- (1.) Present Ms. Divya Ojha for applicants and AGA for the OP No.-1 State. Heard and perused the records. The proceedings of criminal Complaint Case No. 2133 of 2014 (Smit. Prema Devi Vs. Smt. Girja Devi & others) was carried out for prosecution on four accused persons (present applicants) for offences under sections 500 and 501 IPC. After affording opportunity to prosecution and defence side, the Judicial Magistrate, Court No.-10, Jhansi had passed judgment dated 12.2.2015 by which accused persons were acquitted of the charges. Against said judgment dated 12.2.2015 passed by the trial court, a Criminal Appeal No. 23 of 2015 (Smt. Prema Devi Vs. State of UP & others) was preferred by complainant of the original case. In this appeal the respondents (present applicants) had moved application 16-B for quashing the proceedings of the said appeal. After affording opportunity of hearing to the parties, the Additional Sessions Judge, Court No.-10, Jhansi has rejected the said Application No. 16-B and fixed the date for hearing of the appeal. Against said order of Sessions Court, present application has been preferred by accused of original case.
(2.) Learned counsel for the applicants contended that impugned order dated 27.6.2016 is erroneous because under section 378(4) CrPC, appeal against acquittal can be admitted only after grant of leave to special appeal by this court. She submitted that since this mandatory formality has not been complied with in proceedings of Criminal Appeal no. 23 of 2015 so the proceedings before lower sessions court is illegal and without jurisdiction. She cited case of Subhash Chand Vs. State (Delhi Admin), 2013 2 SCC 17. These contentions were refuted by the learned AGA and who contended that such matter has been referred by Single Judge of this Court to Division Bench for consideration. Since there appears direct judgment of Hon'ble Apex Court, therefore, the contentions of learned AGA are not acceptable. Section 378(4) of CrPC reads as under: 378 (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."
(3.) In Subhash Chand Vs. State (Delhi Admin), 2013 2 SCC 17 the Apex Court had held : "19. Sub-section (4) of Section 378 makes provision for appeal against an order of acquittal passed in a case instituted upon complaint. It states that in such case if the complainant makes an application to the High Court and the High Court grants special leave to appeal, the complainant may present such an appeal to the High Court. This sub-section speaks of "special leave" as against sub-section (3) relating to other appeals which speaks of "leave". Thus, the complainant's appeal against an order of acquittal is a category by itself. The complainant could be a private person or a public servant. This is evident from sub-section (5) which refers to application filed for "special leave" by the complainant. It grants six months' period of limitation to a complainant who is a public servant and sixty days in every other case for filing application. Sub-section (6) is important. It states that if in any case the complainant's application for "special leave" under sub-section (4) is refused no appeal from the order of acquittal shall lie under sub-section (1) or under sub-section (2). Thus, if "special leave" is not granted to the complainant to appeal against an order of acquittal the matter must end there. Neither the District Magistrate nor the State Government can appeal against that order of acquittal. The idea appears to be to accord quietus to the case in such a situation." This is settled legal position that without any formal grant of leave to appeal by High Court, the proceedings of appeal on behalf of complainant cannot be carried out against order of acquittal in case instituted upon complaint. If no special leave is granted to complainant, he cannot appeal against order of acquittal in complaint case. Therefore the arguments of learned counsel for the applicants are apparently acceptable. Notice on behalf of State has been accepted by the AGA. Issue notice to opposite party no.-2.;