MANUBHAI SOMABHAI SHAH Vs. BIPINCHANDRA JAGMOHANDAS PARIKH

JUDGEMENT

(1.) . An interesting question touching the interpretation of sec. 321 of the Criminal Procedure Code is raised in this special criminal application which arises from the criminal proceedings which were instituted against opponent No. 1-original accused at the instance of the applicant who lodged information with the police that the accused had trespassed into the premises which were in his occupation as a tenant and that theft of certain articles was committed by the accused from the said premises. After police investigated into the matter the accused wa chargesheeted for the offences punishable under sec. 457 and 180 of the Indian Penal Code in the court of the Judicial Magistrate First class Kaira-Mehmedabad. On 13th January 1978 the Assistant Public Prosecutor gave an application (ex.9) inter alia stating that a communication has been received from the District Magistrate Kaira dated 5th January 1978 for withdrawing the said case against the accused which had stood adjourned to 9th February 1978. The Assistant Public Prosecutor therefore asked for permission to withdraw the said case. The learned Magistrate fixed the said application for hearing on 9th February 1978 which was the adjourned date of the case. But it seems in the meanwhile on 18th January 1978 the accused submitted application ex. 8 inter alia stating therein that he was a public social worker; that the Government had decided to withdraw the case; that an application had been made in this behalf by the Assistant Public Prosecutor and that the case should therefore be immediately taken up for the purpose of considering the said application for withdrawal ex. 9. Be it noted that the District Magistrate in his said communication dated 5th January 1978 had inter alia stated that the Government had decided to withdraw the case for reasons of the State. The learned Magistrate after receiving the said application of the accused ex. 8 heard the application ex. 9 and after hearing the Assistant Public Prosecutor he passed the order granting him permission to withdraw the same and consequently acquited the accused for the offences with he was charged that is the offences under secs. 457 and 380 of the Indian Penal Code in view of the provisions of sec. 321(b) of the Criminal Procedure Code. He also passed an order for return of articles Nos. 1 to 54 to the present applicant that is the original first informant.

(2.) The first informant aggrieved by this order carried the matter in revision to the Court of Sessions Judge of Kaira at Nadiad. The learned Sessions Judge rejected the said application on a technical ground that he was powerless to redress the grievance of the applicant because the order passed by the learned Magistrate amounted to an order of acquittal as laid down in sec. 321(b) of the Code and the Sessions Court would not be a proper forum for the complainant to ventilate his grievance for which he should approach the appropriate forum. After this order of the Sessions Court was passed the applicant filed the present special criminal application under Articles 226 and 227 of the Constitution challenging the said order of the learned Magistrate dated 20th January 1978 as also the judgment and order of the learned Sessions Judge of Kaira at Nadiad dated 15th June 1978.

(3.) Mr. J. B. Patel the learned Advocate appearing for the applicant submits that the order passed by the learned Magistrate is bad on the face of it and requires to be set aside. Sec. 321 of the Code provides thus :- 321 The Public Prosecutor 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