SUBHASH CHANDversusSTATE (DELHI ADMINISTRATION)

                    [2013] 1 S.C.R. 191


                    SUBHASH CHAND                               A
                              v.
             STATE (DELHI ADMINISTRATION)
             (Criminal Appeal No.50 of 2013 )
                     JANUARY 8, 2013
                                                                B
 [AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]

      Code of Criminal Procedure, 1973 - s.378 (as amended
by Act 25 of 2005) - Complaint case filed by State I State
Authority - Appeal from order of acquittal of the Magistrate - C
Whether would lie to the Sessions Court uls.378(1 )(a) CrPC
or to the High Court uls.378(4) CrPC -Held: A complainant
can file an application for special leave to appeal against an
order of acquittal of any kind only to the High Court - In the
instant case the complaint alleging offences punishable ul D
s.16(1)(1A) r/w s. 7 of the PFA Act and the PFA Rules was filed
against the appellant complainant Local Health Authority
through Delhi Administration but the appellant was acquitted
by the Metropolitan Magistrate - The complainant could
challenge the order of acquittal by filing an application for E
special leave to appeal in the High Court and not in the
Sessions Court - Therefore, impugned order holding that the
case was not governed by s.378(4) CrPC quashed and set
aside - Prevention of Food Adulteration Act, 1954 -
s. 16(1)(1 A) r/w s. 7 - Prevention of Food Adulteration Rules, F
1955.

     The High Court, by the impugned judgment,
dismissed petition filed by the appellant holding that an
appeal filed by the State against an order of acquittal shall
lie to the Sessions Court under Section 378(1) CrPC and         G
not under Section 378(4) CrPC to the High Court.

    The question which arose for consideration in the
instant appeal was whether in a complaint case, an
                        191                                     H
    192      SUPREME COURT REPORTS           [2013] 1 S.C.R.


A appeal from an order of acquittal of the Magistrate would
  lie to the Sessions Court under Section 378(1)(a) CrPC
  or to the High Court under Section 378(4) CrPC.

          Allowing the appeal, the Court

B       HELD:1.1. To understand the controversy, it is
    necessary to have a look at Section 378 CrPC prior to its
    amendment by Act 25 of 2005 and Section 378 amended
    thereby. [Para 10] [202-C]

c      1.2. Under earlier un-amended Section 378(1) CrPC,
  the State Government coul-d, 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 or an order of acquittal
0 passed by the Court of Session in revision. Section 378(2)
  covered cases where order of acquittal was passed in
  any case in which the offence had. been investigated by
  the Delhi Special Police Establishment constituted under
  the Delhi Special Police Establishment Act, 1946 or by any
E other agency empowered to make investigation into an
  offence under any Central Act other than the Code. In
  such cases, the Central Government could also direct the
  Public Prosecutor to present an appeal to the High Court
  from an order of acquittal. Section 378(3) stated that
  appeals under sub-sections (1) and (2) of Section 378 of
F the Code could not be entertained except with the leave
  of the High Court. Sub-section (4) of Section 378 of the
  Code provided for orders of acquittal passed in any case
  instituted upon complaint. According to this provision, if
  on an application made to it by the complainant, the High
G Court grants special leave to appeal from the order of
  acquittal, the complainant could present such an appeal
  to the High Court. Sub-section (5) of Section 378 of the
  Code provided for a period of limitation. Sub-section (6)
  of Section 378 of the Code stated that if in any case, the
H application under sub-section (4) for the grant of special
         SUBHASH CHAND v. STATE (DELHI                     193
               .ADMINISTRATION)
leave to appeal from an order of acquittal is refused, no         A
appeal from that order of acquittal shall lie under sub-
sections (1) or (2). Thus, if the High Court refused to grant
special leave to appeal to the complainant, no appeal from
that order of acquittal could be filed by the State or the
agency contemplated in Section 378(2). It is clear from           B
these provisions that earlier an appeal against an order
of acquittal could only lie to the High Court. Sub-section
(4) was aimed at giving finality to the orders of acquittal.
[Para 11]. [203-G-H; 204-A-F]

