- (1.) RESPONDENT and others were tried for offence under Section 342 of the Indian Penal Code and the learned Munsif Magistrate, Desuri acquitted them on 5th January, 1963.
(2.) THE present appeal against the order of acquittal was presented in the Court on 12th April, 1963 by the Assistant Government Advocate on behalf of the State of Rajasthan. A preliminary objection has been taken in this Court against the competency of this appeal on the ground that the State Government did not direct the filing of this appeal. It is conceded by the learned Deputy Government Advocate that till 12th April, 1963 no direcation from the State Government was received for filing the appeal. It is pointed out that ex post facto sanction for filing the appeal was given by the State Government on 30th October, 1963 and therefore, this appeal should be deemed to have been validly presented on 12th April, 1963. The points for determination therefore, are: (1) Whether the appeal filed on 12th April, 1963 by the Assistant Government Advocate was competent. (2) Whether this presentation has been validated by the ex post facto sanction dated 30th October, 1963. Section 417 (1) of the Code of Criminal Procedure provides - "subject to the provisions of Sub-Section (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. " It is clear from the above provision that an appeal against an order of acquittal can be presented by the Public Prosecuter under the direction of the State Government. It is not disputed that no direction for presenting an appeal against the order of the Munsif Magistrate Desuri dated 5-1-1963 was given by the State Government to the Assistant Government Advocate. The Assistant Government Advocate could not suo-moto present any appeal against an order of acquittal unless he had received direction in that behalf from the State Government. The right to file an appeal against an order of acquittal is given to the State Government alone and no authority other than the State Government has a right to present an appeal against an order of acquittal. It therefore, follows that the present appeal which was presented by the Assistant Government Advocate on 12th April, 1963 was incompetent. The present appeal was filed a day before the expiry of the period of limitation. Sanction of the State Government to file the appeal a copy of which has been produced is dated 30th October, 1963 and obviously it was given after the period of limitation for filing the appeal had expired. Due to the expiry of the period of limitation for filing the appeal the respondents had acquired a valuable right which could not be defeated by ex post facto sanction for filing the appeal. In Emperor vs. Gaya Prasad (1) it was held that - "where the liberty of the subject is involved and an appeal is sought to be preferred against an order of acquittal, the statute must be strictly construed and full compliance with its required. " In that case an appeal against an order of acquittal was presented by the Deputy Legal Remembrancer of Bengal. A preliminary objection was taken to the competency of the appeal so presented and the High Court held that - "under section 417, Criminal P. C. the direction by the Local Government to present an appeal to the High Court from an order of acquittal must be given to a Public Prosecutor. " Holding that the Deputy Legal Remembrancer was not a Public Prosecutor, the High Court dismissed the appeal being incompetent. The above case was followed in Union Territory of Tripura vs. Marfat Ali "a subsequent approval by the State Government to prefer an appeal against an acquittal, when a fresh appeal would have been time barred if preferred, is of no avail. " Therefore, there is no escape from the preliminary objection and this appeal must be held to be incompetent and is accordingly dismissed. . ;