AI Structured Summary
Not yet generated for this judgment
Judgment
A.Badharudeen, J.
COMMON ORDER
This Criminal Leave Petition has been filed seeking leave to institute appeal against the judgment in C.C.No.308/2012 on the files of the Judicial First Class Magistrate Court for the trial of Forest Offences, Nedumangad, whereby the respondents herein, who are accused Nos.1 to 3 were acquitted after trial on finding that they did not commit the offences punishable under Sections 27(1)(e)(iii)(iv) and 47C r/w 47G of the Kerala Forest Act, 1961.
The learned counsel for the respondents/accused Nos.1 and 3 filed objection to the petition for condonation of the delay since the 2nd respondent/accused No.2 is no more, and also raised a question of law as to the maintainability of this leave petition before this Court on two grounds. The first ground raised is that this is a case filed by the Forest Range Officer, Paruthippally Forest Range as the representative of the State arising from O.R.No.14/2010 of Paruthippally Forest Range Office and therefore, this case is to be categorized as a complaint case and not a case originated based on the police report. Secondly, it is submitted that, in order to sustain this appeal before this Court, as provided under Section 419(1)(b) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, 'the BNSS' hereinafter), the right to file the appeal is that of the State Government. At the same time, when the same is a complaint case, the appeal should have been filed by the complainant. Here, the appeal has been filed by the State.
Whereas, it is submitted by the learned Public Prosecutor that, in the instant case, cognizance was taken by the learned Magistrate acting on the report filed in the O.R., akin to a final report under Section 173(1) and (2) of the Code of Criminal Procedure (for short, 'the Cr.P.C.' hereinafter) and therefore, the same would not fall under the category of complaint case. According to the learned Public Prosecutor, in view of the matter, the judgment of acquittal challenged herein can be assailed before the Sessions Court resorting to Section 419(1)(a) of the BNSS. According to him, if at all this appeal is to be maintainable before this Court, then the mandate under Section 419(3) of the BNSS, requiring leave of this Court, would also become necessary. In this connection, it is necessary to decide whether the leave petition is liable to be granted or the appeal is liable to be returned, granting liberty to the complainant to file an appeal before the Sessions Court against the impugned judgment.
In this regard, extraction of Section 419 of the BNSS is necessary, which is extracted as under:
“419.(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 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 a case in which the offence has been investigated by any agency empowered to make investigation into an offence under any Central Act other than this Sanhita, 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).”
In this connection, the learned Public Prosecutor has placed reliance on three decisions of this Court in Chief Executive Officer, Cantonment Board, Shillong v. Tenzing Gopu Lama reported in [2008 KHC 5940], Suku alias Paravattom Suku v. State of Kerala and Others reported in [2014 (1) KHC 559] and Subhash Chand v. State (Delhi Administration) reported in [2013 KHC 4023].
The learned counsel for the respondents/accused Nos.1 and 3 has placed two decisions, one rendered by a learned Single Judge of this Court in State of Kerala v. Vayalombran Shantha reported in [2025 KHC 1337] wherein in paragraph Nos.6 and 7, it has been held as under:
“6.When the learned counsel for the respondents cited the above decision of the Division Bench of this Court, the learned Public Prosecutor filed Crl.M.A No. 1 of 2025 to amend the cause title of the Memorandum of Appeal so as to change the appeal as one under Section 378 (4) Cr.P.C. But the learned counsel for the respondents pointed out that in the proposed amendment, the name of the appellant is shown as "State of Kerala represented by the Drugs Inspector, Assistant Drugs Controller Office, Kannur, through the Public Prosecutor" and that the State of Kerala cannot seek the special leave contemplated under Section 378 (4)Cr.P.C. It is pointed out that the right of the complainant to file an appeal is circumscribed by certain conditions precedent and in this connection cited the decision of the Hon'ble Supreme Court in Khem Singh (D) v. State of Uttaranchal (MANU/SC/1143/2025), wherein it is held as follows in paragraphs 8 and 8.1:
"8.Section 378 CrPC is a specific provision dealing with appeals. Sub-section (4) of Section 378 CrPC is pertinent. It states that if an order of acquittal is passed in any case instituted upon a complaint and the High Court, on an application made to it by the complainant in that behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. The limitation period for seeking special leave to appeal is six months where the complainant is a public servant and sixty days in every other case, computed from the date of the order of acquittal. Sub-Section (6) states that if, in any case, the application under sub-section (4) for 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) of Section 378 CrPC.
