Research › Search › Judgment

Gujarat High Court · body

2022 DIGILAW 1780 (GUJ)

Khutad Bhagvanbhai Parbatbhai v. State of Gujarat

2022-12-16

GITA GOPI

body2022
JUDGMENT : 1. Leave to Appeal under section 378(4) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) is prayed for by the applicants of the captioned matters against the judgment and order of acquittal passed by the Sessions Judge in Criminal Appeal, which had arisen out of the judgment and order of conviction passed by the Magistrate under section 138 of the Negotiable Instruments Act, 1881 (for short ‘N.I. Act’). 2. The seminal question which requires consideration is whether the complainant could be permitted to file an appeal against the order of acquittal under section 138 of the N.I. Act passed by the Sessions Judge in an appeal filed by the accused against the order of conviction of the trial Court. 3. Leave to Appeal is prayed for under section 378(4) of the Cr.P.C. Section 378 is for appeal in case of acquittal. The said section is reproduced hereinunder for getting a better insight to understand the right of the complainant to make a prayer for Leave to Appeal against an order of acquittal :- “Section 378. 3. Leave to Appeal is prayed for under section 378(4) of the Cr.P.C. Section 378 is for appeal in case of acquittal. The said section is reproduced hereinunder for getting a better insight to understand the right of the complainant to make a prayer for Leave to Appeal against an order of acquittal :- “Section 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 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 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).” 3.1 Sub-section (4) of section 378 of Cr.P.C. is provided, to the effect that if any order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant, on such order of acquittal grants special leave to appeal, the complainant may present such an appeal to the High Court. 3.2 In all the concerned matters, the learned trial Court had convicted the accused, against that, the accused had preferred an Criminal Appeal before the Sessions Court, wherein the accused came to be acquitted, and against that order of acquittal the present Leave to Appeal has been moved by all the applicants of the captioned matters, as original complainant. 4. It has been urged by all the learned Advocates for the applicants that the expression “such an order of acquittal” occurring in sub-section (4) of section 378 of Cr.P.C., would include original as well as appellate order of acquittal, and thus has urged that the leave to file an appeal be granted to the applicants, against the order of acquittal passed by the learned Sessions Judge. 5. Section 378 of Cr.P.C. is a qualified right to appeal in case of acquittal. 5. Section 378 of Cr.P.C. is a qualified right to appeal in case of acquittal. The provisions, as contained in sub-section (1) of section 378 with Clause (a) gives an authority to the District Magistrate to direct the Public Prosecutor, in any case, to present an appeal to the Court of Sessions from an order of acquittal passed by the Magistrate in respect of cognizable and non-bailable offence. In the same way, Clause (b) grants an authority to the State Government to direct Public Prosecutor to present an Appeal to the High Court from an original or appellate order of acquittal passed by any Court other than the High Court, while the same clause, further clarifies, that an appeal would not be permissible to the State Government, under Clause (a), or against an order of acquittal passed by the Court of Sessions in revision. 5.1 Thus, clause (b) of sub-section (1) permits the State to file an appeal through public prosecutor from an original or appellate order of the acquittal passed by any Court other than the High Court, subject to a limitation that such appeal would not lie in case of an acquittal order passed by the Court of Sessions in the matter conducted under revisional jurisdiction or from an order as mentioned in Clause (a). Sub-section (1) under clause (b) is subject to the provisions of sub-section (3), which provides that no appeal to the High Court would lie, except with the leave of the High Court. 5.2 Sub-section (2) of section 378 of Cr.P.C. is in regard to the order of acquittal passed in any case, in which the offence has been investigated by Delhi Special Police Establishment constituted under 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 the Cr.P.C., Sub-section (2) through clause (a) further gives an authority to the Central Government to 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 cognizable and non-bailable offence. While in case of an order of acquittal passed by any Court other than the High Court, which is not an order of acquittal passed by the Court of Sessions in revision and not being order under clause (a), the Central Government would direct the Public Prosecutor to present an appeal before the High Court from an original or an appellate order of acquittal passed by any Court other than High Court, which is too, subject to the provisions of sub-section (3). Thus, the fact remains that the State and the Central Government are specifically permitted through the provisions of sub-section (1)(b) and sub-section (2)(b) to file appeal against any order of acquittal passed by original or appellate authority other than the High Court with the leave of the High Court. 