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Smt. Raj Kumari v. State Of U.P. & Others - SPECIAL APPEAL No. 173 of 2001  RD-AH 19067 (10 November 2006)
Civil Misc. Recall Application No.74776 of 2004
Special Appeal No.173 of 2001
Smt. Raj Kumari v. State of U.P. & others.
Hon'ble S. Rafat Alam, J.
Hon'ble Ashok Bhushan, J.
This application has been moved by the applicant-respondent no.9 for recall of this Court's order dated 30.1.2004 whereby the appellant's prayer for withdrawal of the appeal was allowed.
The applicant-respondent no.9 appeared in person and vehemently contended that during the pendency of the appeal she moved an application under Section 340 Cr.P.C. for proceeding against the appellant and this Court while allowing the application seeking impleadment of the applicant observed that so far as the application filed by the applicant under 340 Cr.P.C. is concerned, the same shall be considered and decided at the time of final hearing of the appeal and, therefore, even if the appeal is withdrawn the said application cannot be permitted to be withdrawn and the same may be considered by the Bench.
It appears from the record that the application under Section 340 Cr.P.C. was filed in the Registry on 1.7.2003 without serving copy of the same either on the appellant or on her counsel as there is no endorsement of service on the application nor any receipt of service is on record. The application for withdrawal of appeal was moved on 28.1.2004 and was placed for orders on 30.1.2004, whereupon the Division Bench of which one of us (Hon'ble Ashok Bhushan, J.) was a member, passed the following order: -
The special appeal is dismissed as withdrawn. Interim order, if there be any, stands discharged."
From the aforesaid order it is apparent that no leave was granted nor any liberty was given to the applicant-respondent no. 9 to pursue the same despite the appeal being withdrawn. Thus, there appears to be no reason to recall this Court's order dated 30.1.2004 dismissing the appeal as withdrawn merely on the ground of filing of the aforesaid application under Section 340, Cr.P.C. It is well settled legal position that where simple prayer for withdrawal of the appeal is made, the Court cannot reject the same. In the case of Navin Jain and others v. State of U.P. and others, Criminal Appeal No.33 of 2002 decided on 10.1.2002 the Hon'ble Apex Court did not approve the order of the High Court refusing prayer of the petitioner to withdraw the writ petition. Thus, in the absence of any reasonable ground, the order permitting the appellant to withdraw the appeal cannot be now recalled at the instance of the applicant respondent no. 9.
This application is, therefore, rejected. It would, however, be open to the applicant to avail such remedy available to him under the law to proceed against the appellant for criminal action.
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