Delhi High Court
North Delhi Power Ltd. vs Sarover Hospital & Anr. on 25 February, 2015
Author: Vipin Sanghi
$ 4-5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 25.02.2015
% CRL.A. 652/2008
NORTH DELHI POWER LTD ..... Appellant
Through: Mr. Vikram Nandrajog and Mr.
Sushil Jaswal, Advocates
versus
SAROVER HOSPITAL & ANR ..... Respondents
Through: Mr. R.N. Sharma and Mr. Avinash
Vats, Advocates
% CRL.A. 653/2008
NORTH DELHI POWER LTD ..... Appellant
Through: Mr. Vikram Nandrajog and Mr.
Sushil Jaswal, Advocates
versus
SAROVER HOSPITAL & ANR ..... Respondents
Through: Mr. R.N. Sharma and Mr. Avinash
Vats, Advocates
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
1. These appeals are listed for hearing. However, learned counsel for
the respondent has drawn the attention of the Court to two previous orders
dated 16.07.2009 and 18.05.2010, to submit that, firstly, the preliminary
objection of the respondent needs to be considered.
Crl A Nos.652/2008 & 653/2008 Page 1 of 5
2. The submission of learned counsel for the respondent is that the
present appeals had been preferred, as if the appellant had a statutory right
of appeal, and in ignorance of Section 378 Cr PC which, inter alia, provides
that against an order of acquittal passed in any case instituted upon a
complaint, an application has to be made by the complainant before the High
Court to seek grant of special leave to appeal from the order of acquittal, and
only upon grant of such special leave, the complainant may prefer an appeal
to the High Court. Section 378(5) provides that no application under sub
section (4) for 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 the order of acquittal.
3. It is seen from the record that no application to seek leave to appeal
has been preferred in the present case. On 16.07.2009, the respondent raised
the aforesaid objection, which is recorded as follows:
"An objection is taken by learned counsel for the respondent
that the present appeal is not maintainable inasmuch as no
leave to appeal has been sought by the appellant against the
order of acquittal passed by the trial court.
Learned counsel for the appellant prays for leave to examine
the legal objection.
On his request, list on 22nd September, 2009".
4. Despite the said objection being raised, the appellant did not take
corrective steps of preferring a leave application along with an application
seeking condonation of delay - the order of acquittal is dated 02.06.2008.
Crl A Nos.652/2008 & 653/2008 Page 2 of 5
On 18.05.2010, once again, the said aspect was brought to the notice of the
Court, when the following order came to be passed in Crl. A 652/2008:
"Learned counsel for the respondent points out that the present
appeal has been preferred u/s 378(4) Cr.P.C. However, no
application to seek leave to appeal u/s 378(4) Cr.P.C has been
moved by the appellant. Straightaway an appeal has been
preferred which is not permissible as special leave to appeal
ought to have been sought. He further submits that it is too late
in the day for the appellant to seek special leave to appeal in as
much as the application should have been preferred within sixty
days from the date of acquittal. He refers to Section 378(5) in
this regard. Learned counsel for the appellant wishes to
examine this issue.
It is also urged by learned counsel for the respondent that as
the respondent has been acquitted, the trial court had directed
the refund of the amount of Rs.5 lakhs which the respondent-
accused had deposited at the time of grant of bail. The refund
had to be made within twelve days from the date of the
acquittal. However vide order dated 07.08.2008, this Court
had stayed the operation of the impugned order dated
02.06.2008 and the said interim order still continues to operate.
In my view since the respondent accused stands acquitted, there
is not justification in the appellant retaining the said amount of
Rs. 5 lakhs. I therefore, direct that the said amount be
deposited in this Court within a period of two weeks. Upon the
deposit being made, the same shall be put in a fixed deposit for
a period of one year and the same shall be renewed from time
to time till further orders. It shall be open to the respondent to
move an application to withdraw the said amount upon
furnishing of adequate security. Adjourned to 09.08.2010".
5. I may observe that at two places in the said order, in respect of
Section 378, the same has been typed as Section 278. The said
typographical error has been corrected by me today in Court under my
initials.
Crl A Nos.652/2008 & 653/2008 Page 3 of 5
6. Even after the passing of the order dated 18.05.2010, the corrective
steps, as aforesaid, were not taken.
7. Learned counsel for the appellant submits that since the appeal
already stands admitted and was listed for regular hearing, the aforesaid
objection taken by the respondent does not survive.
8. On 28.09.2010, the Court admitted the appeal by passing the
following order:
"Crl A. No.652/2008
Admit.
List in due course.
Trial Court record be requisitioned".
9. From the aforesaid order, it cannot be said that the Court considered
the aspect relevant to assess whether or not to grant leave to appeal to the
appellant. It appears that the Court merely based on the premise that the
appellant has a statutory right of appeal, admitted the same.
10. In my view, there is no merit in the aforesaid submission. The
statutory scheme contained in Section 378 is clear. Section 378 (4), (5) and
(6) read as follows:
"378. Appeal in case of acquittal.-
(1) ..... ...... ......
(2) ..... ...... ......
(3) ..... ...... ......
(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
Crl A Nos.652/2008 & 653/2008 Page 4 of 5
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)".
11. From the aforesaid statutory scheme, it is abundantly clear that
against an order of acquittal passed in any case instituted upon a complaint,
the complainant may approach the High Court to seek special leave to
appeal, and unless such leave is sought and granted, the appeal against the
order of acquittal shall not lie.
12. In the present case, the appellant has not sought the leave of the
Court. Mere admission of the appeal without consideration of the objection
raised by the respondent would not have the effect of nullifying the said
objection, which is premised on the statutory scheme. Thus, I am of the
view that the present appeals are not maintainable and the same are,
accordingly, dismissed.
Dasti.
VIPIN SANGHI, J.
FEBRUARY 25, 2015
sr
