JUDGMENT : APURBA SINHA RAY, J. 1. Mr. Islam, learned Counsel for the appellant/defacto complainant, submitted that the instant criminal appeal was filed against the judgment and order of acquittal dated 15.01.2021, passed by the learned Additional District and Sessions Judge, 4th Court, Berhampore, Murshidabad in Sessions Trial no. 1(8) 2017, arising out of Sessions Case no. 563 of 2016. By the said judgment the accused persons were acquitted from the charges under Sections 302/34 of the Indian Penal Code. Mr. Islam further submitted that recently certain developments have occurred and the de facto complainant is now not willing to proceed with the instant criminal appeal and as such she has prayed for non-prosecution/withdrawal of the instant appeal. 2. In support of his contention he has relied upon the judicial decision reported in Chimanlal J. Gandhi, L.R. Of Natverlal vs. Anilbhai R. Bakeri and Ors. (1997) 2 GLR 1179 . 3. We have also heard the learned Public Prosecutor who has submitted that once a criminal appeal is admitted, it is the duty of the Appellate Court to dispose of the said appeal on merits. The Code of Criminal Procedure or the Bharatiya Nagarik Nyaya Sanhita does not allow the appellant to withdraw the appeal filed by him on his sweet will. The High Courts as well as the Hon’ble Apex Court have deprecated such attempts of appellants for non-prosecution or withdrawal of the appeal after the same being admitted. In support of his contention the learned Counsel for the State has relied upon the judgments reported in Biswanath Chakravarty vs. Haripada De Dhara and Ors., AIR 1959 Cal 443 , Shyam Deo Pandey and Ors. vs. The State of Bihar, 1971 (1) SCC 855 , Kishan Singh vs. State of U.P. 1996 (9) SCC 372 , Kamma Otukunta Ram Naidu vs. Chereddy Pedda Subba Reddy, 2003 (12) SCC 723 and Bani Singh and Ors. vs. State of U.P. 1996 (4) SCC 720. In all the cases the Hon’ble Courts held that a criminal appeal either against order of conviction or acquittal cannot be dismissed for non-prosecution. 4. The question arises before us is whether or not the appellant who has challenged the judgment and order of acquittal in connection with charges under Section 302/34 IPC by filing the instant appeal can be allowed to withdraw such appeal after being admitted. 4. The question arises before us is whether or not the appellant who has challenged the judgment and order of acquittal in connection with charges under Section 302/34 IPC by filing the instant appeal can be allowed to withdraw such appeal after being admitted. If we peruse the judgment of Chimanlal J. Gandhi (supra) we shall find that the Gujarat High Court has observed that such permission for withdrawal of appeal at the instance of the appellant should be allowed since the inherent power of the High Court, should be exercised to secure ends of justice. In fact, the Gujarat High Court has distinguished the judgment of Biswanath Chakravarty (supra) and has been pleased to hold as hereunder: “19. With respect, in its aforesaid ruling in the case of Biswanath Chakravarty (supra), the Calcutta High Court has not examined the case from this angle. With respect, I am unable to persuade myself to agree with the same. It may, however, be made clear at this stage that I have examined this case only from the angle of the original complainant as the appellant against the judgment and order of acquittal. I have not examined the case from the point of view whether or not appeal can be permitted to be withdrawn if it is instituted by the State Government as the prosecution agency against the judgment and order of acquittal under Section 378(1) of the New Cr.P.C. or it is instituted by the accused against the judgment and order of conviction under Section 374 thereof. 20. In view of my aforesaid discussion, I think this Pursis for Withdrawal of the appeal at the instance of the appellant deserves to be acted upon and this appeal deserves to be disposed of as withdrawn. Even assuming that my aforesaid view is not correct, the Pursis for withdrawal taken on record may be treated as composition of the disputes in the nature of offences by and between the parties. As rightly pointed out by learned Additional Public Prosecutor Shri Bukhari for respondent No. 5 - State the offences with which the accused stood charged at trial were not compoundable. However as a special case, they can be permitted to be compounded. 21. I am fortified in my view by the binding ruling of the Supreme Court in the case of Mahesh Chand v. State of Rajasthan. However as a special case, they can be permitted to be compounded. 