     1.3. Post the amendment of Section 378 CrPC, by Act          C
25 of 2005, on analysis of Section 378(1)(a) & (b), it is clear
that the State Government cannot direct the Public
Prosecutor to file an appeal against an order of acquittal
passed by a Magistrate in respect of a cognizable and
non-bailable offence because of the categorical bar               D
created by Section 378{1)(b). Such appeals, that is
appeals against orders of acquittal passed by a
Magistrate in respect of a cognizable and non-bailable
offence can only be filed in the Sessions Court at the
instance of the Public Prosecutor as directed by the              E
District Magistrate. Section 378{1)(b) uses the words "in
any case" but leaves out orders of acquittal passed by a
Magistrate in respect of a cognizable and non-bailable
offence from the control of the State Government.
Therefore, in all other cases where orders of acquittal are       F
passed appeals can be filed by the Public Prosecutor as
directed by the State Government to the High Court. [Para
16] [208-G-H; 209-A-C]

     1.4. Sub-Section (4) of Section 378 makes provision          G
for appeal against an order of acquittal passed in 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                H
    194      SUPREME COURT REPORTS              [2013] 1 S.C.R.

A Court. This sub-section speaks of 'special leave' as
  against sub-section (3) relating to other appeals which
  speaks of 'leave'. Thus, 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
B 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
c in any case complainant's application for 'special leave'
  under sub-Section (4) is refused no appeal from 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 not
0
  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. [Para 17] [209-C-G]

         1.5. A police report is defined under Section 2(r) of
E   the Code to mean a report forwarded by a police officer
    to a Magistrate under sub-section (2) of Section 173 of the
    Code. It is a culmination of investigation by the police into
    an offence after receiving information of a cognizable or
    a non-cognizable offence. Section 2(d) defines a
F   complaint to mean any allegation made orally or in
    writing to a Magistrate with a view to his taking action
    under the Code, that some person, whether known or
    unknown has committed an offence, but does not
    include a police report. Explanation to Section 2(d) states
G   that a report made by a police officer in a case which
    discloses after investigation, the commission of a non-
    cognizable offence shall be deemed to be a complaint,
    and the police officer by whom such report is made shall
    be deemed to be the complainant. Sometimes
H   investigation into cognizable offence conducted under
        SUBHASH CHAND v. STATE (DELHI                  195
              ADMINISTRATION)
Section 154 of the Code may culminate into a complaint A
case (cases under the Drugs & Cosmetics Act, 1940).
Under the PFA (Prevention of Food Adulteration Act,
1954), cases are instituted on filing of a complaint before
the Court of Metropolitan Magistrate as specified in
Section 20 of the PFA Act and offences under the PFA Act B
are both cognizable and non-cognizable. Thus, whether
a case is a case instituted on a complaint depends on the
legal provisions relating to the offence involved therein.
But once it is a case instituted on a complaint and an
order of acquittal is passed, whether the offence be         c
bailable or non-bailable, cognizable or non-cognizable,
the complainant can file an application under Section
378(4) for special leave to appeal against it in the High
Court. Section 378(4) places no restriction on the
complainant. So far as the State is concerned, as per
                                                              0
Section 378(1)(b), it can in any case, that is even in a case
instituted on a complaint, 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 High Court. But there is an important inbuilt and
categorical restriction on the State's power. It cannot E
direct the Public Prosecutor to present an appeal from an
order of acquittal passed by a Magistrate in respect of a
cognizable and non-cognizable offence. In such a case
the District Magistrate may under Section 378(1)(a) direct
the Public Prosecutor to file an appeal to the Session F
Court. This appears to be the right approach and correct
interpretation of Section 378 of the Code. [Para 18] [209-
H; 210-A-H; 211-A]

    1.6. Act No.25 of 2005 brought about a major             G
amendment in the Code. It introduced Section 378(1 )(a)
which permitted the District Magistrate, in any case, to
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       H
    196     SUPREME COURT REPORTS              [2013) 1 S.C.R.

