IMPORTANT POINT
The acquittal of accused under Section 321 Cr.P.C. can be appealed by the victim as defined under Section 2(wa) Cr.P.C., affirming the victim's rights in criminal proceedings.

ORDER :

K. Babu, J.

The challenge in this Criminal Revision Petition is to the judgment, dated 18.06.2024 in Crl.Appeal No.208 of 2018 passed by the Additional Sessions Court-V, Thiruvnanathapuram, that set aside the order dated 24.09.2018 in CMP 16371 of 2014 in CC 629 of 2009 passed by the Judicial First Class Magistrate Court-III, Neyyattinkara.

2. The Secretary-in-charge of the Kanjiramkulam Service Co-operative Bank Ltd, Thiruvananthapuram filed a complaint before the Judicial First Class Magistrate-III Neyyatinkara, against the former Secretary of the Co-operative society, a member of the Co-operative Society and the Administrator appointed by the Government alleging offences punishable under Sections 464, 468 and 420 read with Section 34 of the Indian Penal Code. The complainant alleged that the persons arraigned as accused committed forgery, cheating and criminal breach of trust. The specific allegation was that, in furtherance of their common intention, the accused misappropriated a sum of Rs.1,00,000/- from the Co-operative Society. The acts of the accused adversely affected the goodwill of the society.

3. The learned Magistrate forwarded the complaint for investigation under Section 156(3) Cr.P.C. The Kanjiramkulam Police registered FIR No.195 of 2007, conducted investigation and submitted the final report against the three accused. In response to the summons, the accused appeared. The learned Magistrate framed charges against the accused. Thereafter, the learned Assistant Public Prosecutor submitted a petition under Section 321 Cr.P.C. seeking withdrawal of the prosecution. The learned Magistrate allowed the application, consenting the prosecution to withdraw the prosecution of the offences against the accused and acquitted them under Section 321(b) of the Cr.P.C.

4. The Co-operative Society challenged the order granting consent to withdraw the prosecution by filing Crl.Appeal No.208 of 2018 before the Sessions Court. The learned Sessions Judge allowed the appeal and dismissed CMP No.16371 of 2014 and directed the Trial Court to dispose of the case on merits as early as possible. This judgment is under challenge in this Revision Petition.

5. I have heard the learned counsel for the Revision petitioner and the learned Public Prosecutor.

6. The learned counsel for the revision petitioner raised two contentions:

(i) A statutory appeal was not maintainable challenging the order allowing an application under Section 321 Cr.P.C.

(ii) The Sessions Judge committed an error by entering into the merit of the allegations as the duty of the Court in an application under Section 321 Cr.P.C was only to see whether the Assistant Public Prosecutor has applied his mind while seeking withdrawal of the prosecution.

7. The learned Public Prosecutor submitted that an order under Section 321 Cr.P.C. is appealable at the instance of the victim under the proviso to Section 372 Cr.P.C. The learned Public Prosecutor submitted that the finding of the learned Magistrate granting consent to withdraw the prosecution is legally sustainable.

8. The learned counsel for the revision petitioner submitted that as the order under Section 321 Cr.P.C does not have the status of an order of conviction or acquittal, it is not appealable. The learned counsel relied on paragraph 91 of the judgment of the Supreme Court in Sheonandan Paswan v. State of Bihar and Others [1983 KHC 434] in support of her contention. It is advantageous to extract Section 321 Cr.P.C., which reads thus:

“321. Withdrawal from prosecution. - 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, -

(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;

(b) if it is made afte