State of J & K vs Nazir Ahmad Bhat

Against the judgment dated 2761996 of Special Judge, AntiCorruption, Srinagar acquitting accused Respondent Nazir Ahmad Bhat, senior

clerk, Bone and Joint Hospital, Srinagar Kashmir, in a challan case under section 161 R.P.C and Section 5(2) of Prevention of Corruption Act,

Acquital Appeal has been preferred by the State of J and K through Additional Advocate General. The appeal has been admitted and notice

issued to the respondent accused by a Single bench of the Court on 30121996. The record has been received and the service is complete and the

case is ripe for hearing and is waiting its turn for listing before the court as hearing matter.

The Additional Advocate General, Mr. M.H. Attar, has through this motion sought permission to withdraw the appeal. The Advocate General

has placed on record a communication received by him from Director Prosecution of Vigilance Department, directing the Advocate General to

withdraw the appeal from the High Court. The respondent has appeared in person and taken notice.

I have heard Mr. Attar, AAG, in the matter. The only question to be answered is whether the appeal can be allowed to be withdrawn even if the

Adi. Advocate General or for that matter the Government desire to withdraw the appeal.

Chapter XXXI of Part 7 which deals with the appeals no where provides that an appeal, may be an acquital appeal, can be withdrawn by the

appellant, be he the complainant or public prosecutor, which term includes in the context of acquital appeals, the Advocate General. There is no

express provision to cover the withdrawal of an appeal. The consistent view of the courts is that once an appeal has been admitted, the notice sent

for and record received, the appellate court is bound to hear it and decide it on merits. The appellant cannot be allowed to withdraw it, even if he

so desires or chooses; may be for some weighty reasons. In any case, the reasons for withdrawal of an appeal are of no consequences when the

statute does not provide for the withdrawal of the appeal itself. After all if appeal is a statutory right, the withdrawal has also to be thus provided by

the Statute an appeal. The withdrawal of the appeal cannot be compared to admittance of appeal as is sought to be done by the learned Additional

Advocate General after all withdrawal of an appeal is a distinct concept in contradistinction to plea of admittance of appeal. The two are far apart

legal concepts. As no powers to allow withdrawal of appeal inhire in the court, the question of undertaking a plea to allow the withdrawal of

appeal, does not arise.

In my view neither the appellant has a legal authority to withdraw the appeal nor the Court has any power to allow the withdrawal of appeal. In

this view I am fortified by a Full Bench decision of Lahore High Court in Emperor Vs. Ghulam Mohd. AIR (29) 1942 Lahore: 296. Their lordships

have observed:

....The Legislature have never contemplated any withdrawal of an appeal once lodged, whether by the accused or by the Crown and, once the

appeal has been lodged and admitted, it is not in the power of any Court or in the power of the appellant to allow the appeal to be withdrawn. The

Court is bound once the appeal is admitted to proceed under Sec. 421 or under Sections 422 and 423 to decide the appeal on the merits."" High

Court of Himachal Pradesh in AIR 1954 H.M: 83 Sohan Lal Vs. State of Himachal Pradesh, relying on AIR (29) 1942 Lahore (Supra), has taken

the same view that an appeal can neither be withdrawn nor struck out on the ground that the appellant does not desire to proceed with it. In

accord with this view, Calcutta High Court in AIR 1957: 677 and AIR 1959 Calcutta: 443 has held that once an appeal is admitted, it cannot be

allowed to be withdrawn and has to be heard and determined on merits.

The counsel for the appellant, Mr. Attar, AAG, has not shown any authority whether based on a statutory provision or case law to pronounce

that an appeal can be withdrawn after its admission.

For the aforesaid reasons, the motion for withdrawal of the appeal is rejected, IA No. 6/98 is accordingly disposed of as dismissed. The main

appeal shall be listed for hearing on a date to be fixed by the Registry.