1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application No. 879 of 2009 In Criminal Appeal No. 140 of 2009 State of Maharashtra v. Yadao Kohchade -------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. Mr D.B. Patel, APP for State Mr V.H. Khaparde, Adv for respondent Coram : A.P. Bhangale, J Dated : 14th Oct 2009 1. Heard learned counsel for the parties. State of Maharashtra is seeking leave to appeal against the judgment and order of acquittal passed by the Special Court/2nd Additional Chief Judicial Magistrate, Nagpur in Regular Criminal Case No. 400 of 2002. Respondents-accused were charge-sheeted for the offences punishable under Sections 420, 468, 471, 109 read with Section 34 of the Indian Penal Code. 2. Learned Additional Public Prosecutor was asked to satisfy the Court as to how appeal would be tenable before this Court. Learned Additional Public Prosecutor submitted that the judgment of acquittal is passed by the “Special Court” specially 2 designated by way of Notification issued by the Honourable the Chief Justice of High Court of Judicature at Bombay specially for conducting the cases pertaining to and arising out of the Nagpur University bogus degrees, bogus mark-sheets and bogus marks in revaluation scam (Nagpur University Scam). Therefore, he submitted that any appeal against the judgment of acquittal passed by the said “Special Court” will lie only to the High Court and not to the Court of Sessions. 3. Learned counsel appearing for respondents through Mr S.D. Malke submitted that the special court in this case is not created by any Statute or Enactment and, therefore, appeal must go to the Court of Sessions. 4. Contention raised by learned Additional Public Prosecutor does not seem to be sound. Pursuant to the order dated 13th October 2005 passed by the Division Bench of this Court in Criminal Writ Petition No. 561 of 2005, Notification No. A.3902/2005 dated 7th November 2005 was issued. Part-I of the said notification which is relevant here reads thus :- “In view of the directions issued by the Honourable High Court, Nagpur Bench, Nagpur in Cri. Writ Petition No. 561 of 2005 the Honourable the Acting Chief Justice and Judges are pleased to post and nominate Shri M.S. Gupta, Joint Civil Judge, 3 Senior Division and Judicial Magistrate, First Class, Chandrapur as “2nd Additional Chief Judicial Magistrate, Nagpur” to preside over the special court for trial of all criminal cases exclusively pertaining to the scam of bogus degrees, certificates, mark-sheets etc. purportedly issued by the Nagpur University.” 5. The said Part-I of the Notification dated 7th November 2005 was cancelled and the following Notification dated 9th December 2005 was substituted : “ (I) The Honourable the Acting Chief Justice and Judges are pleased to cancel the Part-I of High Court notification of even number, dated 7th November 2005 so far as it relates to posting and nomination of Shri M. S. Gupta, Joint Civil Judge, Senior Division and Judicial Magistrate, First Class, Chandrapur as 2nd Additional Chief Judicial Magistrate, Nagpur to Preside over the Special Court for trial of all Criminal cases exclusively pertaining to the scam of bogus degree certificates, mark-sheets etc. purportedly issued by the Nagpur University. (II) In view of the direction issued by the Hon’ble High Court, Nagpur Bench, Nagpur in Criminal Writ Petition 4 No. 561/2005 the Hon’ble the Acting Chief Justice and Judges are pleased to post and Nominate Shri A.S. Gattani, “Metropolitan Magistrate, 16th Court, Ballard Pier, Bombay” as “2nd Additional Chief Judicial Magistrate, Nagpur” to preside over the Special Court for trial of all Criminal cases exclusively pertaining to the scam of bogus degree certificates, marksheets etc. purportedly issued by the Nagpur University.” 6. By the aforesaid notification, the Honourable the Acting Chief Justice and the other Judges of this Court have notified an additional Court of Chief Judicial Magistrate for the trial of the criminal cases arising out of the Nagpur University Scam. Notifying a new Court for particular purpose cannot be equated with creation of a Special Court under some Special Enactment like Narcotic Drugs and Psychotropic Substances Act, Prevention of Corruption Act or Delhi Special Police Establishment Act (C.B.I. Court). An additional Court of the rank of Chief Judicial Magistrate has been notified by the said Notification in order to ensure speedy trial. There is no enactment requiring a Special Court to be constituted for the trial of these offences. The offences are under the Indian Penal Code punishable under Sections 420, 468, 471, 409 read with Sections 34 and 120-B etc. thereof. The offences punishable with which respondents-accused were tried are not under a Special Enactment or Statute. There is no special provision that 5 these general offences punishable under the Indian Penal Code should be tried by a Special Court. The Court notified here is only for the purposes of expediting the trials and not under any obligation or express provision of Statute requiring the trials to be conducted and tried by a Special Court. Therefore, the submission of learned Additional Prosecutor Mr D.B. Patel cannot be sustained. 