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TMI Blog2023 (4) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... ble, 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 irrespe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty to the tune of Rs. 13,98,261/- to the respondent-Department. It is under these circumstances, a private complaint under Section 200 Cr.PC was filed by respondent before the I Addl. Civil Judge CJM, Mangaluru (hereinafter referred to as 'the Trial Court') as provided under Section 9A of the Act alleging that the petitioner had committed the offences punishable under Sections 9(1)(b), 9(1)(bb), 9(1)(bbb) of the Act and Rules 9(1), 173B, 173G 173F of the Central Excise Rules, 1944 (for short, 'the Rules'), which are all non-cognizable offences. 4. The learned Magistrate after taking cognizance of the offences punishable under Sections 9(1)(b), 9(1)(bb), 9(1)(bbb) of the Act, had issued summons to the petitioner/accused no.1 and had directed to register a case against the petitioner, and accordingly, a case was registered against the petitioner in C.C.No. 35/1997. In the said proceedings, the petitioner pleaded not guilty and claimed to be tried, and therefore, the respondent in order to prove its case had examined five witnesses as PWs-1 to 5 and had also got marked 27 documents as Exs.P-1 to P-27. The petitioner had denied the incriminating material during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenge the same after having suffered an order. He also submits that even if the Sessions Court had no jurisdiction to entertain an appeal as against the judgment of acquittal, since the order of conviction passed against the order after appreciation of oral and documentary evidence by the Sessions Court, is in accordance with law, this Court in exercise of its power under Section 401 Cr.PC cannot interfere with the same. In support of his arguments, he has placed reliance on the judgments in the case of T.C.BASAPPA VS T.NAGAPPA OTHERS - MANU/SC/0098/1954, STATE OF RAJASTHAN VS GURCHARANDAS CHADHA - MANU/SC/0257/1979, TRISUNS CHEMICAL INDUSTRY VS RAJESH AGARWAL OTHERS - MANU/SC/0581/1999, and G.BASAWARAJ VS THE STATE OF A.P. OTHERS - MANU/APPELLANT/0752/2010. He has also placed reliance on the judgment of the Division Bench of this Court in the case of STATE OF KARNATAKA VS RAMESH - ILR 2016 KAR 2875 and submits that the appeal by the respondent before the Sessions Court was maintainable. 7. I have carefully considered the arguments addressed on both sides and also perused the material available on record. 8. The only point that arises for consideration in this revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation into an offence under any Central Act other than this Code, the Central Government may subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal- (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.] (3) No appeal to the High Court] under subsection (1) or sub-section (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub- section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in such a situation. 23. In view of the above, we conclude that a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court. He cannot file such appeal in the Sessions Court. In the instant case the complaint alleging offences punishable under Sections 16(1) (1- A) read with Section 7 of the PFA Act and the Rules is filed by complainant Shri Jaiswal, Local Health Authority through Delhi Administration. The appellant was acquitted by the Metropolitan Magistrate, Patiala House Courts, New Delhi. The complainant can challenge the order of acquittal by filing an application for special leave to appeal in the Delhi High Court and not in the Sessions Court. Therefore, the impugned order [Criminal Misc. Case No. 427 of 2009, decided on 7-1- 2011 (Del)] holding that this case is not governed by Section 378(4) of the Code is quashed and set aside. In the circumstances the appeal is allowed. 13. In the aforesaid case, 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-cogniza ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Division Bench of this Court in the light of the judgment of the Hon'ble Supreme Court in Subhash Chand's case supra, has held that Section 378(1)(b) of Cr.PC specifically leaves out the orders of acquittal passed by a Magistrate in respect of a cognizable or noncognizable offence from the control of the State Government, and therefore, in cases where the order of acquittal is passed by the Magistrate which involves both cognizable and noncognizable, bailable and non-bailable offences, the appeal would like to the Sessions Court under Section 378(1)(a) of Cr.PC and not under Section 378(1)(b) of Cr.PC. The said judgment would, therefore, not be applicable to the facts of the present case. 16. The material on record in fact would go to show that objection was raised regarding the maintainability of the appeal by the petitioner before the Sessions Court itself. A reading of the answer to point no.3 by the Sessions Court would go to show that the objection regarding maintainability of the appeal was raised by the petitioner and reliance was placed on the judgment of the Hon'ble Apex Court in the Subhash Chand's case. However, the Sessions Court had failed to properl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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