6. In case of Subhash Chand Vs. State (Delhi Administration), reported in (2013) 2 SCC 17 , the Hon’ble Supreme Court, to understand the controversy, considered to look at section 378 of the Code prior to its amendment by Act 25 of 2005 and section 378 amended thereby. 13. Section 378 of the Code prior to its amendment by Act 25 of 2005 read as under: “378. Appeal in case of acquittal. - (1) Save as otherwise provided in sub-section (2), and subject to the provisions of subsections (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) 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 also direct the Public Prosecutor to present an appeal, subject to the provisions of subsection (3), to the High Court from the order of acquittal. (3) No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court. (3) No 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 sub-section (2).” 6.1 Para 14 and 15 of the judgment read as under : 14. Before we proceed to analyze the amended Section 378 of the Code, it is necessary to quote the relevant clause in the 154th Report of the Law Commission of India, which led to the amendment of Section 378 by Act 25 of 2005. It reads thus: “6.12. Clause 37: In order to guard against the arbitrary exercise of power and to reduce reckless acquittals, Section 378 is sought to be amended providing an appeal against an order of acquittal passed by a Magistrate in respect of cognizable and non-bailable offence filed on a police report to the Court of Session as directed by the District Magistrate. In respect of all other cases filed on a police report, an appeal shall lie to the High Court against an order of acquittal passed by any other court other than the High Court, as directed by the State Government. The power to recommend appeal in the first category is sought to be vested in the District Magistrate and the power in respect of second category would continue with the State Government.” The Code of Criminal Procedure (Amendment) Bill, 1994 has the same note on Clause 37. 15. The power to recommend appeal in the first category is sought to be vested in the District Magistrate and the power in respect of second category would continue with the State Government.” The Code of Criminal Procedure (Amendment) Bill, 1994 has the same note on Clause 37. 15. Though, the Law Commission’s 154th report indicated that Section 378 was being amended to provide that an appeal against an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence filed on a police report would lie to the Court of Sessions, the words “police report” were not included in the amended Section 378. In this connection, it is necessary to refer to the relevant extract from the Law Commission’s 221st report of April, 2009. After noting amendment made to Section 378 the Law Commission stated as under: “2.9 All appeals against orders of acquittal passed by Magistrates were being filed in the High Court prior to amendment of Section 378 by Act 25 of 2005. Now, with effect from 23-06-2006, appeals against orders of acquittal passed by Magistrates in respect of cognizable and non-bailable offences in cases filed on police report are being filed in the Sessions Court, vide clause (a) of sub-section (1) of the said section. But, appeal against order of acquittal passed in any case instituted upon complaint continues to be filed in the High Court, if special leave is granted by it on an application made to it by the complainant, vide sub-section (4) of the said section. 2.10 Section 378 needs change with a view to enable filing of appeals in complaint cases also in the Sessions Court, of course, subject to the grant of special leave by it.” These two extracts of the Law Commission’s report make it clear that though the words ‘police report’ are not mentioned in Section 378(1)(a), the Law Commission noted that the effect of the amendment was that all appeals against an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence in cases filed on police report are being filed in the Sessions Court. The Law Commission lamented that there is no provision enabling filing of appeal in complaint cases in the Sessions Court subject to the grant of special leave by it. The Law Commission lamented that there is no provision enabling filing of appeal in complaint cases in the Sessions Court subject to the grant of special leave by it. Thus, the Law Commission acknowledged that there is no provision in the Code under which appeals in complaint cases could be filed in the Sessions Court. We agree with this opinion for reasons which we shall now state.” 