A offence. For the first time a provision was introduced
  whereunder an appeal against an order of acquittal could
  be filed in the Sessions Court. Such appeals were
  restricted to orders passed by a Magistrate in cognizable
  and non-bailable offences. Section 378(1)(b) specifically
B and in clear words placed a restriction on the State's right
  to file such appeals. It states that 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
C Court not being an order under clause (a) or an order of
  acquittal passed by the Sessions Court in revision. Thus,
  the State Government cannot present an appeal against
  an order of acquittal passed by a Magistrate in respect
  of a cognizable and non-bailable offence. Clause 37 of
  the 154th Report of the Law Commission of India and
0
  Clause 37 of the Code of Criminal Procedure
  (Amendment) Bill, 1994 state that in order to guard
  against the arbitrary exercise of power and to reduce
  reckless acquittals Section 378 was sought to be
  amended to provide appeal against an order of acquittal
E passed by a Magistrate in respect of cognizable and non-
  bai lable offence. Thus, this step was taken by the
  legislature to check arbitrary and reckless acquittals. It
  appears that being conscious of rise in unmerited
  acquittals, in case of certain acquittals, the legislature has
F enabled the District Magistrate to direct the Public
  Prosecutor to present an appeal to the Sessions Court,
  thereby avoiding the tedious and time consuming
  procedure of approaching the State with a proposal,
  getting it sanctioned and then filing an appeal. [Para 19]
G [211-C-H; 212-A-B]
      1.7. Till Section 378 was amended by Act 25 of 2005
  the State could prefer appeals against all acquittal orders.
  But the major amendment made in Section 378 by Act 25
H of 2005 cannot be ignored. It has a purpose. It does not
         SUBHASH CHAND v. STATE (DELHI                   197
               ADMINISTRATION)
throw the concern of security of the community to the           A
winds. In fact, it makes filing of appeals against certain
types of acquittal orders described in Section 378(1 )(a)
easier, less cumbersome and less time consuming. [Para
20] [212-C-D]
                                                                B
      1.8. A complainant can, thus, file an application for
special leave to appeal against an order of acquittal of any
kind only to the High Court. He cannot file such appeal
in the Sessions Court. In the instant case the complaint
alleging offences punishable under Section 16(1)(1A)            C
read with Section 7 of the Prevention of Food
Adulteration Act, 1954 and the Prevention of Food
Adulteration Rules, 1955 was filed by complainant Local
Health Authority through Delhi Administration. The
appellant was acquitted by the Metropolitan Magistrate.
The complainant can challenge the order of acquittal by         D
filing an application for special leave to appeal in the High
Court. and not in the Sessions Court. Therefore, the
impugned order holding that this case is not governed
by Section 378(4) CrPC is quashed and set aside. [Para
21] [212-E-H]                                                   E

     Khemraj v. State of Madhya Pradesh 1976 (1) SCC 385:
1976 (2) SCR 753; State (Delhi Adminsitration) v. Dharampal
2001(10) SCC 372: 2001 (4) Suppl. SCR 448; Aka/u Ahir &
Ors. v. Ramdeo Ram 1973 (2) SCC 583: 1974 (1) SCR 130;          F
State v. Ram Babu & Ors. 1970 AWR 288; Food Inspector
v. Moidoo 1988 (2) KLT 205; Prasannachary v.
Chikkapinachari & Anr. 1959 AIR (Kant) 106; State of
Maharashtra v. Limbaji Sayaji Mhaske, Sarpanch Gram
Panchayat 1976 (Mah.) LJ 475; State of Punjab & Anr. v.         G
Jagan Nath 1986 (90) PLR 466 and State of Orissa v.
Sapneswar Thappa 1987 Cri.L.J. 612 - held inapplicable.

    Law Commission of India, 154th report and 221st report
- referred to.
                                                                H
    198       SUPREME COURT REPORTS               [2013] 1 S.C.R.


