State of H.P. vs Brij Lal and Others

Kuldip Singh, Judge

This judgment shall dispose of Cr.Revision Nos. 178, 188 and 193 of 2011 as common question of law is involved in all the three petitions.

Cr. Revision No. 178 of 2011:

The judgment dated 21.5.2011 passed by learned Additional Sessions Judge, Mandi in Criminal Appeal No. 15-X/2010 has been assailed in Criminal Revision No. 178 of 2011. The respondents were acquitted by learned Additional Chief Judicial Magistrate, Sarkaghat vide judgment dated 1.10.2009 for commission of offences punishable under Sections 447, 448, 427, 506 read with Section 34 IPC. The judgment dated 1.10.2009 was assailed by the petitioner before the learned Additional Sessions Judge, Mandi in appeal, who dismissed the appeal as not maintainable on 21.5.2011.

Cr.Revision No. 188 of 2011:

The judgment dated 2.6.2011 passed by learned Additional Sessions Judge, Mandi in Criminal Appeal No. 159 of 2008 has been assailed in Criminal Revision No. 188 of 2011. The respondents were acquitted by learned Additional Chief Judicial Magistrate, Court No.1, Mandi vide judgment dated 17.7.2008 for commission of offences punishable under Sections 341, 323, 147, 504 and 506 IPC. The judgment dated 17.7.2008 was assailed by the petitioner before the learned Additional Sessions Judge, Mandi in appeal, who dismissed the appeal as not maintainable on 2.6.2011.

Cr.Revision No. 193 of 2011:

The judgment dated 4.7.2011 passed by learned Additional Sessions Judge, Mandi in Criminal Appeal No. 23 of 2006 has been assailed in Criminal Revision No. 193 of 2011. The respondents were acquitted by learned Sub Divisional Judicial Magistrate, Karsog, vide judgment dated 31.12.2007 for commission of offences punishable under Sections 325, 506 read with Section 34 IPC. The judgment dated 31.12.2007 was assailed by the petitioner before the learned Additional Sessions Judge, Mandi in appeal, who dismissed the appeal as not maintainable on 4.7.2011.

It has been submitted on behalf of the petitioners that learned Additional Sessions Judge has erred in dismissing the appeals on the ground that appeals filed by the State before the learned Additional Sessions Judge were not competent. It has been submitted that in all the three cases atleast one offence u/s 506 IPC is cognizable and non-bailable in State of Himachal Pradesh, therefore, appeals before learned Additional Sessions Judge were maintainable. The learned counsel for the respondents has supported the impugned judgments and has submitted that no fault can be found with the view taken by the learned Additional Sessions Judge holding that the appeals before him were not competent.

The Clause (a) of sub section (1) of Section 378 of the Code is as follows:

(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.

It is thus clear that appeal to the Court of Session lies in a case from an order of acquittal passed by Magistrate in respect of a cognizable and non-bailable offence. Thus, twin test of cognizable and non-bailable offence in a case is to be fulfilled for filing an appeal against acquittal before the Court of Session.

On behalf of the petitioners, it has been submitted that as per notification dated 9.3.1978, Section 506 IPC is cognizable within the territory of Himachal Pradesh. The notification dated 9.3.1978 is as follows:

No.Home (C ) F (8)1/77 ? In exercise of powers vested in him u/s 10 of the Criminal Law Amendment Act, 1932 the Governor, Himachal Pradesh is pleased to declare offences u/s 506 of the Indian Penal Code committed within the territory of Himachal Pradesh as cognizable.

The notification dated 6.9.1980 issued by the State of Himachal Pradesh is clear to the effect that Section 506 IPC within the territory limits of State of Himachal Pradesh shall be non-bailable. The notification dated 6.9.1980 is as follows:

No. Home-II (E)5-10/80. ? In exercise of the powers vested in him, under sub-section (2) of section 10 of the Criminal Law Amendment Act, 1932 (Act No. 23 of 1932) and all other powers enabling him in this behalf, the Governor of Himachal Pradesh is pleased to declare that when any offence which is punishable u/s 506 of the Indian Penal Code, 1860 (45 of 1860), is committed within the territorial limits of the State of Himachal Pradesh shall be non-bailable.

It is not in dispute that in all the three revision petitions atleast one offence punishable u/s 506 IPC is involved in each case. In all the three petitions, the respondents were acquitted by the trial courts, thereafter the State had filed appeals against the acquittal which were dismissed by the learned Additional Sessions Judge on the ground of maintainability as noticed above.

In all the three cases at least one offence was punishable u/s 506 IPC and Section 506 IPC within State of H.P. is cognizable and non-bailable vide notifications dated 9.3.1978 and 6.9.1980, therefore, in all the three cases appeals were maintainable before learned Additional Sessions Judge against the acquittal of respondents. The learned Additional Sessions Judge has erred in dismissing the appeals as not maintainable. The impugned judgments are therefore, liable to be set-aside.

In view of above, the judgment dated 21.5.2011 passed by learned Additional Sessions Judge, Mandi in Criminal Appeal No. 15-X/2010, judgment dated 2.6.2011 passed by learned Additional Sessions Judge, Mandi in Criminal Appeal No. 159 of 2008 and judgment dated 4.7.2011 passed by learned Additional Sessions Judge, Mandi in Criminal Appeal No. 23 of 2006 are set-aside. The learned Additional Sessions Judge, Mandi is directed to decide the appeals in accordance with law. The parties through their counsel are directed to appear before the learned Additional Sessions Judge, Mandi on 05.12.2011. The record of the court below called in Cr. Revision No. 178 of 2011 be sent back immediately so as to reach before the date fixed.