Saturday 27 May 2017

Whether magistrate can acquit accused even though service report of witness summons was not produced?

  On   perusal   of  the  judgment   and   order   passed
by the learned Additional Sessions Judge, I find that
the   learned   Additional   Sessions   Judge   has   rightly
directed   the   Magistrate   retrial   of   the
applicants/accused   in   the   said   case.     The   learned
Additional   Sessions   Judge   has   observed   that   the
respondent no.2/original complainant was not at fault.
The   respondent   no.2/original   complainant   has   lodged
complaint in the Police Station against the applicants
for   having   committed   the   offences   punishable   under
section 325, 324, 323, 504, 506 r/w. 34 of the Indian
Penal   Code.     The   prosecution   has   not   examined   any
witness except one witness before the Magistrate.  Even
though the service report of the witness summons was
never   produced   before   the   Court,   the   Magistrate   has
closed   the   prosecution   evidence   and   acquitted   the

applicants/accused for want of evidence.  I do not find
any   fault   in   the   judgment   and   order   passed   by   the
learned Additional Sessions Judge, directing retrial of
the case. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 4718 OF 2015 
 Sopan Baburao Wakchaure,

      Vs.
The State of Maharashtra

­­­­
   CORAM : V.K. JADHAV, J.
       DATE  : 18/10/2016
Citation: 2017 ALLMR(CRI) 1438

Criminal   Application   No.   4718   of   2015   is
heard   finally   with   consent   of   the   parties   at   the
admission stage.
2. Being   aggrieved   by   the   judgment   and   order
dated   21/6/2014   passed   by   the   Additional   Sessions
Judge, Newasa in Criminal Appeal No. 29 of 2014, the
original   accused   have   preferred   this   Criminal
Application.
3. Brief   facts   giving   rise   to   the   present
Criminal Application No.4718 of 2015, are as follows :­
. On the basis of the complaint lodged by the
respondent   no.2,   crime   no.   209   of   2005   came   to   be
registered   at   Police   Station,   Newasa   against   the
present   applicants   for   having   committed   offences

punishable under section 325, 324, 323, 504, 506 r/w.
34 of the Indian Penal Code.  After due investigation,
the concerned Police Station has submitted chargesheet
before   the   Court   against   the   present   applicants   for
having committed offences punishable under section 325,
324, 323, 504, 506 r/w. 34 of the Indian Penal Code and
the case is registered as R.C.C. No. 13 of 2006.  The
learned   Judicial   Magistrate   First   Class,   Newasa   by
order dated 16/10/2010, framed the charge against the
present   applicants   for   the   offences   punishable   under
section 325, 324, 323, 504, 506 r/w. 34 of the Indian
Penal Code.  The applicants/accused pleaded not guilty
to the  charge and claimed to be tried.   The learned
Judicial Magistrate First Class Court No.2, Newasa by
judgment and order dated 18/3/2013 in the said R.C.C.
No.   13   of   2006   acquitted   all   the   applicants   for   the
aforesaid offences.  
. Being   aggrieved   by   the   same,   the   respondent
no.2   has   preferred   criminal   appeal   no.   29   of   2014
against the judgment and order of acquittal passed by
the   learned   Magistrate,   as   aforesaid.     The   learned
Additional Sessions Judge, Newasa by judgment and order
dated 21/6/2014, in the said Criminal Appeal No. 29 of

2014 partly allowed the appeal and thereby quashed and
set aside the judgment and order passed by the learned
Magistrate dated 18/3/2013 in R.C.C. No. 13 of 2006 and
further   directed   the   Magistrate,   retrial   of   the   case
against the applicants, to be disposed of within three
months   and   accordingly   remanded   the   matter.     Hence,
this Criminal Application No.4718 of 2015.  
4. Learned   counsel   for   the   applicants   submits
that the said appeal was preferred before the Sessions
Court   without   obtaining   leave   of   High   Court,   as
required under sub­section 3 of section 378 of the Code
of   Criminal   Procedure.     Learned   counsel   submits   that
the   right   to   prefer   an   appeal   is   conferred   upon   the
victim including the heirs and others under the proviso
to section 372 of the Code of Criminal Procedure but
the said right is conferred only after obtaining leave
of the High Court, as required under section 378(3) of
the   Code   of   Criminal   Procedure.     Learned   counsel
submits that proviso to section 372 of the Cr.P.C. must
be read alongwith the main enactment i.e. together with
sub­section (3) of section 378 of the Cr.P.C.   Learned
counsel   submits   that   thus   the   appeal   before   the
Sessions   Judge   was   not   maintainable   and   the   judgment

