Is there any circumstance when an appeal can be withdrawn? Give reasons in support of your answer and refer to the case law, if any, on the point.

Question: Is there any circumstance when an appeal can be withdrawn? Give reasons in support of your answer and refer to the case law, if any, on the point.

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Answer

The power to withdraw a pending case from one Court to the High Court if it involves the question of interpretation of the Constitution vests in the High Court by virtue of Article 228 of the Constitution of India.

The Plain reading of Section 409(2) CrPC, would indicate that the Sessions Judge can withdraw or recall a case made over to the Additional Sessions Judge, before the commencement of the trial in the Additional Sessions Judges’ Court or any appeal before the hearing of an appeal.

In Section 409(2) CrPC, the words, commence, trial, and hearing, are used. Section empowers the Sections Judge to recall or withdraw a case or an appeal before the commencement of the trial or hearing of an appeal.

Under Section 409 of the Code, the Sessions Judge who made over the cases to the Additional Sessions Judge is empowered to withdraw any case or appeal before the trial of the case or the hearing of the appeal has commenced. Being the Sessions Judge, he has to take over the administration of criminal justice in his sessions division, and hence in the exigencies of such administration, he has to make over, withdraw or recall cases and appeals and make over the same appropriately for the proper streamlining of the administration of criminal justice in the sessions division.

The Context in which the words, ‘case’ and ‘appeal’, are employed in Section 409 CrPC, is for withdrawal or recall, which is the exercise of administrative power of the Sessions Judge, and he is empowered to do so at any time before the commencement of trial or the hearing of the appeal.

This Section applies to all the criminal Courts, irrespective of the fact, whether it is of equal jurisdiction or lower. To be precise, as per Section 409(2) CrPC, at any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge may recall any case or appeal that he has made over to any Additional Sessions Judge and whereas, if both sub-Sections (1) and (2) of Section 408, are conjointly read, it applies only to the lower Court.

Moreover, Section 410 allows a CJM to withdraw or recall a case from any Magistrate subordinate to him and any District Magistrate or Sub-Divisional Magistrate can also withdraw or recall any case under section 411 of CrPC which might have been made over by him to any subordinate Magistrate, and thereafter he can either dispose of the same himself or send it for disposal to any other Magistrate.

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