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2010 DIGILAW 451 (KAR)

K. H. Ganesh Rao v. H. Gopal

2010-04-01

B.V.PINTO, K.SREEDHAR RAO

body2010
Judgment Sreedhar Rao, J The reference arises out of two conflicting judgments of the two Learned Judges of this Court with regard to right of appeal to the High Court by the complainant against eh order of acquittal passed in an appeal by the Sessions Court. 2. The Hon’ble Mr. Justice Jawad Rahim in Crl.A. No. 142/2009 has taken a view that the complainant has no right of appeal to the High Court against the order of acquittal passed by the Sessions Court in an appeal against the order of conviction passed by the Trial Court. The remedy of the complainant is only to file revision or invoke inherent powers of the High Court. 3. The Provisions of Section 2(2) and Section 5 of the Karnataka High Court Act and Section 378 of Cr.P.C. are extracted for convenient reference: Section 2(2):- “Criminal Appeal” means an appeal which, under any law for the time being in force, lies to the High Court from an order or sentence passed by a subordinate criminal Court in the exercise of its original criminal jurisdiction. Section 5:- First Appeals:- Save as otherwise provided in this Act. (i) all First Appeals against a decree or order passed in a suit or other proceedings, the value of subject matter which exceeds fifteen lakhs rupees shall be heard by a Bench consisting of not less than two Judges of the High Court and other First Appeals shall be heard by a Single Judge of the High Court. (ii) All Criminal Appeals against Judgments in which sentence of death or imprisonment for life is passed and against Judgments of acquittal in cases in which offences are punishable with death or imprisonment for life shall be heard by a Bench consisting of not less than two Judges of the High Court and other Criminal Appeals shall be heard by a Single Judge of the High Court. Section 378:- (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 of appellate order of an acquittal passed by any Court other than 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 complain 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. (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 be under sub-Section (1) or under sub-Section. 4. This Court is CHAIRMAN, VILLAGE PANCHAYATH vs. THIMMASETTY1 WITH REFERENCE TO Sec. 417 of Cr.P.C. 1898 which correspond to Sec. 378 Cr.P.C. 1973 has held that, the complainant with the leave has right of appeal to the High Court against the order of acquittal passed by the Sessions Court in Appeal against the order of conviction passed by Magistrate. 5. The Gujarat High Court has also taken similar view in the case of MOHAMMADMIYA KALUMIYA vs. MAJIDKHAN DILDARKHAN AND ANOTHER2 relied on the view of this Court in THIMMASETTY’S case. 6. While arguing Criminal Appeal No. 142/2009, the decision of this Court and the Gujarat High Court was not brought to the notice of Hon’ble JRJ who apart upon consideration of provisions of Section 378(4) Cr.P.C. and Section 2(2) and 5 of the Karnataka High Court Act has taken the above view. There is no much precedent found on this subject. 7. The Court in order to have enlightened view on the question, requested the services of Learned Sr. Counsel Sri.B.V. Acharya to assist the Court as Amicus Curiae who has indeed extended his benign and enlightened assistance to the Court. 8. The Learned Sr. Counsel submits that the view taken by this Court in CHAIRMAN, VILLAGE PANCHAYATH vs. THIMMASETTY (SUPRA) IS FOLLOWED BY THE Gujarat High Court in 1972 and the law has held the field so far nearly 55 years. 9. The Black’s Law Dictionary (5th edition) is relied upon in respect of Stare Decisis. The following elucidation is made which reads as follows: “Stare decisis – To abide by, or adhere to decided cases. Policy of Courts to stand by precedent and not to disturb settled point. Neff. 9. The Black’s Law Dictionary (5th edition) is relied upon in respect of Stare Decisis. The following elucidation is made which reads as follows: “Stare decisis – To abide by, or adhere to decided cases. Policy of Courts to stand by precedent and not to disturb settled point. Neff. V. George, 364 III, 306, 4 N.E.2d 388, 390, 391, Doctrine that, when Court has once laid down a principle of the as applicable to a certain state of facts, it will adhere to the principle, and apply it to all future cases, where facts are substantially the same, regardless of whether the parties and property are the same. Home V. Moody, Tex Civ.App. 146 S.W.2d 505, 509, 510. Under doctrine a deliberate or solemn decision of Court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, binding precedent in the same Court, or in other Courts of equal or lower rank in subsequent cases where the very point is again in controversy. State v. Mellenberger, 163 Or 233, 95 P.2d 709,719,720. Doctrine is one of policy, grounded