TMI Blog2013 (1) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... dure of approaching the State with a proposal, getting it sanctioned and then filing an appeal. 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. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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). 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 Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 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 fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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-se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment 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 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 ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated 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. 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 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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