K.M. Ravindra vs B.K. Krishnappa and Others

K.N. Keshavanarayana, J.—This appeal filed u/s 378(1) of the Code of Criminal Procedure. is directed against the judgment and order dated 30.12.06 passed by the Addl. C.J.M., Bangalore District, Bangalore, acquitting the Respondents 1 to 4 of offences punishable under Sections 465, 467, 468, 471, 420, 506, 447 r/w 34 of I.P.C.

The Appellant filed a private complaint u/s 200 of Code of Criminal Procedure. on 1.7.03 against the Respondents 1 to 4 alleging aforementioned offences. The learned Magistrate before whom the complaint was filed, referred the complaint to the jurisdictional police u/s 156(3) of Code of Criminal Procedure. for investigation and report. On the basis of such reference, the jurisdictional police registered the case, investigated the matter and ultimately filed the charge-sheet against the Respondents 1 to 4 for the aforesaid offences. The complainant was cited as one of the witnesses in the charge-sheet.

After trial, by the judgment under appeal, the learned Magistrate acquitted all the accused of the charges levelled against them. Aggrieved by the said judgment of acquittal, the complainant has filed this appeal u/s 378(1) of Code of Criminal Procedure.

Immediately after filing of this appeal, the office had raised objection about the maintainability of this appeal, by the complainant. However, though no order has been passed on the said office objection raised regarding maintainability, the appeal came to be admitted for hearing on 13.3.2008. Under those circumstances, the appeal had been listed for hearing yesterday, but none appeared on behalf of the Appellant. Learned Counsel for the Respondent appeared and submitted that the appeal filed by the complainant u/s 378(1) of Code of Criminal Procedure. is not tenable and is not maintainable, as such, it is liable to be dismissed. However, in order to give one more opportunity to the Appellant, the matter was directed to be listed today for hearing. Accordingly, the matter is listed today for hearing. However, once again learned Counsel for the Appellant has remained absent and there is no representation on his behalf. Learned Counsel for the Respondents 1 to 4 vehemently contended that the appeal is not maintainable and therefore it is liable to be dismissed.

In this behalf, he also placed reliance on the decision of the Division Bench of the Delhi High Court in the case of Abdu Ram v. State and Ors. reported in 2002 (1) Crimes 76. Therefore, the question for consideration is, whether this appeal is maintainable. Section 378 of Code of Criminal Procedure. provides for an appeal against an order of acquittal. As per Sub-section (1) of Section 378 of Code of Criminal Procedure. the District Magistrate may 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 a cognizable and non-bailable offence and an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. Thus, from the very reading of Sub-section (1) of Section 378 of Code of Criminal Procedure. it is clear that an appeal under the said section can be filed only by the State by directing the Public Prosecutor to present the appeal against the judgment and order of acquittal. Sub-section (2) of Section 378 of Code of Criminal Procedure. relates to an order of acquittal 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. As per Sub-section (3) of Section 378 of Code of Criminal Procedure, 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. Sub-section (4) of Section 378 of Code of Criminal Procedure. gives a right of appeal to a complainant against an order of acquittal passed in any case instituted upon a complaint and such an appeal can be filed only upon grant of special leave to appeal by the High Court.

In the case on hand, though initially criminal law was set on motion by the Appellant by filing a private complaint u/s 200 of Code of Criminal Procedure. the learned Magistrate did not take cognizance of the offences alleged in the complaint on presentation of the same and the complaint was referred to the police u/s 156(3) of the Code of Criminal Procedure. for investigation and report. It is upon the jurisdictional police filing the charge-sheet after investigation, the learned Magistrate took cognizance u/s 190(1)(b) of Code of Criminal Procedure. of the offences alleged in the charge sheet and proceeded with the case. Therefore, the acquittal recorded in the case on hand is not a case instituted upon a complaint, but a case instituted on the report of the police. Therefore, the State alone could file an appeal against the order of acquittal u/s 378(1) of Code of Criminal Procedure. by obtaining leave under Sub-section (3). The Appellant cannot contend that this is an appeal in exercise of power vested under Sub-section (4) of Section 378 of Code of Criminal Procedure. Since the State has not filed any appeal as provided under Sub-section (1) of Section 378 of Code of Criminal Procedure. the present appeal filed by the Appellant who was the complainant before the learned Magistrate, is not maintainable. The Hon''ble Supreme Court in the case of Jagbir and Another Vs. State of Punjab, , has held that an appeal u/s 378(1) of Code of Criminal Procedure, at the instance of the complainant, against an order of acquittal is not maintainable. The Delhi High Court in the aforesaid decision has also held that an appeal u/s 378 of Code of Criminal Procedure by a complainant is not tenable and it is liable to be dismissed as incompetent. In this view of the matter, this appeal filed by the Appellant u/s 378(1) of Code of Criminal Procedure. is not maintainable and therefore, it is liable to be dismissed.

Accordingly, the appeal is dismissed as not maintainable.