The State of Bihar vs Ram Naresh Pandey

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeals Nos. 53 and 54 of 1956

Decision Date: 31 January 1956

Coram: JAGANNADHADAS J.

In this matter, the Supreme Court recorded that the petition was filed by the State of Bihar against the respondent Ram Naresh Pandey, together with a connected appeal, and that the judgment was delivered on 31 January 1956. The case concerned the Criminal Law-Prosecution Act, specifically the question of whether a public prosecutor may apply for withdrawal of a prosecution with the consent of the court, the role of the court in granting such consent, and whether such an application could be made at the committal stage in a case that is triable by a Court of Session. The statutory provision at issue was section 494 of the Code of Criminal Procedure, 1898 (Act V of 1898). The headnote explained that under section 494 a public prosecutor, with the court’s consent, may withdraw from prosecuting any person either wholly or with respect to particular offences before a verdict is returned in jury trials, or before a judgment is pronounced in other trials. The headnote further stated that if withdrawal occurs before a charge is framed, the accused must be discharged of the offence, whereas if withdrawal occurs after a charge is framed, or where the code requires no charge, the accused must be acquitted of the offence. The prosecution of a person identified as “M.” and others was instituted on the basis of a first-information report filed by the first respondent. While the matter was pending before the magistrate at the committal stage and before any evidence had been taken, the public prosecutor filed an application under section 494 seeking to withdraw M. from the prosecution on the ground that, based on the evidence then available, it would not be just and expedient to continue the prosecution. The magistrate held that there was no reason to withhold the consent sought and therefore discharged the accused. This discharge was affirmed by the Sessions judge. However, the respondents filed a revision on 28 February, and the High Court set aside the magistrate’s order, directing the magistrate to record evidence and then determine whether a prima facie case existed against the accused. The State subsequently appealed the High Court’s order by special leave, while the respondents defended the High Court’s decision on two grounds: first, that where an application for withdrawal is based on a lack of evidence or unreliable evidence, the magistrate must conduct a preliminary enquiry into the evidence; and second, that in a case tried by a jury before a Court of Session, an application by the public prosecutor under section 594 does not arise at the committal stage. The Court held that, although the court’s function in granting consent under section 594 is a judicial one, it is not necessary that the discretion be exercised solely on material gathered by judicial methods.

The Court explained that the discretion to consent to the withdrawal of a prosecution must be exercised solely on the basis of material obtained through judicial procedures. Accordingly, the Court was required to be satisfied that the executive role of the Public Prosecutor in seeking such withdrawal had not been misused, nor employed as a means to obstruct the normal administration of justice for improper reasons. In addition, the Court held that the term “tried” used in section 494 of the Code of Criminal Procedure was not confined to a narrow definition. The provision was interpreted broadly enough to encompass every type of inquiry and trial, and it applied to any proceeding that could end either in a discharge or an acquittal, depending on the point at which the withdrawal application was made. An order of committal that terminated the proceeding as far as the investigating court was concerned qualified as a “judgment” within the meaning of section 494. The Court supported this interpretation by referring to the authorities Giribala Dasee v. Mader Gazi, (1932) I L R 60 Cal 233, and Viswanadham v. Madan Singh, I L R (1949) Mad 64, which had approved the same view.

The matter before the Court fell under the criminal appellate jurisdiction and concerned Criminal Appeals Nos. 53 and 54 of 1956. Both appeals were brought by special leave from the judgment and order dated 31 May 1955 issued by the Patna High Court in Criminal Revision No. 102 of 1955. That High Court order itself arose from a judgment and order dated 10 January 1955 of the Sessions Judge of Manbhum-Singhbhum, Purulia, recorded in Criminal Revision No. 43 of 1954. Counsel for the State, Mahabir Prasad, Advocate-General of Bihar, together with counsel Tarakeshwar Nath and S. P. Verma, appeared for the appellant in Appeal 53 and for the respondent in Appeal 54. Counsel H. J. Umrigar and A. G. Ratnaparkhi represented the appellant in Appeal 54, while counsel Jai Gopal Sethi and Govind Saran Singh appeared for the respondents in Appeal 53 and for respondents numbered 1 and 2 in Appeal 54. The judgment was delivered by Justice Jagannadhadas on 31 January 1957. The appeals originated from an order of discharge issued by the Subordinate Judge-Magistrate of Dhanbad under section 494 of the Code of Criminal Procedure, wherein the magistrate consented to the Public Prosecutor’s withdrawal of the prosecution against the appellant, Mahesh Desai. The prosecution itself had been instituted on a first information report filed by Ram Naresh Pandey against twenty-eight accused persons for the murder of Nand Kumar Chaubey, a colliery peon in Bagdigi, an incident that occurred during a serious riot on 20 February 1954 and was attributed to a dispute between two rival labour unions pertaining to a strike. While most of the accused were charged under various provisions of the Indian Penal Code, including section 302 for participation in the murder, the charges against the appellant were limited to sections 302 and 109, alleging that he had abetted the murder through speeches and exhortations made at meetings the day before the offence.

