Ranjit Singh Sarkaria, J. - (1.) THE material facts leading to this order are as follows: Amar Singh, son of Bakhshi Singh of Ambala City made a complaint against Devi Dayal Kohli, alleging commission of offences under Sections 406/379/509, Indian Penal Code. After trial the Judicial Magistrate 1st Class, Ambala, acquitted the accused by a judgment, dated 12th March, 1968, Amar Singh died during the pendency of the case in the trial Court and thereafter it seems that the proceedings were continued by his son, Sadhu Singh, though it is not clear whether he was granted the necessary permission under Section 495, Code of Criminal Procedure for continuing the conduct of the prosecution in place of the deceased.
(2.) THE complainant's son, Sadhu Singh, after obtaining special leave under Section 417(3), Code of Criminal Procedure has filed this appeal against the aforesaid order of acquittal. An application has been made under Section 561 -A, Code of Criminal Procedure in which it is, inter alia, stated that the parties have compromised the matter, and, in consequence, the Appellant be allowed to withdraw the appeal. It is well settled that Section 494 of the Code of Criminal Procedure does not extend to the withdrawal of appeals. That section expressly lays down that the case may be withdrawn by the Public Prosecutor with the consent of the Court "before the judgment is pronounced" by the trial Court. The words "in other cases before judgment is pronounced", occurring in Section 494 provide for the extreme limit up to which a case pending before the trial Court can be withdrawn. They cannot be extended to cover an appeal which is a post -trial matter. Thus, even if it is assumed for the sake of argument that Sadhu Singh was duly authorised under Section 495, Code of Criminal Procedure to continue the prosecution after the death of his father in the trial Court, he will not be competent to withdraw this appeal under Section 494 or under any other provision of the Code. This request is, therefore, declined.
(3.) THE next contention of the learned Counsel for the Respondent, however, is that Sadhu Singh was not competent to file this appeal under Section 417(3), Code of Criminal Procedure because he was not the complainant. It is maintained that this objection is not merely one of form, but is one which goes to the root of the matter. A successor -in -interest of a complainant - -proceeds the argument - -even if he had been allowed under Section 495 of the Code, in the trial Court to conduct the prosecution, does not become the "complainant" for the purposes of Section 417(3), Code of Criminal Procedure. Reliance for this argument has been placed on Monmathanath v. Niranjan Modal and Ors. : A.I.R. 1967 Cal. 442 and Ninilal Samanta v. Rabin Ghosh : A.I.R. 1964 Cal. 64. There appears to be a good deal of force in this contention.;