6.2 In the judgment of Subhash Chand Vs. State (Delhi Administration) (supra), after having analysed unamended section 378 comparing it to section 378 of the Code as amended by Act 25 of 2005, it has been noted in paragraphs 17, 18, 19 and 20 as under : 17. At the outset, it must be noted that as per Section 378(3) appeals against orders of acquittal which have to be filed in the High Court under Section 378(1)(b) and 378(2)(b) of the Code cannot be entertained except with the leave of the High Court. Section 378(1)(a) provides that, in any case, if an order of acquittal is passed by a Magistrate in respect of a cognizable and non-bailable offence the District Magistrate may direct the Public Prosecutor to present an appeal to the Court of Sessions. Sub-section (1)(b) of Section 378 provides that, in any case, the State Government may direct the Public Prosecutor to file an appeal to the High Court from an original or appellate order of 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. Sub-Section (2) of Section 378 refers to orders of acquittal passed in any case investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 or by any other agency empowered to make investigation into an offence under any Central Act other than the Code. This provision is similar to sub-section (1) except that here the words “State Government” are substituted by the words “Central Government”. 18. If we analyse Section 378(1)(a) & (b), it is clear that the State Government cannot direct the Public Prosecutor to file an appeal against an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence because of the categorical bar created by Section 378(1)(b). 18. If we analyse Section 378(1)(a) & (b), it is clear that the State Government cannot direct the Public Prosecutor to file an appeal against an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence because of the categorical bar created by Section 378(1)(b). Such appeals, that is appeals against orders of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence can only be filed in the Sessions Court at the instance of the Public Prosecutor as directed by the District Magistrate. Section 378(1)(b) uses the words “in any case” but leaves out orders of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence from the control of the State Government. Therefore, in all other cases where orders of acquittal are passed appeals can be filed by the Public Prosecutor as directed by the State Government to the High Court. 19. Sub-Section (4) of Section 378 makes provision for appeal against an order of acquittal passed in case instituted upon complaint. It states that in such case if the complainant makes an application to the High Court and the High Court grants special leave to appeal, the complainant may present such an appeal to the High Court. This sub-section speaks of “special leave” as against sub-section (3) relating to other appeals which speaks of “leave”. Thus, complainant’s appeal against an order of acquittal is a category by itself. The complainant could be a private person or a public servant. This is evident from sub-section (5) which refers to application filed for “special leave” by the complainant. It grants six months’ period of limitation to a complainant who is a public servant and sixty days in every other case for filing application. Sub-Section (6) is important. It states that if in any case complainant’s application for “special leave” under sub-Section (4) is refused no appeal from order of acquittal shall lie under sub-section (1) or under sub-section (2). Thus, if “special leave” is not granted to the complainant to appeal against an order of acquittal the matter must end there. Neither the District Magistrate nor the State Government can appeal against that order of acquittal. The idea appears to be to accord quietus to the case in such a situation. 20. Thus, if “special leave” is not granted to the complainant to appeal against an order of acquittal the matter must end there. Neither the District Magistrate nor the State Government can appeal against that order of acquittal. The idea appears to be to accord quietus to the case in such a situation. 20. Since the words “police report” are dropped from Section 378(1)(a) despite the Law Commission’s recommendation, it is not necessary to dwell on it. A “police report” is defined under Section 2(r) of the Code to mean a report forwarded by a police officer to a Magistrate under subsection (2) of Section 173 of the Code. It is a culmination of investigation by the police into an offence after receiving information of a cognizable or a non-cognizable offence. Section 2(d) defines a “complaint” to mean any allegation made orally or in writing to a Magistrate with a view to his taking action under the Code, that some person, whether known or unknown has committed an offence, but does not include a police report. The Explanation to Section 2(d) states that a report made by a police officer in a case which discloses after investigation, the commission of a non-cognizable offence, shall be deemed to be a complaint, and the police officer by whom such report is made shall be deemed to be the complainant. Sometimes investigation into cognizable offence conducted under Section 154 of the Code may culminate into a complaint case (cases under the Drugs & Cosmetics Act, 1940). Under the PFA Act, cases are instituted on filing of a complaint before the Court of Metropolitan Magistrate as specified in Section 20 of the PFA Act and offences under the PFA Act are both