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TMI Blog2009 (10) TMI 978X X X X Extracts X X X X X X X X Extracts X X X X ..... accused, of the said offence. Therefore, the complainant has challenged the Judgment and Order of acquittal passed by the Appellate Court in the said appeal. 2. The respondent-accused has remained absent despite receipt of notice of this appeal. Therefore he is unrepresented. 3. Since the present appeal is filed under Section 378(4) of Cr.P.C. aggrieved by the Judgment and Order of acquittal passed by the 'Appellate Court' in the appeal that was filed by the accused challenging the Judgment and Order of conviction passed by the Trial Court, the question that has arisen is whether the present appeal is maintainable under Section 378(4) of Cr.P.C.?' Therefore, arguments of Sri C.H. Jadhav, the learned Counsel for the appellant are heard on this question. Many other similar appeals are pending before this Bench. Crl.A. Nos. 905/2008 and 1057/2008 are two of such appeals and they are also listed today. Arguments of the learned advocates for both the sides in Crl.A. No. 905/2008 and also arguments of the learned Counsel for the appellant in Crl.A. No. 1057/2008 are also heard on this question of maintainability of these appeals. But this order on the said question is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the words 'from an original or appellate order of an acquittal' which are found in Section 378(1)(b) do not find their place in Sub-section (4) of Section 378 Cr.P.C. and therefore, it is clear that only an order passed in exercise of 'original jurisdiction is made appealable under Section 378(4) Cr.P.C. and hence the present appeals challenging the correctness of the respective orders of acquittal passed by the respective appellate Courts in the respective appeals are not maintainable. In support of his contentions he has placed reliance on the order of Co-ordinate Bench of this Court dt. 3.6.2009 passed in Crl.A. No. 142/2009 wherein the very same question of maintainability of appeal from an order of acquittal passed by the appellate Court was considered by the learned Single Judge. 7. Section 378 Cr.P.C. which provides for an appeal against an order of acquittal reads as under: Section 378. Appeal in case of acquittal: (1) Save as otherwise provided in Sub-section (2), and subject to the provisions of Sub-sections (3) and (5)- (a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that the words 'original or appellate order' which are found in Clause (b) of Sub-section (1) of Section 378 Cr.P.C. do not find their place in Sub-section (4) of it and therefore, it cannot be held that an appeal lies to the High Court, against an order of acquittal passed by the appellate Court. It could be seen further from the said Order that the learned Single Judge, referring to the definition of criminal Appeal' as defined under Section 2(2) of Karnataka High Court Act 1961, has observed therein that since the criminal appeal is defined as 'the appeal from an order passed by a subordinate Criminal Court in exercise of its 'original criminal jurisdiction the appeal against an order passed by the Criminal Court in appeal by exercising its appellate jurisdiction' cannot be held maintainable. 9. In the said Order, the learned Single Judge has also referred to the entire provisions of Section 378 of Cr.P.C. On a careful reading of the provisions of Clause (b) of Sub-section (1) of Section 378 Cr.P.C. it could be seen that an appeal is provided from an 'original or appellate order of an acquittal, passed by any Court other than a High Court, arisin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate order of acquittal passed by any Court other than a High Court. In Sub-sections (2) and (3) of Section 417 the word such is used with reference to an order of acquittal. The words such an order of acquittal appearing in Sub-section (3) can only refer to the order of acquittal mentioned in Sub-section (1) of Section 417. The order of acquittal referred to in Sub-section (1) of Section 417 is an order of acquittal of the original or the appellate Court. Therefore there is no force in the argument advanced by the learned Counsel that Section 417(3) is applicable only to a case in which the order of acquittal is that of an original Court. Under these circumstances, it has to be held that this revision petition is not maintainable. 