IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Leave to Appeal No.54 of 2001 (Old No.1175 of 1992) Shyam Lal …….….…. Applicant Versus Sher Singh and others …….….… Respondents Dated: March 9, 2009 Mr. R.C. Tamta, Adv. for the applicant Mr. M.A. Khan, Brief Holder for the State/Respondent No.15 Mr. M.S. Bisht, Adv. i/b Mr. Vijay Khanduri, Adv. for the respondents HON DHARAM VEER, J. The present leave to appeal application has been preferred by the applicant u/s 378(4) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) with a prayer to grant leave to appeal to the applicant/complainant Shyam Lal against the judgment and order dated 19.12.1991 passed by Sessions Judge, Chamoli at Gopeshwar in S.T. No.18 of 1990, State Vs. Sher Singh and others and also in S.T. No.2/1991, State Vs. Ram Singh. 2. Respondent No.2-Nandan Singh is reported to be died by the order of CJM, Chamoli-Gopeshwar dated 18.10.2007, hence the appeal against respondent no.2 stands abated. 3. I have heard Mr. R.C. Tamta, Adv. for the applicant, Mr. M.A. Khan, Brief Holder for the State and Mr. M.S. Bisht, Adv. i/b Mr. Vijay Khanduri, Adv. for the respondents and perused the entire material available on record. 4. Facts in nutshell are that the complainant-Shyam Lal lodged an FIR against the respondents with Patwari, Patwari Circle Narainbagarh, Distt. Chamoli on 8.6.1987 at 6:30 A.M. On the basis of this FIR, Patwari Narainbagarh prepared the Chik FIR of the case and the case was registered against the accused persons as Case Crime No.3/1987 under Sections 147/323/354/452/395/427 of The Indian Penal Code, 1860 (hereinafter to be referred as IPC) and one punishable u/s 5/7 of the Scheduled Castes & the Scheduled Tribes (Prevention of Atrocities Act). Thereafter, the matter was investigated by the I.O./Patwari. After completion of investigation, charge sheet was filed by the I.O./Patwari, Narainbagarh. Accordingly, the case was treated as a State Case. Thereafter, the case was committed to the court of Sessions. After that the charge was framed against the accused persons by learned Sessions Judge, Chamoli on 29.10.1990. Thereafter, the statements of witnesses and that of accused persons were recorded. After hearing counsel for the parties and appreciating the material on record, learned Sessions Judge Chamoli at Gopeshwar vide his judgment and order dated 19.12.1991 acquitted the respondents/accused Sher Singh, Nandan Singh (now deceased), Ranjeet Singh, Hayat Singh, Kushal Singh, Pushkar Singh, Mahavir Singh, Birendra Singh, Madho Singh, Dayal Singh, Smt. Dhana Devi, Smt. Madhavi Devi, Smt. Kamla Devi and Ram Singh under which they were charged and tried. Feeling aggrieved with the aforesaid judgment and order dated 19.12.1991, the applicant/complainant-Shyam Lal has filed this special leave to appeal application and appeal. 5. Before further discussion, Section 378 of Cr.P.C. is relevant to mention here which reads as under: - “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 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.] (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, [the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal- (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) 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) [No appeal to the High Court] under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If in any case, the application under sub-section (4) for the grant of special leave, to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2).” 6. Mr. M.S. Bisht, Adv. i/b Mr. Vijay Khanduri, Adv. for the respondents argued that as per Section 378 Cr.P.C., against the order of acquittal in a State case, the complainant has got no right to file an appeal and only the State can file the appeal. Hence, he submitted that the present leave to appeal application filed by the complainant-Shyam Lal is not maintainable. I find substance in the argument raised by counsel for the applicant. The complainant-Shyam Lal has filed the present leave to appeal application against the order of acquittal of respondents-accused persons passed by Sessions Judge, Chamoli. Section 378(4) Cr.P.C. as quoted above, prescribes that if an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, then only the complainant may present appeal to the High Court. In the present case, the charge sheet was filed by the I.O./Patwari after the investigation and the case was instituted and treated as a State case. As per Section 378(4) quoted above, in a State case, no right is conferred upon the complainant to file an appeal against the order of acquittal before the High Court and only the State has got the right to file the appeal against the order of acquittal under Section 378(3) of Cr.P.C. Therefore, the applicant/complainant has got no right to file an appeal against the order of acquittal of respondents being a State case. Sri R.C. Tamta, Advocate, appearing for the complainant-applicant also conceded to this point and submitted that the present appeal was wrongly been filed before the Allahabad High Court. 7. Thus, in view of the foregoing facts and circumstances of the case, leave to appeal is refused. Leave to appeal application is dismissed. Consequently, the appeal also stands dismissed. (Dharam Veer, J.) March 9, 2009 Rajeev Dang