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Karnataka High Court · body

2010 DIGILAW 57 (KAR)

K. M. Ravindra v. B. K. Krishnappa

2010-01-13

K.N.KESHAVANARAYANA

body2010
Judgment :- This appeal filed under section 378(1) of the Cr.P.C. is directed against the judgment and order dated 30.12.06 passed by the Addl. C.J.M., Bangalore District, Bangalore, acquitting the respondents 1 to 4 of offences punishable under sections 465, 467, 468, 471, 420, 506, 447 r/w 34 of I.P.C. 2. The appellant filed a private complaint under Section 200 of Cr.P.C. on 1.7.03 against the respondents 1 to 4 alleging aforementioned offences. The learned Magistrate before whom the complaint was filed, referred the complaint to the jurisdictional police under section 156(3) of Cr.P.C. for investigation and report. On the basis of such reference, the jurisdictional police registered the case, investigated the matter and ultimately filed the charge-sheet against the respondent. 1 to 4 for the aforesaid offences. The complainant was cited as one of the witnesses in the charge-sheet. 3. After trial, by the judgment under appeal, the learned Magistrate acquitted all the accused of the charges leveled against them. Aggrieved by the said judgment of acquittal, the complainant has filed this appeal under Section 378(1) of Cr.P.C. 4. Immediately after filing of this appeal, the office had raised objection about the maintainability of this appeal, by the complainant. However, though no order has been passed on the said office objection raised regarding maintainability, the appeal came to be admitted for hearing on 13.3.2008. Under those circumstances, the appeal had been listed for hearing yesterday, but none appeared on behalf of the appellant. Learned counsel for the respondent appeared and submitted that the appeal filed by the complainant under section 378(1) of Cr.P.C. is not enable and is not maintainable, as such, it is liable to be dismissed. However, in order to give one more opportunity to the appellant, the matter was directed to be listed today for hearing. Accordingly, the matter is listed today for hearing. However, once again learned counsel for the appellant has remained absent and there is no representation on his behalf. Learned counsel for the respondents 1 to 4 vehemently contended that the appeal is not maintainable and therefore it is liable to be dismissed. 5. In this behalf, he also placed reliance on the decision of the Division bench of the Delhi High Court in the case of Abdu Ram v. State and others reported in 2002 (1) Crimes 76. Therefore, the question for consideration is, whether this appeal is maintainable. 5. In this behalf, he also placed reliance on the decision of the Division bench of the Delhi High Court in the case of Abdu Ram v. State and others reported in 2002 (1) Crimes 76. Therefore, the question for consideration is, whether this appeal is maintainable. Section 378 of Cr.P.C. provides for an appeal against an order of acquittal. As per sub-section (1) of section 378 of Cr.P.C. the District Magistrate may direct the Public Prosecutor to present an appeal to the Court of Sessions from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence and an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. Thus, from the very reading of sub-section (1) of section 378 of Cr.P.C. it is clear that an appeal under the said section can be filed only by the State by directing the Public Prosecutor to present the appeal against the judgment and order of acquittal. Sub-section (2) of Section 378 of Cr.P.C. relates to an order of acquittal 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. As per sub-section (3) of Section 378 of Cr.P.C., 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. Sub-section (4) of Section 378 of Cr.P.C. gives a right of appeal to a complainant against an order of acquittal passed in any case instituted upon a complaint and such an appeal can be filed only upon grant of special leave to appeal by the High Court. 6. In the case on hand, though initially criminal law was set on motion by the appellant by filing a private complaint u/S. 200 of Cr.P.C. the learned Magistrate did not take cognizance of the offences alleged in the complaint on presentation of the same and the complaint was referred to the police u/S. 156(3) of the Cr.P.C. for investigation and report. It is upon the jurisdictional police foiling the charge-sheet after investigation, the learned Magistrate took cognizance under Section 190(1)(b) of Cr.P.C. of the offences alleged in the charge sheet and proceeded with the case. It is upon the jurisdictional police foiling the charge-sheet after investigation, the learned Magistrate took cognizance under Section 190(1)(b) of Cr.P.C. of the offences alleged in the charge sheet and proceeded with the case. Therefore, the acquittal recorded in the case on hand is not a case instituted upon a complaint, but a case instituted on the report of the police. Therefore, the State alone could file an appeal against eh order of acquittal under Section 3789(1) of Cr.P.C. by obtaining leave under sub-section (3). The appellant cannot contend that this is an appeal in exercise of power vested under sub-section (4) of Section 378 of Cr.P.C. Since the State has no filed any appeal as provided under sub-section (1) of Section 378 of Cr.P.C. the present appeal filed by the appellant who was the complainant before the learned Magistrate, is nor maintainable. The Hon’ble Supreme Court in the case of Jagbir and another v. State of Punjab reported in (1998) 6 SCC 629 : ( AIR 1998 SC 3130 ), has held that an appeal under Section 378(1) of Cr.P.C., at the instance of the complainant, against an order of acquittal is not maintainable. The Delhi High Court in the aforesaid decision has also held that an appeal under section 378 of Cr.P.C by a complainant is not tenable and it is liable to be dismissed as incompetent. In this view of the matter, this appeal filed by the appellant u/S. 378(1) of Cr.P.C. is not maintainable and therefore, it is liable to be dismissed. Accordingly the appeal is dismissed as not maintainable.