SUBHASH CHAND Vs STATE(DELHI ADMINISTRATION)
Bench: AFTAB ALAM,RANJANA PRAKASH DESAI
Case number: Crl.A. No.-000050-000050 / 2013
Diary number: 22328 / 2011
Advocates: HARISH PANDEY Vs
ANIL KATIYAR
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 50 OF 2013 [Arising out of Special Leave Petition (Crl.) No.6937 of 2011]
SUBHASH CHAND … APPELLANT
Vs.
STATE (DELHI ADMINISTRATION). … RESPONDENTS
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. This appeal, by special leave, is directed against
judgment and order dated 07/01/2011 passed by the High
Court of Delhi in Criminal Misc. Case No.427 of 2009
whereby the High Court dismissed the petition filed by the
appellant holding that an appeal filed by the State against an
order of acquittal shall lie to the Sessions Court under
Section 378(1) of the Code of Criminal Procedure, 1973 (for
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short, “the Code”) and not under Section 378(4) of the
Code to the High Court.
3. The appellant is the supplier-cum-manufacturer of the
food article namely Sweetened Carbonated Water. He is
carrying on business in the name and style of M/s. Subhash
Soda Water Factory. On 6/6/1989 at about 4.15 p.m., one
P.N. Khatri, Food Inspector, purchased a sample of
sweetened carbonated water for analysis from one Daya
Chand Jain, Vendor-cum-Contractor of Canteen at Suraj
Cinema, Dhansa Road, Najafgarh, Delhi. After following the
necessary procedure, the sample was sent to the Public
Analyst for analysis. On analysis, the Public Analyst opined
that the sample does not conform to the prescribed
standard. After conclusion of the investigation, the
respondent–State through its Local Health Authority - P.K.
Jaiswal filed a Complaint bearing No.64 of 1991 against the
appellant and Daya Chand in the Court of the Metropolitan
Magistrate, New Delhi alleging that the appellant and the
said Daya Chand had violated the provisions of Sections
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2(ia), (a), (b), (f), (h), (l), (m), Section 2(ix) (j), (k) and Section
24 of the Prevention of Food Adulteration Act, 1954 (for
short, “PFA Act”) and Rule 32, Rule 42 (zzz)(i) and Rule 47
of the Prevention of Food Adulteration Rules, 1955 (for short,
“the Rules”) and committed an offence punishable under
Section 16(1)(1A) read with Section 7 of the PFA Act and the
Rules. Since Daya Chand died during the pendency of the
case, the case abated as against him. The appellant was
tried and acquitted by learned Magistrate by order dated
27/2/2007.
4. Being aggrieved by the said order dated 27/2/2007, the
respondent-State preferred Criminal Appeal No.13 of 2008 in
the Sessions Court under Section 378(1)(a) of the Code. The
appellant raised a preliminary objection in regard to the
maintainability of the said Appeal before the Sessions Court
in view of Section 378(4) of the Code. He contended that an
appeal arising from an order of acquittal in a complaint case
shall lie to the High Court. The said objection was rejected
by the Sessions Court by order dated 4/2/2009.
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5. Aggrieved by the said order dated 4/2/2009, the
appellant preferred Criminal Misc. Case No.427 of 2009
before the High Court. By order dated 9/7/2009, the High
Court held that the Sessions Court has no jurisdiction to
entertain an appeal filed in a complaint case and directed
that the appeal be transferred to it. Accordingly, Criminal
Appeal No.13 of 2008 pending before the Sessions Court was
transferred to the High Court and re-numbered as Criminal
Appeal No.642 of 2009.
6. The respondent-State carried the said order dated
9/7/2009 to this court by Special Leave Petition (Crl.)
No.9880 of 2009 (Criminal Appeal No.1514 of 2010). By
order dated 13/8/2010, this court remanded the matter to
the High Court and directed that the matter be decided
afresh after taking into consideration Sections 378(1) and
378(4) of the Code and the relevant provisions of the PFA.
On remand, the High Court passed the impugned judgment
and order dated 7/1/2011.
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7. The short point which arises for consideration in this
appeal is whether in a complaint case, an appeal from an
order of acquittal of the Magistrate would lie to the Sessions
Court under Section 378(1) (a) of the Code or to the High
Court under Section 378(4) of the Code.