and   order   passed   by   the   learned   Additional   Sessions
Judge in Criminal Appeal No. 29 of 2014 is liable to be
quashed and set aside on this ground alone.   Learned
counsel also submits that even though the summons were
issued to the respondent no.2­original complainant and
the witness many times, however, only one witness has
attended the Court date and he has also not supported
the   prosecution   case.     Even   though,   the   respondent
no.2/original   complainant   has   engaged   a   private
counsel,   respondent   no.2   or   his   counsel   failed   to
attend the said case.  Learned Magistrate has therefore
rightly acquitted the applicants/accused persons in the
said case.  Thus, the judgment and order passed by the
learned Additional Sessions Judge, directing retrial of
the   present   applicants,   is   not   proper,   correct   and
legal. 
5. Learned counsel for the applicants, in order
to substantiate his contentions, places his reliance on
the following cases :­
i) Satya   Pal   Singh   V.   State   of   Madhya   Pradesh
and others 2015 AIR SCW 6251
ii) Subhash   Chand   Vs.   State   (Delhi
Administration) 2013 AIR SCW 356

iii) Mohd. Azim Sheikh Iibrahim Vs. Mehamuda Anjum
Mohd. Azim  LAWS (BOM)­2013­8­231
iv) Balasaheb   Rangnath   Khade   Vs.   State   of
Maharashtra and Ors. 2013 ALL MR (Cri) 1153
v) Balasaheb   Rangnath   Khade   Vs.   State   of
Maharashtra and Ors. 2012 (3) Bom.C.R.(Cri.) 632
6. Learned   counsel   for   respondent   no.2­original
complainant   submits   that   so   far   as   case   of   “Subhash
Chand Vs. State (Delhi Administration)” (cited supra),
relied   on   by   learned   counsel   for   the   applicants,
is concerned, in the said case, the appeal filed by the
complainant   was   considered   with   the   observation   that
the complainant's appeal against the order of acquittal
is a category by itself and it is finally observed by
the   Supreme   Court   that   the   complainant   can   file   an
application   for   special   leave   to   appeal   against   the
order of acquittal of any kind only to the High Court
and he cannot file such appeal in the Sessions Court.
Learned counsel submits that the provisions of section
378(4)   of   the   Cr.P.C.   are   considered   by   the   Supreme
Court   with   the   observation   that   the   complainant's
appeal against the order of acquittal is a category by
itself.  Learned counsel submits that ratio in the case

of   “Subhash   Chand   Vs.   State   (Delhi   Administration)”
(cited supra) cannot be made applicable in the facts
and circumstances of the present case. 
7. Learned   counsel   for   the   respondent   no.2
submits that in  Satya Pal Singh's case (cited supra),
the Sessions Court has passed order of acquittal and
the   victim   has   preferred   the   appeal   under   the
provisions of section 372 of Cr.P.C.   The High Court,
however, has disposed of the appeal by passing order
without examining, as to whether leave to file appeal
filed by the appellant, as provided under sub­section 3
of Section 378 of the Cr.P.C. can be granted or not.
The correctness of the said order passed by the High
Court   was   questioned   before   the   Supreme   Court   urging
various grounds.   The Supreme Court, while concluding
the said issue, has observed that the appellant in that
case being the father of the deceased, has statutory
right   to   prefer   an   appeal   against   the   order   of
acquittal under the provisions of section 372 of the
Cr.P.C. but only after obtaining the leave of the High
Court, as required under sub­section (3) of section 378
of the Cr.P.C. 

