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2009 DIGILAW 761 (KAR)

K. H. Ganesh Rao v. H. Gopal

2009-10-06

ARALI NAGARAJ

body2009
Judgment :- ORDER ON MAINTAINABILITY OF THE APPEAL This appeal is filed under Sec. 378(4) of Cr.P.C. by the complainant in C.C. No.308/2005 on the file of the learned Civil Judge (Jr.Dn.) and JMFC Shikaripura, District Shimoga (hereinafter referred to as ‘Trial Court’ for short). The respondent herein, who was the accused in the said criminal case, came to be convicted by the Trial Court for the offence under Sec.138 of Negotiable Instruments Act (‘N.I. Act’ for short) by its Judgment and Order of conviction dt. 6.10.2006. Aggrieved by the same the respondent-accused preferred Criminal Appeal No.111/2006 before the learned Sessions Judge, Fast Track Court-I, Shimoga (hereinafter referred to as ‘Appellate Court’). The Appellate Court, by its impugned Judgment and Order passed in the said appeal allowed the said appeal of the accused, reversed the judgment and order of conviction and sentence passed by the Trial Court and thereby acquitted the respondent- accused, of the said offence. Therefore, the complainant has challenged the Judgment and Order of acquittal passed by the Appellate Court in the said appeal. 2. The respondent-accused has remained absent despite receipt of notice of this appeal. Therefore he is unrepresented. 3. Since the present appeal is filed under Section 378 (4) of Cr.P.C. aggrieved by the Judgment and Order of acquittal passed by the ‘Appellate Court’ in the appeal that was filed by the accused challenging the Judgment and Order of conviction passed by the Trial Court, the question that has arisen is “whether the present appeal is maintainable under Sec.378 (4) of Cr.P.C.?” Therefore, arguments of Sri C.H. Jadhav, the learned counsel for the appellant are heard on this question. Many other similar appeals are pending before this Bench. Crl.A. Nos.905/2008 and 1057/2008 are two of such appeals and they are also listed today. Arguments of the learned advocates for both the sides in Crl.A. No.905/2008 and also arguments of the learned counsel for the appellant in Crl.A. No.1057/2008 are also heard on this question of maintainability of these appeals. But this order on the said question is passed in Crl.A. No.173/2009 only and the same shall have to be followed in all other similar pending appeals including the said two appeals. 4. But this order on the said question is passed in Crl.A. No.173/2009 only and the same shall have to be followed in all other similar pending appeals including the said two appeals. 4. The question which requires to be answered by me in this appeal and other similar appeals is: “Whether an appeal under Sec.378 (4) Cr.P.C is maintainable from an Order of acquittal passed by a Court, other than High Court, in exercise of its appellate jurisdiction in an appeal filed under Sec.374 Cr.P.C challenging the correctness of the Judgment and Order of conviction passed by the Trial Court?” 5. Sri C.H. Jadhav, also Sriyuths H. Narayana Reddy, H. Jayakara Shetty, the learned advocates representing the respective appellants in Crl.A. Nos. 173/2009, 905/2008 and 1057/2008 strongly contended as under: (i) Section 378(1) (b) Cr.P.C. provides for an appeal to the High Court from an order of acquittal passed by the ‘original or appellate Court’ in a case instituted ‘upon police report’. Further, Sec.378 (4) Cr.P.C provides for an appeal to the High Court, with the leave from the High Court, against ‘such an order of acquittal’ passed in any case instituted ‘upon complaint’. The words ‘such an order of acquittal’ found in sub-sec. (4) of Sec.378 Cr.P.C refer to the order of acquittal passed by the ‘original or appellate’ Court as mentioned in clause (b) of sub section (1) of Sec.378 and therefore, the present appeals filed by the respective appellate – complainants challenging the correctness of the respective orders of acquittal passed in respective appeals by the respective Sessions Courts are maintainable. (ii) In sub sections (2) and (4) of Sec.378 of Cr.P.C the words ‘such an order of acquittal’ are used and the word ‘such’ refers to the nature of the order of acquittal in question and it shall be taken to mean an order of acquittal referred to in Sec.378(1) (b) i.e., an order of acquittal passed by any Court other than High Court in exercise of ‘either original or appellate jurisdiction’ and therefore an appeal against order of acquittal passed in appeal by the Appellate Court is maintainable under Sec.378(4) of Cr.P.C. 6. As against the above said contentions of the learned advocates for the appellants, Sri M. Madhavachar, the learned counsel appearing for the respondent-accused in Crl.A. No.905/2008 strongly contended that the words ‘from an original or appellate order of an acquittal’ which are found in Sec 378(1)(b) do not find their place in sub section (4) of Sec.378 Cr.P.C and therefore, it is clear that only an order passed in exercise of ‘original’ jurisdiction is made appealable under Sec.378 (4) Cr.P.C and hence the present appeals challenging the correctness of the respective orders of acquittal passed by the respective appellate Courts in the respective appeals are not maintainable. In support of his contentions he has placed reliance on the order of Co-ordinate Bench of this Court dt. 3.6.2009 passed in Crl.A No.142/2009 wherein the very same question of maintainability of appeal from an order of acquittal passed by the appellate Court was considered by the learned Single Judge. 