ABDUR RAHAMAN Vs. MAKIMAR RAHAMAN

JUDGEMENT

(1.) IN this Rule the only question that falls for determination is whitleather Court of the Committing Magistrate is competent to give consent to the withdrawal, in respect of cases in which offences are exclusively triable by the court' of Sessions, under Section 321 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code ). The question arises in this way.

(2.) A complaint was filed by the petitioner before the learned Sub-Divisional Judicial Magistrate, Basirhat against the accused-opposite parses. alleging offences punishable under Sections 147 447 427 379 323 354 325 and 504 of the Indian Penal Code. The learned Magistrate directed the Officerin-Charge, Basirhat Police Station to treat the complaint as First Information Report and to investigate into the same under Section 156 (3) of the Code. the Police after investigation submitted charge-sheet under Section 307 of the Indian Penal Code, besides other sections', and coignisance was taken thereupon. When the case was awaiting commitment, an application was filed by the learned Assistant Public Prosecutor before the learned Magistrate praying for withdrawal of the case, which was opposed by the petitioner, as the defacto complainant. After hearing the parties, the learned Magistrate, by his order dated August 1, 1978, they gave consent to the withdrawal and discharged the accused persons. Aggrieved by the said order the petitioner moved this court and obtained the present Rule.

(3.) MR. Mukherjee, the learned advocate appearing for the petitioner contended that in a case triable by the court of Sessions an application under section 321 of the Code does not lie before a Magistrate nor can the Magistrate act upon such application. He laid emphasis on the words "in respect of any one or more of the offences for which he is tried" appearing therein. . Relying upon the word tried Mr. Mukherjee submitted that it can only mean that such an application can be filed at the stage of trial and not before that. Mr. Miter, the learned Public. Prosecutor appearing few the State, on the other hand contended that such a narrow construction cannot be given to the word tried as the words tried and trial have been used in various context in different sections of the Code and it has been used In the wider context in Section 321 of the Code. In support of his contention Mr. Mitter has referred to the decision of the Supreme court in the case of State of Bihar-vs-Ramnaresh Pandey reported in A. I. R. 1957 S. C. page 389.