. Learned   counsel   for   respondent   no.2   submits
that the provisions of sub­section (3) of section 378
of the Cr.P.C. applies if the appeal is preferred to
the High Court under sub­section (1) of section 378 of
the   Cr.P.C.   and   the   same   shall   not   be   entertained
except   with   the   leave   of   the   High   Court.     Learned
counsel submits that in the instant case, the judgment
and   order   of   acquittal   came   to   be   passed   by   the
Magistrate and, therefore, in terms of the proviso to
section 372 of the Cr.P.C., such appeal shall lie to
the Court to which an appeal ordinarily lies against
the order of conviction of such Court.  Learned counsel
submits   that   the   provisions   of   sub­section   (3)   of
section   378   of   the   Cr.P.C.   does   not   apply   to   such
category   of   appeal.     The   learned   Sessions   Judge   has
therefore rightly entertained the appeal and there is
no substance in the submissions made on behalf of the
applicants   in   that   regard.     Learned   counsel   submits
that   in   the   case   of   “Balasaheb   Khade   Vs.   State   of
Maharashtra” (cited supra at Paragraph No. 5(iv)), the
Division Bench of this Court, while dealing with the
same issue, took a different view.  Justice Kanade held
that the proviso makes an exception and makes exception
to the general rule provided under section 372 of the

Cr.P.C.  It is therefore not necessary to obtain leave
from the High Court in three types of cases as provided
in   proviso   to   section   372   of   the   Cr.P.C.,   however,
dis­agreeing with the view, Justice Thipsay held that
the   requirement   of   leave   as   envisaged   under   section
378(3) of the Cr.P.C. cannot be dispensed with merely
because such appeal has been filed by victim as defined
in section (2) (wa) of the Cr.P.C..  Thus, the matter
was referred to the third Judge and accordingly, it is
held   that   the   victim   is   not   required   to   apply   for
obtaining leave of the High Court to file any of the
appeals under the proviso to section 372 of the Cr.P.C.
Learned counsel submits that this view was taken prior
to  Satya   Pal   Singh's   case   as   decided   by   the   Supreme
Court   referred   supra.     Furthermore,   the   Bombay   High
Court   has   taken   the   said   view   in   terms   of   the
provisions   of   section   372   proviso   read   with   section
378(3) of the Cr.P.C. 
8. Learned   counsel   for   respondent   no.2/original
complainant submits that the Magistrate has observed in
paragraph no.10 of the judgment of RCC No.13 of 2006
that even though 13 times, the witness summonses were
issued, no report of the service of the said summons

was placed before the Court nor the witnesses remained
present before the Court.   Even though the Court has
passed   various   orders   below   Exhibit   1   directing   the
prosecution to keep the witnesses present, however, the
prosecution   has   not   brought   the   witnesses   before   the
Court.     It   has   also   observed   by   the   Court   that   the
complainant has also remained absent before the Court
and there is no report of service of summons on him,
placed before the Court.  Learned counsel submits that
the   prosecution   could   examine   only   one   prosecution
witness, who has also turned hostile and the Magistrate
has therefore acquitted all the applicants.     Learned
counsel   submits   that   respondent   no.2/complainant   was
not at fault.  There is no service report placed before
the Court and it is clear that the complainant and the
prosecution   witnesses   never   served   with   the   witness
summons.   Under   these   circumstances,   the   learned
Additional   Sessions   Judge   has   rightly   directed   the
Magistrate retrial of the applicants/accused.  Thus, no
interference is required.  There is no substance in the
Criminal Application No.4718 of 2015 and the same is
liable to be dismissed. 