In this case, the charge against Mahesh Desai under the Indian Penal Code was that he had abetted the murder by delivering speeches and exhortations at meetings on the day before the killing. An application for withdrawal of the prosecution against him was filed on 6 December 1954 while the case remained at the committal stage before any evidence had been recorded. The Public Prosecutor submitted the application, stating that the evidence was insufficient to continue the prosecution. He quoted, “on the evidence available it would not be just and expedient to proceed with the prosecution of Sri Mahesh Desai and that therefore it was necessary to withdraw case against Sri Mahesh Desai only”. During the arguments before the learned Magistrate, the prosecutor explained that the material implicating the accused was minimal, consisting of a single, questionable piece of evidence unlikely to establish a prima facie case. The Magistrate issued a reasoned order concluding that there was no justification for refusing the consent sought, and consequently discharged Mahesh Desai. The learned Sessions Judge affirmed this discharge when a revision petition, filed jointly by the original informant and the widow of the murder victim, was presented. Private parties dissatisfied with the decision subsequently approached the High Court, seeking a further revision of the order. The learned Chief Justice hearing the revision held that consent should not have been granted and therefore set aside the Magistrate’s order. He observed that, although ordinarily the High Court refrains from interfering in such matters, the present case lacked any judicial exercise of discretion. Accordingly, he directed the Magistrate to record the evidence and then determine whether it established a prima facie case against Mahesh Desai.

The Advocate General of the State approached this Court to contest the order of the learned Chief Justice. Leave was granted on the ground that the Chief Justice’s view rested on an erroneous understanding of the permissible legal approach and could have broader implications for the State. Mahesh Desai, being aggrieved by the setting aside of his discharge, also obtained special leave to challenge the same order. Both the appeal by the State and the special leave petition filed by the appellant are disposed of by the present judgment. The legal question presented by the case can be extracted from the Chief Justice’s judgment, which emphasized that the matter was not devoid of evidence. He observed that the situation involved evidence requiring judicial consideration rather than a mere procedural dismissal. The Chief Justice further criticized the procedure followed by the Special Magistrate as being akin to assessing the sufficiency of evidence before any evidence had been heard. The Advocate General argued that the High Court’s intervention contradicted established principles that appellate courts should not substitute their judgment for that of a trial magistrate. He further submitted that the order permitting withdrawal before any evidence was recorded undermined the statutory purpose of section 494 of the Code of Criminal Procedure. The Court of this jurisdiction found merit in these submissions and therefore entertained both the State’s appeal and the special leave petition. In its order, this Court noted that the legal issue revolved around whether consent to withdraw may be granted prior to the taking of evidence when the evidence, if heard, would unlikely lead to conviction. The Court also observed that the Chief Justice’s quoted passage emphasized the presence of some evidence, thereby rejecting the notion that the case was wholly devoid of factual material. Consequently, the Court affirmed that the procedural requirement of recording evidence before deciding on withdrawal could not be ignored. The Chief Justice wrote, “This is not a case where there is no evidence; on the contrary, this is a case where there is evidence which requires judicial consideration.” “The procedure which the learned Special Magistrate followed was.”

