2009 (10) TMI 978 - HC - Indian Laws

Summary

Issues Involved:
1. Maintainability of appeal under Section 378(4) of Cr.P.C.
2. Interpretation of "such an order of acquittal" in Section 378(4) Cr.P.C.
3. Distinction between appellate and revisional powers of the High Court.

Issue-Wise Detailed Analysis:

1. Maintainability of Appeal under Section 378(4) of Cr.P.C.:
The primary issue addressed is whether an appeal under Section 378(4) Cr.P.C. is maintainable from an order of acquittal passed by a Court, other than the High Court, in exercise of its appellate jurisdiction in an appeal filed under Section 374 Cr.P.C. challenging the correctness of the Judgment and Order of conviction passed by the Trial Court.

The appellant's counsel argued that Section 378(1)(b) Cr.P.C. allows for an appeal to the High Court from an order of acquittal passed by the original or appellate Court in a case instituted upon a police report. Similarly, Section 378(4) Cr.P.C. provides for an appeal to the High Court, with leave, against an order of acquittal passed in any case instituted upon complaint. The contention was that the words "such an order of acquittal" in Sub-section (4) refer to orders of acquittal passed by both original and appellate Courts, making the present appeals maintainable.

Conversely, the respondent's counsel contended that the words "from an original or appellate order of acquittal" found in Section 378(1)(b) do not appear in Sub-section (4), implying that only orders passed in the exercise of original jurisdiction are appealable under Section 378(4). This argument was supported by a Coordinate Bench's order in Crl.A. No. 142/2009, which held that appeals from orders of acquittal passed by appellate Courts are not maintainable under Section 378(4).

2. Interpretation of "Such an Order of Acquittal" in Section 378(4) Cr.P.C.:
The court examined the interpretation of "such an order of acquittal" in Sub-sections (2) and (4) of Section 378 Cr.P.C. The appellant's counsel relied on precedents, including the case of Chairman, Village Panchayat, Nagathihalli v. N. Thimmashetty Gowda (AIR 1956 Kant 62), which established that "such an order of acquittal" includes orders passed by both original and appellate Courts. This interpretation was also supported by the Gujarat High Court in Mahammadmiya Kalumiya v. Majidkhan Dildarkhan and Anr. (1972 Crl.L.J. 1409).

The court noted that the Coordinate Bench in Crl.A. No. 142/2009 did not consider the meaning of "such an order of acquittal" and did not refer to the precedent set by Chairman, Village Panchayat, Nagathihalli v. N. Thimmashetty Gowda. The court agreed with the interpretation that "such an order of acquittal" refers to orders passed in exercise of either original or appellate jurisdiction, thus making appeals under Section 378(4) Cr.P.C. maintainable against orders of acquittal passed by appellate Courts.

3. Distinction between Appellate and Revisional Powers of the High Court:
The court highlighted the distinction between appellate and revisional powers, as established by the Supreme Court in Associated Cement Co., Ltd. v. Keshavanand (ILR 1998 KAR 1857). Appellate jurisdiction allows for a complete reappraisal of evidence and reaching independent conclusions, while revisional jurisdiction is limited to checking the legality and propriety of findings without reappraising evidence.

The court emphasized that an appeal against an order of acquittal passed by an appellate Court involves divergent findings and requires reappreciation of evidence to render complete justice. Denying the complainant in a case instituted upon complaint the opportunity to appeal against an order of acquittal passed by an appellate Court would lead to discrimination, which could not be the Legislature's intention.

Conclusion:
The court concluded that the words "such an order of acquittal" in Sub-sections (2) and (4) of Section 378 Cr.P.C. refer to orders of acquittal passed in exercise of either original or appellate jurisdiction. Therefore, an appeal under Section 378(4) Cr.P.C. is maintainable against an order of acquittal passed by an appellate Court. The matter was directed to be placed before the Division Bench for a final decision on the question of maintainability. Appellants were given the option to convert their appeals into revision petitions under Section 397 Cr.P.C. if they desired immediate disposal.