7. In support of his contentions he has placed reliance on the order of Co-ordinate Bench of this Court dt. 3.6.2009 passed in Crl.A No.142/2009 wherein the very same question of maintainability of appeal from an order of acquittal passed by the appellate Court was considered by the learned Single Judge. 7. Section 378 Cr.P.C which provides for an appeal against an order of acquittal reads as under: S.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) (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 an 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. (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). 8. on a careful reading of the Order of Co-ordinate Bench of this Court in Crl.A. No.142/2009 it could be seen that the learned Single Judge has observed in the said order that the words ‘original or appellate order’ which are found in C1 (b) of sub Sec. (1) of Sec. 378 Cr.P.C do not find their place in sub Sec. (4) of it and therefore, it cannot be held that an appeal lies to the High Court against an order of acquittal passed by the appellate Court. It could be seen further from the said Order that the learned Single Judge, referring to the definition of ‘Criminal Appeal’ as defined under Sec. 2(2) of Karnataka High Court Act 1961, has observed therein that since the criminal appeal is defined as ‘the appeal from an order passed by a subordinate Criminal Court in exercise of its ‘original criminal jurisdiction’, the appeal against an order passed by the Criminal Court in appeal by exercising its ‘appellate jurisdiction’ cannot be held maintainable. 9. In the said Order, the learned Single Judge has also referred to the entire provisions of Sec.378 of Cr.P.C. On a careful reading of the provisions of C1 (b) of sub section (1) of Sec.378 Cr.P.C. it could be seen that an appeal is provided from an ‘original or appellate order of an acquittal’, passed by any Court other than a High Court, arising from the case instituted upon police report. Further, sub section (2) of Sec.378 provides that if ‘such an order of acquittal’ is passed in any case, in which the offence has been investigated by the Delhi Special Police Establishment or by any other agency empowered to make investigation into offence under any Central Act other than this Code, an appeal lies: (a) to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non bailable offence and (b) to the High Court, from an ‘original or appellate’ order of an acquittal passed by any Court other than a High Court. 10. Thus, it is clear from the provisions of sub sections (1) (b) and (2) (b) of Sec.378 that an appeal is provided from an order of acquittal passed by any Court other than the High Court, in exercise of either original or appellate jurisdiction in respect of the case instituted on police report. Further, sub section (4) of Sec.378 provides for an appeal against order of acquittal in respect of the case instituted upon complaint. Though the words “an original or appellate order of an acquittal” are not used in sub section (4) of Sec.378, the words “such an order of acquittal” which are used in sub section (2) of Sec.378 are used in it [i,e., in S.378(4)]. 11. As to the meaning of the words ‘such an order of acquittal’ which are found in subsections (2) & (4) of Sec.378, the learned advocates for the appellants in the present appeals have placed reliance on the decision of this Court in the case of Chairman, Village Panchayat, Nagathihalli vs N Thimmasetty Gowda reported in AIR 1956 MYSORE 62(c) wherein it is laid down as under: “(c) Criminal P.C. (1898), S.417 (2) and (3) (as amended by Act 26 of 1955) – “Such an order of acquittal” – Sub-section (3) applies to order of acquittal passed by appellate Court also. It is observed at para No.5 as under: Para 5: “It was next contended by the learned counsel for the petitioner that S.417 (3) applies only to original orders of acquittal and not to orders of acquittal passed by an appellate Court. I see no merit in this contention. It is observed at para No.5 as under: Para 5: “It was next contended by the learned counsel for the petitioner that S.417 (3) applies only to original orders of acquittal and not to orders of acquittal passed by an appellate Court. I see no merit in this contention. Section 417 (1) runs thus: “Subject to the provisions of sub s. (5), 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 acquittal passed by any Court other than a High Court.” In sub ss. (2) and (3) of S. 417 the word “such” is used with reference to an order of acquittal. The words “such an order of acquittal” appearing in sub s. (3) can only refer to the order of acquittal mentioned in sub s. (1) of S. 417. The order of acquittal referred to in sub s. (1) of S. 417 is an order of acquittal of the original or the appellate Court. Therefore there is no force in the argument advanced by the learned counsel that S. 417 (3) is applicable only to a case in which the order of acquittal is that of an original Court. Under these circumstances, it has to be held that this revision petition is not maintainable.” 