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2008 DIGILAW 451 (UTT)

STATE OF UTTARAKHAND v. MOHKAM SINGH

2008-10-03

B.S.VERMA, PRAFULLA C.PANT

body2008
JUDGMENT Hon’ble Prafulla C. Pant, J. (Oral) The State has filed this appeal under Section 378 of the Cr.P.C. against the judgment and order dated 7.5.2008 passed by the learned Sessions Judge, Haridwar in Criminal Appeal No. 52 of 2005, along with delay condonation application No. 819 of 2008 and leave to appeal application No. 91 of 2008. 2. The delay in filing the appeal is sufficiently explained in the affidavit accompanying the delay condonation application, therefore, the delay condonation application is allowed. The delay is condoned. 3. Also heard on leave to appeal and admission, and perused the order dated 7.5.2008 passed by Session Judge, Haridwar, in Criminal Appeal No. 52 of 2005 whereby the respondents Mohkam Singh, Ziley Singh, Jalindhar Singh and Mamu Singh are acquitted of charge of offences punishable under Sections 379, 323, 504 and 506 I.P.C. 4. Brief facts of the case are that a First Information Report was lodged with the police by the complainant Jahid which was registered as Crime No. 265 of 2000. However, the police after investigation appears to have submitted final report. The Magistrate after recording the statement of the complainant and his witnesses under sections 200 and 202 Cr.P.C. took cognizance in the complaint case and summoned the accused. Thereafter the Magistrate recorded the evidence of witnesses under Section 244 Cr.P.C., framed the charge against the accused, recorded the evidence under Section 246 Cr.P.C. and after completing the trial found the accused (present respondents) guilty of charge of offences punishable under Sections 379, 323, 504 and 506 I.P.C. in the said complaint case. Aggrieved by said Judgment and order dated 27.8.2005 passed by the Judicial Magistrate Laksher, the convicts (present respondents) filed Criminal Appeal No. 52 of 2005 before the Sessions Judge, Haridwar. Learned Sessions Judge, Haridwar, after hearing the parties and re-appreciating the evidence on record, found that complainant has failed to prove the charge against the accused and as such acquitted them. 5. Before us it is not a complainant but the State who has filed this appeal against the Judgment and order dated 7.5.2008 passed by the lower appellate court (Sessions Judge, Haridwar). Therefore before proceeding further we think it just and proper to give our opinion as to the maintainability of the appeal. The relevant provision of law contained in Section 378 of Code of Criminal Procedure, 1973 reads as under : “378. Therefore before proceeding further we think it just and proper to give our opinion as to the maintainability of the appeal. The relevant provision of law contained in Section 378 of Code of Criminal Procedure, 1973 reads as under : “378. (1) Save otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5), (a) the District Magistrate may, in any case, direct the Public Prosecution to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision. (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present any appeal – (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision. (3) No appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If in any case, the application under sub-section (4) for the grant of special leave, to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2).” 6. From the perusal of the aforesaid section, it is clear that in the case of acquittal in a complaint case, the complainant has a right to move an application under sub-section (4) of the aforesaid section to file an appeal with the leave of the court. However, the question which is to be made clear is whether simultaneously a State has a right to file an appeal in a case of acquittal in the complaint case, or not Sub-section (1) of Section 378 empowers the State to file an appeal against the acquittal with leave to appeal sought under sub-section (3). The opening sentence of the sub-section (1) of the section starts with the expression ‘save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5)”. In our opinion, the legislature has made its intention clear that power under sub-section (1) granted to the District Magistrate and the State Government is subject to the provisions contained in sub-section (2), sub-section (3) and sub-section (5) only. The legislature has not restricted the power of the State Government (sic) is not subject to the provisions contained in sub-section (4) of the Section. That means the State is empowered to file an appeal even in the cases of order of acquittal passed in the complaint cases. Though sub-section (5) of the section refers to sub-section (4) but sub-section (5) provides the period of limitation for moving the application under sub-section (4). 7. That means the State is empowered to file an appeal even in the cases of order of acquittal passed in the complaint cases. Though sub-section (5) of the section refers to sub-section (4) but sub-section (5) provides the period of limitation for moving the application under sub-section (4). 7. For the reasons as discussed above, we are of the view that the appeal filed by State against the order of acquittal in a case arisen out of a complaint case, is maintainable. 8. Now we come to the question whether this case is a fit to grant leave to appeal or not, on merits. We have gone through the Judgment and order dated 7.5.2008 passed by the learned Sessions Judge (lower appellate court) in Criminal Appeal No. 52 of 2005. There is a delay of 25 days in making the report of the incident which is found not sufficiently explained on the record. Apart from this, since, there was dispute as to the title of the land between the parties, on which the trees which were said to have been cut by the accused were standing, the lower appellate court felt that dishonest intention required for committing the theft, is not established on the record. 9. Having gone through the impugned judgment and order, we do not find any sufficient reason to grant leave to appeal in this case. 10. Therefore, application for leave to appeal no. 91 of 2008 is rejected. The appeal also stands dismissed summarily.