A defacto complainant cannot withdraw an appeal against acquittal once filed; such appeals must be resolved on their merits under established legal principles.

JUDGMENT :

APURBA SINHA RAY, J.

1. Mr. Islam, learned Counsel for the appellant/defacto complainant, submitted that the instant criminal appeal was filed against the judgment and order of acquittal dated 15.01.2021, passed by the learned Additional District and Sessions Judge, 4th Court, Berhampore, Murshidabad in Sessions Trial no. 1(8) 2017, arising out of Sessions Case no. 563 of 2016. By the said judgment the accused persons were acquitted from the charges under Sections 302/34 of the Indian Penal Code. Mr. Islam further submitted that recently certain developments have occurred and the de facto complainant is now not willing to proceed with the instant criminal appeal and as such she has prayed for non-prosecution/withdrawal of the instant appeal.

2. In support of his contention he has relied upon the judicial decision reported in Chimanlal J. Gandhi, L.R. Of Natverlal vs. Anilbhai R. Bakeri and Ors. (1997) 2 GLR 1179.

3. We have also heard the learned Public Prosecutor who has submitted that once a criminal appeal is admitted, it is the duty of the Appellate Court to dispose of the said appeal on merits. The Code of Criminal Procedure or the Bharatiya Nagarik Nyaya Sanhita does not allow the appellant to withdraw the appeal filed by him on his sweet will. The High Courts as well as the Hon’ble Apex Court have deprecated such attempts of appellants for non-prosecution or withdrawal of the appeal after the same being admitted. In support of his contention the learned Counsel for the State has relied upon the judgments reported in Biswanath Chakravarty vs. Haripada De Dhara and Ors., AIR 1959 Cal 443, Shyam Deo Pandey and Ors. vs. The State of Bihar, 1971 (1) SCC 855, Kishan Singh vs. State of U.P. 1996 (9) SCC 372, Kamma Otukunta Ram Naidu vs. Chereddy Pedda Subba Reddy, 2003 (12) SCC 723 and Bani Singh and Ors. vs. State of U.P. 1996 (4) SCC 720. In all the cases the Hon’ble Courts held that a criminal appeal either against order of conviction or acquittal cannot be dismissed for non-prosecution.

4. The question arises before us is whether or not the appellant who has challenged the judgment and order of acquittal in connection with charges under Section 302/34 IPC by filing the instant appeal can be allowed to withdraw such appeal after being admitted. If we peruse the judgment of Chimanlal J. Gandhi (supra) we shall find that the Gujarat High Court has observed that such permission for withdrawal of appeal at the instance of the appellant should be allowed since the inherent power of the High Court, should be exercised to secure ends of justice. In fact, the Gujarat High Court has distinguished the judgment of Biswanath Chakravarty (supra) and has been pleased to hold as hereunder:

“19. With respect, in its aforesaid ruling in the case of Biswanath Chakravarty (supra), the Calcutta High Court has not examined the case from this angle. With respect, I am unable to persuade myself to agree with the same. It may, however, be made clear at this stage that I have examined this case only from the angle of the original complainant as the appellant against the judgment and order of acquittal. I have not examined the case from the point of view whether or not appeal can be permitted to be withdrawn if it is instituted by the State Government as the prosecution agency against the judgment and order of acquittal under Section 378(1) of the New Cr.P.C. or it is instituted by the accused against the judgment and order of conviction under Section 374 thereof.

20. In view of my aforesaid discussion, I think this Pursis for Withdrawal of the appeal at the instance of the appellant deserves to be