on theory that security and certainty require that accepted and established legal principle, under which rights may accrue, be recognized and followed, though later found to be not legally sound, but whatever previous holding of Court shall be adhered to modified, or overruled is within Court’s discretion under circumstances of case before it. Otter Tail Power Co.v. Von Bank, 72N. D.497, 8 N.W.2d 599,607. Under doctrine, when point of law has been settled by decision, it forms precedent which is not afterwards to be departed from and while it should ordinarily be strictly adhered to, there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice. The doctrine is a salutary one, and should not ordinarily be departed from where decision in of longstanding and rights have been acquired under it, unless considerations of public policy demand it. Colonial Trust Co. v. Flanagan, 344 Pa, 556, 25 A.2d 728, 729. The doctrine is limited to actual determinations in respect to litigated and necessarily decided questions, and is not applicable to dicta or obiter dicta.” 10. In view of the above proposition, it is argued that the view expressed in the case of CHAIRMAN, VILLAGE PANCHAYAT vs. THIMMASETTY (SUPRA) should be followed. 11. The doctrine is limited to actual determinations in respect to litigated and necessarily decided questions, and is not applicable to dicta or obiter dicta.” 10. In view of the above proposition, it is argued that the view expressed in the case of CHAIRMAN, VILLAGE PANCHAYAT vs. THIMMASETTY (SUPRA) should be followed. 11. Sri.C.H. Jadhav, Learned Counsel for the Appellant and Sri.G.Bhavani Singh, Learned State Public Prosecutor are also heard in the matter. 12. The provision of Sec.2(2) of the Karnataka High Court Act defines “Criminal Appeal”. The Section 5(ii) of the Karnataka High Court Act declares that in respect of conviction involving death penalty or imprisonment for life, where order of acquittal is granted, the appeal shall be heard by the Bench consisting of not less than two Judges. In a case where lesser sentence is imposed, the single Judge should hear the appeal. The purpose and purport of Sec.5(ii) is with reference to nature of Bench that should hear the appeal depending upon the rigor of the punishment. The said provision does not deal with substantive right of the party to file an appeal, it only regulates the forum for appeal depending upon the magnitude of the sentence which attract the offence in question. Therefore, the provisions of Sec.2 (2) and Sec.5 of the Karnataka High Court Act would not be of any practical relevance to determine the right of complainant to file an appeal to the High Court. 13. The relevant provision that is germane to the issue in question is Sec.378 Cr.P.C. Sec.378(1) Cr.P.C. deals with powers of the District Magistrate and the State Government to prefer an appeal to the High Court from original or appellate order of acquittal passed by any Court arising out of police report. The Sec.378(2) of Cr.P.C. deals with prosecution of appeals by the Central Government to the High Court against the order of acquittal passed by the Court sub-ordinate to High Court in its original or appellate jurisdiction arising out of prosecution launched by Delhi Police Special Establishment. The Sec.378(3) Cr.P.C. declares that power of the State and Central Government to prefer an appeal is again subject to leave granted by the High Court to prefer an appeal. The Sec.378(3) Cr.P.C. declares that power of the State and Central Government to prefer an appeal is again subject to leave granted by the High Court to prefer an appeal. The Sec.378(4) Cr.P.C. provides that 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, grant special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. 14. The sub Section 4 unlike sub-Section 1 and 2 of Section 378 Cr.P.C. does not specifically make mention of order of acquittal in original or appellate jurisdiction by the Court sub-ordinate to High Court. However, the wordings of sub-Section 4 starts with “if such an order of acquittal is passed”. The expression “such order of acquittal” should be understood as “original or appellate order of acquittal”. 15. The High Court or the Sessions Court in the revisional jurisdiction, will not have a right to convert an order of acquittal into a conviction. The advantage and benefit which the appellant enjoys in an appeal cannot be availed under Section 482 Cr.P.C. We are in agreement with the view taken by Hon’ble ANJ and hold that according to Sec.378(4) Cr.P.C., the complainant has right to file an appeal against the order of acquittal passed by the Sessions Court with leave of the High Court in that regard. Sri.B.V.Acharya, Learned Senior Counsel gracefully submitted that he does not wish to seek remuneration for the assistance rendered. The same is placed on record. The reference is accordingly disposed of.