Research › Search › Judgment

Chhattisgarh High Court · body

2013 DIGILAW 199 (CHH)

ANAND SWARUP MISHRA v. NIRENDRA KUMAR

2013-07-04

G.Minhajuddin

body2013
ORAL ORDER As per Hon'ble Shri G. Minhajuddin, J.:–– With the consent of counsel for the parties, the revision is finally heard. 2. This revision has been filed under Section 397 read with Section 401 of Cr.P.C. against the judgment dated 21.1.2013 passed by II Additional Sessions Judge, Baloda Bazar, Distt. Raipur in Cr.A.No.23/11, whereby judgment of acquittal dated 4.3.2009 passed by JMFC, Kasdol, Distt. Raipur in Criminal Case No.220/08 has been affirmed. 3. Heard learned counsel for the parties and perused the material available with the revision petition. 4. The question to be decided in this revision is - whether the present revision filed against the judgment dated 21.1.2013 is maintainable, and if so, whether II Additional Sessions Judge, Baloda Bazar, Distt. Raipur, has committed any illegality or impropriety in affirming the judgment of acquittal dated 4.3.2009 passed by JMFC, Kasdol, in Cr. Case No.220/08? 5. From perusal of the impugned judgment dated 21.1.2013, it is found that the incident, in the instant case, had occurred on 21.5.1990. The judgment dated 4.3.2009 was passed by JMFC, Kasdol in Cr. Case No.220/08 acquitting respondents No.1 to 3 of the offences punishable under Sections 457 and 295 of IPC. Against the said judgment of acquittal, a criminal appeal (No.23/11) was filed by the State of Chhattisgarh under Section 378 of Cr.P.C., in which impugned judgment dated 21.1.2013 has been passed affirming the judgment of acquittal dated 4.3.2009. 6. From perusal of clause (a) of Section 378(1) of Cr.P.C., it is found that it provides for filing of an appeal by the public prosecutor on the directions of the District Magistrate against any order of acquittal passed by a Judicial Magistrate before the Sessions Court. This provision has been incorporated in Cr.P.C. by Amending Act 25/2005, which has come into force on 23.6.2006. Before 23.6.2006, no right of appeal was available to the State against the judgment of acquittal passed by Judicial Magistrate to the Court of Session. 7. In the instant case, the criminal case was instituted not upon complaint, but upon police report and the incident had occurred on 21.5.1990. The present applicant/revision petitioner is the complainant/first informant, on whose report the aforesaid offences were registered and after completion of investigation, charge sheet was filed. 7. In the instant case, the criminal case was instituted not upon complaint, but upon police report and the incident had occurred on 21.5.1990. The present applicant/revision petitioner is the complainant/first informant, on whose report the aforesaid offences were registered and after completion of investigation, charge sheet was filed. The date of commission of offence decides whether a right of appeal to a particular forum is available to a party or not, as has been laid down by the Hon'ble Supreme Court in the case of National Commission of Women Vs. National Capital Territory of Delhi 2011 Cr.L.J. 962. 8. In view of the above, as the incident had taken place on 21.5.1990 and the provisions of clause (a) of Section 378(1) of Cr.P.C. have been inserted in Cr.P.C. vide Amending Act 25/2005 w.e.f. 23.6.2006, therefore, against the judgment of acquittal dated 4.3.2009 passed by JMFC, Kasdol in Cr. Case No.220/08, only the State had a right of appeal against the judgment of acquittal under Section 378 of Cr.P.C. before this Court, and not before the Court of Session. As such, the criminal appeal (No.23/l1) filed by the State before the Sessions Court, Baloda Bazar, Raipur and decided by II Additional Sessions Judge, Baloda Bazar, Distt. Raipur vide impugned judgment dated 21.1.2013 was itself not maintainable. Consequently, the impugned judgment dated 21.1.2013 passed in the said criminal appeal is null and void and is of no effect. 9. In view of the above, the present revision filed against the judgment dated 21.1.2013, which is itself null and void, is not maintainable in law, the same deserves to be and is hereby dismissed in limine. 10. However, in the totality of facts and circumstances, liberty is granted to the applicant, who is complainant/first informant in the case, to file a criminal revision against the judgment of acquittal dated 4.3.2009 passed by JMFC, Kasdol in Cr. Case No.220/08, before the Court of Session within a period of 30 days from today. Revision Dismissed.