Bombay High Court
SHIVSHANKAR SHRIPAL TIWARI AND ORSversusTHE STATE OF MAHARASHTRA
- Decided
- Disposal
- Dismissed
Holding
The amendment to Section 378(1)(a) of the CrPC is prospective; appeals against acquittal in cognizable non‑bailable offences filed after 23 June 2006 must be filed before the Sessions Court, and the petition is dismissed.
Summary
The petitioners were acquitted by a Judicial Magistrate in 2008 of offences under IPC sections 353, 506(1), 504 and 34. After the 2005 amendment to the CrPC, which made section 353 a non‑bailable offence and altered Section 378(1)(a) to require appeals against acquittals in cognizable non‑bailable offences to be filed before the Sessions Court, the State filed an appeal in 2009 before the Sessions Court. The petitioners challenged the maintainability of that appeal, arguing that the amendment should not apply retrospectively and that the appeal should have been filed before the High Court. The High Court examined the amendment’s prospective effect, relevant precedents, and held that the amendment does not apply to appeals filed before 23 June 2006 but does govern those filed thereafter, making the Sessions Court the correct forum. Consequently, the petition to quash the order dismissing the petitioners’ application was rejected.
Issues considered
- Whether the 2005 amendment to Section 378(1)(a) of the CrPC applies prospectively to appeals filed after 23 June 2006
- Whether the State’s appeal filed in 2009 is maintainable before the Sessions Court and not before the High Court
- Whether the petitioners’ application to quash the order dismissing their challenge is maintainable
Legislation cited
- Criminal Procedure Code (Amendment) Act, 2005 (25 of 2005)
- Criminal Procedure Code (CrPC) — s. 378(1)(a), 378(1)(b), 378(3), 378(5)
- Indian Penal Code (IPC) — s. 34, 353, 504, 506(1)
Subjects
- Section 378
- CrPC amendment
- appeal against acquittal
- prospective legislation
- cognizable non-bailable offence
- jurisdiction
- High Court
- Sessions Court
Judgment
SKN/Supriya WP-341.2012.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 341 OF 2012
SUPRIYA
PRAMOD
JAWARE 1. Shivshankar Shripal Tiwari,
Digitally signed by
SUPRIYA PRAMOD
JAWARE
Date: 2026.10.09
Aged about 53 years, Occ. Business,
20:40:40 +0530
Residing at Flat No.190, S.No.29,
Pradhikaran, Nigadi, Pune.
2. Radhyeshyam Rameshwar Mishra,
Aged about 44 years, Occ. Service,
Residing at Samarth Heights,
R.H. 59, B/12, Sambhaji Nagar,
Chinchwad, Pune.
3. Ajay Singh Shivramsingh Chauhan,
Aged about 46 years, occu. Service,
Residing at G/4, Plot No.57,
Shanti Rakshak Society,
Yerwada, Pune. … Petitioners.
V/s.
The State of Maharashtra
Thru. Samarth Police Station, Pune. … Respondent.
_______________________________
Mr.B.P. Pandey i/b. Vikas B Pandey for the Petitioners.
Ms.Megha Bajoria, APP for the Respondent-State.
_______________________________
CORAM : RANJITSINHA RAJA BHONSALE, J.
RESERVED ON : 9th JULY 2026.
PRONOUNCED ON : 6th OCTOBER 2026.
JUDGMENT: -
1. By the present Petition, filed under Article 227 of the
Constitution of India, the Petitioners seek to quash and set aside the order
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dated 10th June 2011 passed by the learned Sessions Judge, Pune in
Criminal Appeal No.56/2009 whereby the Petitioners challenge to the
maintainability of the Criminal Appeal No.56/2009 was dismissed.
2. Heard, Mr. B. P. Pandey, learned Advocate for the Petitioners and
Ms. Megha Bajori, learned APP for Respondent-State.
3. Briefly, the facts relevant to the present case are as under:
3.1. On 2nd August 2005, the original Complainant filed complaint
with Samarth Police Station, Pune for the offences punishable under
sections 353, 506(1), 504 read with section 34 of the Indian Penal Code
(for short “IPC”). When the complaint was filed, the offence, under
Section 353 of IPC was cognizable and bailable. The complaint was
registered as CR No.150/2005.