The Court observed that to assess the sufficiency of evidence before any evidence had been heard would be equivalent to deciding the case without hearing, thereby surrendering the Court’s function to the Public Prosecutor. It was expressed that section 494 of the Code of Criminal Procedure does not support such a procedure. The legal issue identified was whether, when an application for withdrawal under section 494 is made on the ground of insufficiency or meagreness of reliable evidence, it becomes an improper exercise of discretion for the Court to grant consent before any evidence is taken, assuming the Court is reasonably satisfied that the evidence, if actually taken, would not likely lead to a conviction.

Section 494 of the Code of Criminal Procedure provides as follows: “Any Public Prosecutor may, with the consent of the Court, in cases tried by jury, before the returns of the verdict, and in other cases, before the judgment is pronounced, withdraw from the prosecutions 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; (b) if it 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 offence or offences.” The provision is an enabling provision that confers upon the Public Prosecutor the discretion to apply to the Court for its consent to withdraw from prosecuting any person. If consent is granted, the law requires that the consent be followed by the discharge or acquittal of the accused, as appropriate.

The provision does not specify any particular grounds on which the Public Prosecutor may make the application, nor does it set out the considerations on which the Court must base its consent. Nevertheless, the Court noted that any order granting consent, being an order of discharge or acquittal, would be subject to correction by the High Court under sections 435, 436 and 439 or section 417 of the Code of Criminal Procedure. Consequently, the function of the Court in granting consent can be regarded as a judicial function, and the Court must exercise judicial discretion in doing so. However, this discretion is not confined solely to material obtained by judicial processes; limiting it to such material would unduly narrow the broad language of section 494. In applying the section, two main principles must be remembered: the initiative rests with the Public Prosecutor, and the Court’s role is merely to give consent, not to determine the substantive merits of the case. The Privy Council, in Bawa Faqir Singh v. The King Emperor, articulated similar observations regarding the nature of this discretion.

Section 494 of the Code of Criminal Procedure provides a general executive discretion to the Public Prosecutor to withdraw from a prosecution, but such withdrawal may be made only with the consent of the Court. The consent can be granted on a variety of possible grounds. When the Court exercises its discretion to give consent, it must first be satisfied that the Public Prosecutor’s executive power has not been misused and that the request is not an attempt to interfere with the ordinary course of justice for illegitimate reasons. It is important to recall that, although the Public Prosecutor is an executive officer as noted by the Privy Council in Bawa Fakir Singh v. The King Emperor (1), the Prosecutor also functions as an officer of the Court. In that broader capacity the Prosecutor is obliged to assist the Court with a fair and considered view, and the Court is entitled to rely on the fair exercise of the Prosecutor’s function.

The criminal-justice system in this country assigns the primary responsibility for prosecuting serious, cognizable offences to the executive authorities. Once information about the commission of such an offence reaches the appropriate authorities, the tasks of investigation, collection of evidence and prosecution based on that evidence are carried out by the executive. Nevertheless, the Magistrate also has specific duties at various stages of the process. For example, under section 61 of the Code a person who has been arrested must be produced before the Magistrate within twenty-four hours. Continued detention of the arrested person for investigative purposes must be authorised by the Magistrate under section 167. The Magistrate may issue a search warrant under section 96, record statements of witnesses and confessions under section 164, and, where appropriate, order an investigation or a further investigation under sections 155(2) and 202. In each of these matters the initiative lies with the executive, but the responsibility for exercising discretion rests with the Magistrate. That discretion must be exercised on the basis of material that is then available and does not amount to a prima facie judicial determination of any specific issue. The Magistrate’s role therefore supplements the executive’s functions and is intended to guard against abuse. Section 494, which requires the Court’s consent before the Public Prosecutor may withdraw, fits within this overall scheme rather than within the provisions that govern inquisitorial or trial proceedings. Accordingly, the provision does not impose on the Court the duty of making a prima facie determination of a triable issue. For instance