cognizable and non-cognizable. Thus, whether a case is a case instituted on a complaint depends on the legal provisions relating to the offence involved therein. But once it is a case instituted on a complaint and an order of acquittal is passed, whether the offence be bailable or non-bailable, cognizable or non-cognizable, the complainant can file an application under Section 378(4) for special leave to appeal against it in the High Court. Section 378(4) places no restriction on the complainant. But once it is a case instituted on a complaint and an order of acquittal is passed, whether the offence be bailable or non-bailable, cognizable or non-cognizable, the complainant can file an application under Section 378(4) for special leave to appeal against it in the High Court. Section 378(4) places no restriction on the complainant. So far as the State is concerned, as per Section 378(1)(b), it can in any case, that is even in a case instituted on a complaint, direct the Public Prosecutor to file an appeal to the High Court from an original or appellate order of acquittal passed by any court other than High Court. But there is, as stated by us hereinabove, an important inbuilt and categorical restriction on the State’s power. It cannot direct the Public Prosecutor to present an appeal from an order of acquittal passed by a Magistrate in respect of a cognizable and non-cognizable offence. In such a case the District Magistrate may under Section 378(1)(a) direct the Public Prosecutor to file an appeal to the Session Court. This appears to be the right approach and correct interpretation of Section 378 of the Code.” 7. The present applicants are before this Court under sub-section (4) of section 378, which leaves for consideration, whether a complainant’s application for leave to appeal from an order of acquittal not from an order of original court but from an appellate order, be permissible. The comparison between sub-section (1)(b) and sub-section (2)(b) along with sub-section (3) with subsection (4) of section 378 Cr.P.C. would clarify that specifically, the State Government, and Central Government, in cases where offences are investigated by the agency investigating under the Delhi Special Police Establishment Act or any other agency empowered to make investigation into the offence under the Central Act other than the Code, can through Public Prosecutor present an appeal to a High Court from an original as well as appellate order of acquittal passed by any Court, to the High Court; however, sub-section (4) of section 378 Cr.P.C. does not explicitly specifies in unambiguous terms that a leave to appeal can be moved on any order of acquittal passed by any of the Court, being it original or appellate. 8. The expression “such an order of acquittal” in sub-section (3) has been used in a general form, in any case instituted upon the complaint. 8. The expression “such an order of acquittal” in sub-section (3) has been used in a general form, in any case instituted upon the complaint. Here, in all the cases, in the original jurisdiction, the order of conviction was passed; against that order, the accused had preferred an appeal before the Sessions Judge and at the appellate jurisdiction, the accused were acquitted and on those acquittal order of the appellate Court, the present leave to appeal is preferred by the original complainant. 8.1 The expression “such an order of acquittal” as incorporated in sub-section (4), should be considered wide enough to include the right to file appeal on any order of acquittal in complaint cases. The expression “such an order of acquittal” referred in sub-section (4) would be better understood while making reference of the “order of acquittal” mentioned in section 378(1)(b); which is for preferring an appeal, where the order of acquittal would include original as well as appellate order, the State therefore has been given a right to prefer leave to appeal from the original as well as appellate order of acquittal; thus, keeping this in mind, there would not be any reason to limit the right of a private party as complainant to prefer leave to appeal against any order of acquittal be it from original Court or by appellate Court. Sub-section (4) of Section 378 Cr.P.C., having made use of words “If such an order of acquittal is passed” is with reference to the orders of acquittal referred in subsection 378(1)(b) and 378(2)(b) by original or appellate Court other than a High Court. 8.2 The right thus conferred through section 378(4) Cr.P.C. is against order of acquittal by original or appellate court in any case instituted upon complaint and the complainant may present appeal on leave to appeal granted by High Court. 