N.G. Chaudhuri, J.
1. In this appeal a question has been raised as to competence of this appeal or its maintainability as the first point for consideration. For appreciation of the contention facts may be given in brief. A case under Section 403/406/420 I.P.C. was started against the accused opposite party registered as G.R. Case No. 1678 of 1979. After the police submitted charge-sheet in the case, and 1 am told, after charge was framed the Public Prosecutor (not the Assistant Public Prosecutor attached to the 9th Court of Judicial Magistrate, Alipore, where the case was pending) filed an application for withdrawal from prosecution under Section 321 of the Cr. P.C. 1973. The learned Magistrate by his order dated 24-11-76 refused his consent to the application for withdrawal and amongst other things observed that the Assistant Public Prosecutor did not make the application for withdrawal and there was some difference of opinion between the Public Prosecutor and the Assistant Public Prosecutor. Aggrieved with the order, the accused, as petitioner, filed a revisional application before the Sessions Judge, 24 Parganas on 25-11-76 and on the very same date after hearing the learned Advocate for the petitioner and also the learned Public Prosecutor, the learned Sessions Judge allowed the Criminal Motion on contest, set aside the order of the learned Magistrate rejecting the prayer of the learned Public Prosecutor, 24 Parganas, for withdrawal of the criminal case against the accused and permitted the learned Public Prosecutor to withdraw the case and ordered acquittal of the accused in the said case. The State Government in the name of Superintendent and Remembrancer of Legal Affairs, West Bengal, filed this appeal on 1-3-77 with prayer for leave under Section 378(3) of the Code. At the relevant time, i.e. 1-3-77 Section 378(1) of the Code of 1973 read as follows:
378(1). Save as otherwise provided in Sub-section (2) and subject to the provisions of Sub-sections (3) and (5). the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.
In the present case because of framing of charge grant of consent by the Sessions Judge to the prayer for withdrawal from prosecution led to consequential acquittal of the accused which was expressly recorded. But the point worthy of note is that the order was not passed by a court of original jurisdiction or by any court exercising its appellate power. The section quoted above was amended in 1978 and the words 'or an order of acquittal passed by the court of session in revision' have been added after the word 'High court' in the subsection as quoted earlier. The amendment has not been given any retrospective effect. A question, therefore, has arisen if an appeal lay against an order passed by the Sessions Judge acquitting the accused in revision. Mr. Dutt, the learned Advocate for the accused respondent contends that appeal is a creature of Statute and when on the date of filing the appeal the Code did not expressly provide for an appeal from an order of acquittal passed by a Sessions Judge in exercise of its revisional power such appeal should be held to be incompetent. In this connexion he relies on some of the observations made in the case of Kanhaiyalal Pasuari v. Corporation of Calcutta, reported in 1977 Cal HC (N) 109 : 1977 Cri LJ NOC 177. Mr. Dutt contends that right of appeal and forum of appeal are always determined by the provisions of the Act obtaining at the time of filing the appeal and not by subsequent amendments. He further argues that when the Code as it existed on the date of appeal, did not expressly permit an appeal the conclusion is inescapable that the appeal was barred. Mr. Maitra learned Advocate appearing on behalf of the appellant does not seriously dispute the validity of the above proposition, but relying on some observations made in the case of Mahammad Kasimuddin v. Yunus Ali Mondal reported in (1983) 1 Cal HC Notes 405 : 1983 Cri LJ 885 contends that the Court may treat the memorandum of appeal under consideration as an application in revision. Assuming for argument's sake that the Division Bench decision cited by Mr. Maitra is an authority for the proposition of law he propounds we are still to examine if it would be proper and expedient in the facts and circumstances of the present case to treat the memorandum of appeal as an application for revision. For the present we will only note that the criminal case has for all practical purposes been disposed of in Nov. 1976 and if we treat the memorandum of appeal as an application for revision and we exercise our power in favour of the appellant the most that we would be able to do is to order a re-trial. That will mean a long drawn trial of a case. This consideration causes some anxiety and hesitation in us.
2. The question of propriety may be considered in the context of reasons given by the learned Sessions Judge for passing the order under our consideration. We quote the observations of the learned Sessions Judge from his order:
The case was pending before the Judicial Magistrate, 9th Court, Alipore. That case was in respect of misappropriation of golden hands of Kali Deity. Value of such gold was approximately Rs. 26,100/-. On 24-11-76, the Public Prosecutor, 24 Parganas filed an application for withdrawal of the case before the said learned Judicial Magistrate on the ground that I, as District Judge and as Guardian of the deity accepted the said sum of Rs. 26,100/- from the accused towards the price of the said gold. The learned Magistrate, however, for reasons best known to him rejected the prayer for withdrawal and fixed the case for further evidence. Against that order dt. 24-11-76, the instant application has been filed before me. In a civil case pending before me the Temple Committee accepted the explanation of the accused for non-delivery of gold and the matter was compromised between the committee and the accused-petitioner with my permission and according to the terms of compromise, the accused actually paid Rs. 26,100/- to the Temple Committee. The terms of the said compromise were accepted by me personally, as legal. Accordingly, the civil dispute was over and in terms of the said petition the instant petition was filed by the learned Public Prosecutor, 24 Parganas for withdrawal of the case.
