JUDGMENT
S.P. Sinha, J.
1. The short question in this case is whether a Magistrate, after taking cognizance of an offence, which is exclusively triable by a court of Session, is competent to pass an order in terms of Section 321 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’,) discharging one or more of the accused persons.
2. The relevant facts are that amongst others, the petitioners are two of the accused in Kurnani P. S. Case No. 10 (12) 75 under Section 395 of the Indian Penal Code. The first information report in the case was lodged on the 28th December, 1975. Amongst others, the two petitioners were also named as accused in it. The police after investigation submitted charge-sheet on the 20th September, 1976 recommending prosecution for offence under Section 395 of the Indian Penal Code. On receipt of the charge-sheet, the learned Sub-divisional Judicial Magistrate, Muzaffarpur West, took cognizance of an offence under Section 395 of the Indian Penal Code on 15.11.1976. Before, however, any order committing the case to the court of session was passed, an application was filed on 20.11.1977, by the Assistant Public Prosecutor requesting the learned Sub-divisional Judicial Magistrate to accord permission to withdraw from prosecution two of the accused persons, namely, the two petitioners in this case. The learned Sub-divisional Judicial Magistrate by his impugned order dated 15.12.1977 has refused to entertain that application on the ground that he was not competent to take such a petition into consideration. The petitioners being aggrieved by the said order have moved this Court.
3. Learned Counsel appearing on behalf of the petitioners has contended that in terms of Section 321 of the Code, the court below was fully competent to entertain such an application and pass the necessary orders thereon. According to learned Counsel, the learned Sub-divisional Judicial Magistrate being still in seisin of the case against the petitioners was the only competent authority at that time to pass an order under Section 321 of the Code. He has, therefore, submitted that the learned Magistrate had erred thinking that he was not competent to entertain an application under Section 321 of the Code.
4. On behalf of the opposite party, it has been urged that in terms of Section 321 of the Code, if the court below accorded permission for withdrawing from prosecution two of the accused persons, necessarily the court will have to pass an order discharging the said two accused persons in respect of the offence under Section 395 of the Indian Penal Code. An order of discharge from an offence could only be passed after a person has been charged with that offence. Now so far as charging a person with an offence which is exclusively triable by the court of session is concerned, that lies with* in the exclusive jurisdiction of the sessions court. The Magistrate could not frame such a charge. If the Magistrate could not frame such a charge, he could not discharge either. It is therefore, submitted that the learned Magistrate has rightly found himself incompetent to entertain the application.
5. The order passed by the Magistrate is rather a cryptic order which does not mention the reason as to why he thought himself to be incompetent to pass an order in terms of Section 321 of the Code. Possibly the reason at the back of his mind may be the one which has been advanced as an argument on behalf of the opposite party. Even if that be the reason, I think, the court below is wrong in considering itself to be not competent to deal with the application itself.
Section 321 of the Code in so far as it is relevant for the purpose of this case reads as under:
The Public Prosecuter or Assistant Public Prosecutor in charge of a case may, with the consent of the court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried ; and, upon such withdrawal-
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences
This provision, on being properly analysed, means that if the Public Prosecutor or Assistant Public Prosecutor in charge of a case files an application to obtain the consent of the court to withdraw from the prosecution one or more persons of any one or more of the offences and if the court consents to such a request, the prosecution against such person or persons in respect of one or more offences shall be withdrawn. At the time of according permission for such withdrawal, the provision further says that if such withdrawal is being granted before a charge has been framed, the accused shall be discharged in respect of such offences. This section of the Code is not limited in its application with regard to the time of its presentation. It can be presented at any time before the judgment is pronounced. If per chance such application is presented before a charge has been framed, the section lays down that such person against whom prosecution is to be withdrawn shall be discharged. It does not further say that such an order of discharge shall be passed only after a charge has been framed against such person ; on the contrary the provision states that if no charge has been framed, that is to say, when the application is presented before a charge is framed the person shall be discharged. In my opinion, therefore, if the court below has considered itself to be not competent to consider the application under Section 321 of the Code on the ground that since it could not frame charge itself in respect of the offence under Section 395 of the Indian Penal Code, it was incompetent to discharge the accused, I must say that the court was entirely wrong in holding such a view. It has to be borne in mind that when the legislature enacts a provision of law and enforces it, unless it is expressly stated to the contrary, each such provision shall always be in force after having been so enforced. The provision of Section 321 of the Code can, therefore, be no exception to the rule. If the view expressed by the learned Sub-divisional Magistrate was to be accepted as correct, it will mean that the force of Section 321 of the Code will have to be kept in abeyance for the purpose of the case until the case is commited to the court of session and the court of session takes cognizance of it and frames a charge. I do think, any such intention can be gathered on a plain reading of the provision of the said section. If an application for withdrawal from the prosecution regarding any person who is an accused of one or more offences is filed in terms of the said provision at any time before the judgment is pronounced such application must be dealt with by the court which is in seisin of the case at the time when such petition is filed.