A                         Case Law Reference:

      1976 (2) SCR 753             held inapplicable     Para 9

      2001 (4) Suppl. SCR 448 held inapplicable          Para 9

      1974 (1) SCR 130             held inapplicable     Para 9
B
      1970 AWR 288                 held inapplicable     Para 9

      1988 (2) KLT 205             held inapplicable     Para 9

      1959 AIR (Kant) 106          held inapplicable     Para 9
c
      1976 (Mah.) LJ 475           held inapplicable     Para 9

      1986 (90) PLR 466            held inapplicable     Para 9

      1987 Cri.L.J. 612            held inapplicable     Para 9
D       CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 50 of 2013.

        From the Judgment & Order dated 07.01.2011 of the High
    Court of Delhi at New Delhi in Criminal Misc. No. 427 of 2009.
E
         Sidharth Luthra (Amicus Curiae), P.P. Malhotra, ASG,
    Devina Sehgal, Meenakshi Lekhi, Harish Pandey, Sachin Jain,
    Yasir Rauf, Ranjana Narayan (for Anil Katiyar) for the appearing
    parties.

F         The Judgment of the Court was delivered by

        (SMT.) RANJANA PRAKASH DESAI, J. 1. Leave
    granted.

G        2. This appeal, by special leave, is directed against
    judgment and order dated 07/01/2011 passed by the High
    Court of Delhi in Criminal Misc. Case No.427 of 2009 whereby
    the High Court dismissed the petition filed by the appellant
    holding that an appeal filed by the State against an order of
    acquittal shall lie to the Sessions Court under Section 378(1)
H
      SUBHASH CHAND v. STATE (DELHI         199
ADMINISTRATION) [RANJANA PRAKASH DESAI, J.)
of the Code of Criminal Procedure, 1973 (for short, "the Code")           A
and not under Section 378(4) of the Code to the High Court.

     3. The appellant is the supplier-cum-manufacturer of the
food article namely Sweetened Carbonated Water. He is
carrying on business in the name and style of M/s. Subhash
                                                                          8
Soda Water Factory. On 6/6/1989 at about 4.15 p.m., one P.N.
Khatri, Food Inspector, purchased a sample of sweetened
carbonated water for analysis from one Daya Chand Jain,
Vendor-cum-Contractor of Canteen at Suraj Cinema, Dhansa
Road, Najafgarh, Delhi. After following the necessary procedure,          C
the sample was sent to the Public Analyst for analysis. On
analysis, the Public Analyst opined that the sample does not
conform to the prescribed standard. After conclusion of the
investigation, the respondent-State through its Local Health
Authority - P.K. Jaiswal filed a Complaint bearing No.64 of
1991 against the appellant and Daya Chand in the Court of the             D
Metropolitan Magistrate, New Delhi alleging that the appellant
and the said Daya Chand had violated the provisions of
Sections 2(ia), (a), (b), (f), (h), (I), (m), Section 2(ix) 0), (k) and
Section 24 of the Prevention of Food Adulteration Act. 1954
(for short, "PFA Act") and Rule 32, Rule 42 (zzt)(i) and Rule             E
47 of the Prevention of Food Adulteration Rules, 1955 (for sho~.
"the Rules") and committed an offence punishable under
Section 16(1)(1A) read with Section 7 of the PFA Act and the
Rules. Since Daya Chand died during the pendency of the
case, the case abated as against him. The appellant was tried             F
and acquitted by learned Magistrate by order dated 27/2/2007.

     4. Being aggrieved by the said order dated 27/2/2007, the
respondent-State preferred Criminal Appeal No.13 of 2008 in
the Sessions Court under Section 378(1 )(a) of the Code. The              G
appellant raised a preliminary objection in regard to the
maintainability of the said Appeal before the Sessions Court
in view of Section 378(4) of the Code. He contended that an
appeal arising from an order of acquittal in a complaint case
                                                                          H
    200      SUPREME COURT REPORTS               [2013] 1 S.C.R.

A   shall lie to the High Court. The said objection was rejected by
    the Sessions Court by order dated 4/2/2009.