9. I   have   also   heard   learned   A.P.P.   for   the
State. 
10. In   the   instant   case,   the   learned   Magistrate
has acquitted all the applicants for having committed
offences punishable under section 325, 324, 323, 504,
506 r/w. 34 of the Indian Penal Code.  Being aggrieved
by the same, respondent no.2­the victim has preferred
appeal before the Sessions Court.  On the basis of his
complaint, the police machinery was set in motion and
after   due   investigation,   the   chargesheet   came   to   be
submitted before the Court and the applicants/accused
came to be tried by the Magistrate. 
11. In Subhash Chand's case (cited supra), relied
on   by   learned   counsel   for   the   applicants,   a   Food
Inspector   purchased   a   sample   of   sweetened   carbonated
water   for   analysis   and   after   following   the   necessary
procedure, sent the said sample to the Public Analyst
for analysis.   Public Analyst opined that the sample
does   not   conform   to   the   prescribed   standard.     After
conclusion of the investigation, the respondent State
through   its   Local   Health   Authority   filed   a   complaint
before the Magistrate against the applicant/accused in
that   case   for   violating   the   provisions   of   Food

Adulteration Act, 1954.     Thus, the short point which
arose for consideration before the Supreme Court was as
to whether in a complaint case, an appeal from order of
acquittal of the Magistrate would lie to the Sessions
Court under section 378(1)(a) of the Cr.P.C. or to the
High   Court   under   section   378(4)   of   the   Cr.P.C.     The
Supreme   Court,   by   referring   the   provisions   of   subsection
  (4)   of   section   378   of   the   Cr.P.C.,   observed
that for an appeal against an order of acquittal passed
in  case instituted upon a complaint, and 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.   The Supreme Court further held that
the complainant's appeal against an order of acquittal
is a category by itself and, therefore, the complainant
can file application for special leave to the appeal
against order of acquittal of any kind only to the High
Court   and,   he   cannot   file   such   an   appeal   to   the
Sessions Court.
12. In   the   instant   case,   the   appeal   has   been
preferred   by   the   victim   before   the   Sessions   Court
against the judgment and order of acquittal passed by

the   Magistrate   and,   therefore,   the   provisions   of
section   378   sub­section   (4)   of   the   Cr.P.C.   does   not
attract.  There is no question of obtaining any special
leave   by   the   victim   in   terms   of   the   provisions   of
section   378(4)   of   the   Cr.P.C.     Thus,   the   ratio   of
Subhash   Chand's   case   (cited   supra)   cannot   be   made
applicable to the instant case.  
13. In order to appreciate the legal position, it
would be appropriate if the provisions of section 372
and section 378 of the Code of Criminal Procedure are
reproduced hereinbelow :­
“372. No appeal shall lie from any judgment or
order of a Criminal Court except as provided
for by this Code or by any other law for the
time being in force:
        Provided  that   the   victim   shall   have   a
right   to   prefer   an   appeal   against   any   order
passed by the Court acquitting the accused or
convicting   for   a   lesser   offence   or   imposing
inadequate compensation, and such appeal shall
lie to the Court to which an appeal ordinarily
lies against the order of conviction of such
Court.”

378.  Appeal in case of acquittal.
(1)  Save as otherwise provided in sub­section
(2)   and   subject   to   the   provisions   of
sub­sections (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 non­bailable 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   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
sub­section   (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 non­bailable 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   under   sub­section   (1)   or   subsection
(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 sub­section (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
sub­section (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 sub­section (1) or
under sub­section (2).“
14. As per the provisions of section 372 of the
Cr.P.C., no appeal shall lie from any judgment or order
of a criminal court except as provided by the Code or
by any other law for the time being in force.  Proviso
to   section   372   of   the   Cr.P.C.   reads   that   the   victim
shall   have   right   to   prefer   appeal   against   any   order
passed   by   the   Court   :   (i)   acquitting   the   accused,
(ii) convicting for a lesser offence and (iii) imposing
inadequate   compensation   and   such   appeal   shall   lie   to
the Court to which an appeal ordinarily lies against
the   order   of   conviction   of   such   Court.     Section   378
sub­section   1(a)   speaks   that   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
cognizable and non­bailable offence and clause (b) of
sub­section (1) of section 378 of the Cr.P.C. empowers
the State Government to 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 not being an order under clause (a)
or an order of acquittal passed by the Court of Session
in   revision.   Sub­section   (3)   of   section   378
contemplates leave of the High Court in case appeal is
preferred under sub­section (1) or sub­section (2) of
Section 378 of the Cr.P.C.  Sub­section (3) of section
378 speaks that no appeal to the High Court would be
entertained except with the leave of the High Court.
Sub­section (3) of section 378 came to be amended by
the Act No. 25 of 2005 and the words “No appeal” is
substituted by the words “No appeal to the High Court”
with   effect   from   26/3/2006.     In   view   of   this
substitution, if the appeal is to be preferred to the
High Court as provided under sub­section (1) or subsection
  (2)   of   section   378   of   the   Cr.P.C.,   the   same
shall not be entertained except with the leave of the
High  Court.    In the instant case, the appeal  is not
required   to   be   filed   before   the   High   Court   and,
therefore, the provisions of sub­section (3) of section
378 of the Cr.P.C. does not apply. 

