Ranjan Paul (1955) 7 D L R 216 and Abdul Majid v. Arbabshah Akbershah and others 35 C L J 142 ref.
(b) Criminal Procedure Code (V of 1898), S. 4 (1), CL (t) "Public Prosecutor"‑Includes Assistant Public Prosecutor and any person conducting prosecution under Public Prosecutor.
(c) Criminal Procedure Code (V of 1898), S. 494‑Order per mitting withdrawal‑ Recording of grounds for same not essential.
Section 494 of the Criminal Procedure Code, 1898 does not provide that the Court, while permitting the withdrawal, shall also give its reasons in writing. Absence of recording of reasons by the Sessions Judge does not ipso facto vitiate the order of withdrawal of the case.
Rajani Kantha Saha v. Idris Thakur and another 25 C W N 615; Fakirchand Ramkrishin v. Murad Umar and others A I R 1940 Sind 233 and Awaz Gul v. Habib Khan P L D 1959 Pesh. 186 ref.
Sachi Nandan Kundu v. The Crown and Ramani Ranjan Paul (1955) 7 D L R 216: Makhan Lai Saha and others v. The Crown 41950) 2 D L R 223 ; Kapa Kasi Viswanadham v. Bondili Madan Singh and ,others A I R 1948 Mad. 422 and Gulli Bhagati v. Narain Singh I L R 2 Pat. 708 rel.
S. A. Ghani for Appellant. A. Salam Khan for Respondents.
JUDGMENT
HASAN, J.‑This appeal at the instance of the East Pakistan Government is directed against the order of the Sessions Judge granting permission to withdraw the case and discharging the accused persons from their bail bonds.
2. A preliminary objection has been taken by the learned Advocate for the respondents to the effect that the appeal pre ferred is not maintainable inasmuch as revision only lies against such orders of discharge, and, in support thereof, reliance has been placed on the cases of Ranjha and another v. Emperor (A I R 1948 Lah. 73) Sachi Nandan Kundu v. The Crown and Ramani Ranjan Paul ((1955) 7 D L R 216) and Abdul Majid v. Arbabshah Akbershah and others (35 C L J 142). Mr. Syed Abdul Ghani, the learned Advocate for the Government, has not been able to place any authority in, support of his contention that an appeal lies against such an order, but he has contended that, though an order of discharge has been passed in this case, the learned Sessions Judge should have passed an order under clause (b) of section 494 of the Code of Criminal Pro cedure. In support of this contention, it has been contended by the learned Advocate that after the case was committed to the Sessions, the charge. as framed by the committing Magistrate was the charge for the Sessions Court, and that, in view of clause (b) of section 494 of the Criminal Procedure Code providing that when withdrawal "is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted (in respect of such offences)", the Sessions Judge should have acquitted the accused. I do not find any substance in this contention. After going through the order passed by the learned Sessions Judge, it cannot be held that the appeal preferred by the Government is a competent one. The order passed by the learned Sessions Judge is an order of discharge and, as such, no appeal lies against such an order. Secondly, in my opinion, the charge that was framed by the committing Magistrate was a charge for the purpose of commitment and not for the Sessions trial. Section 2710) of the Code of Criminal Procedure provides: When the Court is ready to commence the trial, the accused shall appear or be brought before it, and the charge shall be read out in Court and explained to him, and he shall be asked whether he is guilty of the offence charged, or claims to be tried." The above section provides as to how a trial should commence. In my opinion, unless and until there is commencement of trial before the Court of Session, as provided under section 271 of the Code, and unless the charge as framed by the committing Magistrate is approved or modified by the Sessions Judge under section 226, there is no charge which can be deemed to be charge for the purpose of the Sessions trial. So, I find that the appeal that has been pre ferred by the State is incompetent.
