Bodh Raj vs Dhani Ram And Another
2021 Latest Caselaw 702 j&K

       HIGH COURT OF JAMMU AND KASHMIRAT JAMMU
                            ....
                      CrlR No. 3/2021



Bodh Raj
                                                         ....... Petitioner(s)

                                          Through: Mr. J. Hamal, Advocate
                          Versus
Dhani Ram and another .........Respondent(s)

                                   Through: Mr.Rahul Bhau Advocate vice
                                   Mr. Rohit Sharma Advocate for R-1
                                   Mr. Sunil Malhotra G.A. for R-2
                                                       ......respondents
CORAM:
       HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                                   ORDER

1. The order of Principal Sessions Judge, Kishtwar (hereinafter referred to

as the 'Appellate Court') holding, that the provisions of Section 417 of the

Code of Criminal Procedure, Svt. 1989 as it stood on 21.10.2019 provided

for filing of acquittal appeal before the High Court and not before the Court

of Sessions and thereby dismissing the appeal, has been called in question in

this revision petition.

2 The Appellate Court in para no.3 of its judgment has reproduced

Section 417 of Code of Criminal Procedure and after reproducing the said

Section has observed as under:

"Thus, it is abundantly clear from Section 417 of the Code of Criminal Procedure, Svt. 1989 which was in force on 21.10.2019 i.e on the date of passing of judgment/order of acquittal that the present acquittal appeal was only competent before the Hon'ble High court and it could not be filed before the Court of Sessions.

Hence the present appeal is not maintainable in this Court and is accordingly dismissed. The appeal file be consigned to records after its due compilation under rules."

3 The order impugned is challenged in this revision petition precisely on

the ground that the Appellate Court has committed a grave error of law by

ignoring the amendment in the aforesaid Section which was carried by Act

No.10 of 2012 dated 24.04.2012 having effect from 26.04.2012 whereby the

appeal against the acquittal passed by a Magistrate would lie before the court

of Sessions. The Appellate court i.e the Principal Sessions Judge, Kishtwar

has failed to notice this amendment and has committed an illegality by

relying upon the unamended provisions of Section 417 of Cr.P.C. Section

417 of Cr.P.C after amendment reads as under:

"417. Appeal in case of acquittal (1)Subject to the provisions of sub-section (4), the Government may, in any case, direct the Public Prosecutor to present an appeal to.--

(a) the Court of Sessions from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) the High Court from an original or appellate order of an acquittal passed by any Court, not being an order under clause

(a) or an order of acquittal passed by Court of Sessions in revision :

Provided that no appeal to the High Court under sub-section (1) shall be entertained except with the leave of High Court. (2)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, grant special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(3)No application under sub-section (2) 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.

(4)If, in any case, the application under sub-section (2) 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 section (1)".

4 Therefore, it is clear that the Appellate Court, while passing the order

impugned, has failed to notice the amendment which was carried by Act

No.10 of 2012 dated 24.04.2012 whereby it has been provided that an appeal

against the acquittal by a Magistrate would lie before the Court of Sessions.

Therefore, in view of the said position of law, the order impugned passed by

the Appellate court, being legally wrong, is set aside. The appellate Court

shall take up the appeal afresh and decide the same in accordance with law.

5 Copy of this order be forwarded to the Court of Principal Sessions

Judge, Kishtwar,who shall recall the file from the record and take up the

same for consideration.

(Vinod Chatterji Koul) Judge Jammu 12 .07.2021 Sanjeev PS