In this case, the Court observed that a discharge issued pursuant to a magistrate’s consent under section 494 does not have to conform strictly to the definition of “no prima facie case” contained in sections 209(1) and 253(1), nor to the definition of “groundlessness” found in sections 209(2) and 253(2). The Court clarified, however, that this observation does not imply that a magistrate should grant consent lightly when the public prosecutor applies for it; rather, each application must be examined with careful and proper scrutiny of the reasons presented. The Court noted that a large number of decisions of various High Courts had been referred to and examined in detail. All of those decisions recognised that the magistrate’s power to grant consent is a judicial function that remains subject to correction. The Court further pointed out that, in several of those decisions, the respective roles of the public prosecutor and the Court in the discharge, as contemplated by section 494, were not fully appreciated. Nevertheless, the Court found a general consensus, especially in later judgments, that the public prosecutor may legitimately seek consent for reasons that are not limited to the purely judicial prospects of the prosecution. The Court cited the authorities The King v. Moule Bux (1) and The King v. Parmanand (2) in support of this view. Accordingly, the Court held that the matter which the Court must consider when exercising its discretion to grant or refuse consent is not a triable issue that requires judicial evidence. Learned counsel for the respondents argued strongly that the above principle would not apply when the public prosecutor seeks consent on the ground that there is no evidence, or that the evidence is inadequate or unreliable. According to that argument, in such circumstances the Court could exercise its judicial function only by referring to evidence that has been recorded judicially, in the same manner as provided for in the Code for judicial inquiry or trial. The counsel further asserted that, if this argument were accepted, the Court would be required to conduct a preliminary inquiry into the relevant evidence before granting consent, much as a magistrate may do under section 202 of the Code of Criminal Procedure. Alternatively, the counsel suggested, the argument could be read to mean that consent could not be granted at all on the ground of lack of evidence, and that the Court should proceed with the prosecution and ultimately discharge or acquit the accused under the appropriate provisions of the Code. The Court considered that reading would effectively create an exception or proviso to the broad language of section 494, limited to cases of evidential inadequacy. In the Court’s opinion, such a construction was not permissible. Consequently, with great respect, the Court could not adopt the view expressed by the learned Chief Justice in the judgments reported in A.I.R. 1949 Pat 233 (F.B.) and A.I.R. 1949 Pat 222, 226 (F.B.), which held that where the application for consent is based on inadequacy of evidence, the Court should not grant consent before examining the evidence.

When there exists evidence that must be considered by a judge, the Court may not grant consent to withdraw a prosecution before that evidence has been recorded and examined. The present observation does not mean, however, that evidence which has already been recorded at the time the application for withdrawal is filed may be ignored; such evidence must still be reviewed in order to assess whether the withdrawal constitutes an abuse of process or an improper interference with the normal course of justice. Counsel for the respondents introduced a new point of law for the Court’s consideration in order to uphold the High Court’s decision to set aside the magistrate’s order discharging the appellant. The point raised is purely legal and therefore was permitted to be argued. The respondent’s counsel contended that, in a case that is tried by a Court of Session, an application by the public prosecutor for withdrawal, even with the Court’s consent, does not arise at the committal stage. He placed reliance on the wording of section 494, which provides that “in cases tried by jury, any public prosecutor may, with the consent of the Court, withdraw from the prosecution of any person before the return of the verdict.” According to him, this language clearly indicates that such withdrawal can be effected only after the matter reaches the trial stage before a Sessions Court. He further relied on the additional clause in the section that speaks of withdrawing “either generally or in respect of any one or more of the offences for which he is tried,” arguing that the use of the word “tried” confirms that the power under section 494 is available only once the case has arrived at the trial phase. He also referred to a passage in Archbold’s Criminal Pleading, Evidence and Practice, thirty-second edition, pages 108-109, section 12, which states that a nolle prosequi to stay proceedings on an indictment or information pending in any Court may be entered, with the leave of the Attorney General, at the instance of either the prosecutor or the defendant at any time after the bill of indictment is signed and before judgment. He urged that this principle is reflected in the first part of section 494 of the Code of Criminal Procedure. The Court observed, however, that drawing an analogy with the English practice would be misleading for construing section 494 because the structure of the Indian Criminal Procedure Code differs substantially. The provision in the Code that corresponds to the Attorney-General’s power to enter a nolle prosequi is section 333, which deals with jury trials in the High Court, and the procedure prescribed in section 494 does not parallel that provision. Moreover, the phrase in section 494 that reads “in other cases before the judgment is pronounced” must, in context, be understood to apply to all cases that are not tried by jury. Consequently, there can be no doubt that, at least with respect to those other classes of cases, the power to withdraw may be exercised at any stage of the proceedings.

