BIREN MITRA Vs. STATE AND OTHERS

JUDGEMENT

(1.) This application has been filed by Sri Biren Mitra, as the Special Public Prosecutor in-charge of Case No. M. 168 of 1980 under sections 384 and 506 of the Indian Penal Code pending in the Court of the Metropolitan Magistrate, 13th Court, Calcutta against an order dated Aug. 18, 1980 passed by Sri L. P. Bhattacharya, Magistrate in charge of the said Court on the petitioners application under section 321 of the Code of Criminal Procedure (hereinafter referred to as the Code) ordering that the defacto-complainant was entitled to get a copy of the petition under section 321 of the Code filed by Sri Biren Mitra and to file a written objection, if any.

(2.) On June 3, 1978, the defacto-complainant, Jayanta Chatterjee, a partner of Naresh Nath Mukherjee & Co., a firm of Stevedors in Calcutta, lodged a written information with the Commissioner of Police, Calcutta against the accused opposite party, Bistu Ghosh, a Trade Union Leader, alleging commission of offences under Sections 384 and 506 of the Indian Penal Code. Charges were duly framed on May 29, 1973 under the aforesaid two sections and some evidence was adduced. On Jan. 30, 1978, Sri D. Chakraborty, Public Prosecutor then in-charge of the said case filed an application for withdrawal of the prosecution under section 321 of the Code. The learned Magistrate by an order dated June 21, 1978 rejected the prayer for withdrawal. Against that order the Public Prosecutor moved this Court in revision and obtained a Rule, and on Sept. 13, 1978, B. N. Maitra, J. disposed of the said Rule giving the Public Prosecutor liberty to file another application and directing the learned Magistrate to dispose of the same in accordance with law if such an application was filed. Thereafter Sri Biren Mitra was appointed Special Public Prosecutor to conduct the aforesaid case. A fresh application for withdrawal was filed and the learned Magistrate, by an ; order dated May 12, 1979, allowed the prayer of the present petitioner. Against the order of the learned Magistrate the defacto complainant ; moved this Court and Monoj Kumar Mukherjee, J. by an order dated Sept. 19, 1979, set aside the learned Magistrates order on a technical ground, namely, that Sri D. Chakraborty, the previous Public ; Prosecutor was shown as the petitioner, but Sri Biren Mitra had signed the petition for withdrawal. Against the order of the learned Judge the accused opposite party moved the Supreme Court which, by an order dated March 26, 1980, after notice to the defacto complainant, disposed of the application giving liberty to the present petitioner or any other Public Prosecutor in charge of the case, to apply his mind, if he so desires, C and to file a fresh petition for withdrawal of prosecution of the case in the Court concerned. Accordingly, a fresh application under Sec. 321 of the Code was filed by Sri Mitra on June 5, 1980, in the court of the learned t Magistrate. On Aug. 6, 1980, the defacto complainant applied to the learned Magistrate praying for a copy of the application under Sec. 311 of the Code to enable him to be heard in the matter and thereafter, the learned Magistrate passed the order which is the subject matter of challenge in this application.

(3.) It has been contended before us by Sri Mitra and also by Sri Balai Chandra Ray, appearing on behalf of the accused opposite part;, that when an application under Sec. 321 of the Code is filed the defacto complainant has no locus standi and cannot be given a hearing: , the Court is only to hear the Public Prosecutor and thereafter pass ai order in accordance with law. Our attention has been drawn to a decision of the Supreme Court in the case of Rajendra Kumar Jain Vs. The State through the Special Public Establishment and Ors. and some connected cases which were heard analogously and which have been reported in (1980) 3 SCC page 435. Our attention has also been drawn to another decision of the Supreme Court in the case of Subhas Chandra Vs. The State (Chandigarh Admit & Ors.), reported in AIR 1980 SC 423. Mr. Promode Ranjan Roy, learned Advocate appearing on behalf of the complainant opposite party, has, on the other hand, argued that his client has a right to be heard to enable the learned Magistrate to come to a correct conclusion whether or not he should allow the Special Public Prosecutor application for withdrawal from prosecution. Our attention had also been drawn by Mr. Roy to a number of decisions, but it will not be necessary in deciding this application to refer to them.