BHUPINDER SINGH Vs. STATE OF H.P.

JUDGEMENT

(1.) This Criminal Revision is directed against the JUDGMENT of the learned Additional Sessions Judge -II, Kangra at Dharamshala, in Criminal appeal No. 10 -N/2000 dated 3.7.2002, whereby while dismissing the appeal filed by the accused he modified the JUDGMENT of the trial Court and set -aside the order of acquittal which had been passed by the learned trial Court in favour of the accused in respect of the offence under Section 457 IPC. Briefly stated the facts of the case are that the petitioner was tried for having committed offences punishable under Section 380 read with Section 457 IPC. F.I.R. 4 of 2000 was registered on the complaint of one Shri Rajneesh Mahajan. The complainant stated that he alongwith his family members had gone to D.M.C, Ludhiana for the treatment of his sister. He had locked his residential house. When he came back he found that the lock of the main gate was missing and when he entered his room the almirah in the room was open. From the almirah, Rs.38,000/ -, one key, one pass book, photocopies of two FDRs etc. was found missing. Matter was reported to the police. After investigation, the accused was arrested. During investigation, the accused made a disclosure statement. An amount of Rs.32,000/ - was recovered alongwith FDRs, Challan, etc from the accused. The learned trial Court accepted the recovery to be legal and on the basis of the recovery the trial Court came to the conclusion that the accused had committed the theft. He accordingly convicted the accused under Section 380 IPC and sentenced him to under go simple imprisonment for six months and to pay a fine of Rs.2,000/ - and in default of payment of fine he was directed to undergo simple imprisonment for two months.

(2.) AS far as the charge under Section 457 IPC is concerned, the learned trial Court held that this offence had not been proved. Section 457 of the Indian Penal Code deals with lurking house trespass or house breaking at night in order to commit an offence punishable with imprisonment. There was no evidence that the accused had entered the house of the complainant after sun set and before sun rise. Therefore, he acquitted the accused of this offence.

(3.) HOWEVER , the most disturbing feature of this case is the manner in which the learned Sessions Judge has convicted the accused under Section 457 IPC. He had no jurisdiction whatsoever to convict the accused and upset the findings of acquittal recorded by the learned trial Court. Section 378 of the Code of Criminal Procedure provides for appeals against acquittal. In case the State was aggrieved by the order of the learned trial Court acquitting the accused of having committed the offence punishable under Section 457, the State alone could have filed the appeal. The said appeal could have been filed under Section 378 of the Code of Criminal Procedure. As per the provisions of Section 378 of the Code of Criminal Procedure as they stood in the year 2000 the appeal could have been filed only in the High Court and this appeal could not have been filed directly and State was required to file a petition for leave to appeal and only after leave was granted by this Court could such an appeal have been entertained. The learned Sessions Judge had no jurisdiction to entertain an appeal.