Sunil Panday @ Narendra Panday v. Ram Chandra Ram

well as learned counsel appearing on behalf of the informant. The instant revision application is directed against the order dated 1.7.2008 passed by the District & Sessions Judge, Rohtas at Sasaram in Criminal Appeal No.7 of 2008, whereby he passed the order for reopening G.R.Case No.1924 of 2002, Trial No.223/07 and consequently allowing the prosecution to adduce evidence. Opposite party no.2 one Ram Chandra Rai gave his fardbeyan on 30.9.2002 giving rise to Darihat P.S. Case No.45 of 2002, dated 3.10.2002 under sections 447, 341, 342, 323/34 of the Penal Code. After investigation charge sheet was submitted under sections 171(C),353, 448 of the Penal Code and the learned Magistrate also took cognizance of offence under sections 171(A), 353, 448 of the Penal Code. Subsequently, the substance of accusation was explained to the accused persons for offence under sections 171(A), 353, 448 of the Penal Code and learned Magistrate by order dated

14.9.2007 acquitted the petitioner of the accusation. Against the aforesaid order and judgment of acquittal, the Public Prosecutor on behalf of the State filed an appeal before the - 2 - District & Sessions Judge, Rohtas being Criminal Appeal No. 7 of

2008. The learned Appellate Court by the impugned order dated

1.7.2008 set aside the order of acquittal dated 14.9.2007 passed by the trial court by order dated 14.9.2007. Learned counsel for the petitioner submits that the Act does not provide the State to file an appeal against the order of acquittal in a case where offences are cognizable but bailable, and as such the learned Sessions Judge erred in entertaining the appeal and reversing the order of trial court. He further submits that as the law does not envisage the filing of an appeal against acquittal in bailable case before Sessions Judge by learned P.P. on behalf of the State, he is not going into merit of correctness or otherwise of the impugned order as the very jurisdiction of the court to pass such order is under challenge. He asserts that in spite of sufficient opportunities the prosecution failed to produce all its witnesses. Learned State counsel submits that a peculiar situation has arisen in view of provisions contained in section 378(1)(a) of the Code permitting appeal by the learned P.P. on the instruction of District Magistrate only in cognizable and non-bailable offence. He further submits that it would be travesty of justice if though there is illegality on the face of the order; still the State cannot prefer an appeal against such order of acquittal. Learned counsel for the informant submits that he did not have any knowledge about the proceeding in the trial court and as such he could not file an appropriate application against the order of - 3 - acquittal. He submits that on receipt of the notice from this court he has appeared in this case. The issue in question is whether the Public Prosecutor can present appeal to the court of sessions from an order of acquittal passed by a Magistrate in respect of bailable offence. The answer to the issue is provided in section 378(1)(a)(b) of Code itself which is quoted herein below: “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 order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) the State Government may, in any case, direct the Public Prosecutor to present an appeal 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” It would appear from bare perusal of section that a District Magistrate can direct a Public Prosecutor to file an appeal against acquittal only in cases where the offence is cognizable and non- bailable. The Code has provided for filing of an appeal in serious and non-bailable offence. The offences under bailable sections are - 4 - generally petty in nature and the intent of the legislature is not to unnecessarily proceed against a person who has been acquitted in such bailable offence. However, I am not in agreement with the submission of the State that section 378(1)(a) provides a non remedial situation, as the State cannot file appeal against acquittal of offences bailable in nature even if there is impropriety or error on the face of the record. The court does not prohibit the informant or a complainant from filing an appropriate application or appeal against the judgment and order of acquittal, nor does it restrict this court in exercising its supervisory jurisdiction. As such it would not be correct to hold that all remedy has been blocked as informant or complainant can file a revision or leave to appeal against an order of acquittal in a bailable offence. The Criminal Procedure Code provides for establishment of different categories of Court and separate procedures for dealing with different kinds of cases and offences. Some of the categories have been classified as summons case triable by a Magistrate, warrant cases also to be tried by a Magistrate and Sessions triable cases. Summons cases can be tried both by Ist Class Magistrate as well as 2nd Class Magistrate as may be so authorized by the High Court. The instant case being one of bailable offence was tried by Judicial Magistrate 2nd Class as a summons case. The procedure prescribed in summons cases is quite different and concise than that of warrant cases or sessions triable cases. The Legislature by engrafting section 378(1)(a) provided for filing of an appeal against the judgment - 5 - and order of acquittal passed by a Magistrate in respect of cognizable and non-bailable offence. It appears that whatever may be the reason, the informant up till now did not choose to prefer revision against the order of acquittal. In the instant case both the F.I.R. and the charge sheet were submitted under the bailable sections. The substance of accusations explained to the accused under section 251 of the Code were also under bailable sections. Thus the appeal filed by the State through the Public Prosecutor was incompetent and not maintainable in the eyes of law and as such the impugned order passed by the learned Appellate Court is without jurisdiction. In the result, this revision application is allowed and the impugned order passed by the learned Appellate Court dated 1.7.2008 passed in Criminal Appeal No.7 of 2008 reversing the order of acquittal passed by the trial court is set aside. KHAN (S.P.Singh,J)