The Court explained that when the Court itself consents to the withdrawal of an indictment, the legal result is either a discharge or an acquittal, depending on the point at which the case stands, and in accordance with alternatives (a) and (b) contained in section 494 of the Code of Criminal Procedure. Accordingly, the Court observed that for every category of case other than those that are tried by a jury, the power to withdraw may be exercised at any stage of the proceeding, a range that embraces even the preliminary inquiry stage in a Sessions matter that proceeds without a jury. The Court rejected the contention advanced by the learned counsel for the respondents that such power could be exercised only after the preliminary inquiry stage and solely in matters destined for a jury trial. No discernible purpose for such a discrimination could be identified in the Code, and the Court was unable to interpret section 494 as imposing any such restriction. The language of the provision was held to be broad and general, covering all classes of proceedings capable of terminating in either a discharge or an acquittal, the outcome being determined by the stage at which the provision is invoked.

The Court noted that the argument of the learned counsel for the respondents rested on the use of the term “tried” and on a presumed distinction between “inquiry” and “trial” within the statutory scheme. Reference was made to the definition of “inquiry” in section 4(k) of the Code, which states that “Inquiry includes every inquiry other than a trial conducted under this Code by a Magistrate or Court.” The Court found that this definition did not clarify whether the word “trial” in section 494 was intended to exclude an inquiry. Since the Code does not define “trial,” the Court consulted recognized legal dictionaries: Stroud’s Judicial Dictionary describes “trial” as “the conclusion, by a competent tribunal, of questions in issue in legal proceedings, whether civil or criminal,” and Wharton’s Law Lexicon defines it as “the hearing of a cause, civil or criminal, before a judge who has jurisdiction over it, according to the laws of the land.” These authorities indicate that “trial” and “tried” lack a fixed or universal meaning. The Court observed that in several other provisions of the Code the words have been used to refer to a stage after an inquiry, a meaning that depends on context. Consequently, there is no reason to assume that the same words, when employed in a different context, must be confined to that limited sense. The Court emphasized that the meaning of such terms must be determined by examining the specific context, the scheme, and the purpose of the provision. An additional argument was also put forward by the learned counsel for the respondents before the Court.

The Court considered the argument that the expression “in other cases before the judgment is pronounced” in section 494 referred only to proceedings that concluded with a regular judgment and not to any interim order such as a committal. The Court observed that the word “judgment” was not defined in the statute and therefore carried its ordinary meaning of a judicial determination or decision of a Court, as explained in Wharton’s Law Lexicon, 14th edition, page 545. Consequently, the Court found no reason to exclude an order of committal, which terminates the proceeding as far as the inquiring Court is concerned, from the phrase “judgment”. The Court allowed that, within the context of Chapter XXVI of the Code, the term “judgment” might acquire a narrower meaning, but even if such a limitation were accepted, it would not prevent an application being filed during the preliminary inquiry, a stage that necessarily precedes any judgment in the trial. The historical development of section 494 supported this view. The provision allowing the Public Prosecutor to withdraw a charge with the Court’s consent first appeared in the Code of Criminal Procedure 1872 (Act X of 1872) as section 61, which stipulated that withdrawal while the case was under inquiry would result in the accused’s discharge, whereas withdrawal during trial would lead to acquittal.

The Code of 1882 (Act X of 1882) restated the rule in section 494, providing that a Public Prosecutor appointed by the Governor-General in Council or the Local Government could, with the Court’s consent, withdraw from the prosecution in cases tried by jury before the return of the verdict and in other cases before the judgment is pronounced. The provision further explained that, if withdrawal occurred before a charge was framed, the accused would be discharged, and if it occurred after a charge was framed—or where no charge was required under the Code—the accused would be acquitted. The Court noted that the 1882 enactment introduced a complete redrafting of the section, resulting in two substantive modifications, and that the same wording persisted in the 1898 Code (Act V of 1898). The next amendment came through Act XVIII of 1923, which inserted the phrase “either generally or in respect of any one or more of the offences for which he is tried” into the appropriate place in section 494 and omitted the reference to appointment by the Governor-General in Council or Local Government. These historical changes demonstrated that the provision was intended to apply up to the point of judgment, irrespective of whether the proceeding was an inquiry or a trial.

