S. C. Dharmadhikari, J. - (1.) These matters have been placed before us upon reference made on 17th February 2009 by Hon'ble Mr.Justice A.S. Oka. In Criminal Appeal No. 294 of 1996, the following question of law is referred to the Division 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 cognisable and non bailable offences
(2.) It is stated that reference was necessitated because there are conflicting views expressed by Single Judges of this Court on the applicability of Criminal Procedure Code (Amendment) Act, 2005 (hereinafter referred to as Amended Act). This amended act came into force on 23rd June 2006. The divergence of opinion is as to whether Amended Act will apply to appeals which are filed and pending prior to 23rd June 2006. A learned Single Judge of this Court in State of Maharashtra v. H.P. Waidande and Ors. in Cri. Application No. 2937 of 2006 decided on 17th November 2006 : 2007 All M.R. (Cri) 41 took a view that the amendment Act will not apply to appeals filed prior to this date and another learned Judge took a view that the Amendment Act will apply to appeals against acquittal which are filed on or prior to 23rd June 2006. To resolve this conflict, the above question has been referred to a Larger Bench and that is how this reference is placed before us.
(3.) Before proceeding further, it would be advantageous to refer to the provisions for filing an appeal against Acquittal. Prior to the Amendment Act being brought into force, Section 378 of Cr.P.C. read as under: 378(1) Appeal in case of Acquittal: (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 Sessions 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 office 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 oder 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).;