IN THE HIGH COURT OF JUDICATURE AT PATNA G. APP. (DB) No.18 of 2008 STATE OF BIHAR Versus RAMA KANT YADAV & ORS ----------- ADVOCATE FOR THE APPELLANT (STATE) Mr.Shiwesh Chandra Mishra, Advocate --------- ADVOCATE FOR THE RESPONDENTS:- ----- Mr.Vishwanath Pd.Sinha, Sr.Advocate, Mr.Durgesh Kumar Singh,Advocate, Mr. Yugal Kishore, Advocate & Mr. Sanjay Kumar Singh, Advocate ---------- 5 16-7-2008 Heard learned counsel for the appellant (State of Bihar ), learned counsel for the respondents and perused the judgment under appeal dated 11th December, 2007 passed in Sessions Trial no. 42 of 2003 arising out of Complaint Case No. 101 of 1994. The State has sought leave to appeal against the aforesaid judgment whereby all the 16 respondents have been acquitted of charges under sections 147,447,427 and 395 of the Indian Penal Code . From the discussions made in the impugned judgment, particularly from paragraphs 17,18,19 and 20 it appears that the prosecution witnesses have admitted that for the same occurrence a police case had been instituted earlier in which except respondent Rama Kant Yadav all others were accused and they were acquitted after trial. The State apparently did not prefer any appeal against that acquittal. It further appears that after a delay of 29 days the complainant ( P.W.7 ) who is cousin of the informant of earlier case and P.W.5 in this case, preferred a complaint case making similar allegations. The court below has - 2 - considered the effect of unusual delay as well as the effect of earlier acquittal and has also gone into various discrepancies in the evidence of the witnesses for coming to a conclusion that the complainant has failed to prove the charges against the accused persons. There was an issue as to whether State can maintain an appeal seeking leave against the acquittal in a case instituted on a private complaint. On that issue learned counsel for the State has submitted that a reading of Section 378 and particularly sub-section (1) and sub-section (6) thereof would show that the State Government, subject to certain savings mentioned in Section 378 (1), may present an appeal to the High Court in any case ending in an order of acquittal. The bar on State’s power to seek leave to appeal in a complaint case is provided under sub- section (6) that no such application will lie if an application maintainable under sub-section (4) at the instance of a complainant in a complaint case has already been refused. Hence, In that event only, no appeal from order of acquittal shall lie under sub-section (1) or under sub-section (2). Sub- section (5) also indicates that a larger period of limitation is prescribed where complainant is a public servant and hence the State may have an interest in preferring an appeal at least in those cases where the complainant is a public servant. On the basis of aforesaid provisions, learned counsel for the State has submitted that under section 378 of the Cr.P.C. there is no bar on right of State to prefer an appeal after seeking leave, in a case of acquittal in a complaint case preferred by a private person. In support of this proposition of law learned counsel - 3 - Naresh relied upon a judgment of Allahabad High Court in the case of State of Uttar Pradesh V. Maiku Baldeo reported in A.I.R. 1963, Allahabad 486. Reliance was also placed upon a judgment of the Apex Court in the case of State ( Delhi Administration) Vrs. Dharampal reported in A.I.R. 2001 Supreme Court 2924 in which it was held that in Section 378 (1) the figure (6) will have to be read in place of the figure (5). In the present case it is not necessary to go into the aforesaid issue of law because on facts we find that the impugned judgment passed by an Additional District and Sessions Judge, Fast Track Court-IV, Darbhanga suffers from no illegality or irregularity so as to warrant interference. It is further noticed that in this case, filed only by a private complaint the decision of the State Government to prefer an application seeking leave to appeal is not understandable when the State Government chose not to prefer an appeal when accused persons were acquitted in the police case lodged for same occurrence, as admitted by the prosecution witnesses. In the facts of the case prayer to grant leave to appeal is rejected. ( Shiva Kirti Singh, J) ( Abhijit Sinha, J )