Ulhas Wagh vs State Of Gujarat

                                                                                 NEUTRAL CITATION




     R/CR.MA/14140/2023                            ORDER DATED: 01/11/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 14140
                          of 2023

                    In R/CRIMINAL APPEAL NO. 1902 of 2023

                                    With
                      R/CRIMINAL APPEAL NO. 1902 of 2023
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                               ULHAS WAGH
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MS RV ACHARYA(1124) for the Applicant(s) No. 1
MS DIVYANGNA JHALA, APP PUBLIC PROSECUTOR for the
Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
MR KUNAL SHAH for the Respondent No.2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                             Date : 01/11/2023

                          COMMON ORAL ORDER

ORDER IN CRIMINAL MISC. APPLICATION:

1. This is an application by the applicant - original complainant under Section 378(4) of the Code of Criminal Procedure, 1973, seeking leave of this Court to present an appeal against the judgment and order of acquittal dated 09.03.2023 passed by the learned 2 nd Judicial Magistrate First Class, Surat in Criminal Case No.59629 of 2015.

NEUTRAL CITATION R/CR.MA/14140/2023 ORDER DATED: 01/11/2023 undefined

2. Heard, learned advocates appearing for respective parties and perused the impugned judgment and order of the trial Court.

3. It is the case of the complainant that the criminal case was filed with the learned trial Court under the Preconception and Prenatal Diagnostic Techniques Prohibition of Sex Selection Act, 1994 [PC & PNDT Act] and PC & PNDT Rules, 1996. It is the further case of the complainant that the application came to be preferred below Exh.1 under Section-

245 of the Cr.P.C. by the respondent - accused praying to discharge from the charges. Learned trial Court after hearing both the parties, was pleased to allow the application below Exh.1 and was pleased to discharge the respondent - accused from the charges vide order dated 09.03.2023, which is impugned before this Court.

4. Ms. R.V. Acharya, learned Advocate for the applicant -

original complainant submits that while discharging the accused under Section-245 of the Cr.P.C., the learned trial Page 2 of 7 Downloaded on : Fri Nov 03 20:40:25 IST 2023 NEUTRAL CITATION R/CR.MA/14140/2023 ORDER DATED: 01/11/2023 undefined Court has committed an error in not considering the same on merits in its true later and spirit and the said order of discharge would amount to acquittal from the charges and therefore, the same is required to be dismissed.

5. On the other-hand Mr. Krunal Shah, learned advocate for the respondent - original accused submits that this being an appeal filed under Section-378 of the Cr.P.C. challenging the order under Section-245 of Cr.PC. is not maintainable as there is different provisions under the Code for discharging as well for acquitting and the remedy is also provided separately.

Mr. Shah further submits that for passing the order under Section-245 of the Code, there is no requirement to follow the procedure described under the Code for recording the evidence and after scrutinizing the evidence, the judgment would be rendered. Mr. Shah further submits that in view of the above, this appeal is required to be dismissed on the ground of non-maintainability.

6. Before going into the controversy, the appropriate provisions, which are provided under the Cr.P.C. is required Page 3 of 7 Downloaded on : Fri Nov 03 20:40:25 IST 2023 NEUTRAL CITATION R/CR.MA/14140/2023 ORDER DATED: 01/11/2023 undefined to be mentioned.

Section-232 Acquittal - If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal.

Section-245 Discharge - When accused shall be discharged.

(1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

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), 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 2 or an order of acquittal passed by the Court of Session in Page 4 of 7 Downloaded on : Fri Nov 03 20:40:25 IST 2023 NEUTRAL CITATION R/CR.MA/14140/2023 ORDER DATED: 01/11/2023 undefined 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 also direct the Public Prosecutor to present an appeal, subject to the provisions of sub- section (3), to the High Court from the order of acquittal.

(3) No appeal 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 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 complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.

NEUTRAL CITATION R/CR.MA/14140/2023 ORDER DATED: 01/11/2023 undefined (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).

7. It is provided under the Code after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, if the Court comes to the conclusion that there is no evidence that the accused committed an offence, the learned Court would record the reasons and pass an order for acquittal. Section-378 of the Cr.P.C. provides that appeal against the acquittal is to be preferred before the concerned Court. So far as the Section-

245 of the Code is concerned, the learned Court after recording the pre-charge evidence, if comes to the conclusion that there is no case against accused, is made out, if un-

rebutted, would warrant his conviction, the Magistrate shall discharge to the accused.

8. Considering the above provisions and avernments made in the application as well as submissions made by the learned advocates appearing for the respective parties, this Court is of Page 6 of 7 Downloaded on : Fri Nov 03 20:40:25 IST 2023 NEUTRAL CITATION R/CR.MA/14140/2023 ORDER DATED: 01/11/2023 undefined the view that challenging the order under discharge, there is a different remedy before this Court or before the learned Sessions Court, but certainly the appeal under Section-378 would not be maintainable.

9. In view of the above, this Court deems it fit to dismiss the application seeking leave to prefer an appeal. Rule is discharged.

ORDER IN CRIMINAL APPEAL:

As the application seeking leave to prefer an appeal is dismissed, the present criminal appeal does not survive and hence, the same is also dismissed.

(M. K. THAKKER,J) A. B. VAGHELA Page 7 of 7 Downloaded on : Fri Nov 03 20:40:25 IST 2023