Decided on October 06,1978

CORPN. OF COCHIN Respondents


- (1.) Does an appeal lie under the Code of Criminal Procedure, 1973 against an order of acquittal in a case instituted upon complaint On the answer to this question depends the fate of this revision. If an appeal lies, no appeal having been brought the prohibition under S.401(4) of the Code of Criminal Procedure that no proceeding by way of revision shall be entertained at the instance of the party who could have appealed, will operate as a bar against this revision. Under sub-s.(4) of S.378 of the Code of Criminal Procedure, the High Court, on an application made by the complainant for special leave against an order of acquittal passed in a case instituted on complaint may grant special leave to appeal. On such special leave being granted the complainant may present such appeal to the High Court. There, against an order of acquittal, the complainant does not seek special leave to appeal to the High Court but files a revision under S.397 of the Code of Criminal Procedure to the Court of Sessions is the revision barred by reason of sub-s.(4) of S.401 of the Code That is the question I am called upon to answer here.
(2.) Without the aid of any precedents and on the plain language of sub-s.(4) of S.401, I am inclined to say that an appeal does lie against an order of acquittal in any case instituted upon complaint. Of course an appeal lies on when special leave is obtained. The requirement that the complainant has to seek special leave and only if it is granted he can present the appeal, does not, according to me, mean that no appeal lies against the order of acquittal. Appeal does lie, but subject to special leave. The contention of the complainant that appeal must lie as a matter of right in order to attract the bar of S.401(4) of the Code is, as observed by the High Court of Allahabad in City Board Mussorie v. Sri Krishan Lal (AIR 1959 Allahabad 413), to read in place of the words, "where under this Code an appeal lies" the words 'where under the code an appeal lies as a matter of right'. The High Court of Madras has in the decision reported in Municipal Commissioner Nagercoil v. Annapakkiyam ( 1967 CriLJ 898 ) expressed the same view. That leave has to be obtained before an appeal is field does not amount to saying that (here is no right of appeal is the view expressed by many of the High Court in India. The High Court of Allahabad in the decisions in Ram Narain v. Mool Chand (AIR 1960 All. 296) has expressed this view. The same view has been expressed by the High Court of Assam in Abdul Majid v. Adai ( 1970 CriLJ 950 ) the High Court of Bombay in the decision reported in State of Bombay v. Tayawade (AIR 1959 Bombay 94) the Gujarat High Court in the decision in Sankalchand v. Khengaram (AIR 1969 Guj. 342) and the High Court of Madras in In re Seeni Ammal ( AIR 1960 Mad. 573 ), Municipal Commissioner, Nagercoil v. Chinnammal ( 1966 CriLJ 1461 ) and in the later decision in Municipal Commissioner, Nagercoil v. Annapakkiyam (1967 CriLJ 898), already adverted to. The mere fact that right of appeal is made subject to obtaining leave makes no differences is the view expressed by the decision of the Orissa High Court in Dukhishyam Sahu v. Bidyadhar Sahu ( AIR 1966 Ori. 45 ) Relying on the decision of the Allahabad High Court in City Board Mussorie v. Sri Kishan Lal (AIR 1959 All. 413), that of the Bombay High Court in State of Bombay v. Tayawade (AIR 1959 Bom. 94) and that of the Punjab High Court in Shiv Prashad v. Bhagwan Das (AIR 1958 Punj. 228) the same view was expressed in Chairman, Village Panchayat Magathihalli v. N. Thimmasetty (AIR 1956 Mys. 62). This Court had in the decision in Antony v. Ibrahimkutty ( 1960 KLT 481 ) expressed the same view and Chief Justice Sankaran expressed the view where an appeal could be filed by a complainant in a private complaint and he has not sought to file an appeal, a revision at his instance would not be entertainable.
(3.) I may notice the contrary view of Judicial Commissioner of Tripura in the decision in Raj Kumar v. Amar Chand ( 1962 (1) CriLJ 677 ). The view expressed therein is that it cannot be said that the complainant has a right of appeal against an acquittal within the meaning of S.439(5) and that is because it is subject to obtaining special leave and therefore the right is only to file an application for leave. The learned Judicial Commissioner has noticed the contrary view expressed by many of the High Courts in India and I do not think that the reasoning in those decisions has been properly met by the learned Judicial Commissioner in the Tripura case. In fact it is evident from the judgment that the view expressed by the learned Judicial Commissioner is merely obiter. Though the Judicial Commissioner, Manipur in the decision in Raringsui Thagkhul v. Yangmaso (AIR 1963 Manipur) has expressed the view that a revision could be entertained by the Sessions Judge in a case where an appeal lies at the instance of the party who could have applied for special leave to appeal, the judgment is not supported by any reasoning, and the learned Judicial Commissioner merely follows his earlier decisions. Though the contrary view of the Bombay and Allahabad High Courts is noticed the learned Judicial Commissioner observes that he sees no reason to change his view. I may notice here that the said view has not been followed by the same Court later in S. Laingam Singh v. Amuyaima Singh ( 1971 CriLJ 404 ), It has been noticed by the Judicial Commissioner, Manipur that the earlier decision does not discuss the question and the Commissioner prefers to follow the preponderance of the authorities to the contra.;

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