Subhash Chand vs. State (Delhi Administration), Criminal Appeal No. 50 of 2013, [Arising out of Special Leave
Petition (Crl.) No.6937 of 2011], Decided on January 8th, 2013
In this case the question was
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.
The Hon’ble Supreme Court held:
“…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 noncognizable, 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”.
“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 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 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.”
[Para 21]
On the facts of the case the
Court held:
“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”. [Para 21]
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