21. I am fortified in my view by the binding ruling of the Supreme Court in the case of Mahesh Chand v. State of Rajasthan. In that case, the accused were charged with the offence punishable under Section 307 of the I.P.C. They were acquitted by the trial Court but were convicted by the High Court. The offence was not compoundable under the law. The parties approached before the Supreme Court to treat it as a special case. Considering the special nature of the case, permission to compound the offence was granted by the Supreme Court. The aforesaid ruling of the Supreme Court in the case of Mahesh Chand (supra) is binding to this Court. It can be made applicable to the facts of the present case. As pointed out hereinabove, the complaint giving rise to the criminal trial and consequently the present appeal was lodged as back as on 28th April 1977. Nearly two decades (more than 19 years) have rolled by since then. The trial has ended in acquittal of the accused. As transpiring from the terms of the Resolution accompanying the Pursis for withdrawal, the learned Advocate for the appellant has explained the position of law governing appeal against the judgment and order of acquittal. If at that stage the aggrieved party wanted composition of the offences with which the surviving respondent-accused stood charged, I think this is a fit case where treating it as a special case permission for composition thereof deserves to be granted. It cannot be gainsaid that composition of offences by permission of the Court would result in acquittal. In that view of the matter, the judgment and order of acquittal passed by the learned trial Magistrate will have to be affirmed on account of composition of the offences by and between the parties. 22. In the result, this appeal is disposed of as withdrawn at the instance of the appellant. Even otherwise, the judgment and order of acquittal passed by the learned Metropolitan Magistrate of Court No. 3 at Ahmedabad on 18th October 1980 in Criminal Case No. 816 of 1977 is affirmed in view of composition of the offences by and between the parties. This appeal accordingly stands disposed of. 5. Mr. Islam has relied heavily upon the aforesaid case law. This appeal accordingly stands disposed of. 5. Mr. Islam has relied heavily upon the aforesaid case law. However, it appears that the factual matrix of the said case law was that the Chairman of one Cooperative Housing Society found some irregularities committed by the former office bearers in construction of house for members of the society in collusion with its organisers and builders. He filed one complaint before the Metropolitan Magistrate Court at Ahmedabad and subsequently the said case ended in acquittal of the respondents and being aggrieved the original complainant moved the Hon’ble High Court at Gujarat in a petition for special leave to appeal under Section 378(4) of the Criminal Procedure Code and on granting such special leave the appeal was filed. However, during pendency of the said appeal the original appellant breathed his last. The successor Chairman had opted to continue to proceed with the appeal by substituting himself in the place of the deceased appellant as the Chairman of the Society. However, the executive committee of the society passed two resolutions contending that as the original complainant was no longer alive and with a view to maintaining good relations with the parties, it was resolved not to proceed with the appeal and to withdraw it. The question arose whether or not the appellant can be permitted to withdraw the said appeal once it has been admitted for hearing. On this backdrop of factual matrix, the Gujarat High Court in the aforesaid case allowed withdrawal of the appeal on the grounds as already pointed out above. 6. From the judgments cited on behalf of the State it appears that all the judgments have dealt with the issue of whether an appeal against a judgment and order of conviction can be withdrawn or dismissed for non-prosecution. 7. In Shyam Deo Pandey (supra) , the factual aspect was that the appellants were convicted by the Trial Court for an offence under Section 363 of IPC. They preferred an appeal to the High Court. On the day of hearing neither the appellants nor their Counsel was present. The High Court dismissed the appeal. In the appeal before the Supreme Court the question was whether such disposal of the appeal by the High Court was in conformity with Section 423 of the old Criminal Procedure Code. The Hon’ble Supreme Court has been pleased to observe that: “19. The High Court dismissed the appeal. In the appeal before the Supreme Court the question was whether such disposal of the appeal by the High Court was in conformity with Section 423 of the old Criminal Procedure Code. The Hon’ble Supreme Court has been pleased to observe that: “19. A reading of Section 423 makes it clear that a criminal appeal cannot be dismissed for default of appearance of the appellants or their counsel. The Court has either to adjourn the hearing of the appeal in order to enable them to appear or it should consider the appeal on merits and pass final orders. ………………………………………………………………. ……………………………………………………………….” 