JAGBIR AND ANR.versusSTATE OF PUNJAB

                            JAGBIR AND ANR.                                        A
                                       v.
                           STATE OF PUNJAB

                           SEPTEMBER 3, 1998

       (M.K. MUKHERJEE AND SYED SHAH MOHAMMED                                      B
                       QUADRI, JJ.]

      Code of Criminal Procedure, 1973 :

       Ss. 190( l)(b) and 378-Cognizance of offence 11pon police                   C
repoTt-T!ial-Acquittal by trial co11rt-Appeal by complainant 11/s.
378(4)-High Cowt convicting and sentencing two of the accused-Held, in
the instant case it was the &ate only who co11/d have filed appeal u/s. 378( 1)
against order of acquittal after obtaining leave 11nder s11b-section (3) thereof
and 1101 the complai11a11t, who could only file a11 application u/s.401 for
revision uf that order-High Cowt will treat the memorand11111 of appeal as         D
application for revision of order of Sessions Judge qua the two appellants only
and dispose of the same in accordance with law.

     CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal No.
121of1996.
                                                                                   E
     From the Judgment and Order dated 27.11.95 of the Punjab &
Haryana High Court in Cr!. A. No. 373-DBA of 1980.

      Ajay Siwach for Prem Malhotra for the Appellant.

      R.S. Sodhi for the Respondent.                                               F

      The following Order of the Court was delivered :

      Consequent upon a charge sheet (challan) submitted by the police
and a committal enquiry that followed, the two appellants and others were
placed on trial before an Additional Sessions Judge, Ferozpur. The trial G
ended in an acquittal of all of them; and aggrieved thereby, Birbal, the
complainant, filed an appeal before the High Court after obtaining leave
under Section 378(4) Cr.P.C. In disposing of the appeal the High Court set
aside the acquittal of the two appellants and convicted them under Section
302/34 1.P.C., while upholding the acquittal of others. Aggrieved by the H
                                      411
   412                   SUPREME COURT REPORTS (1998) SUPP. 1 S.C.R.

A order of the conviction and sentence recorded against them the appellants
    filed this appeal under Section 379 Cr.P.C.

        Since the appeal must succeed on a pure question of law, we need
  not go into the facts of the case. Admittedly, the cognizance in the instant
  case was taken upon a police report under Section 190(1)(b) Cr.P.C.
B Resultantly, it was the State alone who could file an appeal in the High
  Court against the order of acquittal under Section 378(1) Cr.P.C. after
  obtaining leave under sub-section (3) thereof - and not the complainant
  who could only file an application under Section 401 Cr.P.C. for revision
  of that order. The High Court, therefore, was not at all justified in enter-
C taining the appeal of the complainant and disposing the same in the
  manner aforesaid. On this score alone, we allow this appeal and restore
  the order of the trial Court. The High court will now treat the memoran-
  dum of appeal filed by the complainant as an application for revision of
  the order of the Sessions Judge, qua the two appellants only, and dispose
  of the same in accordance with law. The appellants who are in jail be
D released forthwith unless wanted in connection with any other case.
    R.P.                                                     Appeal allowed.



                                                                                 .. -.