Now it cannot be gain-said that until a Magistrate has committed the case to the court of session in terms of Section 209 of the Code, the Magistrate who has taken cognizance of the offence, though such offence be exclusively triable by the court of session, continues to hold seisin over the case. Since the seisin over the case continues with the Magistrate, until the case has been committed to the court of session, it is that court, which is in seisin of the case, which must consider and pass order if an application under Section 321 of the Code has been presented before it. It cannot abdicate its functions in respect of such petition leaving it to be considered by a court which may subsequently come to have jurisdiction over the case. It is immaterial that the offence of which cognizance has been taken by the Magistrate was one which was exclusively triable by the court of session Section 321 of the Code takes no notice of such eventualities. A case may ultimately be triable by the court of session and yet if an application in terms of section, 321 of the Code has been filed before the case has reached the stage of trial by the court of session, it is for that court which is in seisin of the case which has to pass orders on the application under Section 321 of the Code. If such application is made before a charge has been framed, the section says that the accused shall be discharged. The whole position, therefore, is that even though an offence be exclusively triable by the court of session, so long as that case is before the Magistrate, it is that Magistrate alone who has seisin over the case and he can pass orders in respect of the application under Section 321 of the Code.
6. In this connection, I think, I can quote with profit from a decision cited on behalf of the petitioners, namely, a decision of the Supreme Court in the case of the State of Bihar v. Ram Naresh Pandey . I may state that although this decision concerned Section 494 of the Code of Criminal Procedure, 1898, the principles that have been enunciated in it would equally govern the instant case before me. I may further state that, in substance, the provisions of Section 494 of the old Code and that of Section 321 of the new Code are identical in-so-far as the subject of discussion in the present case is concerned. Both the provisions deal with the withdrawal from the prosecution and what would be its effcct if an application for such withdrawal is made before charge has been framed. Both the provisions say that in such eventuality the accused shall be discharged. In the case ‘before the Supreme Court, an argument was raised that in a case triable by a court of session, an application by the Public Prosecutor for withdrawal with the consent of the Court does not lie in the committal stage their Lordships after discussing the various changes introduced in the provision relating to the withdrawal from the prosecution, rejected the argument. Their Lordships observed:
But if the argument of the learned Counsel for the respondents is accepted that power cannot be exercised at the preliminary inquiry stage, only as regards cases which must lead to a jury trial. We can find no conceivable reason for any such discrimination having been intended and prescribed by the Code. We are unable to construe Section 494, Criminal Procedure Code, as involving any such limitation. The wording is perfectly wide and general and would apply to all classes of cases which are capable of terminating either in a discharge or in an acquittal according to the stage at which the section is invoked.
These observations apply with equal force to the provisions contained in Section 321 of the Code. In my opinion, therefore, the learned Sub divisional Magistrate was wrong in thinking that he was not competent to deal with the application under Section 321 of the Code which had been duly filed by the Assistant Public Prosecutor who was in charge of the case.
7. Let the learned Sub-divisional Magistrate now apply his mind to the said petition on its merits and pass necessary orders. The application is allowed protanto.