8. In Kishan Singh (Supra) the factual aspect was that the petitioner was convicted by Special Judge, Mathura under Section 5(2) of the Prevention of Corruption Act and was sentenced to two years’ rigorous imprisonment and a fine of Rs. 200/-. He filed an appeal before the Allahabad High Court which was dismissed for default of the appearance of the petitioner and his counsel, when the appeal was called on for preliminary hearing. An application for restoration of the appeal made thereafter was also dismissed by the order which was challenged before the Supreme Court by way of a special leave petition. The question which arose in that case was whether an appeal filed under Section 374 of the Criminal Procedure Code by an accused against his conviction and sentence could be dismissed for the default of the appellant in prosecuting the appeal either in person or through counsel. The Hon’ble Supreme Court was pleased to hold that, “7. It will be seen that the very opening words of the section require the appellate court to examine the petition of appeal and copy of the impugned judgment in considering whether there is any sufficient ground for interfering with the same. Sub-section (2) provides that the Court may call for the records of the case even at the preliminary stage. It is, thus clear, that the duty of the appellate court to examine the petition of appeal and the judgment under challenge and to consider the merits of the case before dismissing the appeal summarily is not dependent on the appellant or his counsel appearing before the Court to press the appeal. It is, thus clear, that the duty of the appellate court to examine the petition of appeal and the judgment under challenge and to consider the merits of the case before dismissing the appeal summarily is not dependent on the appellant or his counsel appearing before the Court to press the appeal. As soon as a petition of appeal is presented under Section 382 or 383 it becomes the duty of the appellate court to consider the same on merits, even in the absence of the appellant and his counsel before dismissing the same summarily.…………………………………………” 9. In Biswanath Chakravarty (supra) this Court recorded the factual aspect of the case as hereunder: “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.” This Court observed as follows: “5. There can be no doubt that a criminal appeal once admitted has to be 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 State, (1957-58) 62 CWN 1 : AIR 1957 Cal 677 , where CHAKRAVARTTI , 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." 6. 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." 6. 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 Sec. 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, ILR (1923) 50 Cal 972 : AIR 1924 Cal 95 ; Trimbak Balwant v. Emperor, ILR (1926) 50 Bom 673 : AIR 1926 Bom 548 (1), Emperor v. Ghulam Muhammad, AIR 1942 Lab 296 (FB), Ram Bharose v. Emperor, 17 Cri LJ 353 (1) : AIR 1916 All 43 ; Ram Chandar v. Emperor, 24 Cri. L.J. 662 : AIR 1923 All 175 (2); Din Muhammad v. Emperor, 35 Cri. L.J. 963 : AIR 1934 Pesh 21 . 7. The above cases no doubt are in connection with the appeals from orders of conviction, but I 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 appeal 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. 8. Mr. Sisir Kumar Basu appearing on behalf of the State has not challenged the above proposition of law but he submits that in the present case it is not necessary to go into the question in view of the fact that both the offences under Secs. 323 and 448 of the Penal Code, 1860 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 Sec. 345(1) of the Code. 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 Sec. 345(1) of the Code. He further submits that under sub- sec. (5) of Sec. 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 bound to record a composition if the offences fell under Cl. (1) of Sec. 345 of the Code of Criminal Procedure. I accept that proposition of law and grant tire prayer of the parties with the re-suit that the composition of the offence shall have the effect of an acquittal of the accused. 9. The appeal is disposed of accordingly.” 