15. Thus,   the   Supreme   Court   has   concluded   the
issue   in  Satya   Pal   Singh's   case   (cited   supra)   in
different   context.     The   Hon'ble   Supreme   Court   has
concluded   that   the   legal   heirs   of   the   victim   has
statutory right to prefer an appeal to the High Court
against the order of acquittal under proviso to section
372 of the Cr.P.C. but only after obtaining leave of
the High Court, as required under sub­section (3) of
section 378 of the Cr.P.C.   It is thus clear that in
case   if   the   appeal   is   to   be   preferred   by   taking
recourse to the provisions of section 378(1)(a) of the
Cr.P.C., the question of obtaining leave of the High
Court, as required under sub­section (3) of section 378
of the Cr.P.C. does not arise. 
16. Division   Bench   of   the   Bombay   High   Court   in
the case of  Balasaheb Khade Vs. State of Maharashtra
(cited   supra   at   paragraph   no.5(iv)),   has   taken   a
different   view,   however,   in   the   light   of   the
observations   made   by   the   Supreme   Court   in  Satya   Pal
Singh's case (cited supra), the issue is now finally
dealt   with   and   the   Supreme   Court   has   held,   as
aforesaid. 

17. In view of the above discussion, the learned
Additional Sessions Judge has rightly entertained the
appeal.  There is no question of filing the application
for obtaining leave of the High Court in such type of
cases and, thereafter, to prefer an appeal before the
Sessions Court.   The submissios made on behalf of the
applicants are thus devoid of any merit. 
18. On   perusal   of  the  judgment   and   order   passed
by the learned Additional Sessions Judge, I find that
the   learned   Additional   Sessions   Judge   has   rightly
directed   the   Magistrate   retrial   of   the
applicants/accused   in   the   said   case.     The   learned
Additional   Sessions   Judge   has   observed   that   the
respondent no.2/original complainant was not at fault.
The   respondent   no.2/original   complainant   has   lodged
complaint in the Police Station against the applicants
for   having   committed   the   offences   punishable   under
section 325, 324, 323, 504, 506 r/w. 34 of the Indian
Penal   Code.     The   prosecution   has   not   examined   any
witness except one witness before the Magistrate.  Even
though the service report of the witness summons was
never   produced   before   the   Court,   the   Magistrate   has
closed   the   prosecution   evidence   and   acquitted   the

applicants/accused for want of evidence.  I do not find
any   fault   in   the   judgment   and   order   passed   by   the
learned Additional Sessions Judge, directing retrial of
the case.  In view of above, there is no substance in
the   Criminal   Application   No.4718   of   2015.     Criminal
Application   No.4718   of   2015   is   thus   liable   to   be
dismissed.  Hence, the following order :­
ORDER
I) Criminal   Application   No.   4718   of   2015   is
hereby dismissed. 
19. In view of dismissal of Criminal Application
no.   4718   of   2015,   Criminal   Application   No.   5528   of
2016, filed in the above Criminal Application, seeking
restoration of the interim relief granted earlier, does
not   require   any   consideration   and   the   same   stands
disposed of. 
  [V.K. JADHAV]
       JUDGE

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