1 Criminal Rev.Appl.No.23 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.23 OF 2010 Mohd.Manzoor Ahmed S/o.Maulana Ahmed, Age-70 years, Occu-Mutawalli of Dargah, Bebi Niyamatullah Neknoor, R/o.Neknoor, Tq.Neknoor, Dist.Beed. APPLICANT VERSUS 1. Shahzadi Begum W/o.Walioddum, Age-Major, Occu-Agriculturist, R/o.Neknoor, Tq. and Dist. Beed 2. The State of Maharashtra RESPONDENTS Mr.Abdul Aziz, learned counsel for the applicant. Mr.S.G.Nandedkar, learned A.P.P. for respondent State Mr.S.S.Chaudhari, learned counsel for respondent no.1. (CORAM : A.V.POTDAR, J.) DATE : 22/09/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 2. Challenge in this criminal revision is to the judgment of acquittal passed by the Additional Sessions Judge-2 Beed in Criminal 2 Criminal Rev.Appl.No.23 of 2010 Appeal No.14/2006 by which the order of conviction recorded by J.M.F.C. Beed in RCC No.45/2001 against the first respondent for an offence punishable u/s. 471 of the IPC, for which she was sentenced to suffer RI of 2 years and to pay fine in the sum of Rs.1,000/- with default stipulation to undergo further RI for 3 months, further she was convicted for an offence punishable u/s. 465 r/w. 34 of the IPC and was sentenced to suffer RI of 2 years and ordered to pay fine in the sum of Rs.1,000/- with default stipulation to undergo further RI for 3 months, she was also convicted for an offence punishable u/s. 420 r/w. 34 of the IPC for which she was sentenced to suffer RI for 3 years and to pay fine in the sum of Rs.1,000/- with default stipulation to undergo further RI for 6 months, was quashed and set aside. 3. At the outset, while opposing the challenge in this criminal revision filed u/s. 397 r/w. 401 of the Cr.P.C., learned counsel appearing for respondent no.1 raised objection about the maintainability of this criminal revision as filed before this Court in the present form by virtue of amendment of the year 2005 to section 378 of the Cr.P.C., for which reliance is placed on the observations of the Single Judge of this Court in the matter of State of Maharashtra versus Harishchandra Mhatre and others 2009 ALL MR (Cri) 840, wherein it is observed in paragraph no.1 to 3 that, “1. Heard learned APP for the State. This is an application for leave under sub section (3) of section 378 3 Criminal Rev.Appl.No.23 of 2010 read with clause (b) of sub-section 1 of Section 378 of the Code of Criminal Procedure, 1973. The leave to prefer an appeal is sought for preferring an appeal against the judgment and order dated 30th October 2008 passed by the learned Sessions Judge, Raigad at Alibag. The respondents were prosecuted for the offences punishable under sections 323, 324, 504, 506 read with section 34 of the Indian Penal Code. By the judgment and order dated 9th August 2007, the learned Judicial Magistrate, First Class acquitted the respondents. In view of clause (a) of sub section 1 of section 378 of the said Code as amended by the Code of Criminal Procedure (Amendment) Act, 2005, an appeal against acquittal was preferred by the appellant-State before the Sessions Court and the impugned judgment and order has been passed in the said appeal by which the same has been dismissed. 2. Sub section (1) of section 378 of the said Code of 1973 reads thus :- "378. Appeal in case of acquittal.- (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 4 Criminal Rev.Appl.No.23 of 2010 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 an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision." 3. In case of an order of acquittal passed by a learned Magistrate in respect of a cognizable and non bailable offence, an appeal against the acquittal is maintainable before the Court of Sessions. Under clause (b) of sub-section 1 of section 378, an appeal against the acquittal is maintainable to this Court from an original or appellate order of acquittal passed by any Court other than a High Court (not being an order under clause (a)) or an order of acquittal passed by the Court of Sessions in revision. Thus, an appeal against acquittal is maintainable in this Court only under clause (b) of sub section 1 of section 378 of the said Code of 1973 against an original or appellate of acquittal or an order of acquittal order passed by the Sessions Court in a revision application.” In the light of these observations, it is urged on behalf of the first respondent that it is not under dispute that she was convicted by the judgment and order dated 08/06/2006 by learned J.M.F.C. Beed in 5 Criminal Rev.Appl.No.23 of 2010 RCC No.45/2001. It is also admitted fact that order of conviction recorded against the first respondent and original accused no.2 was set aside in Criminal Appeal No.14/2006 dated 13/07/2009. Admittedly, the present criminal revision application is preferred challenging the correctness and legality of the order of acquittal passed by the Appellate Court. In view of these admitted facts, the challenge is totally covered under the observations of the rulling cited supra. In view of this and in the light of the observations discussed in the matter of State versus Harishchandra (cited supra), the proper remedy to the petitioner/original complainant is to prefer a criminal appeal questioning the correctness and legality of the judgment and order of acquittal passed in Criminal Appeal No. 14/2006. In the substance, revision failed and ought to be dismissed. 4. It is hereby made clear that the order in this criminal revision application is passed on the technical ground of maintainability of the revision application. Even though this order is passed, the revision applicant is not precluded from challenging the question of legality and correctness of the order impugned. By keeping this issue open, revision application stands dismissed. Rule discharged. (A.V.POTDAR, J.) khs/SEPT.2011/cri.rev.23-10