9. In case of Mahammadmiya Kalumiya Vs. Majidkhan Dildarkhan and another, reported in 1972 Cri.L.J. 1409, the expression “such an order of acquittal” has been clarified by this High Court, and, in paragraph 2, 3, 4 and 5 it is observed as under : “2. The prosecution was started upon institution of a complaint by the petitioner-complainant in this case. 9. In case of Mahammadmiya Kalumiya Vs. Majidkhan Dildarkhan and another, reported in 1972 Cri.L.J. 1409, the expression “such an order of acquittal” has been clarified by this High Court, and, in paragraph 2, 3, 4 and 5 it is observed as under : “2. The prosecution was started upon institution of a complaint by the petitioner-complainant in this case. Therefore, at the hearing of this petition, a question arose whether the revisional application would be maintainable inasmuch as the petitioner has not sought leave to appeal against the acquittal under Section 417(3) of the Criminal Procedure Code. Having heard the learned advocates for both the sides I am satisfied that the present application at the instance of the complainant is not competent. Sub-section (5) of Section 439 of the Criminal Procedure Code is clear on this point. It reads: “Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could, have appealed.” This is so because the acquittal has been recorded in a case instituted upon a complaint. The fact that right of appeal granted to a private complainant under Section 417(3) is not an absolute right but a qualified right, is of no consequence in such a case. The relevant portion of Section 417 may be reproduced for the purpose of this discussion. “(1) Subject to the provisions of sub-section (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. (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 the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal. (3) 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." In Sankalchand v. Khengaram, AIR 1969 Guj. (3) 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." In Sankalchand v. Khengaram, AIR 1969 Guj. 342 , N.G. Shelat J. (as he then was) following an earlier decision of the Bombay High Court, held that the words in subsection (5) of Section 439 of the Code are wide enough to include any right of appeal of any party under the provisions of the Code and in a case instituted upon a private complaint if the complainant failed to invoke the provisions, contained in sub-section (3) of of Section 417 of the Code, proceedings by way of revision cannot be entertained. The words in sub-section (5) of Section 439 were interpreted to include an appeal where an application for leave is contemplated as a condition precedent to the entertainment of appeal. That view was taken in State of Bombay v. N.G. Tayawade, AIR 1959 Bom. 94 and it was followed by N.G. Shelat J. in Sankal-chand's case AIR 1969 Guj 342 (supra). With respect, this is the correct view of sub-section (5) of Section 439 of the Criminal Procedure Code read with Section 417(3). So far the position having been settled there is no controversy before me. 3. However Mr. Shelat or the petitioner-complainant urged that in a case instituted upon a complaint the right of appeal conferred by sub-section (3) of the Section 417 is available only if the acquittal is by the trial Court and is not available if there is conviction by the trial Court and acquittal by the Sessions Court in appeal. In his submission the words "such an order of acquittal" occurring in Sub-section (3) mean an order of acquittal passed by any court other than a High Court. He urged that the words occurring in that context should be interpreted to mean the trial Court only. It is not possible to agree with this interpretation to the word "Court" occurring in sub-section (1) of Section 417. Even on the interpretation of Mr. Shelat the words "such an order of acquittal" in sub-section (3) would cover an acquittal by the Sessions Court that is any Court other than a High Court. It is not possible to agree with this interpretation to the word "Court" occurring in sub-section (1) of Section 417. Even on the interpretation of Mr. Shelat the words "such an order of acquittal" in sub-section (3) would cover an acquittal by the Sessions Court that is any Court other than a High Court. There is no reason why we should give a restricted meaning to the word 'Court’ in sub-section (1) of Section 417. Section 6 of the Criminal Procedure Code specifies the classes of criminal courts and Courts of Sessions are one of the two classes specified in that section. Another class is courts of Magistrates. It is the court of Sessions which would exercise powers in case of a conviction by a Magistrate where sentence awarded is appealable and in exercising those powers the Sessions Court does not cease to be a court, Therefore, even on the interpretation advanced by Mr. Shelat it is clear that the complainant should have filed an acquittal appeal against the acquittal order by the Sessions Court. It is clear that, the words "such an order of acquittal" occurring in Subsection (3) refer to an order of acquittal mentioned in Sub-section (1) which order of acquittal would include original as well as appellate order of acquittal. Therefore just as the State has been given a right of appeal from an original or appellate order of acquittal, in a given case a private party has also been given a right to appeal from the same kind of order of acquittal. The only limitation placed by the Legislature on the right conferred upon the private party in such a case is the limitation in the form of special leave to be obtained in appealing against the order of acquittal. Except this