12. Further, the learned advocates for the appellants have also relied upon the decision of Gujarat High Court in the case of Mahammadiya Kalumiya vs. Majidhan Dildarkhan and another reported in 1972 Crl.L.J 1409 wherein the decision of this Court in the case of Chairman, Village Panchayat, Nagathihalli vs N Thimma Shetty Gowda referred to supra has been followed by High Court of Gujarat. It is observed by the High Court of Gujarat at para No.3 of its judgment in the said case as under: “3. However, Mr. Shelat or the petitioner-complainant urged that in a case instituted upon a complaint the right of appeal conferred by sub-section (3) of the Section 417 is available only if the acquittal is by the trial Court and is not available if there is conviction by the trial Court and acquittal by the Sessions Court in appeal. In his submission the words “such an order of acquittal” occurring in sub-section (3) mean an order of acquittal passed by any court other than a High Court. In his submission the words “such an order of acquittal” occurring in sub-section (3) mean an order of acquittal passed by any court other than a High Court. He urged that the words occurring in that context should be interpreted to mean the trial Court only. It is not possible to agree with this interpretation to the word “Court” occurring in sub-section (1) of Section 417. Even on the interpretation of Mr. Shelat the words “such an order of acquittal” in sub-section (3) would cover an acquittal by the Sessions Court that is any Court other than a High Court. There is no reason why we should give a restricted meaning to the word “Court” in sub-section (1) of Section 417. Section 6 of the Criminal Procedure Code specifies the classes of criminal courts and Courts of Sessions are one of the two classes specified in that section. Another class is Courts of Magistrates. It is the court of Sessions which would exercise powers in case of a conviction by a Magistrate where sentence awarded is appealable and in exercising those powers the Sessions Court does not cases to be a court. Therefore, even on the interpretation advanced by Mr.Shelat it is clear that the complainant should have filed an acquittal appeal against the acquittal order by the Sessions Court. It is clear that, the words “such an order of acquittal” occurring in sub-section (3) refer to an order of acquittal mentioned in sub-section (1) which order of acquittal would include original as well as appellate order of acquittal. Therefore, just as the State has been given a right of appeal from an original or appellate order of acquittal, in a given case a private party has also been given a right to appeal from the same kind of order of acquittal. The only limitation placed by the Legislature on the right conferred upon the private party in such a case is the limitation in the form of special leave to be obtained in appealing against the order of acquittal. Except this limitation there is no other distinction between the right of appeal conferred upon a private party in specified cases. Mr.Shelat’s contention, if accepted, would amount to placing a second restriction upon the right of appeal conferred by Section 417(3) which is not justified by the language used in sub-section (3) read with sub-sections (1) and (2). Except this limitation there is no other distinction between the right of appeal conferred upon a private party in specified cases. Mr.Shelat’s contention, if accepted, would amount to placing a second restriction upon the right of appeal conferred by Section 417(3) which is not justified by the language used in sub-section (3) read with sub-sections (1) and (2). It is therefore not possible to agree with the submission of Mr.Shelat that the words such an order of acquittal occurring in sub-section (3) refer to an order of acquittal passed by the trial Court only. These words refer to an order of acquittal passed by any court other than a High Court either in exercise of original jurisdiction or appellate jurisdiction. This was the view taken by a Single Judge of the Mysore High Court in Chairman, Village Panchayath Vs. Thimmasetty, AIR 1956 Mys 62. There also in a case instituted upon a complaint there was conviction by the trial Court and acquittal by the appellate Court. The complainant went in revision to the High Court and it was held that in revisional application was not competent. The