3.2. On 23rd June 2006, as per the Amendment Act, 2005 (25 of
2005), amendment was carried out in section 378(1) of the CrPC. Under
the Amendment Act, Section 378(1) of the CrPC was amended, providing
that the District Magistrate may, direct the Public Prosecutor to present an
appeal to the Court of Sessions from an order of acquittal passed by a
Magistrate in respect of a cognizable and non-bailable offence. By the
amendment, offence under section 353 of IPC was made non-bailable.
3.3. By order dated 22nd October 2008, the Judicial Magistrate
First Class, Court No.1, Pune acquitted all the accused/ Petitioners.
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3.4. Considering the amended provision, the State on 10th February
2009, filed an appeal under section 378(1)(a) of CrPC being Criminal
Appeal No.56/2009 before the Sessions Court, Pune against the order of
acquittal dated 22nd October 2008.
3.5. On 20th September 2010, the Petitioners preferred an
application in the Criminal Appeal No.56/2009 seeking dismissal of the
said appeal interalia contending that, the Appeal was not maintainable. A
reply was filed by the State. On 10th June 2011, the learned Sessions Judge
dismissed the said application. The Order dated 10 th June 2011 is
challenged by way of this Petition. Pursuant to the Order dated 16 th March
2012 and with the consent of the parties the matter is heard finally.
4. This Court by order dated 16 th March 2012, passed in this
Petition, while directing that the present Petition be placed for final
disposal at the stage of admission, stayed the proceedings in Criminal
Appeal No.56 of 2009 pending before the Sessions Court. Pursuant to the
Order dated 16th March 2012 and with the consent of the parties the
matter is heard finally.
5. Mr. Pandey, the learned Advocate for the Petitioners submitted
that: -
5.1. The Petitioners were acquitted by order dated 22nd October 2008
and on 10th February 2009, the State Government filed an appeal against
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the said order of acquittal before the Sessions Court, Pune. The said appeal
was admitted on 19th December 2009.
5.2. By the Amendment Act, 2005 (25 of 2005), the offence under
section 353 of the IPC was made non-bailable with effect from 23 rd June
2006. In view thereof, the appeal could not have been entertained and
ought to have been dismissed.
5.3 The impugned Order does not take into consideration the fact
that the alleged offence i.e. Section 353 of the IPC when committed was a
bailable offence and was made non-bailable only with effect from 23rd June
2006. In that view of the facts, the appeal against the order of acquittal
ought to have been before the High Court and not before the Sessions
Court.
5.4 It was therefore prayed that the order dated 10 th June 2011
passed by the Sessions Court, Pune rejecting the application of the
Petitioner be quashed and set aside and the application of the Petitioners
be allowed.
6. Ms. Megha Bajoria, the learned A.P.P. appearing for the
Respondent- State submitted that: -
6.1. When the offence was registered on 2 nd August 2005, the said
offence under section 353 of the IPC was cognizable and bailable. Vide the
amendment, on 23rd June 2006, the said offence has become cognizable
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and non-bailable. As per the Amendment Act, the appeal was correctly
filed before the Sessions Court on 10th February 2009.
6.2. The contention of the Petitioners that, while considering the
appeal under section 378(1) of Cr.P.C., the District Magistrate was not
having any power to give any direction to the Public Prosecutor to present
the appeal before the Sessions Court against the order of acquittal since
the offence then was cognizable and bailable, is not correct. What is
amended is only the procedure i.e. the forum before whom the appeal is to
be filed is changed. It is only a procedural aspects of the matter.
6.3. The appeal was filled as per the directions of the District
Magistrate as per the procedural law. In any event, the procedural aspect of
filing of appeal is governed by the amended Section 378(1)(a) of the CrPC
which was prevailing on the date of filing of the appeal. Hence, the State
has correctly filed an appeal and the present Petition ought to be
dismissed.
7. Perused the entire record. Before adverting to the facts of the
matter, it would be useful to reproduce and state Section 378 of the CrPC
before and after the Amendment Act 25 of 2005.
7.1. Section 378 of CrPC before amendment dated 23 rd June 2006
read as under:
“378. Appeal in case of acquittal
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(1) Save as otherwise provided in sub-section (2) and
subject to the provisions of sub-section (3) and (5), 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 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
also direct the Public Prosecutor to present an appeal, subject
to the provisions of sub-section (3), to the High Court from the
order of acquittal.
(3) No appeal 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).
7.2. Section 378 of the CrPC after amendment with effect from
23rd June 2006 reads as under:
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“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) 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.
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(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).”
