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2023 (4) TMI 1020 - HC - Central ExciseMaintainability of appeal - offence committed was non-cognizable offence - appeal filed by the respondent against the judgment of acquittal passed by the learned Magistrate in a complaint case - maintainable before the Sessions Court under Section 378(2) of Cr.PC or not? - HELD THAT - Section 378(4) of Cr.PC provides for an appeal as against an order of acquittal passed in any case instituted upon a complaint and such an appeal would lie only to the High Court and if only the High Court grants special leave to appeal, the complainant can maintain an appeal against the order of acquittal. The question regarding filing of an appeal against the order of acquittal passed in a complaint case by a Magistrate was considered in detail in the SUBHASH CHAND VERSUS STATE (DELHI ADMINISTRATION) 2013 (1) TMI 943 - SUPREME COURT where the Hon'ble Supreme Court held that once a case is instituted on a complaint and an order of acquittal is passed, whether the offence is bailable or nonbailable, cognizable or non-cognizable, the complainant can file an application under Section 378(4) of Cr.PC for special leave to appeal against it in the High Court and no appeal could be maintained before the Court of Sessions. The Hon'ble Supreme Court also held that it is immaterial whether the complainant is a private person or a public servant or the State or State Authority. The only point that is required to be considered is whether a case is a case instituted on a complaint. The coordinate bench of this Court in C. SHEKAR VERSUS K. SARASWATHI 2019 (2) TMI 2077 - KARNATAKA HIGH COURT has held that as against the order of acquittal passed in a complaint case, the appeal would only lie to the High Court under Section 378(4) of Cr.PC and if the District Court/Sessions Court has entertained an appeal preferred against the order of acquittal passed in a complaint case by the Magistrate, the order passed in such an appeal is a nullity and the same is not sustainable in the eye of law. The Hon'ble Supreme Court in Subhash Chand's case supra has clearly held that as against the order of acquittal passed by the Magistrate in a complaint case, the only remedy available to the complainant irrespective of the fact that it is a private person or a public servant or the State or State Authority, is to file an appeal under Section 378(4) of Cr.PC to the High Court - the appeal filed by the respondent before the Sessions Court under Section 378(2) of Cr.PC as against the judgment of acquittal passed by the Trial Court was not maintainable and the judgment of conviction and order of sentence passed by the Sessions Court being without jurisdiction, is a nullity in the eye of law, and therefore, the same is liable to be set aside. The judgment and order of conviction and sentence dated 01.10.2014 passed by the Sessions Court, in Crl.A.No.410/2008, is set aside, and the judgment of acquittal dated 05.09.2005 passed by the Trial Court in C.C.No.35/1997, is restored - revision petition is allowed.
Issues Involved:
1. Maintainability of the appeal filed by the respondent against the judgment of acquittal. 2. Jurisdiction of the Sessions Court to entertain the appeal under Section 378(2) Cr.PC. 3. Validity of the judgment and order of conviction and sentence passed by the Sessions Court. Summary: 1. Maintainability of the Appeal: The primary issue was whether the appeal filed by the respondent against the judgment of acquittal passed by the learned Magistrate in a complaint case was maintainable before the Sessions Court under Section 378(2) of Cr.PC. The court highlighted that "Section 378(4) of Cr.PC provides for an appeal as against an order of acquittal passed in any case instituted upon a complaint and such an appeal would lie only to the High Court and if only the High Court grants special leave to appeal." 2. Jurisdiction of the Sessions Court: The petitioner argued that the appeal under Section 378(2) Cr.PC before the Sessions Court was not maintainable, citing precedents including SUBHASH CHAND VS STATE (DELHI ADMINISTRATION). The court noted, "The Hon'ble Supreme Court in Subhash Chand's case supra has clearly held that as against the order of acquittal passed by the Magistrate in a complaint case, the only remedy available to the complainant irrespective of the fact that it is a private person or a public servant or the State or State Authority, is to file an appeal under Section 378(4) of Cr.PC to the High Court." 3. Validity of the Judgment and Order of Conviction and Sentence: The court found that the Sessions Court had no jurisdiction to entertain the appeal filed by the respondent under Section 378(2) Cr.PC. The judgment stated, "The judgment of conviction and order of sentence passed by the Sessions Court in Crl.A.No.410/2008 being without jurisdiction, is a nullity in the eye of law, and therefore, the same is liable to be set aside." Conclusion: The revision petition was allowed. The court set aside the judgment and order of conviction and sentence dated 01.10.2014 passed by the Sessions Court and restored the judgment of acquittal dated 05.09.2005 passed by the Trial Court in C.C.No.35/1997.
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