Calcutta High Court (Appellete Side)
Smt. Srabanti Bhattacharya vs The State Of West Bengal & Ors on 15 February, 2019
Author: Asha Arora
Bench: Asha Arora
15.02.19
Sl.no. 55
Ct. No. 30
P.M.
C. R. R. 2517 OF 2018
Smt. Srabanti Bhattacharya.
- vs -
The State of West Bengal & Ors.
Mr. Sabir Ahmed,
Mr. H. S. Podder
.... For the petitioner.
Mr. Ramesh Chandra Prusti,
Mr. Balaram Pandit,
Mr. Pranab Chaterjee
... for the opposite party No. 2 to 8
Ms. Faria Hossain
... for the State.
By the instant application the petitioner has assailed the order dated
01.12.2014passed by the learned Additional Chief Judicial Magistrate Barrackpore, North 24-Parganas in G.R. Case No. 5813 of 2013 arising out of Belghoria P.S. Case No. 501 of 2013 dated 2nd December, 2013 under section 323/354/427/451/252/506/120B of the Indian Penal Code whereby an application under Section 321 of the Code of Criminal Procedure filed by the Assistant Public Prosecutor praying for withdrawal from prosecution of the aforesaid case was allowed and the accused persons/opposite party nos. 2 to 8 herein were discharged from the case in terms of Section 321 of the Code of Criminal Procedure.
The brief facts giving rise to the present application may be summarized as follows :
The opposite party Nos. 2 to 8 herein are the employees of Bank of India, Baranagar Branch who, in course of their official duty went to the residence of the petitioner/complainant to take peaceful possession of the mortgaged property. Over the said incident the petitioner herein filed a complaint before the learned Additional Chief Judicial Magistrate, Barrackpore under Section 156(3) Cr.P.C. against the opposite party Nos. 2 to 8 alleging commission of offences under Section 323/354/427/451/252/506/120B of I.P.C. On the basis of the said complaint the aforesaid criminal proceeding was initiated. Investigation culminated in the submission of the charge sheet on 16.07.2014 under Section 323/354/427/451/506/120B against the opposite Party nos. 2 to 8. On 28.11.2014 an application was filed by the learned Assistant Public Prosecutor under Section 321 Cr.P.C. praying for withdrawal from prosecution of the said case mainly on the ground that it was initiated to harass the employees of the bank who had acted in good faith for recovery of public money and the case was the outcome of vengeance against the bank employees. The learned Magistrate, by a reasoned order, permitted the Assistant Public Prosecutor to withdraw from the prosecution.
Aggrieved by the aforesaid order, the petitioner/ complainant has assailed the same.
Learned counsel for the petitioner submits that without hearing the complainant the application under Section 321 of the Code of Criminal Procedure ought not to have been allowed.
At this juncture, it may be beneficial to refer to section 321 of the Code of Criminal Procedure which reads as follows :
"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 judgement 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 after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences:
Provided that where such offence -
(i). was against any law relating to a matter to which the executive power of the Union extends, or
(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or
(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the central Government, or
(iv) was committed by a person in the service of the Central government while acting or purporting to act in the discharge of his official duty, and the prosecutor in charge of the case has not been appointed by the Central Government he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution."
It is clear from a plain reading of the aforesaid provisions that the Public Prosecutor or the Assistant Public Prosecutor in charge of a case may, with the consent of the Court withdraw from a prosecution. The discretion exercisable by the Public Prosecutor under Section 321 Cr.P.C. is fettered only by a consent from the Court upon consideration of the materials placed on record. It appears that the application under section 321 Cr.P.C. was allowed by the learned Magistrate by a reasoned order upon considering the facts and circumstances of the case and the materials on record. I do not find any illegality or irregularity in the order impugned.
There is no merit in the application being C.R.R. 2517 of 2018 which is thus dismissed.
No order as to cost.
Urgent photostat certified copy of this order, if applied for, be given to the applicant upon compliance of requisite formalities.
( Asha Arora, J.)