8. Before proceeding to consider the aspects of the amendment,
it is necessary to refer to certain relevant and important judgments on the
issue involved in the present matter
8.1. This Court, by its order dated 17th November 2006 passed in
Criminal Appeal No. 2937 of 2006, in the case of State of Maharashtra Vs.
Hanmant Prabhakar Waidande and Ors., while dealing with the
Amendment to Section 378 of the CrPC in paragraph 6 and 7 has held as
under:
“6. At this stage, it will be necessary to refer to the decision of the
Apex Court in Case of Maria Cristina De Souza Sodder and Ors. v.
Amria Zurana Pereira Pinto and Ors. . The said case before the
Apex Court arose out of a suit filed in the year 1960 under the
Portuguese Civil Procedure Code by the first and Second
Respondents against the Appellants. The suit was decreed in
favour of the Respondents in the year 1968. The Appellants
preferred an Appeal to the Court of Judicial Commissioner against
the decree. During the pendency of the suit, the Code of Civil
Procedure, 1908 with the repeal of the Portuguese Civil Code was
extended to the territories of Goa, Daman and Diu in the year
1966. Simultaneously, Goa, Daman and Diu Civil Courts Act, 1960
came into force. Under the said Act, an Appeal against the decree
was provided before the Court of Judicial Commissioner. An
objection was raised that the Appeal was not preferred in proper
court, by pointing out that under the provisions of Portuguese
Code, the Appeal was required to be filed in the Court which
decided the suit. The contention was that since the right of appeal
was conferred by the Portuguese Code, even the forum of Appeal
was also governed by the Portuguese Code. The Apex Court dealt
with the said contention as under:
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5...It is no doubt well settled that the right of appeal is a
substantive right and it gets vested in a litigant no sooner the
lis is commenced in the Court of the first instance, and such
right or any remedy in respect thereof will not be affected by
any repeal of the enactment conferring such right unless the
repealing enactment either expressly or by necessary
implication takes away such right or remedy in respect thereof.
This position has been made clear by clauses (b) and (c) of the
proviso to Section 4 of the Central Act XXX of 1965 which
substantially correspond to clauses (c) and (e) of Section 6 of
the General Clauses Act, 1897. This position has also been
settled by the decisions of the Privy Council and this Court
(vide The Colonial Sugar Refining Company Ltd. v. Irving and
Garikapatti Veerya V.N. Subbiah Choudhury but the forum
where such appeal can be lodged is indubitably a procedural
matter and, therefore, the appeal, the right to which has arisen
under a repealed Act, will have to be lodged in a forum
provided for by the repealing Act. That the forum of appeal,
and also the limitation for it, are matters pertaining to
procedural law will be clear from the following passage
appearing at page 462 of Salmonds Jurisprudence (12th Edn.)
Whether I have a right to recover certain property is a question
of substantive law, for the determination and the protection of
such rights are among the ends of the administration of justice;
but in what courts and within what time I must institute
proceedings are questions of procedural law, for they relate
merely to the modes in which the courts fulfil their functions.
It is true that under clause (c) of the proviso to Section 4 of
Central act XXX of 1965 (which corresponds to Section 6(e) of the
Central Clauses Act, 1897) it is provided that a remedy or legal
proceeding in respect of a vested right like a right to an appeal
may be instituted, continued or enforced as if this Act (meaning
the repealing Act) had not been passed. But this provision merely
saves the remedy or legal proceeding in respect of such vested
right which it is open to the litigant to adopt notwithstanding the
repeal but this provision has nothing to do with the forum where
the remedy or legal proceeding has to be pursued. If the repealing
Act provides new forum where the remedy or the legal proceeding
in respect of such vested right can be pursued after the repeal, the
forum must be as provided in the repealing Act.…"
7. Therefore, in view of what is held by the Apex Court, the
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Appeals against acquittal filed by the State on or after 23rd June
2006 against the orders covered by Clause (a) of Sub section 1 of
Section 378 which are passed before 23rd June 2006 will lie to the
court of Sessions. The reason being that by the Amendment to the
said Code, the forum of appeal has undergone a change. It must
be noted here that as per clause (a) of Sub section 1 of Section
378 (as amended), the District Magistrate has been empowered to
direct the Public Prosecutor to present an Appeal to the Court of
Session.”
