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2009 DIGILAW 124 (BOM)

State of Maharashtra v. Harischandra Jakha Mhatre

2009-01-28

A.S.OKA

body2009
JUDGEMENT : 1. Heard learned APP for the State. This is an application for leave under sub section (3)of section 378 read with clause (b) of sub-section 1 of Section 378 of the Code of Criminal Procedure, 1973. The leave to prefer an appeal is sought for preferring an appeal against the judgement and order dated 30th October 2008 passed by the learned Sessions Judge, Raigad at Alibag. The respondents were prosecuted for the offences punishable under sections 323, 324, 504, 506 read with section 34 of the Indian Penal Code. By the judgement and order dated 9th August 2007, the learned Judicial Magistrate, First Class acquitted the respondents. In view of clause (a) of sub section 1 of section 378 of the said Code as amended by the Code of Criminal Procedure (Amendment) Act, 2005, an appeal against acquittal was preferred by the appellant-State before the Sessions Court and the impugned judgement and order has been passed in the said appeal by which the same has been dismissed. 2. Sub section (1) of section 378 of the said Code of 1973 reads thus :- "378. Appeal in case of acquittal.- (1) Save as 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 Prosecutor 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." 3. In case of an order of acquittal passed by a learned Magistrate in respect of a cognizable and non bailable offence, an appeal against the acquittal is maintainable before the Court of Sessions. Under clause (b) of sub-section 1 of section 378, an appeal against the acquittal is maintainable to this Court from an original or appellate order of 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 Sessions in revision. Under clause (b) of sub-section 1 of section 378, an appeal against the acquittal is maintainable to this Court from an original or appellate order of 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 Sessions in revision. Thus, an appeal against acquittal is maintainable in this Court only under clause (b) of sub section 1 of section 378 of the saidCode of 1973 against an original or appellate order of acquittal or an order of acquittal passed by the Sessions Court in a revision application. 4. The order impugned cannot be termed as an appellate order of acquittal inasmuch as by the impugned judgement and order, the order of acquittal passed by the learned Magistrate has been confirmed. The impugned judgement of the Sessions Court has been delivered in an appeal against an acquittal. The impugned order cannot be termed as an appellate order of acquittal within the meaning of clause (b) of sub-section 1 of section 378. Section 378 of the said Code of 1973 does not contemplate a second appeal against an order of dismissal of an appeal governed by clause (a) of sub section 1 of section 378. Therefore, the present application to prefer an appeal is not maintainable and the same is dismissed only on the ground that the same is not maintainable. This order will not preclude the applicant from adopting appropriate proceedings for challenging the impugned order. 5. The learned APP is directed to forward a copy of this order to the Principal Secretary of Law and Judiciary Department, Government of Maharashtra. Certified copy of the impugned order be returned to the APP..