SK. ABDUR KARIM Vs. STATE

JUDGEMENT

(1.) THIS Rule is directed against an order being Order No. 23 dated June 25, 1979, passed by the learned Additional Sessions Judge, Second Court, Murshidabad in Sessions Case No. 170 of 1977. The accused opp. parties were charged under Section 307 read with Section 34 of the Indian Penal Code and one of the accused was charged under Section 323 of the Indian Penal Code separately. There was also a charge under Section 6(3) of the Indian Explosives Act against all the accused persons. As the offences are sessions triable the accused persons were committed to the court of session by the learned Magistrate. After the charges were framed in the Sessions Court an application was made by the learned Public Prosecutor under Section 321 of the Code of Criminal Procedure for permission to withdraw the case against the accused persons. The application made by the learned Public Prosecutor in charge of the case was to the following effect. 'That, being instructed by my client and satisfied with the grounds of withdrawal, the Public Prosecutor Murshidabad puts in the petition seeking Your Honour's consent to the withdrawal from the prosecution in the above case with regard to all offences against the accused persons on the following amongst other grounds: For that in the interest of administration of justice the consent be given. For that the continuation of the case may not serve the administration of justice inasmuch as the social normalcy may not be furthered thereby. For that in the changed political situation the change of minds of the accused persons involved is desired.' Upon this application being made the learned Sessions Judge passed the impugned order. The considerations that weighed with the learned Judge are firstly that in the interest of administration of justice it was necessary that the permission be given to withdraw the case against the accused persons. The learned Judge looked into the medical report and was satisfied that although the charges were under the Explosive Substances Act and also under Section 307, of the Indian Penal Code, none of the injuries that were sustained by the victim, were very serious injuries, in fact they were simple in nature and could be caused by some hard and blunt substance. It was also submitted on behalf of the Public Prosecutor that the incident originated over a dispute in connection with land and that in order to bring about normal relationship between the parties and restore normalcy in the locality it was necessary that the case should be withdrawn against the accused persons. The learned Judge also found that it was a fit case where permission should be granted. Accordingly he acquitted the accused persons upon granting permission under Section 321 of the Code of Criminal Procedure.

(2.) THIS order of acquittal is challenged by Mrs. Mukti Moitra. Mrs. Moitra has submitted that in view of the various decisions of this Court as well as of the Supreme Court the permission to withdraw the case has been given on a misconception of the law. Firstly, she has argued, that the Public Prosecutor had stated in his application that it was his client who had instructed him to withdraw the case. Who his client is, does not appear from the petition or what the clients' instructions are have not been stated in the petition. The Public Prosecutor however considered the materials before him and was of the view that in the interest of administration of justice it was necessary that the case may be withdrawn for which permission was sought for by him. He was also guided by other public considerations for instance the question of restoring the normal relationship between the parties in the locality.

(3.) MRS . Mukti Moitra has cited several cases in support of her contention that the learned Sessions Judge was not oblivious of the principles relating to withdrawal of cases as laid down by the decisions of this Court and the Supreme Court, The cases cited by her are report -ted in 1966 Cri LJ 700, equivalent to : 1966CriLJ700 . In reply to a question put by this Court as to whether the complainant has locus standi to move against an order permitting withdrawal of the case by the learned Magistrate or the Judge. Mrs. Moitra has submitted that the Supreme Court had deprecated the practice of private party who has no locus standi to move the court against any order of discharge or acquittal particularly when the case has proceeded on the basis of a Police report. It has been held in that case (Thakur Ram's case : 1966CriLJ700 ) 'that no doubt the terms of Section 435 are very wide, so a private party can take up the matter suo motu. The criminal law is not however, to be used as an instrument of wreak private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it. Barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all steps necessary for bringing the person who has acted against the social interests of the community to book'. However, it is argued by Mrs. Moitra that that is no authority for saying that the private party can under no circumstances move against an order of acquittal for permission being given under Section 321 of the Code of Criminal Procedure. She has pointed out that in many cases that have gone up to the Supreme Court they have been entertained upon application from private parties (complainant) against orders passed under Section 321 of the Code of Criminal Procedure. She could not however point out to any direct authority on this point except one case of this Court being an unreported case Criminal Revn. Case No. 688 of 1978. In that case after an order of acquittal was passed upon permission being given under Section 321 of the Code of Criminal Procedure a person who was only a witness in the case moved the High Court challenging the order made by the learned Magistrate under Section 321 of the Code of Criminal Procedure; it was commented by their Lordships of the Division Bench presided over by P.C. Borooah, J. that the person who moved the application being a mere witness, cannot file a case against an order under Section 321 of the Code of Criminal Procedure.