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Biswanath Chakravarty Vs. Haripada De Dhara and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Admitted Appeal No. 427 of 1957
Judge
Reported inAIR1959Cal443,1959CriLJ831
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 345, 345(1) and 423
AppellantBiswanath Chakravarty
RespondentHaripada De Dhara and ors.
Appellant AdvocatePankaj Kumar Ghosh, Adv.;Sisir Kumar Basu, Adv.
Respondent AdvocatePurnendu Narayan Nath, Adv.
Cases ReferredDin Muhammad v. Emperor
Excerpt:
- .....for beating him. they were summoned to take their trial under sections 448 and 323 of the indian penal code and after trial they were found not guilty of the charges on which they were tried and acquitted.3. mr. pankaj kumar ghosh in the petition for special leave has mentioned that the respondents were acquitted of the charge under section 457 of the indian penal code and in ground no. 1 of his petition of appeal has complained that the allegation made by his client amounted to an offence under section 452 of the indian penal code, which offence was not triable summarily.4. while dealing with the joint prayer made by the parties in this court, i was of the view that both the offences as mentioned by mr. ghosh being non-compoundable, the court had no jurisdiction to accord the.....
Judgment:

N.K. Sen, J.

1. In the final hearing of this appeal, a memorandum of agreement has been filed signed by the learned Advocate appearing for the appellant and for the respondents stating that at the intervention of common friends the parties have composed their disputes and settled the above appeal and that in view of the said settlement the appellant will not proceed with the appeal any further. A prayer has been made before me to give effect to the aforesaid settlement and to dispose of the appeal by allowing the appellant permission not to proceed any further with the appeal.

2. The respondents were tried for having committed criminal trespass into the room of the appellant and for beating him. They were summoned to take their trial under Sections 448 and 323 of the Indian Penal Code and after trial they were found not guilty of the charges on which they were tried and acquitted.

3. Mr. Pankaj Kumar Ghosh in the petition for special leave has mentioned that the respondents were acquitted of the charge under Section 457 of the Indian Penal Code and in ground No. 1 of his petition of appeal has complained that the allegation made by his client amounted to an offence under Section 452 of the Indian Penal Code, which offence was not triable summarily.

4. While dealing with the joint prayer made by the parties in this court, I was of the view that both the offences as mentioned by Mr. Ghosh being non-compoundable, the Court had no jurisdiction to accord the permission asked for by the parties. On an examination of the records, however, it is discovered that Mr. Ghosh was wrong in saying that the respondents were acquitted of the charge under Section 457 of the Indian Penal Code and so far as the allegation that the offence was one under Section 452, Indian Penal Code, it was the submission of Mr. Ghosh and not the charge which the respondents were called upon to meet at the trial.

5. There can be no doubt that a criminal appeal once admitted has to the pursued to its natural conclusion and that the appellate Court must consider the appeal on its merits, whether or not the appellant is desirous of prosecuting the same. There are a large number of decisions of various High Courts on the point that once an appeal is admitted, it cannot be dismissed for non-prosecution nor can it be allowed to be withdrawn. The latest case on the point is the case of Sudhindra Nath Dutt v. The Stale, : AIR1957Cal677 ), where Chakravarti, C. J. and Das Gupta, J. decided the point on an application on which they delivered the judgment on 16-4-1957. Their Lordships held

'it appears to us that not only does the Code contain no provision from which any such jurisdiction of the Court can be inferred but on the other hand there are clear indications to the contrary.'

They further held they had no jurisdiction to strike off the appeal on the ground that the appellant does not desire to proceed with it, The same view, namely, that once an appeal is admitted, the Appellate Court is to proceed in accordance with the provisions contained in Section 423 of the Criminal Procedure Code has been taken in the cases of Queen Empress v. Pohpi, ILR 13 All 171 (FB); Bansi Mirdha v. Brojeswar Dutt : AIR1924Cal95 ; Trimbak Balwant v. Emperor : AIR1926Bom548 , Emperor v. Ghulam Muhammad, AIR 1942 Lab 290 (FB); Ram Bharose v. Emperor, 17 Cri LJ 353 (1): (AIR 1916 All 43); Ram Chandar v. Emperor , 24 Cri LJ 662: (AIR 1923 All 175 (2)); Din Muhammad v. Emperor, 35 Cri LJ 963: (AIR 1934 Pesh 21).

6. The above cases no doubt are in connection with the appeals from orders of conviction, but in my judgment that fact can hardly make any difference where appeals against orders of acquittal are to be dealt with. Chapter XXXI of the Code deals with the procedure relating to appeals and it makes no distinction regarding final disposal of appeals from conviction or appeals from the orders of acquittal, so far as the present question is concerned.

7. Mr. Sisir Kumar Basu appearing on behalf of the State has not challenged the above proposition of law butt: he submits that in the present case it is not necessary to so into the question in view of the fact that both the offences under Sections 323 and 448 of the Indian Penal Code on which the respondents were summoned were offences which were compoundable and for which the permission of the court was not necessary. Mr. Basu's argument is that an appeal being the continuation of the proceedings, the appellate Court should be deemed to be a court dealing with the original proceedings and, therefore, the court had no jurisdiction to refuse to allow the parties to compound the offences under Section 345 (1) of the Code. He further submits that under Sub-section (5) of Section 345, the leave of the Court was only necessary in cases where there had been a conviction and an appeal was pending. The submission made by Mr. Basu appears to me to be a quite reasonable one on the face of it. It is, however, not necessary to go into that question in the present case, firstly because I have no jurisdiction to allow the withdrawal of the appeal. Despite the prayer of the parties, I have to consider the appeal on its merits. Having considered the appeal on its merits I have no doubt in my mind that the order of acquittal was rightly passed; secondly, on the other point, that after the admission of the appeal the appellate Court being in the position of an original Court holding the trial, the court was hound to record a composition if the offences fell under Clause (1) of Section 345 of the Code of Criminal Procedure. I accept that proposition of law and grant the prayer of the parties with the result that the composition of the offence shall have the effect of an acquittal of the accused.

8. The appeal is disposed of accordingly.


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