'•'^;E;<S:&;. IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH M. Cr. C. NOjfc?2DF ^00^ '5 i / ^;; / // Cr. A. No. OF 2004 AppeUant ^S^W£S R.t0 Ad"0' 0,9- Respondent State of Chhatdsgarh Through : Station House OfBcer, PoUce Station ; MungeU, Distt: Bilaspur (CG) VERSUS Anjor Das S/o Shiv Prasad Patre, Aged, about 22 Years, R/o ; l. Kapa (Faadwani) 2. Vinoba Nagar & Khanipara, MungeU, Teh. & Thana : MungeU, Distt : BUaspur (CG) APPLICAION FOR GRANT OF LEAVE TO APPEAL UNDER SECTION 378 f3) AND MEMORANDUM OF APPEAL UNDER SECTION 378 '(1) OF THE CODE OF CRIMINAL PRQCEDURE, 1973. •^- /?'aa- ;t!. ^^'^/^' ,;.;-•*,;-;•;•.., Sg" F°«!KEiSU HIGH COURTOFGHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justjce Prashant Kumar nflishra Acauittal Appeal No.31 of2009 Appellant Respondent versus State of Chhattisgarh Anjor Das Present: Smt. Smita Ghai, Panel Lawyerfor the State/appellant. Smt. Uma Tiwari, counsel forthe respondent. Appeal under Section 378(1) ofthe Code ofCriminal Procedure Oral Judament (Delivered on 21stJanuary, 2011) Heard. 2. This appeal under Section 378(1) of the Code of Criminal ProGedure (henceforth 'the Code') has been preferred on the ground that the learned Judicial Magistrate First Class, Mungeli has not awarded any jail sentence to the respondent even after finding him guilty of committing offence under Sections 417 and 471 of the Indian Penal Code. The appeal has been registered as acquittal appeal. 3. An acquittal appeal is preferred under Section 378of the Code, however, the impugned order is not a judgment of acquittal. Instead, the respondent has been convicted for committing offence under Sections 417 and 471 of the Indian Penal Code. The grievance of theState/appellant is about inadequacyof sentence or •i ^ •• ,,-^.y |S^sfSI?Sil '•as^S the illegality committed by the learned Magistrate in not awarding any jail sentence to the respondent. 4. In the opinion of this Court, such an order passed by the learned Magistrate is not appealable under Section 378 of the Code. Instead, the State should have preferred an appeal under Section 377 of the Code which entitles the Public Prosecutor to present an appeal against the inadequacy of sentence, however, since under clause (a) of sub-section (1 ) of Section 377 of the Code it is provided that if the order against which an appeal under Section 377 of the Code is to be preferred has been passed by the Magistrate, the appeal would lie before the Court of Session. Thus, an appeal under Section 377 of the Code is also not maintainable before this Court and as such the present appeal cannot be converted into an appeal under Section 377 ofthe Code. 5. In view of the above, the instant appeal is dismissed as not maintainable, however, the State/appellant would be at liberty to prefer a duly constituted appeal under Section 377 of the Code before the jurisdictional criminal Court. ,__-——— Sd/- Prashant Kumar Mishra Judge ^ Gooal