8. At our request, Mr. Sidharth Luthra, learned Additional
Solicitor General has assisted us as Amicus Curiae. We have
heard Ms. Meenakshi Lekhi, learned counsel appearing for
the petitioner and Mr. P.P. Malhotra, learned Additional
Solicitor General appearing for the State. Written
submissions have been filed by the counsel which we have
carefully perused. Mr. Luthra took us through the relevant
excerpts of Law Commission’s reports. He took us through
the Code of Criminal Procedure (Amendment) Bill, 1994 ( Bill
No. XXXV of 1994). He also took us through un-amended
and amended Section 378 of the Code. After analyzing the
relevant provisions, Mr. Luthra submitted that no appeal lies
against an order of acquittal in cases instituted upon a
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complaint to the Sessions Court. Ms. Lekhi also adopted
similar line of reasoning.
9. Mr. Malhotra learned Additional Solicitor General
adopted a different line of argument and therefore, it is
necessary to note his submissions in detail. Counsel pointed
out how the law relating to appeals against orders of
acquittal has evolved over the years. Counsel submitted
that under the Code of Criminal Procedure, 1861 no appeal
against an order of acquittal could be filed. The Code of
Criminal Procedure, 1872 permitted only the State
Government to file an appeal against acquittal order.
Section 417 of the Criminal Procedure Code, 1898 permitted
only the State to file an appeal against acquittal order. In
1955 it was amended so as to permit the complainant to file
an appeal against acquittal order. Under the Code of
Criminal Procedure, 1973, Section 417 was substituted by
Section 378. Counsel pointed out that under Section 378(4) a
complainant could prefer appeal against order of acquittal, if
special leave was granted by the High Court. However, in all
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cases the State could present appeal against order of
acquittal. Counsel then referred to Section 378 of the Code
as amended by Act No. 25 of 2005 and submitted that the
only change in sub-section (1) is adding clauses (a) and (b)
to it. Counsel described this change as minor and submitted
that the State’s right to file appeal against orders of acquittal
remains intact and is not taken away. Counsel relied on the
words ‘State Government may, in any case’ and submitted
that these words preserve the State’s right to file appeal
against acquittal orders of all types. There is no limitation
on this right whatsoever. This right is preserved according
to the counsel because the State is the protector of people.
Safety and security of the community is its concern. Even if
a complainant does not file an appeal against an order of
acquittal, the State Government can in public interest file it.
Counsel also addressed us on the question of plurality of
appeals. That issue is not before us. It is, therefore, not
necessary to refer to that submission. In support of his
submissions counsel placed reliance on Khemraj v. State
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of Madhya Pradesh 1 , State (Delhi Adminsitration) v.
Dharampal 2 , Akalu Ahir & Ors. v. Ramdeo Ram 3 , State
v. Ram Babu & Ors. 4 , Food Inspector v. Moidoo 5 ,
Prasannachary v. Chikkapinachari & Anr. 6 , State of
Maharashtra v. Limbaji Sayaji Mhaske, Sarpanch Gram
Panchayat 7 , State of Punjab & Anr. v. Jagan Nath 8 and
State of Orissa v. Sapneswar Thappa 9 .
10. To understand the controversy, it is necessary to have
a look at Section 378 of the Code prior to its amendment by
Act 25 of 2005 and Section 378 amended thereby.
11. Section 378 of the Code prior to its amendment by Act
25 of 2005 read as under:
“Appeal in case of acquittal.
378. Appeal in case of acquittal. (1) Save as otherwise provided in sub-section (2) and
1 1976 (1) SCC 385 2 2001(10) SCC 372 3 1973(2) SCC 583 4 1970 AWR 288 5 1988 (2) KLT 205 6 1959 AIR (Kant) 106 7 1976 (Mah.) LJ 475 8 1986 (90) PLR 466 9 1987 Cri.L.J. 612
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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 2*[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 sub-section (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.
(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.
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(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).”
Thus, under earlier Section 378(1) of the Code, the
State Government could, 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. Section 378(2) covered
cases where order of acquittal was passed in any case in
which the offence had been 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. In such cases, the Central
Government could also direct the Public Prosecutor to
present an appeal to the High Court from an order of
acquittal. Section 378(3) stated that appeals under sub-
sections (1) and (2) of Section 378 of the Code could not be
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entertained except with the leave of the High Court. Sub-
section (4) of Section 378 of the Code provided for orders of
acquittal passed in any case instituted upon complaint.
According to this provision, if on an application made to it by
the complainant, the High Court grants special leave to
appeal from the order of acquittal, the complainant could
present such an appeal to the High Court. Sub-section (5) of
Section 378 of the Code provided for a period of limitation.