word “such” in sub-sections (2) and (3) of Section 417, was, it was observed, used with reference to an order of acquittal referred to in sub-section (1) of Section 417. It was observed that the order of acquittal referred to in sub-section (1) was an order of acquittal of the original or the appellate Court. Therefore, the contention that sub-section (3) of section 417 is applicable only to a case in which the order of acquittal is passed by the original court was negatived. With respect there is enough indication in the language of subsections (1), (2) and (3) of Section 417 to agree with this view. Mr.Shelat in the course of his submission drew my attention to two decisions one of the Allahabad High Court reported as Abdul Halim V. State, AIR 1966 ALL 222 . That was a case which had originated on a police report and not on a complaint and the Magistrate convicted the accused who was acquitted by the appellate Court. A revisional application was filed to the High Court. It is obvious that the case was not covered by Section 417(3) as it was not a case instituted upon a complaint. That was a case which had originated on a police report and not on a complaint and the Magistrate convicted the accused who was acquitted by the appellate Court. A revisional application was filed to the High Court. It is obvious that the case was not covered by Section 417(3) as it was not a case instituted upon a complaint. The other decision was of the Supreme Court reported as Chinnaswamy v. State of Andhra Pradesh, AIR 1962 SC 1788 . In that case also the matter originated on police investigation and not upon a private complaint. In neither of these two cases the question whether the right of appeal conferred by subsection (3) of Section 417 is limited to acquittal by the original court only had arisen for determination, because in none of the two cases the original case was instituted upon a private complaint. Therefore, these two decisions do not held Mr.Shelat. 13. On careful reading of the Order of the Co-ordinate Bench of this Court in Crl.A. No.142/2009 which is relied upon by the learned counsel for the respondent-accused in Crl.A No.905/2008 it could be seen that though the absence of the words ‘original or appellate Order of an acquittal’ in sub section (4) of Sec.378 has been noticed by the learned Single Judge, in the said order, the meaning of the words ‘such an order of acquittal’ which are found in sub sections (2) and (4) of Sec.378 has not been considered. Besides this, the decision of this Court in the case of Chairman Village Panchayat, Nagathialli vs N Thimma Shetty Gowda (AIR 1956 MYS 62) referred to supra was not brought to the notice of the learned Single Judge when this very question as to maintainability of an appeal from an order of acquittal passed in appeal was considered. 14. The above observations were made by the learned Single Judge of this Court in the case of Chairman, Village Panchayat, Nagathialli vs N Thimma Shetty Gowda while considering the provisions of Sec. 417 (1) and (3) of Cr.P.C 1898 (old Code) which are identical with the provisions of sub sections (2) and (4) of Cr.P.C. 1973 (new Code). 15. 14. The above observations were made by the learned Single Judge of this Court in the case of Chairman, Village Panchayat, Nagathialli vs N Thimma Shetty Gowda while considering the provisions of Sec. 417 (1) and (3) of Cr.P.C 1898 (old Code) which are identical with the provisions of sub sections (2) and (4) of Cr.P.C. 1973 (new Code). 15. I respectfully agree with the view taken by the learned Single Judge of this Court in the case of Chairman, Village Panchayat, Nagathialli vs N Thimma Shetty Gowda (AIR 1956 Mysore 62) which has been followed by the High Court of Gujarath in 1972 Crl.L.J 1409, both referred to supra. If the words ‘such an order of acquittal’ which are found in both the sub-se3ctions (20) & (4) of Sec.378, are held to mean an order of acquittal passed in exercise of ‘either original or appellate jurisdiction’, it follows that order of acquittal passed by either the Trial Court or the Appellate Court can be appealed against by invoking provisions of sub section (4) of Sec.378 Cr.P.C. 16. The definition of ‘Criminal Appeal’ has been referred to and considered by the Coordinate Bench of this Court in the order in Crl.A. No.142/2009 referred to supra. On careful reading of Section 2 of the Karnataka High Court Act 1961 it could be seen that if sub section (2) of section 2 defines ‘criminal appeal’, sub section (3) defines ‘first appeal’ and sub section (6) defines ‘second appeal’. First appeal is defined as “an appeal which, under any law for the time being in force, lies to the High Court, from a judgment, decree or order, made by a subordinate civil court in the exercise of its ‘original civil jurisdiction’. Second appeal is defined as “an appeal which, under any law for the time being in force, lies to the High Court from a judgment, decree or order passed by a subordinate civil court in the exercise of its ‘appellate civil jurisdiction’. 