1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 242 OF 2010 WITH CRIMINAL APPLICATION NO. 243 OF 2010 The State of Maharashtra ...Applicant VERSUS Vimalbai w/o Prabhakar Paikrao & ors. ...Respondents ..... Smt. B.R.Khekale, advocate for applicant Shri S.G.Dargad, advocate for respondent nos. 1 to 4 ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 30 th June, 2010 PER COURT : 1 Heard Smt. B.R.Khekale, advocate for applicant and Shri S.G.Dargad, advocate for respondent nos. 1 to 4. 2 By the present applicant, the applicant/State sought leave to file appeal against the judgment and order of acquittal dated 12.8.2009, rendered by the learned Judicial Magistrate, First Class, Kalamnuri, in R.C.S. No. 131 of 2007 for the offences punishable 2 under Sections 324, 504, 505 r/w 34 of the Indian Penal Code 3 Learned counsel for respondent nos. 1 to 4 raised an objection contending that present application is not maintainable before this court considering the amendment to Section 378 of the Code of Criminal Procedure, which has been brought into force from 23.6.2006, contending that present application is covered under Section 378(1)(a) of the Code of Criminal Procedure. 4 Learned A.P.P. for the applicant submitted that present application is covered under Section 378(1)(b) of the Code of Criminal Procedure and hence same is maintainable before this court. 5 Learned counsel for the respondent relied upon the following relevant observations made in the judgment in the case of State of Maharashtra vs Hanmant Prabhakar Waidande, reported at 2007 (1) Bom.C.R. (Cri.) 228. “7. Therefore, in view of what is held by the Apex Court, the appeals against acquittal filed by the State on or after 23 rd June, 2006, against the orders covered by 3 Clause (a) of sub-section (1) of Section 378 which are passed before 23 rd June, 2006, will lie to the Court of Sessions. The reason being that by the Amendment to the said Code, the forum of Appeal has undergone a change. It must be noted here that as per Clause (a) of sub-section (1) of section 378 (as amended), the District Magistrate has been empowered to direct the Public Prosecutor to present an Appeal to the Court of Session. 8. Thus, in this case, only option open is to return this application for grant of leave to the Public Prosecutor for presenting the same to the appropriate Sessions Court in accordance with law. “ 6 Considering the rival submissions and also considering the provisions of Section 378(1)(a) as well as considering the provisions of Section 378(1)(b) of the Code of Criminal Procedure, and also considering the offences of which respondents were acquitted i.e. offences under Sections 324, 504, 506 r/w 34 of the Indian Penal Code, it is amply clear that the said offences are cognizable and non-bailable nature and present application would be covered under the amended Section 378(1)(a) of the Code of Criminal Procedure, and hence, the appeal against the judgment and order of acquittal rendered by the learned Judicial Magistrate, First Class, Kalamnuri, in R.C.S. No. 131 of 2007 shall lie before the Court 4 of Sessions, which is a proper forum therefor. 7 In the light of afore said facts and legal position, present application stands returned to the learned A.P.P. for presenting the same to the proper forum i.e. the Sessions Court, Parbhani to decide the same in accordance with law. (SHRIHARI P. DAVARE), JUDGE. dbm/crap242.10