The State Of Madhya Pradesh vs Ramgopal
2022 Latest Caselaw 4259 MP

                             1




        IN THE HIGH COURT OF MADHYA PRADESH
                       AT JABALPUR
                          BEFORE
     HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
                ON THE 28TH OF MARCH, 2022
             CRIMINAL APPEAL NO.4387 of 2017
          Between:-

     THE STATE OF MADHYA PRADESH THROUGH
     THE SHO   P.S. SHO   POLICE STATION
     KOTWALI DISTRICT SEHORE (MADHYA
     PRADESH)
                                                  ......APPELLANT
     (BY SHRI G.P. SINGH, GOVERNMENT ADVOCATE)


          AND


1.   RAMGOPAL S/O RAJMAL MEWADA , AGED 50
     YEARS,    R/O STATION ROAD SUBHASH
     NAGAR, SEHORE, DISTRICT SEHORE(MADHYA
     PRADESH)

2.   JITENDRA S/O RAMGOPAL,  AGED 35 YEARS,
     R/O STATION    ROAD SUBHASH NAGAR,
     SEHORE, DISTRICT    SEHORE  (MADHYA
     PRADESH)

3.   PHOOLKUNWAR S/O     RAMGOPAL, AGED 45
     YEARS,    R/O STATION ROAD SUBHASH
     NAGAR, SEHORE, DISTRICT SEHORE (MADHYA
     PRADESH)

4.   SONU S/O RAMGOPAL, AGED 22 YEARS, R/O
     STATION    ROAD SUBHASH NAGAR, SEHORE,
     DISTRICT SEHORE     (MADHYA PRADESH)

5.   PREETAM S/O RAMGOPAL,       AGED 20 YEARS,
                                            2




       R/O STATION    ROAD SUBHASH                    NAGAR,
       SEHORE, DISTRICT   SEHORE                      (MADHYA
       PRADESH)
                                                                      ...RESPONDENTS
       (BY SHRI AMITABH GUPTA , ADVOCATE)
-------------------------------------------------------------------------------------------
       This appeal coming on for admission this 28 th day of March,2022,
this Court passed the following:

                                     JUDGMENT

This appeal has been preferred by the appellant/State being aggrieved by the impugned judgment dated 17.05.2017 in Criminal Case No.621/2016 passed by the learned Judicial Magistrate First Class, Sehore, District- Sehore (M.P.) whereby learned JMFC has acquitted the respondents for the commission of offence under Sections 498-A IPC and Section 3/4 of the Dowry Prohibition Act.

2. The appeal arising out of original judgments/orders of acquittal passed by the Magistrate shall lie to the Court of Session. In this regard, provisions of Section 378(1&2) Cr.P.C. are unambiguous and no leave to appeal can be granted to State Government to file an appeal before the High Court against an order of acquittal passed by Magistrate in a cognizable and non-bailable offence. Sections 378(1&2) read 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 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] (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. The language of Section 378(1 & 2) Cr.P.C. is very clear and after Amendment Act (25 of 2005) which came into force from 23.06.2006, as per direction of District Magistrate, Public Prosecutor may present an appeal before the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence.

4. In the case in hand, the victim lodged FIR against the respondents for demanding dowry and on non-fulfillment of demand, the respondents assaulted her with fist blows and forcibly confined her in the house. The FIR was lodged in P.S. Kotwali District Sehore (M.P.). After investigation, charge sheet was filed by the police. After trial, learned JMFC acquitted the accused persons/respondents from the commission of offence under Sections 498-A IPC and Section 3/4 of the Dowry Prohibition Act.

5. In the case of Subhash Chand vs. State (Delhi Administration) reported in (2013) 2 SCC 17 in paragraph nos. 18 and 20, Hon'ble Apex Court observed as follows:

18. If we analyse Section 378(1)(a) & (b), it is clear that the State Government cannot direct the Public Prosecutor to file an appeal against an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence because of the categorical bar created by Section 378(1)(b). Such appeals, that is appeals against orders of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence can only be filed in the Sessions Court at the instance of the Public Prosecutor as directed by the District Magistrate. Section 378(1)(b) uses the words in any case but leaves out orders of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence from the control of the State Government. Therefore, in all other cases where orders of acquittal are passed appeals can be filed by the Public Prosecutor as directed by the State Government to the High Court.

20. Since the words police report are dropped from Section 378(1)(a) despite the Law Commission's recommendation, it is not necessary to dwell on it. A police report is defined under

Section 2(r) of the Code to mean a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173 of the Code. It is a culmination of investigation by the police into an offence after receiving information of a cognizable or a non- cognizable offence. Section 2(d) defines a complaint to mean any allegation made orally or in writing to a Magistrate with a view to his taking action under the Code, that some person, whether known or unknown has committed an offence, but does not include a police report. Explanation to Section 2(d) states that a report made by a police officer in a case which discloses after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint, and the police officer by whom such report is made shall be deemed to be the complainant. Sometimes investigation into cognizable offence conducted under Section 154 of the Code may culminate into a complaint case (cases under the Drugs &Cosmetics Act, 1940). Under the PFA Act, cases are instituted on filing of a complaint before the Court of Metropolitan Magistrate as specified in Section 20 of the PFA Act and offences under the PFA Act are both cognizable and non- cognizable. Thus, whether a case is a case instituted on a complaint depends on the legal provisions relating to the offence involved therein. But once it is a case instituted on a complaint and an order of acquittal is passed, whether the offence be bailable or non- bailable, cognizable or non-cognizable, the complainant can file an application under Section 378(4) for special leave to appeal against it in the High Court. Section 378(4) places no restriction on the complainant. So far as the State is concerned, as per Section 378(1)(b), it can in any case, that is even in a case instituted on a complaint, direct the Public Prosecutor to file an appeal to the High Court from an original or appellate order of acquittal passed by any court other than High Court. But there is, as stated by us hereinabove, an important inbuilt and categorical restriction on the State's power.

It cannot direct the Public Prosecutor to present an appeal from an order of acquittal passed by a Magistrate in respect of a cognizable and non-cognizable offence. In such a case the District Magistrate may under Section 378(1)(a) direct the Public Prosecutor to file an appeal to the Session Court. This appears to be the right approach and correct interpretation of Section 378 of the Code.

6. As in the case in hand, order of acquittal has been passed in respect of cognizable and non-bailable offence by the Judicial Magistrate First Class, Sehore District Sehore an appeal is to be filed before the Court of Session as per mandate of Section 378(1) of Cr.P.C. Therefore, I am of the considered view that this appeal is not maintainable before this Court.

7. In view of the above discussion, this appeal filed by the State Government before the High Court is not maintainable as the same is to be filed before the Court of Session.

8. Consequently, this appeal being not maintainable, is dismissed. However, Government shall be at liberty to proceed as per the provisions of Section 378(1) and (2) of Cr.P.C.

(DINESH KUMAR PALIWAL) JUDGE

BIJU BABY b 2022.03.29 11:02:46 +05'30'