Dr. Bilal Mustafa Khan vs State Of U.P.
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Allahabad High Court

Dr. Bilal Mustafa Khan vs State Of U.P. on 18 February, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:23272
 
Court No. - 81
 
Case :- CRIMINAL REVISION No. - 1905 of 2022
 
Revisionist :- Dr. Bilal Mustafa Khan
 
Opposite Party :- State of U.P.
 
Counsel for Revisionist :- Fahd Iqbal
 
Counsel for Opposite Party :- G.A.,Mohammad Aon
 
Hon'ble Manjive Shukla,J.
 

1. Heard Mr. Aditya Prakash Singh, Mr. Syed Abid Ali and Mr. Ashutosh Mishra, learned counsels holding brief of Mr. Susheel Shukla, learned counsel appearing for the revisionist, learned Additional Government Advocate appearing for the State and Mr. Mohd. Aon, learned counsel appearing for the informant.

2. The instant revision has been filed challenging therein, the judgment and order dated 21.04.2022 passed by the learned Additional Sessions Judge, Court No.3, Aligarh in Criminal Appeal No.177 of 2018 (State of U.P. through District Government Counsel (Criminal) Aligarh Vs. Dr. Bilal Mustafa Khan) whereby, the appeal filed by the State had been allowed and the revisionist had been convicted for the offence punishable under Section 354A(1)(iv) I.P.C. and had been sentenced for rigorous imprisonment of one year along with fine of Rs.10,000/-.

3. It has been contended on behalf of the revisionist that he was tried for an offence punishable under Section 354A (1)(iv) I.P.C. by the court of learned Chief Judicial Magistrate, Aligarh in Case No.6813/2015 (State Vs. Dr. Bilal Mustafa Khan) and was acquitted from the charge vide judgment and order dated 17.09.2018. It has further been contended that against the order dated 17.09.2018, the State filed Criminal Appeal No.177/2018 (State Vs. Dr. Bilal Mustafa Khan) and the said appeal had been allowed and the revisionist had been convicted for the offence punishable under Section 354A(1)(iv) I.P.C. and had been sentenced for rigorous imprisonment of one year along with fine of Rs.10,000/-.

4. Learned counsel appearing for the revisionist has argued that the trial court had acquitted the revisionist from the charge of the offence punishable under Section 354A(1)(iv) I.P.C. and since the said offence is cognizable and bailable therefore, in view of the provisions contained in Section 378 (1)(a) of the Cr.P.C. the appeal itself was not maintainable. It has further been argued that once the appeal itself is barred by the provisions of the Cr.P.C., there was no occasion for the appellate court to allow the appeal filed by the State and thereby to convict the revisionist for the offence in question and to sentence him for rigorous imprisonment of one year.

5. Learned counsel appearing for the revisionist has relied on a judgment rendered by the High Court of Himachal Pradesh at Shimla in the case of Pushp Raj and another Vs. State of Himachal Pradesh, 2017 SC Online HP 282 and has submitted that the identical issue had been considered by the High Court of Himachal Pradesh and it had been held that in view of the categorical provisions contained in Section 378(1)(a) of the Cr.P.C., the appeal in respect of an offence which is cognizable and bailable, is not maintainable.

6. On the other hand, learned Additional Government Advocate appearing for the State has tried to defend the order passed by the appellate court and has submitted that there is neither any infirmity nor any illegality in the order impugned in this revision.

7. I have considered the arguments advanced by the learned counsels appearing for the parties.

8. It is admitted amongst the learned counsels appearing for the parties that the offence punishable under Section 354A(1)(iv) I.P.C. is a cognizable and bailable offence.

9. Before proceeding to decide the matter, it is apt to consider the provisions made in Section 378(1)(a) of the Cr.P.C. For ready reference, Section 378(1)(a) of the Cr.P.C. is extracted 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 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.

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. From a bare reading of the provisions made in Section 378(1)(a) of the Cr.P.C., it is crystal clear that the District Magistrate can 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. Since it is admitted at the bar that the offence punishable under Section 354A(1)(iv) I.P.C. is a cognizable and bailable offence therefore, in view of the prohibition contained in Section 378(1)(a) of the Cr.P.C., the appeal in question itself was not maintainable, as such by no stretch of imagination, the appellate court could have entertained the appeal and further could have convicted and sentenced the revisionist.

11. This Court further finds that the identical issue had already been considered by the High Court of Himachal Pradesh at Shimla in the case of Pushp Raj and another Vs. State of Himachal Pradesh, 2017 SC Online HP 282 and it had been held that where the offence is cognizable and bailable, the appeal from an order of acquittal passed by the Magistrate to the court of Sessions Judge is barred by the provisions of Section 378(1)(a) of the Cr.P.C. For ready reference, the relevant paragraphs of the judgment rendered in the case of Pushp Raj (supra) are extracted as under:-

"10. It is specifically mandated in Clause (a) of Sub-section (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, 1860, 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."

12. After considering the entire facts and circumstances of the case including the aforesaid judgment rendered by the High Court of Himachal Pradesh relied on by the learned counsel appearing for the revisionist, this Court is of the firm view that the appeal filed by the State was not maintainable, as the same was not permissible as per the provisions made in Section 378(1)(a) of the Cr.P.C.

13. In view of the aforesaid reasons, this revision is allowed. The   judgment and orders dated 21.4.2022 passed by the learned Additional Sessions Judge, Court No.3, Aligarh in Criminal Appeal No.177 of 2018 (State of U.P. through District Government Counsel (Criminal) Aligarh Vs. Dr. Bilal Mustafa Khan), thereby convicting and sentencing the revisionist, are hereby set aside.

Order Date :- 18.2.2025

Salim