8.2. It would be useful to refer to the judgment of the Division
Bench of the Gujarat High Court in Criminal Reference No. 5 of 2008, Suo
Motu V. State of Gujarat, decided on 24th October 2008. The questions
which were dealt with and addressed by the Gujarat High Court were as
under:
“2. Thus, in this question, there are three questions that are
required to be addressed to by this Court: -
(i) Whether in view of the amendment made in sub-section (1) of
Section 378 of the Code of Criminal Procedure, 1973, specially, in
view of clause (a) of sub-section (1) of Section 378, appeals
against acquittal recorded by a Magistrate, pending consideration
after grant of leave, can be heard and decided by the High Court
or are required to be sent back to the Sessions Court for their
disposal in accordance with law?
(ii) Whether application for grant of leave wherein leave to file
appeal is yet not granted or criminal appeals, wherein leave under
Section 378(3) has not been granted, would continue to be heard
by the High Court or such matters are required to be sent to the
Sessions Court? And
(iii) In all such cases, whether leave to file appeal would not be
required in view of language of Section 378(1)(a) of the Code of
Criminal Procedure?”
The Hon’ble Gujarat High Court after considering the provisions of Section
378 of the CrPC, the object and effect of the amendment to the CrPC vide
Amendment Act 2005 (hereinafter referred to as Amendment Act) which
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came into effect on 23rd June 2006 has made the following observation as
under:
“6.1 Sub-section (1), as it stood prior to the amendment
provided 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 High Court or an order of acquittal passed by the Court of
Sessions in revision. By virtue of the amendment in sub-section
(1), now it is provided that, where an order of acquittal is passed
by a Magistrate in respect of a cognizable and non-bailable
offence, the District Magistrate may, in any case, direct the Public
Prosecutor to present an appeal to the Court of Sessions and
where an original or appellate order of acquittal is passed by any
Court other than High Court, not being an order under clause (a)
or an order of acquittal passed by Court of Sessions in revision,
the State Government may direct the Public Prosecutor to present
an appeal to the High Court.”
“9. ….. In order to understand why the amendment is
effected, it would be appropriate to go to the statement of
reasons and objects. What is found therein can be quoted thus :-
“In order to guard against the arbitrary exercise of power
and to reduce reckless acquittals, section 378 has been
amended to provide that an appeal against an order of
acquittal passed by a Magistrate in respect of a cognizable
and non-bailable offence filed on a police report would lie to
the Court of Session, and the District Magistrate will be
authorized to direct the Public Prosecutor to file such
appeals. In respect of other cases filed on a police report, an
appeal against an order of acquittal passed by any Court
other than the High Court should lie only to the High Court
and the authority to Direct the Public Prosecutor to present
an appeal shall continue to be with the State Government.”
11. In view of the above situation, we are of the view that when
the Amending Act does not make any provision for its
retrospective applicability, it would not be proper to read so and,
thereby, transfer the cases presented to the High Court before
23rd June, 2006, the day on which the amended provision came
into force. The amending provision also does not provide for
transfer of such pending proceedings from the High Court to the
Court of Sessions from the date of the amended section coming
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into force.
12.3 The amendment would only mean that from the date it came
into force, appeals against order of acquittal by a Magistrate, in
case of cognizable and non-cognizable offence, can be preferred
before the Sessions Court. Differently put, the amendment invests
the Sessions Court with such powers prospectively. The legislature
can reasonably be inferred to have intended that the appeals
preferred before the stipulated date to be heard and decided by
the High Court.”
15. In view of the above discussion, we answer the
questions as under: -
(1) Appeals against acquittal recorded by the Magistrate, pending
consideration after grant of leave, can be and are required to be
heard and decided by High Court in view of amendment made in
sub-section (1) of Section 378 and are not required to be sent to
the Court of Sessions for disposal, if they are filed before 23rd
June, 2006. There is no question of hearing those appeals which
are filed before 23.06.2006, where the applications for grant of
leave to file appeal are not granted. Those Criminal Appeals
wherein leave under Section 378(3) is yet not granted are
required to be heard and decided by this Court, if they are
preferred before 23rd June, 2006 and leave to file appeal would
not be required in cases where appeals are preferred before
Sessions Court or are transferred to Sessions Court.
16. In view of the questions answered by us as above, a
corollary would follow that all appeals which are preferred on or
after 23rd June, 2006 against acquittal recorded by a Magistrate
in respect of cognizable and non-bailable offences cannot be
entertained by this Court. The appeals, therefore, will have to be
returned to the appellants along with certified copies, if any, for
presentation before appropriate forum. The reference stands
disposed of accordingly.”
