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.
Para 16 on wards
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.
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 subsection
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 noncognizable
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 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.
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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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