17. Thus, it is clear from the above definitions of ‘criminal appeal’, ‘first appeal’ and ‘second appeal’ as defined under Sub Sections (2), (3) & (6) of Section 2 of Karnataka High Court Act 1961, they are so defined with a view to distinguish ‘criminal appeals’ from ‘civil appeals’. 17. Thus, it is clear from the above definitions of ‘criminal appeal’, ‘first appeal’ and ‘second appeal’ as defined under Sub Sections (2), (3) & (6) of Section 2 of Karnataka High Court Act 1961, they are so defined with a view to distinguish ‘criminal appeals’ from ‘civil appeals’. Though there is no separate provision in the Code of Criminal Procedure, like Section 100 in the Code of Civil Procedure, providing for “Second Appeal”, from an “order in appeal”, passed by a Criminal Court in exercise of its appellate jurisdiction, sub-sections (1)(b) & (2) (b) of Sec.378 Cr.P.C. provide for such an appeal against an order of acquittal, passed in appeal, by any Court, other than the High Court, in respect of the cases instituted upon Police report. If the definition of ‘Criminal appeal’ as defined under Section 2(2) of the Karnataka High Court Act 1961, is taken in restricted sense to mean only an appeal from an order passed by a subordinate Criminal Court in exercise of its ‘original criminal jurisdiction’, the criminal appeals which are provided for under sub-sections (1) (b) and 2 (b) of Sec.378 Cr.P.C. would fall outside this definition and as such, they cannot be entertained by this Court. 18. Therefore, with great respect to the learned Single Judge of Co-ordinate Bench of this Court, I am of the considered opinion that by virtue of the definition of ‘criminal appeal’ as found in Sec.2(2) of the Karnataka High Court Act 1961, it can not be said that an appeal to the High Court against an order of acquittal passed by a subordinate criminal court, in exercise of its appellate jurisdiction is not maintainable U/S 378 (4) Cr.P.C. 19. It is not in dispute that sub sections (1) and (2) of Sec.378 Cr.P.C provide for an appeal from an order of acquittal passed in appeal, if such an order arises from the case instituted upon a police report. It is not in dispute that sub sections (1) and (2) of Sec.378 Cr.P.C provide for an appeal from an order of acquittal passed in appeal, if such an order arises from the case instituted upon a police report. If such an appeal from an order of acquittal passed by the criminal Court in appeal against conviction is excluded from sub section (4) of Sec.378 Cr.P.C on the ground that such an order of acquittal arises from the case instituted upon a private complaint, it would lead to discrimination between the prosecution in a criminal case instituted upon a police report and the complainant in a criminal case instituted upon private complaint which could not be the intention of the Legislature. 20. The appellate and revisional powers of High Court are quite distinet. As to the distinction between appellate and revisional powers of the High Court, Hon’ble Supreme Court has observed in the case of Associated Cement Co., Ltd., Vs Keshavanand reported in ILR 1998 KAR 1857 (c) as under: “(c) Criminal Procedure Code 1973 (Central Act No.2 of 1974) – Section 386 – Powers of Appellate Court and High Courts Powers of Revision. Held: Appellate jurisdiction is co-extensive with Original Courts jurisdiction as for appraisal and appreciation of evidence and reaching findings on facts and Appellate Court is free to reach its own conclusion on evidence untrammeled by any finding entered by the Trial Court. Revisional jurisdiction belongs to supervisory jurisdiction of a superior Court. While exercising Revisiional Powers the court has to confine to the legality and propriety of the findings and also whether the subordinate court has kept itself within the bounds of its jurisdiction including the question whether the Court has failed to exercise the jurisdiction vested in it. It appears that the Learned Single Judge has equated appellate powers with revisional powers, and that the core difference between an appeal and a revision has been overlooked. It is trite legal position that appellate jurisdiction is coextensive with original court’s jurisdiction as for appraisal and appreciation of evidence and reaching findings on facts and appellate Court is free to reach its own conclusion on evidence untrammeled by any finding entered by the Trial Court. Revisional power on the other hand belong to supervisory jurisdiction of a superior Court. Revisional power on the other hand belong to supervisory jurisdiction of a superior Court. While exercising revisional powers the Court has to confine to the legality and property of the findings and also whether the subordinate Court has kept itself within the bounds of its jurisdiction including the question whether the Court has failed to exercise the jurisdiction vested in it. Though the difference between the two jurisdictions is subtle, it is quite real and