8.3. This Court, in Criminal Appeal No. 294 of 1996 in the case of
State of Maharashtra Vs. Vijay Waman Patil and Ors., dated 17th February
2009, in relation to the amendment of Section 378 of CrPC, after noting
that, there was a conflict between two decisions passed by this Court in the
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case of State of Maharashtra Vs. Ramjan and in the case of State of
Maharashtra Vs. Hanmant Prabhakar Waidande thought in appropriate to,
refer the matter to the larger bench to decide the issue of applicability of
the amended provisions of Section 378(1)(a) of CrPC. The Single Judge
Bench of this Court, while referring the matter to the larger bench, in
paragraph 11, made the following observations :
“11. Apparently, there is a conflict in the aforesaid two
decisions of this Court, referred to in paragraph 3 above. It
appears to me that appeals/applications for leave pending in
this Court as on 23rd June 2006 in this Court will not be
affected by the amendment to sub-section 1 of section 378 of
the said Code. In my view, the issue of applicability of
amended provision of sub section 1 of section 378 of the said
Code can be more advantageously heard by a larger bench.
The following question needs to be decided by a larger bench:
".Whether the amendment to sub section 1 of section 378
of the Code of Criminal Procedure, 1973 made by the
Criminal Procedure Code (Amendment) Act, 2005 will
apply to the pending appeals against acquittal/applications
for leave filed by the State prior to 23rd June 2006 for
challenging orders of acquittal passed by a Magistrate in
respect of cognizable and non bailable offences?"
8.4. Answering the reference, the Division Bench of this Court, in
the case of State of Maharashtra Vs. Vijay Waman Patil and Ors., reported
in 2009 SCC OnLine Bom 944 by Order dated 9th July 2009 in paragraph
27 observed thus:
“27. In the result, the Reference is answered as under: —
(a) Section 378(1) as amended by the Cr.P.C. (Amendment)
Act, 2005 will not apply to appeals duly filed and entertained
prior to the date of the Amendment Act coming into force i.e.
23rd June 2006.
(b) Therefore, all appeals against acquittals filed and
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entertained prior to 23rd June 2006 can be heard and
disposed of by this Court;
(c) All applications seeking leave to file an appeal against the
order of acquittal, passed prior to 23rd June 2006 by the
Magistrate in respect of cognizable and non-bailable offences
can also be heard and disposed of by this Court provided such
Applications are duly filed prior to 23rd June 2006;
(d) All pending applications and appeals be placed before the
appropriate courts as per Roster for disposal in accordance
with law.
(e) Reference is answered accordingly.”
9. On a consideration of the aforenoted Judgments, and more
particularly the judgment of this Court passed in the reference made, in the
case of State of Maharashtra Vs. Vijay Waman Patil (supra) it is clearly lays
down that, the amended Section 378(1)(a) of CrPC would not apply to the
appeals/applications seeking leave filed under the unamended Section 378
of CrPC prior to the date of the Amendment Act coming into force i.e. 23 rd
June 2006. All appeals filed and entertained before 23 rd June 2006 would
be heard and disposed off by this Court.
10. In the present case, the relevant observations of the Sessions
Court, Pune as contained in the order dated 10 th June 2011 rejecting the
application of the Petitioners read thus:
“3] The appellant/State has filed reply to the said application
vide exh.14, wherein it has denied all the contentions raised
by the respondent in the application. It has reiterated the
offence for which respondents are charged and tried are under
Section 353, 506 read with Section 34 of the Indian Penal
Code. Section 353 is non-bailable. According to Section
378(1)(a) District Magistrate has directed to present appeal to
the Court of Session from the order of acquittal passed by
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Magistrate in respect of cognizable and non-bailable offence.
This is rule is clearly applicable in respect of Section 353 and,
therefore, it has prayed for rejection of the application.
4] After listening to the submissions of the learned Advocate
for the respondent, I find it desirable to go through sub-section
3, 4 and 5 of Section 378. Sub-section 3 reads as under:
(No appeal to the High Court) under sub-section 1 and sub-
section 2 shall be entertained except in leave of the High
Court.
5] Thus, it is crystal clear that in order to file appeal in High
Court compliance of Section 3 is required. So far as preferring
appeal against the order of acquittal passed by Magistrate,
District Magistrate or Collector can issue direction thereto in
consonance with Section 378(1)(a) Cr.P.C. Hence, on this
premise the application finds to be devoid of merit. Hence,
application is rejected.”