The amendment inserted the words “which he is tried” into section 494 at the appropriate point in the 1882 Code and simultaneously removed the phrase “appointed by the Governor General in Council or Local Government.” The current version of section 494 therefore represents the provision originally contained in the 1882 Code, as it stands after those specific alterations. A comparison of the statutory language shows that three substantial modifications occurred between the 1872 Code and the version that emerged after the 1923 amendment to the corresponding section 61 of the 1872 Code. The first two alterations made in 1882 intended to shift the basis for deciding discharge or acquittal from the distinction between inquiry and trial to the factual circumstance of whether a charge had been framed. The second alteration also clarified that a withdrawal application could generally be filed until judgment is pronounced, but in cases that go to a jury trial the application must be made before the verdict. These reforms collectively aimed to harmonize the procedure for withdrawal with the evolving structure of criminal trials and inquiries. By removing the reference to appointment by the Governor General, the legislature sought to place the power of withdrawal solely in the hands of the Public Prosecutor.

The third modification, introduced by the 1923 amendment, made clear that a prosecutor’s withdrawal need not cover the entire case against an individual but may apply to one or more specific charges. Collectively, these three changes were inserted for specific and evident purposes, namely to provide procedural flexibility while preserving the substantive rights of the accused. The original 1872 provision was already broad enough to encompass all categories of cases, including jury trials during the preliminary inquiry stage. Consequently, there is no justification to infer that the successive legislative alterations were intended to exclude preliminary inquiries from the scope of the present section 494. It is also noteworthy that the terms “inquiry” and “trial” were both defined in the 1872 Code, but the definition of “trial” was omitted in the 1882 Code. The 1898 Code later amended the definition of “inquiry” by adding the words “Other than a trial,” which consequently left the term “trial” undefined. These sequential legislative changes, together with the evolving definitions of “inquiry,” support the conclusion that section 494 was intended to apply to every form of inquiry and trial without restricting the meaning of “trial.” The same interpretation has been affirmed in the decisions of Giribala Dasee v. Madar Gazi (1) and Viswanadham v. Madan Singh (2), and this Court concurs with that reasoning on this specific question. Regarding the merits of the appeals, the issues are limited in scope because the Public Prosecutor had filed the withdrawal application before any evidence was taken at the committal stage. Consequently, the only material available to the prosecutor or to the Court at that time consisted of the contents of the first information report. In addition, any statements of witnesses that the police had recorded during the investigation formed part of the material considered.

The Court noted that at the committal stage the prosecution and the Court could rely only on the contents of the First Information Report and on any statements of witnesses that the police had recorded during their investigation. The First Information Report set out the allegations against the appellant, Mahesh Desai, in detail. According to the report, Mahesh Desai and others regularly convened meetings and advocated the closure of the Bagdigi cable plant and coke plant, as well as the assault of the “dalals.” The report described an incident on a Friday morning when labourers were attempting to resume work in pit 8 at Lodna. Striking labourers created a disturbance that prevented the workers who intended to resume work from doing so. At approximately eleven o’clock in the morning, Mahesh Desai, identified as the leader of the Koyala Mazdoor Panchayat, arrived at Bagdigi and instructed the labourers present to cease all work, to remain at their posts and to ensure that no one performed any work. Acting on his direction, the labourers stopped work.

Later that night, at around eleven-thirty p.m., Jadubans Tiwary, the over-man of Bagdigi Colliery, reported that Sheoji Singh and Ramdhar Singh had told him that at about six-thirty p.m. the previous evening Mahesh Desai had gone to the Bagdigi Mahabir Asthan, gathered roughly one hundred twenty to one hundred twenty-five labourers and held a meeting. During that meeting Mahesh Desai allegedly said he had learned that the company and its dalals intended to send some labourers to pit 10 that morning to resume work, and that those labourers would cause the work to be resumed. The report named Phagu Dusadh, Jalo Dusadh, Chamari Dusadh and others as participants in that gathering. Mahesh Desai is alleged to have told them to go to their respective works, to ensure that no work was carried out whatever happened, to remain fully prepared, and that the labourers of Lodna would also assist them and that the police would be unable to cause any harm. The meeting allegedly dissolved at about seven-thirty p.m.

