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Madhya Pradesh High Court · body

2015 DIGILAW 1221 (MP)

Santosh Kumar v. Jaidka Gas Agency

2015-12-04

C.V.SIRPURKAR

body2015
ORDER : Shri. C.V. Sirpurkar, J. By order dated 01.07.2015, a co-ordinate bench of this Court had observed that the impugned judgment dated 02.05.2015 was passed by the Court of 2nd Additional Sessions Judge, Sagar in Criminal Appeal No. 514/2014 acquitting the respondent/accused under Section 138 of the Negotiable Instruments Act and that the question that arises for consideration was whether this revision is maintainable against the impugned judgment considering provisions of Section 378 (4) of the Code of Criminal Procedure? 2. The main point, which is to be considered hereunder is whether a criminal revision or an application for special leave to appeal under Section 378 (4) of the Cr.P.C shall be maintainable against an order of acquittal passed in a criminal appeal against conviction by the appellate Court in a case instituted upon a private complaint? 3. Learned counsel for the revisionist has submitted that the phraseology of sub section (4) of Section 378 of the Cr.P.C suggests that an application for special leave to appeal is maintainable only where the order of acquittal is passed in a case instituted on a private compliant. As such, where the order of acquittal is recorded by the Magistrate after trial, an application for special leave to appeal under sub section (4) of Section 378 of the Cr.P.C would be maintainable. However, an appeal against the judgment of conviction recorded by the trial Court, cannot be said to be a case instituted on a private complaint. It is a case instituted upon a memo of appeal; therefore, where the order of acquittal is recorded by Appellate Court in appeal, an application for special leave to appeal under Section 378 (4) of the Cr.P.C would not be maintainable consequently, a criminal revision is maintainable. In support of aforesaid contention, learned counsel for the revisionist has invited attention of the Court to the judgment rendered by the apex Court in the case of Subhash Chand v. State (Delhi Administration), (2013) 2 SCC 17 . 4. This Court is unable to persuade itself to accept aforesaid contention of learned counsel for the revisionist. Section 378 of the Code of Criminal Procedure reads as hereunder: 1. 4. This Court is unable to persuade itself to accept aforesaid contention of learned counsel for the revisionist. Section 378 of the Code of Criminal Procedure reads as hereunder: 1. Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (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 or an order of acquittal passed by the Court of Session in revision.] 2. 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 also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3), to the High Court from the order of acquittal. 3. Appeal 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 subsection (2). (Emphasis supplied) 5. A Division Bench of Karnataka High Court sitting singly in the case of K.H. Ganesh Rao v. H. Gopal, (2010) CRLJ 4755 considered the same question and in paragraph Nos. 13 and 14 of the judgment held as hereunder: 13. (Emphasis supplied) 5. A Division Bench of Karnataka High Court sitting singly in the case of K.H. Ganesh Rao v. H. Gopal, (2010) CRLJ 4755 considered the same question and in paragraph Nos. 13 and 14 of the judgment held as hereunder: 13. The relevant provision that is germane to the issue in question is Section 378, Cr.P.C. Section 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 Section 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 subordinate to High Court in its original or appellate jurisdiction arising out of prosecution launched by Delhi Police Special Establishment. The Section 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 Section 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-sections (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". 6. Aforesaid analysis of Division Bench of Karnataka High Court appeals to this Court. 7. Thus regardless of the fact, whether the order of acquittal is recorded in the trial or in the appeal, a special leave to appeal against acquittal, shall be maintainable in a case instituted on a private complaint, view of the expression "from an original or appellate order of acquittal passed by any Court other than a High Court" used in sub-section (1) and expression "such an order of acquittal" used in sub-section (4) of section 378. 8. 8. Since an appeal against acquittal is so maintainable, in view of sub-section (4) of Section 401 of the Cr.P.C, no revision would be maintainable. 9. Consequently, this criminal revision is held to be not maintainable and is accordingly dismissed in limine, with liberty to the revisionist to avail such remedy against impugned order of acquittal, as is available to him under the law.