3. Now, as regards the merits of the case, Mr. Ghani for the Government has first of all contended that the permission to withdraw the prosecution case at the prayer of the Assistant Public Prosecutor is not a permission to withdraw in accordance with law. No evidence or material has been placed before me as to whether the permission sought for was by the Public Prosecutor or the Assistant Public Prosecutor ; rather, from the order of the learned Sessions Judge, dated the 16tb of May, 1959, it appears: that the Public Prosecutor filed a petition for permission to withdraw from prosecution. Further, "Public, Procecutor" has been defined in clause (t) of section 4 (1) of the Criminal Procedure Code as follows:
" `Public Prosecutor' means any person appointed under sec tion 492, and includes any person acting under the directions of a Public Prosecutor and any person conducting a prosecution on behalf of Government in any High Court in the exercise of its original criminal jurisdiction."
This definition includes also Assistant Public Prosecutor and also any other person who conducts a prosecution under the directions of the Public Prosecutor. No evidence has been shown by the learned Advocate for the Government to show that the alleged Assistant Public Prosecutor had no authority from the Public Prosecutor to pray for the withdrawal of the case or that the application was not filed by the Public Prosecutor to that effect. Hence I find that there is no substance in this contention also.
4. The next contention of the learned Advocate for the State is that the order of discharge passed by the learned Sessions Judge is not a valid one inasmuch as the said order does not disclose the reasons for which the permission was given. In support of this contention, the learned Advocate has relied on the cases of Rajani Kantha Saha v. Idris Thakar and another (25 C W N 615), Fakir chand Ramkrishin v. Murad Umar and others (A I 8 1940 Sind 233) and Awaz Gul v. Habib Khan (P L D 1939 Pesh. 186). I cannot accept this contention. If we look to the provisions of sec tion 494 of the Code of Criminal Procedure, it will be apparent that it is within the domain of the Public Prosecutor to withdraw from prosecution of any person either generally or in respect of any one or more of the offences for which he is tried ; and that, for the purpose of such withdrawal, only the consent of the Court is required. This section does not provide that the Court, while permitting the withdrawal, shall also give its reasons in writing. If I accept this contention of Mr. Ghani, then in that case I am to import into the language of the section something which is not there. The Court cannot legislate but can only interpret the section as it is. Legislation lies with the Legislature and not with the Court. Moreover, it has been laid down in the cases of Makhan Lal Saha and others v. The Crown ((1950) 2 D L R 223), and Sachi Nandan Kundu v. The Crown and Ramani Ranjan Paul that the grounds are not required to be put in writing in the order permitting withdrawal of the case, though it is desirable that the said grounds may be placed on record; that is to say that according, of grounds is essential is to overstate the law; and that it is not the practice of the High Court in its revisional juris diction to enquire into the reasons for nor to inter fere with the discretion exercised by a Court of competent jurisdiction which is not, on the face of it, arbitrary. In Sachi Nandan Kundu v. The Crown and Ramani Ranjun Paul, as stated above, reliance was placed on the cases of Kapa Kasi Viswanadham v. Bondili Madan Singh and others (A I R 1948 Mad. 422), and Gulli Bhagati v. Narain Singh (I L R 2 Pat. 708). These two decisions are of two Division Benches of this Court and, as such, are binding on me.' So, the absence of recording of reasons by the learned Sessions Judge does not ipso facto vitiate the order of withdrawal of the case. I have gone through the records and I am satisfied that the order passed by the learned Sessions Judge is not an arbitrary one.
5. Before I part with this case, I must say that the Government has done something which appears to me to be deplorable. It was the Government who asked permission to withdraw the prosecution case and the prayer of the Public Prosecutor to that effect was allowed by the learned Sessions Judge. But it is curious to note that again the Government has come up against such order. No allegation has been made against the Public Prosecutors. I do not know how the wind blows within the departments of the Government. The Govern ment must be consistent all through and should not blow hot and cold. The inconsistency in the action of the Government it cannot be said that it is at all commendable.
6. In the result, the appeal is dismissed.
K. B. A. Appeal dismissed.