limitation there is no other distinction between the right of appeal conferred on the State and the right of appeal conferred upon a private party in specified cases. Mr. Shelat's contention, if accepted, would amount to placing a second restriction upon the right of appeal conferred by Section 417(3) which is not justified by the language used in Sub-section (3) read with Subsections (1) and (2). It is therefore not possible to agree with the submission of Mr. Shelat that the words "such an order of acquittal" occurring in Sub-section (3) refer to an order of acquittal passed by the trial Court only. It is therefore not possible to agree with the submission of Mr. Shelat that the words "such an order of acquittal" occurring in Sub-section (3) refer to an order of acquittal passed by the trial Court only. These words refer to an order of acquittal passed by any court other than a High Court either in exercise of original jurisdiction or appellate jurisdiction. This was the view taken by a Single Judge of the Mysore High Court in Chairman, Village Panchayath v. Thimmasetty, AIR 1956 Mys 62. There also in a case instituted upon a complaint there was conviction by the trial Court and acquittal by the appellate Court. The complainant went in revision to the High Court and it was held that the revisional application was not competent. The word "such" in Sub-sections (2) and (3) of Section 417, was, it was observed, used with reference to an order of acquittal referred to in Sub-section (1) of Section 417. It was observed that the order of acquittal referred to in Sub-section (1) was an order of acquittal of the original on the appellate Court Therefore the contention that Subsection (3) of Section 417 is applicable only to a case in which the order of acquittal is passed by the original court was negatived. With respect there is enough indication in the language of Sub-sections (1), (2) and (3) of Section 417 to agree with this view. Mr. Shelat in the course of his submission drew my attention to two decisions one of the Allahabad High Court reported as Abdul Halim v. State. That was a case which had originated on a police report and not on a complaint and the Magistrate convicted the accused who was acquitted by the appellate Court A revisional application was filed to the High Court. It is obvious that the case was not covered by Section 417(3) as it was not a case instituted upon a complaint. The other decision was of the Supreme Court reported as Chinnaswamy v. State of Andhra Pradesh. In that case also the matter originated on police investigation and not upon a private complaint. It is obvious that the case was not covered by Section 417(3) as it was not a case instituted upon a complaint. The other decision was of the Supreme Court reported as Chinnaswamy v. State of Andhra Pradesh. In that case also the matter originated on police investigation and not upon a private complaint. In neither of these two cases the question whether the right of appeal conferred by Sub-section (3) of Section 417 is limited to acquittal by the original court only had arisen for determination, because in none of the two cases the original case was instituted upon a private complaint Therefore, these two decisions do not help Mr. Shelat. 4. In the present case there is no reason to exercise extraordinary jurisdiction of this court suo motu. On this ground alone therefore the application will fail, and it is not necessary to examine the other contentions advanced. 5. In the result the application fails and is dismissed. Rule discharged.” 10. Right to file an appeal by the complainant against order of acquittal in a complaint case is an independent and statutory right. A right not subservient to the rights of the State to file an appeal. On an order of acquittal passed by the trial Court in complaint case, then according to section 378(4) Cr.P.C., the complainant, with the fetter imposed for grant of special leave to appeal, can present an appeal to the High Court. Likewise in all the instant cases, when the trial Court has convicted the accused in the complaint case, the accused would prefer an appeal challenging the conviction before the Sessions Court as that Court having the appellate jurisdiction, however, if the Sessions Court in appeal acquits the accused, then the complainant would remain remediless if such right to challenge the acquittal is not permitted. On purposive interpretation, the scheme of the provisions of section 378 Cr.P.C. shows that the words “If such an order of acquittal is passed” adopted in section 378(4) Cr.P.C. gets co-relates to section 378(1)(b) and 2(b) to find the meaning of “orders of acquittal” referred in those sub-clauses, which are such orders of acquittal from original or appellate Court. 11. In view of the above propositions of law with the view taken in the referred judgment, leave to appeal, in all the matters are allowed. The applications stands disposed of. 11. In view of the above propositions of law with the view taken in the referred judgment, leave to appeal, in all the matters are allowed. The applications stands disposed of. Office to keep copy of this order in each matter.