has now become well recognized in legal provinces. In State of Kerala vs. K.M. Charia Abdula & Co., this Court has highlighted the difference between the two jurisdictions in the following words: “There is an essential distinction between an appeal and a revision. The distinction is based on differences implicit in the said two expressions. An appeal is a continuation of the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to the statutory limitations prescribed. But in the case of a revision, whatever powers the revisional authority may or may not have, it has not the power to review the evidence unless the statute expressly confers on it that power. In Shnakar Ramachandra Abhyankar vs. Krishnaji Dattatreya Bapat this Court has observed that the right of appeal is one of entering a superior court and invoking its aid and interposition to redress the error of the Court below. In this case when the High Court considered that its only concern was to check whether the order of the Magistrate “is fraught with any illegality or impropriety”, the High Court has narrowed down its angle while dealing with an appeal. [Emphasis supplied by me] 21. As could be seen from the above decision of Hon’ble Supreme Court, the appellate powers of High Court are co-extensive with the original Court’s Jurisdiction while, in exercise of its revisional powers, the High Court has to confine to the legality and propriety of the findings and therefore, the High Court, in a Criminal Revision, cannot reappreciate the evidence and come to its own conclusion as could be done in an appeal [against an order of conviction or acquittal]. The appeal against order of acquittal passed by any Court other than High Court, in exercise of its appellate jurisdiction, would certainly involve the divergent findings recorded by the Trial Court and the Appellate Court. The appeal against order of acquittal passed by any Court other than High Court, in exercise of its appellate jurisdiction, would certainly involve the divergent findings recorded by the Trial Court and the Appellate Court. In order to render complete justice to the parties to a criminal litigation, it would be necessary to reappreciate, in such an appeal against acquittal, the evidence on record with reference to the relevant facts of the case. When the prosecution, in a case ‘instituted upon police report’ is given an opportunity U/S 378[1][b] & 2[b] to prefer an appeal against an order of acquittal passed by any Court other than the High Court, in exercise of its ‘appellate jurisdiction’. I do not find any valid reason to hold that such an opportunity is denied to the complainant in a case ‘instituted upon a complaint’. 22. Therefore I am of the considered view that the words ‘such an order of acquittal’ found in sub sections [2] & [4] of Sec.378 Cr.P.C refer to “an order of acquittal passed in exercise of either ‘original’ or ‘appellate’ jurisdiction” and therefore, an appeal is maintainable U/S 378[4] Cr.P.C. against an order of acquittal passed in an appeal, in exercise of appellate jurisdiction. In view of my foregoing discussions, I am of the opinion that the question that has arisen in this appeal and similar other appeals namely, “Whether an appeal under Sec.378 [4] Cr.P.C is maintainable from an Order of acquittal passed by a Court, other than the High Court, in exercise of its appellate jurisdiction in an appeal filed under Sec.374 Cr.P.C challenging the correctness of the Judgment and Order of conviction passed by the Trial Court?” Shall have to be answered by me in the ‘affirmative’ and the same is answered accordingly. Since there is an order of Co-ordinate Bench of the Court dt. 3.6.2009 passed in Cri.A. No.142/2009, to the effect that ‘appeal does not lie U/S 378[4] Cr.P.C. from an order of acquittal passed in appeal in exercise of ‘appellate jurisdiction’, this question requires to be answered by the Division Bench of this Court. Therefore, the Registrar Judicial is hereby directed to place this matter before the Hon’ble Chief Justice for referring the same to a Division Bench. Further, the order dt. Therefore, the Registrar Judicial is hereby directed to place this matter before the Hon’ble Chief Justice for referring the same to a Division Bench. Further, the order dt. 3.6.2009 passed in Crl.A.No.142/2009 is being followed in respect of such appeals, by getting the same converted into Criminal Revision Petitions filed under Sec.397 of Cr.P.C. Therefore, it is hereby made clear that if the appellants in such appeals are desirous of getting their appeals converted into revision petitions filed U/S 397 Cr.P.C., they shall be at liberty to do so and get same disposed of and, such of the appellants in such appeals, as would feel that their appeals shall be disposed of by this Court as ‘appeals’ in exercise of its appellate jurisdiction only, they shall have to wait till a decision is taken by the Division Bench of this Court on this question of maintainability of such appeals U/S 378[4] Cr.P.C.