For the reasons given by the learned Sessions Judge which involved discharge of some functions by him as District Judge of the District, the Sessions Judge granted his consent to the prayer for withdrawal. We see no reason to treat the order of the Sessions Judge as improper. The Temple Committee appears to have compromised the dispute with the respondent. No useful purpose will now be served by carrying on the prosecution after its resurrection.
3. For the considerations noted above we feel satisfied that the appeal itself is incompetent and it would not be proper to entertain the memorandum of appeal as an application in revision in the facts and circumstances of the present case.
4. Still a question has been raised if the Public Prosecutor could file the application for withdrawal before the learned Judicial Magistrate under Section 321 of the Code. Relying on some of the observations made by the Supreme Court in the case of M. N. Sankaranarayanan Nair v. P.V. Balakrishnan, reported in : 1972CriLJ301 and in the case of State of Punjab v. Surjit Singh reported in : 1967CriLJ1084 Mr. Maitra submits that for the purpose of filing an application for withdrawal from prosecution the Public Prosecutor is required to be the Public Prosecutor in charge of the case. He contends that the case was pending in the Court of the Magistrate. The Assistant Public Prosecutor appointed under Section 25 of the Code was in charge of the case and the Public Prosecutor had no business to apply for withdrawal from prosecution before the learned Magistrate. Mr. Maitra insinuates that there was mala fide exercise of power by the learned Public Prosecutor. Section 321 of the Code authorises the Public Prosecutor or Assistant Public Prosecutor in charge of a case to withdraw from the prosecution of any person. Mr. Maitra argues that when Assistant Public Prosecutor is in charge of a case he will have the sole and exclusive authority to apply for withdrawal from prosecution of any person. Mr. Maitra argues that when Assistant Public Prosecutor is in charge of a case he will have the sole and exclusive authority to apply for withdrawal from prosecution. When the case is in charge of a Public Prosecutor the Public Prosecutor will make the application. He contends that the Assistant Public Prosecutor is in no way subordinate to the Public Prosecutor and the Public Prosecutor cannot override the Assistant Public Prosecutor. In this connexion he refers us to Section 34 of the Code and contends that there is no evidence that the State Government withdrew from the Assistant Public Prosecutor the power which he could, as a matter of general practice, exercise under Section 321 of the Code. These arguments in spite of their ingenuity do not weigh with us. Section 24 of the Code empowers the State Government to appoint a Public Prosecutor in respect of a District It is to be noted that the Public Prosecutor's functions are not confined to the Court of Session or to the Courts of Magistrates. The conclusion is, therefore, inescapable that in respect of court matters affecting the State in the District, the Public Prosecutor is the sole authority and his power extends to all courts within the district, including courts of Sessions Judges and of Magistrates, courts exercising original jurisdiction and courts exercising appellate and revisional jurisdiction. Section 25 of the Code which empowers the State Government to appoint Assistant Public Prosecutor makes it clear that the Assistant Public Prosecutor is to be appointed for conducting prosecutions in the courts of Magistrates. Apart from the word 'Assistant' occurring in the designation the limitation of the functions of the Assistant Public Prosecutor in the courts of Magistrates clearly makes him subordinate to the Public Prosecutor. So we cannot avoid the conclusion that in the event of a conflict of opinion between Public Prosecutor and an Assistant Public Prosecutor, the authority of the Public Prosecutor will prevail. This is the reason why ' in Section 321 the expression Public Prosecutor comes first and thereafter comes the expression 'or Assistant Public Prosecutor in charge of the case'. On a plain reading of the section it seems to us that if the Public Prosecutor makes an application for withdrawal irrespective of the court in which the case is pending the court will consider the prayer. If, on the other hand, Public Prosecutor does not come forward with such a prayer but the Assistant Public Prosecutor comes up with such a prayer the court may consider the prayer so made by the Assistant Public Prosecutor. There is, again, scope for thinking that the expression 'Assistant Public Prosecutor in charge of a case' used in Section 321 has reference to the said expression as used in Section 25(3) of the Code. We, however, do not discuss this aspect of the case in details as no occasion for such discussion has arisen. We are satisfied that the appeal is incompetent and the memorandum of appeal, therefore, is liable to be rejected. We are further satisfied that in the facts and circumstances of the present case it would be improper and inexpedient to treat the memorandum of appeal as an application in revision. As such, we order rejection of the memorandum of appeal on contest The appeal is thus disposed of. The respondent be released from his bail bond.
Gobinda Chandra Chatterjee, J.
5. I agree.