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Whether appeal against acquittal in bailable and non-cognizable offences is maintainable before session court?

In the High Court of Himachal Pradesh at Shimla
(Before Ajay Mohan Goel, J.)

Pushap Raj and another
v.
The State of Himachal Pradesh

Cr. Revision No. 168 of 2010
Decided on March 16, 2017
Citation: 2017 SCC OnLine HP 282

The Judgment of the Court was delivered by Ajay Mohan Goel, J. (Oral):—

Taking into consideration the issue involved in the present revision petition, it is not necessary to go into the factual matrix of the case in detail.

2. Suffice it to say that the petitioners before this Court were tried for commission of offences punishable under Sections 41 and 42 of the Indian Forest Act and Section 120-B of the Indian Penal Code by the Court of learned Sub Divisional Judicial Magistrate, Chachiot at Gohar, Mandi in Police Challan No. 23-I/2002 and learned trial Court vide its judgment dated 31st August, 2006, acquitted the present petitioners along with other co-accused in the matter.

3. Feeling aggrieved by the judgment of acquittal so passed by the learned trial Court, State filed an appeal in the Court of learned Sessions Judge, Mandi and learned appellate Court vide its judgment, dated 17.05.2010 passed in Criminal Appeal No. 43 of 2006, while setting aside the judgment of acquittal passed by the learned trial Court in favour of the present petitioners, held them guilty for violation of Rule 5 of Forest Produce Transit (Land Routes), Rules 1978 punishable under Rule 20 and also under Section 42 of the Forest Act. On the question of sentence, the matter was sent back by the learned appellate Court to the learned trial Court and thereafter learned trial Court imposed the following sentence upon the accused.

“For the offence punishable u/s 42 of Indian Forest Act, convicts are sentenced to punishment till rising of the Court and also a find of Rs. 4000/- each (Rs. Four Thousand). For the violation of Rule 5 of Forest Produce Transit (Land Route) Rules, 1978 punishable under Rule 20, convicts are only fined Rs. 500/- each (Rs. Five hundred). In case of non deposition of fine amount convicts will undergo simple imprisonment of one week.”

4. Feeling aggrieved, the petitioners have filed this revision petition.

5. Mr. Surinder Saklani, learned counsel appearing for the petitioner has submitted that the impugned judgment passed by the learned appellate Court, i.e. the Court of learned Sessions Judge, Mandi is perverse and void abinitio, because learned appellate Court while entertaining and deciding the said appeal has failed to appreciate that as the offences for which the present petitioners were tried by the learned trial Court were bailable offences, no appeal was maintainable before the learned Sessions Judge as per the provisions of Section 378 of the Code of Criminal Procedure, 1973 and the Fora for the State to have had challenged the said decision was this Court, i.e. the High Court.

6. I have heard the learned counsel for the parties and have also gone through the records of the case as well as the judgments passed by both the learned Courts below.

7. Before proceeding in the matter, it is relevant to take note of what is the scope of revisional jurisdiction of this Court. It is settled law that the scope of revisional jurisdiction of this Court does not extend to re-appreciation of evidence. It has been held by the Hon’ble Supreme Court that the High Court in exercise of its revisional power can interfere only if the findings of the Court whose decision is sought to be revised is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where judicial discretion is exercised arbitrarily or capriciously. It has been held by the Hon’ble Supreme Court in Sanjaysingh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123, that unmerited and undeserved prosecution is an infringement of guarantee under Article 21 of the Constitution of India. In this case, Hon’ble Supreme Court has further held that the purpose of revision jurisdiction is to preserve the power in the Court to do justice in cases of criminal jurisprudence.

8. Keeping in view the consideration of law so declared by the Hon’ble Supreme Court, this Court proceeds to adjudicate the revision petition on merit.

9. A perusal of Section 378 of the Code of Criminal Procedure demonstrates that in case of acquittal, where the offences alleged against the accused are bailable and non-cognizabele, then appeal against the judgment of such acquittal is not maintainable before the Court of learned Sessions Judge, but the same has to be filed before the High Court. Section 378 of the Code of Criminal Procedure provides as under:

“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 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.]
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation 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 sub-section (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 subsection (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 complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
(6) If in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2).”

10. It is specifically mandated in Clause (a) of Subsection (1) of Section 378 of the Code of Criminal Procedure that 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, whereas Clause (b) of Sub-section(1) of Section 378 provides that 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 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.

11. It is not disputed that Sections 41 and 42 of the Indian Forest Act are bailable and non-cognizable offences. Similar is the position with Section 120-B of the Indian Penal Code, keeping in view that the main offences for the commission of which the accused were charged are bailable and non-cognizable. In these circumstances, it is but apparent that the appeal filed by the State against the judgment of acquittal passed by the learned trial Court in the Court of learned Sessions Judge, Mandi was not maintainable and was hit by provisions of Clause (b) of Sub-section(1) of Section 378 of the Code of Criminal Procedure. Despite this, learned appellate Court not only entertained an appeal which was not maintainable before it, but also went on to adjudicate upon the same and convicted the present petitioners by setting aside the judgment of acquittal passed by the learned trial Court.

12. In my considered view, as the appeal was not maintainable before the learned appellate Court, i.e. before the Court of learned Sessions Judge, Mandi, accordingly adjudication on the same by the learned appellate Court was without any jurisdiction. Therefore, the present revision petition is allowed and the judgment of conviction passed by the Court of learned Sessions Judge, Mandi in Criminal Appeal No. 43 of 2006, dated 17.05.2010 is set aside, so also sentence imposed upon the petitioners by the learned trial Court pursuant to judgment of conviction passed by learned appellate Court. Amount of fine, if any, deposited by the petitioners shall be released to them in accordance with law. Revision petition is disposed of in above terms.

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