8.1.A reading of section 378 CrPC would clearly indicate that in case the complainant intends to file an appeal against the order of acquittal, his right is circumscribed by certain conditions precedent. When an appeal is to be preferred by a complainant, the first question is, whether the complainant is also the victim or only an informant. If the complainant is not a victim and the case is instituted upon a complaint, then sub section (4) requires that the complainant must seek special leave to appeal from an order of acquittal from the High Court. As noted under sub-section (6), if the application under sub section (4) for grant of special leave to appeal from the order of acquittal is refused, no appeal from that order of acquittal would lie, inter alia, under sub section (1) of Section 378 CrPC. However, if the complainant is also a victim, he could proceed under the proviso to Section 372 CrPC, in which case the rigour of sub-section (4) of Section 378 CrPC, which mandates obtaining special leave to appeal, would not arise at all, as he can prefer an appeal as a victim as a matter of right. Thus, if a victim who is a complainant proceeds under Section 378 CrPC, the necessity of seeking special leave to appeal would arise but if a victim, whether he is a complainant or not, files an appeal in terms of proviso to Section 372 CrPC, then the mandate of seeking special leave to appeal would not arise."
7.It is well settled that the terms 'leave' and 'special leave' under Clause 3 and Clause 4 of Section 378 Cr.P.C are distinct and serve different purposes. In Subash Chand v. State (Delhi Administration) [MANU/SC/0016/2013 : 2013:INSC:15 : (2013) 2 SCC 17), it was held thus in paragraphs 17 and 19:
"17.At the outset, it must be noted that as per Section 378(3) appeals against orders of acquittal which have to be filed in the High Court under Sections 378(1)(b) and 378(2)(b) of the Code cannot be entertained except with the leave of the High Court. Section 378(1)(a) provides that, in any case, if an order of acquittal is passed by a Magistrate in respect of a cognizable and non-bailable offence the District Magistrate may direct the Public Prosecutor to present an appeal to the Court of Session. Sub-section (1)(b) of Section 378 provides that, in any case, the State Government may direct the Public Prosecutor to file an appeal to the High 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 Session in revision. Sub-section (2) of Section 378 refers to orders of acquittal passed in any case investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 or by any other agency empowered to make investigation into an offence under any Central Act other than the Code. This provision is similar to sub-section (1) except that here the words "State Government" are substituted by the words "Central Government". xxxx xxx xxx
19.Sub-section (4) of Section 378 makes provision for appeal against an order of acquittal passed in a case instituted upon complaint. It states that in such case if the complainant makes an application to the High Court and the High Court grants special leave to appeal, the complainant may present such an appeal to the High Court. This sub-section speaks of "special leave" as against sub-section (3) relating to other appeals which speaks of "leave". Thus, the complainant's appeal against an order of acquittal is a category by itself. The complainant could be a private person or a public servant. This is evident from sub-section (5) which refers to application filed for "special leave" by the complainant. It grants six months' period of limitation to a complainant who is a public servant and sixty days in every other case for filing application. Sub-section (6) is important. It states that if in any case the complainant's application for "special leave" under sub-section (4) is refused no appeal from the order of acquittal shall lie under sub-section (1) or under sub-section (2). Thus, if "special leave" is not granted to the complainant to appeal against an order of acquittal the matter must end there. Neither the District Magistrate nor the State Government can appeal against that order of acquittal. The idea appears to be to accord quietus to the case in such a situation.”