7. Even without entering into the realm of the above submission, the provisions of Section 378 of the Criminal Procedure Code, 1973 do not speak of any situation of an order of acquittal passed by any Special Court meaning thereby, even if an order of acquittal is passed by any designated Court, it will depend on whether the order of acquittal is passed by a Magistrate or any other Court. If the order of acquittal is passed by a Magistrate, then the appeal lies to the Court of Sessions as per Section 378 (1) (a) of Cr.P.C., whether the said Magistrate is a Special Court or not. Clause (b) of sub-section (1) of the said Section 378 prescribes the forum of appeal against any order of acquittal passed by any Court other than a Magistrate, to the High Court, meaning thereby that any order of acquittal passed by any Court other than a Magistrate can be challenged by way of an appeal to the High Court. In the present case, however, the order of acquittal has been passed by a Magistrate and not any other Court. Whether the said Court of Magistrate is notified as a Special Court or not is immaterial and in all cases, the forum of appeal against such order of acquittal passed by 6 any Magistrate is prescribed to be the Court of Sessions. The provision has not made any distinction between a Magistrate being a Special Court and a Magistrate simplicitor i.e. not being a Special Court. In either of the cases, appeal against acquittal will lie to the Court of Sessions. Hence, the submission that because the orders of acquittal are passed by a Special Court (which is that of an Additional Chief Judicial Magistrate) and hence the appeal against acquittal will lie to the High Court, is misconceived. 8. Here, we may at once notice that Section 378 speaks of the generic term “Magistrate” and the whole section does not speak of the Court of Chief Judicial Magistrate or the Chief Metropolitan Magistrate, as the case may be. However, orders passed by the Chief Judicial Magistrates, Additional Chief Judicial Magistrates, Metropolitan Magistrates or Additional Chief Metropolitan Magistrates will be included within the term “Magistrate” as the Chief Judicial Magistrates, Additional Chief Judicial Magistrates are always Judicial Magistrate of First Class as per Section 12 of the Code of Criminal Procedure and the Chief Metropolitan Magistrates and Additional Chief Metropolitan Magistrates are always Metropolitan Magistrates as per Section 17 of the Code of Criminal Procedure. Therefore, the term “Magistrate” in Section 378 (1) (a) of Cr.P.C. (“from an order of acquittal passed by a Magistrate”) will include an order of acquittal passed by the Chief Judicial Magistrate or Additional Chief Judicial Magistrate or Chief Metropolitan 7 Magistrate or Additional Chief Metropolitan Magistrate or a Metropolitan Magistrate who are basically all Judicial Magistrates of First Class. The Code of Criminal Procedure, 1973 does not define the term “Magistrate” or prescribes for a Court of Magistrate. Under the Criminal Procedure Code, the classes of criminal Courts are - the Courts of Session, Judicial Magistrate of First Class, Metropolitan Magistrates, Judicial Magistrates of Second Class and Executive Magistrates, besides the High Court and the Courts constituted under any law other than the Criminal Procedure (See section 6). Therefore, the term “Magistrate” in clause (a) of sub-section (1) of Section 378 of the Code of Criminal Procedure will mean the Courts of Judicial Magistrates of First Class, Metropolitan Magistrates, Judicial Magistrates of Second Class and Executive Magistrates. 9. In view of above amended provision of Section 378 of the Code of Criminal Procedure, as amended by Act No. 25 of 2005 2 w.e.f. 23.6.2006, appeal from orders of acquittal passed by any Magistrate in respect of a cognizable and non-bailable offences would lie to the Court of Sessions and not to the High Court. Therefore, appeal against the order of acquittal passed by learned 2nd Additional Chief Judicial Magistrate, Nagpur (Special Court created for trial for Nagpur University Scam cases) will lie before the Court of Sessions and, therefore, will have to go before the Court of Sessions. Leave to file appeal in this Court is, therefore, refused. However, Registry is directed to transfer this appeal against the order of acquittal to the Court of 8 Sessions at Nagpur for decision in accordance with law. The Sessions Court at Nagpur shall expeditiously decide the appeal in accordance with law. Judge. Hsj