The report continued that Mahesh Desai then travelled by his jeep from Mahabir Asthan to pit 10, where he instructed the labourers to continue their strike. Near the jeep, Phagu, Jalo and Haricharan Dusadh of Bagdigi allegedly engaged him in conversation. Jadubans Tiwary is said to have heard Mahesh Desai declare, “It is necessary for us to finish the dalals for achieving victory. You remain prepared for this.” After saying this, Mahesh Desai allegedly boarded his jeep and, before departing, told Phagu, Haricharan and Jalo Dusadh, “Finish all. What will happen will be seen.” He then left in his jeep, after which Phagu, Jalo and Haricharan returned.

The First Information Report further alleged that the following day a riot erupted in which Phagu, Jalo and Haricharan Dusadh, together with others, pursued Nand Kumar Chaubey, striking him with a “pharsa” blow and a lathi blow, causing him to fall. This sequence of events formed the basis of the charges recorded against Mahesh Desai.

The closing portion of the first information report contained a statement made by the informant describing events related to the murder. He said that on the previous evening he had incited Phagu Dusadh, Jalo Dusadh and Haricharan Dusadh near pit number ten. He further alleged that on the following morning a crowd of about one thousand persons was assembled by Harbans Singh and other union workers. According to the informant, Mahesh Desai caused the murder of Nand Kumar Chaubey to be committed by Phagu Dusadh, Jalo Dusadh and Haricharan Dusadh at eight fifteen a.m. using a lathi and a pharsa. From this passage it appears that the allegation against Mahesh Desai is that he exhorted the labourers at three separate times: once at eleven a.m., again at six-thirty p.m., and finally at seven-thirty p.m. The report does not make clear whether the informant’s knowledge of the eleven a.m. exhortation derived from his own observation or from statements he heard from the labourers themselves. Regarding the exhortations at six-thirty and seven-thirty p.m., the record suggests that the informant received this information from Jadubans Tiwary, who in turn likely relied on what Sheoji Singh and Ramdhar Singh had told him. Consequently, the prosecution's case depended principally on the testimony of Jadubans Tiwary and possibly also on that of Sheoji Singh and Ramdhar Singh, each of whom could testify only about Mahesh Desai’s alleged exhortations. It appears that these witnesses were examined by the police during the investigation, although the report does not provide the full details of their statements. Based on this material, the Court found it difficult to understand why the trial court and the Sessions Court accepted the public prosecutor’s view that the evidence was insufficient for a conviction. The Court also questioned the order to withhold consent under section 494 of the Code of Criminal Procedure in those circumstances. Even the private complainant, who had been permitted to participate at every stage of the proceedings, did not claim in his objection or revision petitions that any additional or better evidence existed. Similarly, the complainant’s counsel did not inform the Court during oral arguments that any further material was available. In view of these circumstances, the Court concluded that no order to withdraw the prosecution should be issued, either as a matter of law or of propriety, and that the matter should proceed to trial for proper evaluation of the evidence. The Court further expressed that even the learned Chief Justice would likely not have felt compelled to interfere with the magistrate’s revisional order in this situation. Accordingly, the Court was of the opinion that the order of the High Court should be set aside and the appeals allowed, restoring the trial court’s decision.

In this case the Court held that the order issued by the High Court was to be set aside and that, as a result, the appeals were allowed. Consequently the order originally passed by the trial court was restored and the proceedings were to continue as if the intervening appellate order had never been made. The Court observed that a question had been raised before it as to whether the private complainants could be permitted to take part in the proceedings at the various stages of the trial. It was expressly stated that nothing said by the Court was intended to confer any locus standi on the private complainant, and therefore the private complainant could not claim the status of a party entitled to intervene. The Court expressed regret that the prosecution, which was still at a very early stage, had to be pursued against the remaining accused after nearly three years had elapsed from the date of the murder. It was hoped that the remaining steps in the trial would be conducted with greater speed so as to avoid further delay. Accordingly the Court directed that the appeals be allowed and the trial-court order be reinstated.