Another decision placed by the learned counsel for the respondents/accused Nos.1 and 3 is State of Kerala v. Saji @ Dada Saji and Others reported in [2021 (1) KHC 740], wherein in paragraph Nos.9 to 11 and 13, it has been held as under:
“9.Lal Singh, as decided by a Full Bench of the Punjab & Haryana High Court was a case in which the State Government, elected to office, had taken a decision to prefer an appeal under S. 378(1) against an order of acquittal. However, before its presentation President's Rule was imposed in the State and the Governor in Council took a decision not to file an appeal for reason of the minimal chance of success; as advised by experts. The earlier decision stood reversed and the father of one of the deceased persons approached the High Court seeking a direction to the Public Prosecutor to file the appeal as earlier directed by the elected Government. The question arose as to whether a review was permissible especially since the Cr.P.C. did not provide for that. The learned Judges first emphasized the distinction between decisions of the State Government, which are purely administrative in nature passed under the umbrella of executive powers vested under Art. 162 of the Constitution and the power exercised, also administrative in nature, by virtue of that conferred by a specific provision in a Statute. Insofar as the former, the decision was not final and could be reviewed. But, the power exercised under a Statute has to be examined with reference to the provisions in the statute to discern whether there is a degree of finality; which if found would restrict a review unless that power is also conferred under the Statute. The learned Judges were quite definite that the opinion expressed or the right of appeal enforced by the State Government through a direction issued to the Public Prosecutor would not in any event have the colour of a quasi judicial order. On the above reasoning it was found that the corner stone of S. 378(1) is the vesting of the right of appeal in the State Government and the presentation of that appeal to the High Court, through the medium of the Public Prosecutor. Section 378(1) was found in essence to have just conferred the right of appeal and also spoke of the mode in which such right has to be enforced; without anything stated about the procedural steps that would culminate in the filing of the appeal itself. It was held that the formation of opinion or the decision by the State Government, to prefer an appeal against the order of acquittal is purely administrative in nature and derives its source from the general executive power of the State under Art. 162 of the Constitution of India. We respectfully accept the above proposition, but that does not resolve the question as to whether the opinion expressed by an Investigating Officer or a Public Prosecutor who conducted the trial on behalf of the State would suffice and also whether there could be an expose facto sanction by the Government itself.
10.We have to pertinently notice that in Mohinder Singh, the Supreme Court reversed the judgment of the High Court on the compelling fact of there being a direction by the Under Secretary-in-charge to the Government, to file an appeal against all the appellants. The High Court it was held could not have made a roving enquiry into the various stages through which the sanction to file an appeal was canalised. Hence the reversal of the Division Bench judgment of the P. & H. High Court does not necessarily interfere with the principles broadly stated in the Full Bench decision of the same High Court. In the above circumstances, we have to hold that the specific mandate in S. 378(1)(b) of the Cr.P.C. is that there should be a direction from the State Government to enable institution of an appeal by the Public. Prosecutor in the High Court, against an order of acquittal passed by any Court other than a High Court or a Magistrate's Court.
11.We also perused the rules framed by the Government to better perceive how the executive Government, the rule making authority, understood the provision for appeal. The Kerala Government Law Officers Appointment and Conditions of Service and Conduct of Case Rules, 1978 refers to 'Criminal Matters' in Chap. VIII. Rule 69(1) provides that Government Law Officers in courts other than the High Court shall deal with the Collector of the District concerned in regard to criminal cases. The various sub-rules deal with judgments in every case and the interactions between the Government Law Officers, the Collector, the District Superintendent of Police, the Advocate General and eventually the Government. Sub-rule (6) refers to cases of acquittal in murder cases; the forum for an appeal from which, is definitely the High Court. Sub-rules (3) and (6) of R. 69 reads as here under and the concerned Government Law Officer, spoken of there, is obviously the one who conducted the trial. He has to transmit the records of the case to the Advocate General along with his opinion and with opinion of the District Superintendent of Police.
R.69(3). "In cases of acquittal, if the concerned Government Law Officer and the District Superintendent of Police concerned agree that an appeal should be filed, either of them may make a report to the Advocate General direct with connected records. A copy of the report shall also be sent to the District Collector concerned by the reporting officer. The Advocate General shall thereupon send his opinion to the Government in the Home Department and await their instructions in the matter. Whenever Government consider it necessary to file an appeal in any case instituted otherwise than on Police report, a Government order as contemplated under Section 377(1) of the Criminal Procedure Code, 1973 shall also be sent to the Advocate General along with the request to file an appeal so that any possible objections of incompetency may be avoided." xxx xxx xxx
R. 69(6). "In all cases of acquittal in murder cases, the concerned Government Law Officer shall sent to the Advocate General as expeditiously as possible complete records of the case with certified copies of judgments and depositions of witnesses, his opinion and the opinion of the District Superintendent of Police regarding the advisability or otherwise of filing appeals."
