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2015 DIGILAW 1084 (HP)

State of H. P. v. Shyam Lal

2015-08-12

P.S.RANA

body2015
ORDER P.S. Rana, J. Present application is filed under Section 378(3) of the Code of Criminal Procedure 1973 for grant of leave to file appeal under Section 378 of the Code of Criminal Procedure 1973 against the judgment of acquittal passed by learned trial Court and affirmed by learned first appellate Court i.e. Sessions Judge Shimla relating to FIR No.31 dated 18.2.2012 registered in police station Shimla West under Sections 323,341,506 and 34 IPC. BREIF FACTS OF THE CASE: 2. Smt. Tara Sharma wife of Sh Hukam Chand Sharma resident of Om Niwas House No. T-178 Jutogh Cantt Shimla H.P filed criminal complaint in police station under Section 154 of the Code of Criminal Procedure 1973. There is recital in criminal complaint that on dated 18.2.2012 brother-in-law of complainant namely Shyam Lal Sharma and his son namely Rakesh Sharma at about 4.30 came nearby residential house of complainant and started digging old water pipes which were installed behind the residential house of complainant. There is further recital in criminal complaint that complainant was standing upon the roof of her residential house and complainant requested accused persons to take water pipes of dirty water through other location. There is further recital in criminal complaint that thereafter Shyam Lal and his son Rakesh Sharma started verbal altercations with complainant. There is further recital in criminal complaint that thereafter accused Rakesh Kumar had slapped the complainant and caught complainant from her neck. There is further recital in criminal complaint that thereafter Shyam Lal Sharma also started beatings complainant namely Smt. Tara Sharma. There is further recital in criminal complaint that entire incident was witnessed by Sharda Sharma, Suman Rana and Bandana Sharma. There is further recital in criminal complaint that golden article of complainant was also lost. There is further recital in criminal complaint that when complainant tried to enter into her residential house then accused persons have stopped the complainant upon path. There is further recital in criminal complaint that accused persons have also threatened the complainant that they would kill the complainant. 3. Thereafter FIR No. 31 of 2012 was registered under Sections 323, 341, 506 read with Section 34 IPC in police station Boileauganj District Shimla HP. There is further recital in criminal complaint that accused persons have also threatened the complainant that they would kill the complainant. 3. Thereafter FIR No. 31 of 2012 was registered under Sections 323, 341, 506 read with Section 34 IPC in police station Boileauganj District Shimla HP. Thereafter police challan under Sections 323, 341, 506 read with Section 34 IPC was filed before learned Chief Judicial Magistrate Shimla and learned Chief Judicial Magistrate Shimla in Criminal Case No. 31/2 of 2012 titled State of H.P. Vs. Shyam Lal and another on dated 3.9.2013 acquitted both accused persons. 4. Thereafter State of H.P. filed Criminal Appeal No.6/S/10 of 2014 titled State of H.P. Vs. Shyam Lal and another before learned Sessions Judge Shimla and learned Sessions Judge Shimla affirmed the judgment of acquittal passed by learned trial Court on dated 7.2.2015. Thereafter State of H.P. filed regular second criminal appeal against acquittal judgments before High Court of HP and sought leave of the High Court to file regular second criminal appeal against acquittal judgment of learned trial Court and against acquittal judgment of learned Sessions Judge Shimla HP under Section 378(3) Code of Criminal Procedure 1973. 5. Court heard learned Additional Advocate General appearing on behalf of applicant and Court also heard learned Advocate appearing on behalf of non-applicants. Court also perused entire record of learned trial Court and record of learned Sessions Judge Shimla HP. 6. Following points arise for determination in the present application. (1) Whether regular second criminal appeal against findings of acquittal judgment passed by learned trial Court and affirmed by learned Sessions Judge is maintainable before High Court of HP under Section 378(b) of Code of Criminal Procedure 1973?. (2) Final Order. Finding upon Point No.1. 7. Submission of learned Additional Advocate General appearing on behalf of State that regular second criminal appeal is maintainable before Hon’ble High Court of HP under Section 378(b) of the Code of Criminal Procedure 1973 against acquittal judgment passed by learned trial Court and affirmed by learned Sessions Judge under Section 378(b) Code of Criminal Procedure 1973 is rejected being devoid of any force for the reasons hereinafter mentioned. Appeal against acquittal is provided under Section 378 Chapter XXIX of the Code of Criminal Procedure 1973 which is quoted in toto. Appeal against acquittal is provided under Section 378 Chapter XXIX of the Code of Criminal Procedure 1973 which is quoted in toto. 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 Sessions 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. (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. In the present case it is proved on record that learned Chief Judicial Magistrate Shimla in Criminal Case No. 31/2 of 2012 decided on 3.9.2013 titled State of HP Vs. Shyam Lal and another had acquitted both accused persons. It is also proved on record that thereafter criminal appeal under Section 378 of the Code of Criminal Procedure 1973 was filed before learned Sessions Judge Shimla by State of HP and same was registered as Criminal Appeal No. 6/S/10 of 2014 titled State of HP Vs. Shyam Lal and another. It is proved on record that on dated 7th February 2015 learned Sessions Judge Shimla affirmed the judgment passed by learned trial Court and dismissed the appeal filed by State of HP. It is proved on record that thereafter State of HP filed regular second criminal appeal against findings of acquittal passed by learned trial Court and affirmed by learned Sessions Judge. It is held that there is no provision of regular second criminal appeal against the acquittal judgment under the Code of Criminal Procedure 1973. It is held that regular second criminal appeal against findings of acquittal judgment passed by learned trial Court and affirmed by learned Sessions Judge is not maintainable before the High Court in view of Chapter XXIX of Code of Criminal Procedure 1973. It is held that regular second criminal appeal against findings of acquittal judgment passed by learned trial Court and affirmed by learned Sessions Judge is not maintainable before the High Court in view of Chapter XXIX of Code of Criminal Procedure 1973. It is held that words from an original or appellate order of an acquittal passed by any Court other than a High Court mentioned in Section 378(b) of the Code of Criminal Procedure 1973 means original acquittal judgment passed by learned trial Court or original acquittal judgment passed by learned Sessions Judge and did not cover both acquittal judgment passed by learned trial Court and acquittal judgment passed learned first appellate Court i.e. Sessions Judge subsequently. It is held that when judgment of acquittal of learned trial Court is affirmed by learned Sessions Judge then revision petition under Section 397 or under section 401 Code of Criminal Procedure 1973 is maintainable before High Court. In view of above stated facts point No.1 is answered in negative against the State of HP. Point No.2 (Final Order) 9. In view of fact that State of H.P. did not file any revision petition under Section 397 or under Section 401 Code of Criminal Procedure 1973 before High Court against acquittal judgment of learned trial Court i.e. Chief Judicial Magistrate Shimla HP and against acquittal judgment of learned Sessions Judge Shimla HP application filed under Section 378(3) Code of Criminal Procedure 1973 for leave to file criminal appeal under Section 378(b) is rejected. Cr.MP(M) No. 560 of 2015 is disposed of accordingly. File of learned trial Court and learned Sessions Judge be transmitted forthwith along with certify copy of order and file of this Court after due completion be consigned to record room forthwith.