Full Judgment
John Beaumont, Kt., C.J.
1. This is a reference made by the District Magistrate, Kolaba. The Sub-Divisional Magistrate of Kolaba was enquiring into a case under Section 110 of the Criminal Procedure Code. The Police Sub-Inspector, who had been investigating the antecedents of the person against whom an order was sought under Section 110 and who had given evidence, then asked per mission to conduct the case on behalf of the prosecution. The learned sub- Divisional Magistrate refused permission on the ground that the case fell within Sub-section (4) of Section 495 of the Criminal Procedure Code. Section 495 provides in Sub-section (1) that any Magistrate inquiring into or trying any case may permit the prosecution to be conducted by any person other than an officer of police below the prescribed rank. Then it is provided that no person, other than those named in the Section, which include an officer generally or specially empowered by the Local Government in this behalf, shall be entitled to conduct the prosecution without such permission. There is no evidence before us that the Police Sub-Inspector is an officer generally or specially empowered by the Local Government, and, as he sought permission to conduct the prosecution, we must assume that he has; no such authority, and, that being so, the permission of the learned Magistrate was necessary. Sub-Section (4) of Section 495 provides that an officer of police shall not be permitted to conduct the prosecution if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted. We think that the learned Sub-Divisional Magistrate was wrong in applying Sub-section (4) to this case, and that is the point on which the learned District Magistrate has referred the case to us. It is clear that a person in respect of whom an enquiry is being made under Section 110 is not being prosecuted for any offence. The learned Sub-Divisional Magistrate thought that the Sub-section applied because an enquiry under Section 110 generally necessitates proof of offences committed by the person concerned on former occasions, but those are not offences for which he is being prosecuted under Section 110. In our opinion, it is quite clear that Sub-section (4) does not apply in the case of an enquiry under Section 110, but, on the other hand, Sub-section (2) of Section 495 does apply, since the Magistrate is enquiring into a case. Under that Sub-section the learned Magistrate had a discretion whether to allow the Police Sub-Inspector to conduct the prosecution or not, and we think that he was entitled to exercise his discretion by analogy to Sub-section (4), and that it is generally undesirable for the Police Sub-Inspector, who has been inquiring into a case under Section 110, to conduct such case.
2. We, therefore, make no order on the reference.