HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.817 of 2009
ORDER:
1. The defacto complainant filed the present appeal aggrieved by the order of acquittal recorded by the Judicial Magistrate of First Class at Vemulawada in CC No.247 of 2008 dated 26.03.2009.
2. Complaint was lodged before the Police Gangadhara vide Crime No.65 of 2003 for the offences under Sections 457 and 380 of IPC. After investigation, charge sheet was filed for the offences under Sections 408 and 381 r/w 34 of IPC. Learned Magistrate found after concluding trial that the respondents 1 to 3 are not liable to be convicted and found them not guilty for the aforesaid offences.
3. The preliminary objection that was raised is that the appeal will not lie against acquittal in a police case under Section 378(4) of Cr.P.C, when preferred by defacto complainant.
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4. Learned counsel for the appellant would submit that in fact this Court had granted leave when the criminal appeal was filed, for which reason, the appeal has to be heard and disposed off on merits. The complaint is filed by the defacto complainant under Section 378(4) of Cr.P.C. Appeal under Section 378(4) of Cr.P.C can only be made if a case is instituted upon complaint, which means a private complaint instituted and taken cognizance by the Court under Section 200 of Cr.P.C and does not include a case investigated and final report filed by the police.
5. The remedy left in such cases when the State does not prefer an appeal under Section 378(1)(b) to the defacto complainant is to file revision under Section 397 r/w 401 of Cr.P.C questioning the correctness of the order of acquittal.
6. Proviso to Section 372 of Cr.P.C was inserted by an Act No.5 of 2009 with effect from 31.12.2009, which gives a right to the victim to prefer an appeal against order of acquittal of accused or conviction of lesser offence or inadequate 3 compensation to the court which appeal would lie ordinarily against conviction of such Court.
7. Present appeal is filed on 27.07.2009 and the Court passed order as 'Heard. Leave granted'. The said order was prior to the amendment which is dated 31.12.2009. It is not Public Prosecutor but the defacto complainant who has preferred present appeal under Section 378(4) of Cr.P.C, which can be done only in the case of a private complaint which has been instituted. For illustration, Negotiable Instruments Act, Drugs and Cosmetics Act etc.,
7. Learned counsel for the appellant relied upon the judgment of Hon'ble Supreme Court in the case of Subash Chand v. State (Delhi Administration)1. The said decision is no way helpful to the appellant in the present facts of the case. The Hon'ble Supreme Court was dealing with the amendment made to Section 378 by Act 25 of 2005 with effect from 23.06.2006. The judgment was referring to a private complaint 1 (2013) 2 Supreme Court Cases 17 4 and not a case instituted by the police pursuant to investigation.
8. The appeal is dismissed on the ground of maintainability. The remedy is left open to the appellant herein to challenge the impugned judgment against which the present appeal is filed.
9. Accordingly, the Criminal Appeal is disposed off.
__________________ K.SURENDER, J Date: 28.09.2022 kvs 5 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.817 of 2009 Date: 28.09.2022.
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