Law: Criminal Procedure Code (V of 1898)

Section: 494

P L D 1956 Karachi 385         Criminal Procedure Code (V of 1898), S. 494-Word 'consent'-Meaning of--Special Magistrate substituting discretion of Government for his own, allows withdrawal-Whether consent properly given-Ascertaining proper grounds for withdrawal Public Prosecutor whether can shift his duty of.   In the present case, several persons were being prosecuted, under various sections of Pakistan P. C. for offences of serious nature, before a Special Magistrate. After the Magistrate had framed charges against the accused and the case was at the stage of further cross-examination, the Assistant Public Prosecutor made an application under section 494, Cr. P. C. stating that the District Magistrate, had received orders from the Government that as all the accused persons had given an undertaking to behave themselves in future and as the Government had accepted such undertaking as a gesture of good-will, the case against the accused should be withdrawn and hence acting under the instructions of the District Magis trate he may be permitted to withdraw the prosecutions. The Special Magistrate on this, while. observing in his order that in his opinion neither "Public Policy" nor "Administration of Justice" nor "Interests of State" could be the proper grounds on which withdrawal of the case could be permitted, allowed withdrawal of the case, stating that if the Government was satisfied with the assurances of good behaviour in future given by the accused and if the Government as a gesture of good-will towards the accused wished to withdraw from their prosecu tion, he did not wish to interfere with the Government's discretion.   On reference by Sessions judge, under section 438, Crimi nal P. C. on the point whether consent to withdrawal of prose cutions under section 494, Criminal P. C. after charge had been framed against the accused, had been properly given   Held: That the consent given by the Special Magis trate was improper, because the Magistrate while giving his consent did not exercise his own discretion but under terror of the executive authority substituted the discretion of…