Sub-section (6) of Section 378 of the Code stated that 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-sections (1) or (2). Thus, if the High Court refused to
grant special leave to appeal to the complainant, no appeal
from that order of acquittal could be filed by the State or the
agency contemplated in Section 378(2). It is clear from
these provisions that earlier an appeal against an order of
acquittal could only lie to the High Court. Sub-section (4)
was aimed at giving finality to the orders of acquittal.
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12. 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.
13. 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
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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 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
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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. 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.
14. Having analysed un-amended Section 378 it is
necessary to have a look at Section 378 of the Code, as
amended by Act 25 of 2005. It reads 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), -
(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
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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 subsection (1) or subsection (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
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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 subsection (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).”
15. 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
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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’.
16. 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
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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.
17. 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
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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
not 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.
18. 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
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report forwarded by a police officer to a Magistrate under
sub-section (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. 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
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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. 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.
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This appears to be the right approach and correct
interpretation of Section 378 of the Code.
19. Mr. Malhotra is right in submitting that it is only when
Section 417 of the Criminal Procedure Code, 1898 was
amended in 1955 that the complainant was given a right to
seek special leave from the High Court to file an appeal to
challenge an acquittal order. Section 417 was replaced by
Section 378 in the Code. It contained similar provision. But,
Act No.25 of 2005 brought about a major amendment in the
Code. It introduced Section 378(1)(a) which permitted the
District Magistrate, in any case, to 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. For the first time a
provision was introduced whereunder an appeal against an
order of acquittal could be filed in the Sessions Court. Such
appeals were restricted to orders passed by a Magistrate in
cognizable and non-bailable offences. Section 378(1)(b)
specifically and in clear words placed a restriction on the
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State’s right to file such appeals. It states that 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 Sessions Court in revision. Thus, the
State Government cannot present an appeal against an
order of acquittal passed by a Magistrate in respect of a
cognizable and non-bailable offence. We have already noted
Clause 37 of the 154th Report of the Law Commission of India
and Clause 37 of the Code of Criminal Procedure
(Amendment) Bill, 1994 which state that in order to guard
against the arbitrary exercise of power and to reduce
reckless acquittals Section 378 was sought to be amended to
provide appeal against an order of acquittal passed by a
Magistrate in respect of cognizable and non-bailable offence.
Thus, this step is taken by the legislature to check arbitrary
and reckless acquittals. It appears that being conscious of
rise in unmerited acquittals, in case of certain acquittals, the
legislature has enabled the District Magistrate to direct the
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Public Prosecutor to present an appeal to the Sessions Court,
thereby avoiding the tedious and time consuming procedure
of approaching the State with a proposal, getting it
sanctioned and then filing an appeal.
20. It is true that the State has an overall control over the
law and order and public order of the area under its
jurisdiction. Till Section 378 was amended by Act 25 of 2005
the State could prefer appeals against all acquittal orders.
But the major amendment made in Section 378 by Act 25 of
2005 cannot be ignored. It has a purpose. It does not throw
the concern of security of the community to the winds. In
fact, it makes filing of appeals against certain types of
acquittal orders described in Section 378(1)(a) easier, less
cumbersome and less time consuming. The judgments cited
by Mr. Malhotra pertain to Section 417 of the Criminal
Procedure Code, 1898 and Section 378 prior to its
amendment by Act 25 of 2005 and will, therefore, have no
relevance to the present case.
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21. In view of the above, we conclude that a complainant
can file an application for special leave to appeal against an
order of acquittal of any kind only to the High Court. He
cannot file such appeal in the Sessions Court. In the instant
case the complaint alleging offences punishable under
Section 16(1)(1A) read with Section 7 of the PFA Act and the
Rules is filed by complainant Shri Jaiswal, Local Health
Authority through Delhi Administration. The appellant was
acquitted by the Metropolitan Magistrate, Patiala House
Courts, New Delhi. The complainant can challenge the order
of acquittal by filing an application for special leave to
appeal in the Delhi High Court and not in the Sessions Court.
Therefore, the impugned order holding that this case is not
governed by Section 378(4) of the Code is quashed and set
aside. In the circumstances the appeal is allowed.
……………………………………………..J. (AFTAB ALAM)
……………………………………………..J. (RANJANA PRAKASH DESAI)
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NEW DELHI, JANUARY 8, 2013.
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