9911796707
TMI Blog2022 (9) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... ed complainant has to file an appeal under Section 378 of Cr.P.C. but not a revision, as evidence of some of the witness was already recorded, therefore, it cannot be said as discharge . The definition of Section 258 of Cr.P.C. reads in any other case, release the accused and such release shall have the effect of discharge . That means, without recording evidence of the parties, if the proceedings were closed by way of stopping the proceedings, then it amounts to discharge and such order shall have to be challenged only under Section 397 of Cr.P.C. before the learned Sessions Judge or before the High Court. Thus the orders under challenge passed by the Magistrate, stopping proceedings and releasing the accused, is nothing but an order of discharge, which is challengeable under the revisional provisions of Section 397(1) of Cr.P.C. As per Section 372 of Cr.P.C., no appeal lies unless and otherwise provided by the Code of Criminal Procedure. Such being the case, the appellant-Income Tax Authority cannot invoke the provisions of either Section 372 or Section 378 of Cr.P.C. Hence, in the present case on hand, the appellant has to challenge under the revisional provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R1 R2 ORDER These appeals are filed by the Income Tax Department under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C. for brevity) challenging the order passed by the learned Magistrate, JMFC-III Court, Belagavi by closing the complaint filed by the complainant and prayed to remand the matters back to the trial Court for fresh consideration. 2. The respondents appeared through counsel and raised preliminary objection regarding maintainability of the appeals contending that the order of closing the case by the Magistrate is nothing but discharge and not an acquittal in order to file an appeal under Section 378 of Cr.P.C. In support of his contentions, the counsel have relied upon the judgment of Allahabad High Court as well as Madhya Pradesh High Court. 3. Learned counsel for the appellant has contended that the impugned orders are nothing but acquittal, Therefore, an appeal lies under Section 378 of Cr.P.C. but not a revision, whereas learned counsel for the respondents submit that criminal revision lies but not an appeal. 4. Heard the arguments of the learned counsel for the parties and perused the records. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven if it is treated as a revision, it is barred by limitation by 61 days for which no application for condonation under the Limitation Act has been filed. This being not a case of acquittal, granting of leave also does not arise. In another case, the High Court of Allahabad in the case of Alim and Ors. V. Taufiq and Anr. Reported in 1982 Crl.L.J. 1264 has held as under: Section 378 Cr.P.C. deals with appeals in cases of acquittals. It does not come into play against an order of discharge. Distinction between discharge and acquittal is well established. Discharge is before the framing of the charge while acquittal is after the framing of the charge in a trial. Acquittal operates as a bar for retrial of the offender on the same fact about the same offence while discharge does not operate as a bar vide Section 300 Cr.P.C. The order of discharge was clearly revisable by learned Sessions Judge. The remedy against acquittal is an appeal to the High Court. Under the old Code the Magistrate was empowered to discharge the accused at the stage of inquiry even in case triable solely by Court of Sessions under Section 207(2)(6) and 209(1) and (2). 7. I have perused the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge . (underlining by me) 12. The very provision of Section 258 of Cr.P.C. defines, any stoppage of the proceedings is made after evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal. Therefore, once a case ended in acquittal then the aggrieved complainant has to file an appeal under Section 378 of Cr.P.C. but not a revision, as evidence of some of the witness was already recorded, therefore, it cannot be said as discharge . Further, the definition of Section 258 of Cr.P.C. reads in any other case, release the accused and such release shall have the effect of discharge . That means, without recording evidence of the parties, if the proceedings were closed by way of stopping the proceedings, then it amounts to discharge and such order shall have to be challenged only under Section 397 of Cr.P.C. before the learned Sessions Judge or before the High Court. Therefore, in my considered opinion, the orders under challenge passed by the Magistrate, stopping proceedings and releasing the accused, is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
