PUBLIC PROSECUTOR Vs. STATE

JUDGEMENT

(1.) This matter has been posted before me for orders on the sustainability or otherwise of the office objection.

(2.) A memorandum of appeal against the order of acquittal of the accused- respondent has been filed by the State of Andhra Pradesh on 9th April, 1974 beyond the period of limitation prescribed therefor. An application under section 5 of the Limitation Act, 1963 to condone the delay in preferring the appeal was also filed. The office insisted upon the filing of a duly stamped petition for leave to prefer the said appeal under section 378 (3) of the Code of Criminal Procedure, 1973 (II of 1974) which came into force from 1st April, 1974. The question therefore for determination is whether or not a duly stamped petition by the State for leave to appeal against the order of acquittal of the respondent accused is necessary. The learned Additional Public Prosecutor pressed upon me that such an application for granting Special Leave to appeal from the order of acquittal is necessary only in the case of a private complainant as such procedure is contemplated in sub-section (4) to section 378 of the new Criminal Procedure Code, but not in the case of State Appeals. According to him, if the intendment of the framers of the Code, was to apply the same procedure to State appeals, the language of sub-section (3) of section 378 would have been in pari materia with that of sub-section (4) and further sub-section (3) was not contemplated by the Law Commission as seen from its 4st report on the Code of Criminal Procedure,1898 Vol. 1 (page 262).

(3.) The answer to the question depends upon the provisions of section 378 of the new Code of Criminal Procedure. Subsections (i), (2), (4), (5) and (6) of section 378 of the new code are analogous to sub-sections (i), (2), (3), (4) and (5) respectively of section 417 of the old Code. Sub-section (3) of section 378 is admittedly a new provision. Sub-section (1) of section 378 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 the High Court. Such power is subject to the provisions of sub-sections , (3) and (5). Sub-section (2) similarly empowers the Central Government to direct the Public Prosecutor to present an appeal against an order of acquittal where the offence has been investigated by the Delhi Special Police Establishment and such power is subject to the provisions of sub-section (3). It is pertinent to notice that the power vested in the State Government under sub-section (i) and the Central Government under sub-section (2) to direct the Public Prosecutor to present an appeal to the High Court is subject to the provisions of sub-section (3). There was no such restriction under the old Code of Criminal Procedure in so far as the appeals preferred by the State and Central Government are concerned. Sub-section (3) clearly prohi- bits the entertainment of an appeal by the State Government or the Central Government under sub-section (i) or sub-section (2) except with the leave of the High Court. In other word s, the power to prefer an appeal by the State Government or the Central Government against an order of acquittal is not absolute. Before such appeal is entertain ed by the High Court, it must obtain the leave of the High Court.