10. In Sudhindra Nath Dutt (supra), the factual aspect was that the offences charged against the appellant were alleged to have been committed by him in his capacity of Managing Director of a bank, called the Calcutta Commercial Bank. He was an accused in several other trials held at the same sitting of the Criminal Sessions for other offences alleged to have been committed in connection with the affairs of the same bank. At all those trials he was further convicted and the sentence passed on one of the convictions was rigorous imprisonment for seven years. The appellant preferred separate appeals to the Hon’ble High Court from his several convictions. All his appeals were dismissed summarily except the subject appeal. At all those trials he was further convicted and the sentence passed on one of the convictions was rigorous imprisonment for seven years. The appellant preferred separate appeals to the Hon’ble High Court from his several convictions. All his appeals were dismissed summarily except the subject appeal. After that appeal was admitted and at the time of preparation of the paper book the appellant sent an application or rather a letter from jail by which he represented that he was not desirous of prosecuting the appeal further and therefore, the appeal might be struck out. The Court rejected the said application since the Court was of the opinion that after a criminal appeal had been filed, it became the duty of the Appellate Court to hear and determine the appeal on its merits and the appeal could neither be allowed to be withdrawn, nor be struck out on the ground that the appellant did not desire to proceed with it. 11. In Bani Singh (supra), the Hon’ble Supreme Court refused to allow the prayer for withdrawal of the appeal against a judgment of conviction. Para 14 of the said judgment is quoted herein below: “14. We have carefully considered the view expressed in the said two decisions of this Court and, we may state that the view taken in Shyam Deo case appears to be sound except for a minor clarification which we consider necessary to mention. The plain language of Section 385 makes it clear that if the appellate court does not consider the appeal fit for summary dismissal, it 'must' call for the record and Section 386 mandates that after the record is received, the appellate court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385- 386 does not contemplate dismissal of the appeal for non- prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the appellate court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by cross- checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh Yadav case that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-prosecution.” 12. From the above judgments, it is clear that the said judgments are in respect of judgments against conviction and the appeals were preferred by the appellant convicts. In our case the prayer for withdrawal or non- prosecution has been made by the appellant who filed the present appeal against a judgment and order of acquittal dated 15.01.2021 passed by the learned Additional District and Sessions Judge, 4 th Court, Berhampore, Murshidabad in Sessions Trial no. 1(8) 2017 arising out of Sessions Case No. 563 of 2016. However, the Criminal Procedure Code does not distinguish an appeal filed by the defacto complainant against judgment of acquittal and the appeal filed by the State against a judgment of acquittal. A plain reading of Section 378 of Criminal Procedure Code discloses that there is no distinction in this regard regarding an appeal filed by the complainant and an appeal filed by the State against a judgment of acquittal. 13. It appears from the Criminal Procedure Code that by virtue of Code of Criminal Procedure (Amendment) Act, 2009 a new provision has been introduced in Section 372 by way of a proviso. Section 372 of the Code is quoted herein below:- “ Section 372: No appeal to lie unless otherwise provided--- No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code by any other law for the time being in force: Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.” 14. In view of the above discussion we find that though the defacto complainant has been given a right to prefer an appeal against an order of acquittal etc., there is no provision in the Code that the defacto complainant has been put on a different pedestal as regards withdrawing his/her appeal which he or she has preferred against a judgment and order of acquittal. As the position of the defacto complainant in withdrawing his/her appeal is not different from that of the State in withdrawing its appeal against judgment of acquittal, we do think that the same principle which was laid down by the Hon’ble Apex Court in Bani Singh (supra) , Shyam Deo Pandey (supra), Kishan Singh (Supra) would apply in case of the appeal filed by the defacto complainant. Moreover, be it mentioned that Hon’ble Supreme Court has specifically directed that the case of Mahesh Chand and Another vs. State of Rajasthan, 1990 (Supp) SCC 681 , should not be treated as a binding precedent. 15. In view of the above discussion we are not inclined to allow the prayer for non-prosecution of the defacto complainant/present appellant without hearing the appeal on merits. 16. List the appeal for hearing after preparation of paper books. I Agree - ARIJIT BANERJEE, J.