NANAG NATH Vs. RAMCHANDRA AND OTHERS

JUDGEMENT

(1.) Special leave to appeal u/s 378 (4) Cr. P. C. was granted on 15-9-76. There after, no appeal was filed and the question arises as to whether it was at all necessary to file an appeal separately.

(2.) The office pointed out the defect that no appeal has been filed and thereafter the learned Advocate sought time to remove the defect, i. e. to file the appeal but the same was not filed. The submission of the learned Advocate is, that a prayer was made in the application for special leave to appeal that as and when leave to appeal is granted, the petition may be treated as a memo of appeal. According to the learned Advocate, it was not necessary for him to file a separate appeal, and his application for special leave to appeal should have been converted to appeal. In support of his submission, he has placed reliance on 1977 Cr. L. R. (S. C. 282). In that Case, a petition for leave to appeal under S. 371 (3), Cr. P. C , 1973 was filed on June, 27, 1974 which was within the period of limitation prescribed under Art. 114 (a) of the Limitation Act. 1963 (here-in-after referred to as the Act). It was held that so far as the appeal by the State is concerned, it was not necessary to file a separate appeal and under the law it would be perfectly in order if a composite application is made giving necessary facts and circumstances of the case along with the grounds, which may be urged in the prayer for leave to entertain appeal. It was further held that it was not a necessary requirement of law in case of State appeals that an application for leave to entertain appeal should be lodged first and only after grant of leave to appeal by the High Court, an appeal may be preferred against the order of acquittal.

(3.) A perusal of S. 378, Cr. P. C. will show that so far as the appeal against acquittal by the State is concerned, it can be filed by the P. P. on the direction of the State Government with the leave of the High Court. Under S. 378 (3), no appeal ,under sub-Sec. (1) i. e., an appeal by the State against acquittal shall be entertained, except with the leave of the High Court. Therefore, leave of the High Court is necessary to entertain the appeal, and there is no provision that an application seeking leave of the High Court to entertain the appeal should be filed. But, so far an appeal, against an order of acquittal, by a complainant is concerned, the relevant Sec. is S. 378 (4). Cr. P. C. and its perusal will show that on application moved by the complainant, Special leave to appeal from the order of acquittal is to be granted and thereafter only the complainant may present an appeal to the High Court. It will, therefore, be clear that first an application for Special leave to appeal is required to be filed, and if the same is allowed, the complainant can present an appeal to the High Court. Under S. 114 (1) Limitation Act for an appeal under S. 417 (1) or (2) Cr. P. C, (1898), the period of 90 days for preferring an appeal is prescribed and this is to be reckoned from the date of order appealed from. Under S. 114 (b) limitation Act, for an appeal under S 417 (3), Cr. P. C. (1898) from the date of grant of special leave, 33 days period is prescribed. Therefore, it is necessary under S 378 (4) Cr. P. C. that an appeal should be preferred after special leave to appeal has been granted, on an application by the complainant, by this Court. In case of State, only leave is to be granted to entertain the appeal, and no application is necessary. In Ramdin's case (Supra) in para 9, their Lordships have themselves pointed out the difference in a State Appeal and the Appeal by the Complainant in the following words:-