11. Perusal of the statements of objects and reasons of the
Amendment Act would make it clear that, the intention of the amendment
is to make available two forums for the litigant and to ensure that only one
Court is not burdened with the hearing of the Appeals against the
acquittal. The intention of the amendment Act appears to be that, the High
Court being the highest Court of the State is not to be approached in all
matters where the acquittal can be effectively questioned and addressed in
a Court of Sessions, which is superior to that of the Court of the
Magistrate. It would also pertinent and relevant to note here that, what the
Amendment Act has done is that it has effected a change in the procedural
matters. No right of the litigant/aggrieved party has been withdrawn or
affected.
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12. Considering the law as laid down by the aforenoted judgments
and the Amendment Act of 25 of 2005, it is clear that, the amendment
does not intend or make any provision for making the applicability of the
amended section retrospective nor is there any provision or clause which
deals with the transfer of appeals which were pending when the said
amendment came into force. There is no saving proviso in the said
amendment. It is therefore clear that, the amendment of 23 rd June 2006 is
prospective and that the order of acquittal passed by the Magistrate in
respect of a cognizable and non-bailable offence is required to be
challenged under Section 378(1)(a) before the Sessions Court and no
appeal in that behalf can be filed before this Court. It is clear that, the
amendment is prospective and now the jurisdiction of filing an Appeal
against the acquittal in an order passed by the Magistrate vests with the
Sessions Court. The statute now permits that the appeal can only be filed
before the Sessions Court. The amendment provides procedural remedies
to the State Government to question the acquittal order passed by the
Magistrate before the Court of Sessions.
13. It is necessary to note that, by way of the amendment what
was changed was only the forum before whom the appeal could have been
filed. This was a change in only the procedural law. The amendment
provided that very acquittal order is passed by a Magistrate in respect of
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cognizable and non-bailable offence, the Appeal would lie to the Court of
Sessions and whereas the case if the order of acquittal is passed by the
Court other than High Court either in its original or appellate jurisdiction
or by a Court of Sessions in revision or appeal can be preferred to the High
Court. No litigant has any vested right as regards procedural law so as to
choose the forum of appeal. The Amendment Act only changes the forum
and does not disturb or take away any substantive right of appeal. The
amendment only makes a change in the procedural law. Even if the forum
of appeal is changed by the amendment, all contentions which were
otherwise available to the Petitioner would also be available and can be
raised in the Appeal before the learned Sessions Court.
14. As regards the argument that compliance of sub-section (3)
and sub-section (5) of Section 378 is required to be done and leave of the
High Court is required to file the present Appeal, is an argument which is
made to be rejected. After the amendment, Section 378(1)(a) clearly
provides that, as against an order of acquittal in a cognizable and non-
bailable offence, an appeal shall lie to the Sessions Court. Section 378(1)
(b) provides that, the State Government may, in a 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 the High
Court, not being an order under clause (a), or an order of acquittal by the
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Court of Sessions in revision. Clause (b) of sub-section (1) of Section 378
clearly excludes the order which is appealable under clause (a) of sub-
section (1) of Section 378. By the said exclusion, sub-section (3) of Section
378 would not be applicable in an appeal which is filed under Section
378(1)(a) of the CrPC. Sub-section 4 and 5 deal with an Appeal instituted
before the High Court. The said Appeal is clearly an appeal which is filed
under Section 378(1)(b) of the CrPC and not an appeal under Section
378(1)(a). It cannot be the intention of the legislature, while bringing in
the Amendment Act that, for an appeal to be filed before the Sessions
Court, leave of the High Court of the State would be required. The said
interpretation if accepted would lead to an absurdity.
15. The record indicates that, in the present matter compliance with
Section 378(1)(a) has been made, inasmuch as the District Magistrate has
issued sanction order to the District Government Public Prosecutor Pune on
27th January 2009 pursuant to which the Appeal was filed before the
Sessions Court.
16. Considering the facts of the present case and law laid down by
this Court, I am of the considered opinion that no case is made out for
interfering with the Order dated 10th June 2012 passed by the Additional
Sessions Judge on Order below Exhibit-13 in Criminal Appeal No. 56 of
2009.
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17. In view thereof, the present Petition is dismissed.
18. The Criminal Appeal is of the year 2009. The learned
Additional Sessions Judge, Pune, is therefore requested to consider and
dispose of the Appeal as expeditiously as possible.
(RANJITSINHA RAJA BHONSALE, J.)
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