1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. J U D G M E N T State of Rajasthan vs. Ram Gopal S.B. Criminal Leave to Appeal No.257 of 2008 under Section 378 (i) and (iii) Cr.P.C. against the judgment dated 13.12.2007 passed by Shri Satish Chandra, RJS, Addl. Chief Judicial Magistrate, Shahpura, District Jaipur in Criminal Case No.72/2003. Date of Judgment :::: 04.03.2009 Present HON'BLE MR.JUSTICE BHANWAROO KHAN Mr. Bhvnish Kumawat, P.P. Mr. Rakesh Bhargava for accused respondent. Reportable: By the Court: This leave to appeal has been filed by the State of Rajasthan against the judgment dated 13.12.2007 passed by the Addl. Chief Judicial Magistrate, Shahpura, Jaipur District whereby the accused respondent Ram Gopal has been acquitted of the offence under Sections 279, 337, 338 and 304A IPC. Brief facts of the case are that the complainant Nagar Mal Meena along with his family 2 members were travelling in a vehicle bearing registration no. GJ-16C-5680. The vehicle was being driven by respondent Ram Gopal. At about 10.00 in the night the vehicle met with an accident. It over turned after colliding with the pole as a result of which one of the passengers Hari Ram died and rest of the passengers sustained simple and grievous injuries on their person. On the basis of the complaint submitted by the complainant Nagar Mal, the police registered a case under Sections 279 and 337 which resulted in filing of challan against the respondent under Sections 279, 337, 338 and 304A IPC. Substance of the charges was read over to the respondent who denied the same, pleaded not guilty and claimed trial. To prove its case, the prosecution examined 9 witnesses and got exhibited some document. In his statement under Section 313 Cr.P.C. the case of the respondent was of denial of the allegations. However, no evidence was led in defence. After recording evidence of the prosecution and hearing both the sides the trial court vide judgment dated 13.12.2007 has acquitted the accused respondent of all the charges holding that the prosecution has not been able to prove the charges by placing cogent and reliable 3 evidence. Hence, this leave to appeal by the State under Sections 378(i) and (iii) Cr.P.C. Heard learned P.P. as well as learned counsel for the accused respondent and perused the material and evidence available on the record of the case and also the provisions of Section 378 Cr.P.C. It is pertinent to mention here that Section 378 Cr.P.C. was amended in the year 2005 by the Cr.P.C. Amendment Act (Act No.25 of 2005) and has been made effective w.e.f. 23.6.2006 wherein sub- section (1) of Section 378 has been amended in the following manner:- “(1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5)- (a)the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b)the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from original or appellate order of an acquittal passed by any Court other than a 4 High Court, not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.” Prior to the amendment Section 378(1) Cr.P.C. was as under:- “(1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub- sections (3) and (5), the State Government may, in any case, 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 a High Court or an order of acquittal passed by the Court of Session in revision.” A perusal of the amended sub-section (1) of Section 378 Cr.P.C. would reveal that if any order of acquittal is passed by a Magistrate in respect of a cognizable and non-bailable offence, the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session. Before amendment, it was the State Government who may in any case, 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 a High Court or an order of acquittal passed by the Court of Session in revision but after amendment, in view of clause (a) of Section 378(1) Cr.P.C. 5 if the order of acquittal has been passed by a court of the Magistrate then appeal would lie to the court of Sessions. Therefore, I am of the opinion that in view of clause (a) of Section 378 (1) Cr.P.C. the appeal should have been presented before the concerned court of Sessions. As a result of the discussions hereinabove, the appeal filed by the appellant State in the High Court against the order of acquittal passed by Addl. Chief Judicial Magistrate is held to be non-maintainable in view of clause (a) of Section 378(1) Cr.P.C. and the same is disposed of accordingly with the direction to the Public Prosecutor to present the appeal before the concerned court of Sessions. The time during which the appeal remained pending in this Court would be excluded from the period of limitation. (Bhanwaroo Khan),J. bairwa