Delhi High Court
Subhash Chand vs State on 7 January, 2011
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 29th November, 2010
Date of Order: January 07, 2011
+ Crl. MC No. 427/2009
% 07.01.2011
Subhash Chand ...Petitioner
Versus
State ...Respondent
Counsels:
Ms. Aashaa Tiwari for petitioners.
Mr. O.P. Saxena, APP for State/respondent.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
1. This petition under Section 482 Cr.P.C has been preferred by the petitioner
assailing an order dated 4th February 2009 passed by learned Additional Sessions
Judge, Delhi whereby he dismissed the objections raised by the petitioner about
maintainability of the appeal.
2. Brief facts relevant for the purpose of deciding this petition are that the Food
Inspector under provisions of Prevention of Food Adulteration Act, 1954 filed a complaint
against the petitioner. In that complaint case, the petitioner was acquitted by the learned
MM. Against the order of acquittal, the Delhi Administration preferred a criminal appeal
under Section 378(1)(a) of the Criminal Procedure Code before the learned Sessions
Judge. The petitioner raised objections that since the petitioner was prosecuted in a
Crl.MC 427/2009 Page 1 Of 4
complaint case, the appeal would lie only under Section 378 (4) of the Code against
acquittal of the petitioner and not under Section 378(1) Cr.P.C. The learned Sessions
Judge turned down this objection on the ground that Section 378(1) of the Code was
applicable in respect of cognizable and non-bailable offences whether the case was a
complaint case or State case and Section 378(4) of the Code would not be attracted
since he considered that an appeal against the order of acquittal in a complaint case
would lie to High Court in respect of offences not specified in Section 378(1) of the Code
i.e. non-cognizable and bailable offences.
3. This petition raises two issues; (i) whether the State can prefer an appeal in a
complaint case against acquittal of the accused; and (ii) when the State prefers an
appeal against the order of acquittal in a complaint case whether Section 378(4) would
be applicable or Section 378(1) would be applicable.
4. Section 378 of the Code was amended by the Act No.25 of 2005. Prior to
amendment, even the State Government could prefer an appeal against acquittal by
Magistrate or Sessions Judge only before the High Court. However, after the
amendment it was provided that in case of acquittal by the Magistrate, the appeal could
be preferred before the Sessions Judge and only in case acquittal by the Sessions
Court, the appeal could be preferred before the High Court. However, leave to appeal,
which was necessarily to be obtained by the State for preferring an appeal before the
High Court was dispensed with in case of appeal against acquittal being preferred before
the Court of Sessions. Sub section 4 of Section 378 of the Code was not amended. Sub
section 4 provides of appeals before High Court by the complainant against acquittal of
the accused by seeking special leave from the High Court. Thus, the only difference prior
to amendment between the State and complainant was that while State was supposed to
obtain leave of the High Court, the complainant was supposed to obtain special leave of
Crl.MC 427/2009 Page 2 Of 4
the High Court. The period of limitation for complainant was specified in sub section 378
of the Code.
5. The competence of the State Government to file an appeal against acquittal in a
complaint case is not dealt with by section 378 of the Code. The State has a vested
interest in maintaining law and order and in punishing the criminals. When the State finds
that a person has been wrongly acquitted by the trial court, the State has a right to prefer
an appeal against such wrong acquittals. It is not necessary that the State's right to
appeal is restricted only to those cases that are initiated for trial before the courts on
police reports. There are several Acts where law provides that complaint should be filed
before the court. For example, Customs Act, Food Adulteration Act are such two
statutes. The State has high stake in preventing offences under above acts and it is the
responsibility of the State to ensure that the food is not adulterated and there is no illegal
trafficking of goods i.e. smuggling affecting economy of the State. The State has a right
to appeal against wrongful acquittal in all such cases.
6. I, therefore, consider that State is competent to file an appeal against acquittal
for such offence where the law provides that the prosecution is to be initiated on the
basis of a complaint of Head of Department or of a particular officer.
7. Once the State is found competent to file an appeal, I think that the provisions of
Section 378(1) would apply and not Section 378(4) of the Code would apply whenever
State prefers an appeal. Section 378(4) of the Code was provided to give right to the
complainant to file appeals against acquittal when the State does not act. A person is
compelled to file a complaint case because the State does not act in certain matters and
the citizen is left to fend for himself. Even in a complaint case, the Magistrate may
involve State by seeking report of police about commission of offence and the case may
Crl.MC 427/2009 Page 3 Of 4
continue as a complaint case though there is a police report also that the offence was
really committed. In such a case of acquittal if the State does not prefer an appeal
complainant has a right to prefer an appeal. Section 378(4) of the Code gives this right to
the complainant. However, the conditions of limitation are different for the complainant
and for the State as provided in the statute itself.
8. Accordingly, this petition is dismissed. The State has a right to prefer an appeal
and once the State prefers an appeal, section 378(1) of the Code will be applicable and
Section 378(4) would not be applicable.
January 07, 2011 SHIV NARAYAN DHINGRA, J
rd
Crl.MC 427/2009 Page 4 Of 4