13.The Public Prosecutors had, from the records available with them, showed us the opinion of the Public Prosecutor who conducted the trial and also that of the Investigating Officer. Both of which were in favour of filing an appeal from the order of acquittal. The contention raised is that they have formed such opinion as Officers of the Government, in public interest and it would be akin to a direction issued by the Government. We are unable to accept the above contention especially looking at the Rules of Business of the Government of Kerala. We specifically refer to Part I Rules of Business and Rr. 11 & 12, which are extracted here under:
"11.All orders or instruments made or executed by or on behalf of the Government of the State shall be expressed to be made or executed in the name of the Governor.
12.Every order or instruments of the Government of the State shall be signed by a Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary or by such other Officer as may be specifically empowered in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument." Hence any order or instrument executed by or on behalf of the Government has to be in the name of the Governor and the same shall be signed by the Officers specifically referred to in R. 12 or such other Officer specially empowered. The opinion of the Public Prosecutor or that of the Investigating Officer fails to satisfy the requirement of a direction by the Government as contemplated in S. 378(1) Cr.P.C. We have also been shown an order where sanction was accorded by the Government to file an appeal in a Sessions Case; which is signed by an Under Secretary in the name of the Governor; which is the correct procedure.”
While addressing the questions, it is necessary to refer Section 378 of the Cr.P.C. before its amendment by Act 25 of 2005 w.e.f. 21.06.2006, 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), 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 acquittal passed by any Court other than a High Court 2*[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 also direct the Public Prosecutor to present an appeal, subject to the provisions of Sub-section (3), to the High Court from the order of acquittal.
(3)No appeal 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).”
Section 378 of the Cr.P.C. after amendment w.e.f. 21.06.2006 is analogous to Section 419 of the BNSS. Going by Section 419(1)(a) of the BNSS, 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. Section 419(1)(a) of the BNSS is subject to the provisions of sub-section (2) and sub-sections (3) and (5). Coming to sub-section (2) of Section 419 of the BNSS, the same deals with investigation into an offence under any Central Act other than the Sanhita. Therefore, sub-section (2) of Section 419 of the BNSS has no application in this case. Sub-section (3) provides that 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. Thus, the statutory provisions are clear. That is to say, to file an appeal, as directed by the District Magistrate to 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 is an absolute statutory right and in fact, this is a provision not available in Section 378 of the Cr.P.C. before its amendment w.e.f. 21.06.2006 and before 21.06.2006, appeal to the High Court with leave of the High Court alone was permissible. However, even though Section 378(1)(a) of the Cr.P.C. was introduced by way of amendment w.e.f. 21.06.2006, the earlier provision contained in Section 378(1), now incorporated in clause (b), was also retained with a rider that it should not be an order under clause (a). Thus, as per Section 419(1) (a) of the BNSS, which is in pari materia with Section 378(1)(a) of the Cr.P.C., a Public Prosecutor can 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, acting on the direction of the District Magistrate. In other situations, appeal to the High Court with leave of the High Court alone is the remedy. Thus, in the instant case also, if so directed by the District Magistrate, the Public Prosecutor could very well file an appeal against the impugned judgment of acquittal in respect of the offences punishable under Sections 27(1)(e)(iii) and (iv) and 47C r/w 47G of the Kerala Forest Act, 1961, which are cognizable and non-bailable offences. When an order comes within the purview of Section 419(1)(a) of the BNSS, Section 419(1)(b) of the BNSS would not apply, in view of specific exclusion of cases which would fall under Section 419(1)(a) of the BNSS in Section 419(1)(b) of the BNSS. If so, the leave petition filed by the State, seeking leave to appeal against the impugned judgment of acquittal, involving cognizable and non-bailable offence is not maintainable in view of the specific remedy provided as an absolute right under Section 419(1)(a) of the BNSS.
In such view of the matter, the contention raised by the learned counsel for the respondents that this leave petition is not maintainable before this Court is to be accepted, where the learned Public Prosecutor also does not dispute the legal position.
Holding so, this leave petition is dismissed with liberty to the aggrieved person to invoke right of appeal provided under Section 419(1)(a) of the BNSS, at the earliest.
In view of the above finding, the delay petition does not require any specific order. However, it is made clear that the period of pendency of this leave petition before this Court from 02.07.2026 till this date shall be excluded in counting the period of limitation.