12. Further, the learned advocates for the appellants have also relied upon the decision of Gujarat High Court in the case of Mahammadmiya Kalumiya v. Majidkhan Dildarkhan and Anr. reported in 1972 Crl.L.J. 1409 wherein the decision of this Court in the case of Chairman, Village Panchayat, Nagathihalli v. N. Thimma Shetty Gowda referred to supra has been followed by High Court of Gujarat. It is observed by the High Court of Gujarat at par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween the right of appeal conferred on the State and the right of appeal conferred upon a private party in specified cases. Mr. Shelat's contention, if accepted, would amount to placing a second restriction upon the right of appeal conferred by Section 417(3) which is not justified by the language used in Sub-section (3) read with Sub-sections (1) and (2). It is therefore not possible to agree with the submission of Mr. Shelat that the words such an order of acquittal occurring in Sub-section (3) refer to an order of acquittal passed by the trial Court only. These words refer to an order of acquittal passed by any court other than a High Court either in exercise of original jurisdiction or appellate jurisdiction. This was the view taken by a Single Judge of the Mysore High Court in Chairman, Village Panehayath v. Thimmasetty AIR 1956 kant 62. There also in a case instituted upon a complaint there was conviction by the trial Court and acquittal by the appellate Court. The complainant went in revision to the High Court and it was held that the revisional application was not competent. The word such in Sub-sections (2) and (3) of Section 417, was, it was observed, used with refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in appeal was considered. 14. The above observations were made by the learned Single Judge of this Court in the case of Chairman, Village PanchayaL Nagathihalli v. N Thimma Shetty Gowda while considering the provisions of Section 417(1) and (3) of Cr.P.C. 1898 (old Code) which are identical with the provisions of Sub-sections (2) and (4) of Cr.P.C. 1973 (new Code). 15. I respectfully agree with the view taken by the learned Single Judge of this Court in the case of Chairman, Village Panchayat Nagathihalli v. N Thimma Shetty Gowda AIR 1956 Kant 62 which has been followed by the High Court of Gujarath in 1972 Crl.L.J 1409, both referred to supra. If the words such an order of acquittal which are found in both the Sub-sections (2) and (4) of Section 378, are held to mean an order of acquittal passed in exercise of 'either original or appellate jurisdiction it follows that order of acquittal passed by either the Trial Court or the Appellate Court can be appealed against by invoking provisions of Sub-section (4) of Section 378 Cr.P.C. 16. The definition of Criminal Appeal has been referred to and considered by the Co-ordinate Bench of this Court in the order in Crl.A No. 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t maintainable Under Section 378(4) Cr.P.C. 19. It is not in dispute that Sub-sections (1) and (2) of Section 378 Cr.P.C. provide for an appeal from an order of acquittal passed in appeal, if such an order arises from the case instituted upon a police report. If such an appeal from an order of acquittal passed by the criminal Court in appeal against conviction is excluded from Sub-section (4) of Section 878 Cr.P.C. on the ground that such an order of acquittal arises from the case instituted upon a private complaint, it would lead to discrimination between the prosecution in a criminal case instituted upon a police report and the complainant in a criminal case instituted upon private complaint which could not be the intention of the Legislature. 20. The appellate and revisional powers of High Court: are quite distinct. As to the distinction between appellate and revisional powers of the High Court, Hon'ble Supreme Court has observed in the case of Associated Cement Co., Ltd. v. Keshavanand reported in ILR 1998 KAR 1857 (c) as under; (c) Criminal Procedure Code 1973 (Central Act No. 2 of 1974) - Section 386 - Powers of Appellate Court and High Courts Powers of Revision. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar v. Krishnaji Dattatreya Bapat this Court has observed that the right of appeal is one of entering a superior court, and invoking its aid and interposition to redress the error of the Court below. In this case when the High Court considered that its only concern was to check whether the order of the Magistrate is fraught: with any illegality or impropriety . The High Court has narrowed down its angle while dealing with an appeal. [Emphasis supplied by me] 21. As could be seen from the above decision of Hon'ble Supreme Court, the appellate powers of High Court; are co-extensive with the original Court's Jurisdiction while, in exercise of its revisional powers, the High Court has to confine to the legality and propriety of the findings and therefore, the High Court, in a Criminal Revision, cannot reappreciate the evidence and come to its own conclusion as could be done in an appeal (against an order of conviction or acquittal). The appeal against order of acquittal passed by any Court other than High Court, in exercise of its appellate jurisdiction, would certainly involve the divergent findings recorded by the Trial Court and the Appellate Court, In order to rend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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