       5. Aggrieved by the said order dated 4/2/2009, the
  appellant preferred Criminal Misc. Case No.427 of 2009 before
B the High Court. By order dated 9/7/2009, the High Court held
  that the Sessions Court has no jurisdiction to entertain an
  appeal filed in a complaint case and directed that the appeal
  be transferred to it. Accordingly, Criminal Appeal No.13 of 2008
  pending before the Sessions Court was transferred to the High
  Court and re-numbered as Criminal Appeal No.642 of 2009.
c
       6. The respondent-State carried the said order dated 9/7/
  2009 to this court by Special Leave Petition (Crl.) No.9880 of
  2009 (Criminal Appeal No.1514 of 2010). By order dated 13/
  8/2010, this court remanded the matter' to the High Court and
D directed that the matter be decided afresh after taking into
  consideration Sections 378(1) and 378(4) of the Code and the
  relevant provisions of the PFA. On remand, the High Court
  passed the impugned judgment and order dated 7/1/2011.

E        7. The short point which arises for consideration in this
    appeal is whether in a complaint case, an appeal from an order
    of acquittal of the Magistrate would lie to the Sessions Court
    under Section 378(1) (a) of the Code or to the High Court under
    Section 378(4) of the Code.

F       8. At our request, Mr. Sidharth Luthra, learned Additional
  Solicitor General has assisted us as Amicus Curiae. We have
  heard Ms. Meenakshi Lekhi, learned counsel appearing for the
  petitioner and Mr. P.P. Malhotra, learned Additional Solicitor
  General appearing for the State. Written submissions have
G been filed by the counsel which we have carefully perused. Mr.
  Luthra took us through the relevant excerpts of Law
  Commission's reports. He took us through the Code of
  Criminal Procedure (Amendment) Bill, 1994 ( Bill No. XXXV
  of 1994). He also took us through un-amended and amended
H Section 378 of the Code. After analyzing the relevant provisions,
       SUBHASH CHAND v. STATE (DELHI         201
 ADMINISTRATION) [RANJANA PRAKASH DESAI~ J.]
Mr. Luthra submitted that no appeal lies against an order of          A
acquittal in cases instituted upon a complaint to the Sessions
Court. Ms. Lekhi also adopted similar line of reasoning.

      9. Mr. Malhotra learned Additional Solicitor General
adopted a different line of argument and therefore, it is             8
necessary to note his submissions in detail. Counsel pointed
out how the law relating to appeals against o.rders of acquittal
has evolved over the years. Counsel submitted that under the
Code of Criminal Procedure, 1861 no appeal against an order
of acquittal could be filed. The Code of Criminal Procedure,          C
1872 permitted only the State Government to file an appeal
against acquittal order. Section 417 of the Criminal Procedure
Code, 1898 permitted only the State to file an appeal against
acquittal order. In 1955 it was amended so as to permit the
complainant to file an appeal against acquittal order. Under the
Code of Criminal Procedure, 1973, Section 417 was                     D
substituted by Section 378. Counsel pointed out that under
Section 378(4) a complainant could prefer appeal against order
of acquittal, if special leave was granted by the High Court.
However, in all cases the State could present appeal against
order of acquittal. Counsel then referred to Section 378 of the       E
Code as amended by Act No. 25 of 2005 and submitted that
the only change in sub-section (1) is adding clauses (a) and
(b) to it. Counsel described this change as minor and submitted
that the State's right to file appeal against orders of acquittal
remains intact and is not taken away. Counsel relied on the           F
words 'State Government may, in any case' and submitted that
these words preserve the State's right to file appeal against
acquittal orders of all types. There is no limitation on this right
whatsoever. This right is preserved according to the counsel
because the State is the protector of people. Safety and              G
security of the community is its concern. Even if a complainant
does not file an appeal against an order of acquittal, the State
Government can in public interest file it. Counsel also
addressed us on the question of plurality of appeals. That issue
is not before us. It is, therefore, not necessary to refer to that    H
    202         SUPREME COURT REPORTS                 [2013] 1 S.C.R.


A submission. In support of his submissions counsel placed
  reliance on Khemraj v. State of Madhya Pradesh\ State
  (Delhi Adminsitration) v. Dharampa/2, Akalu Ahir & Ors. v.
  Ramdeo Ram3, State v. Ram Babu & Ors. 4 , Food Inspector
  v. Moidoo 5, Prasannachary v. Chikkapinachari & Anr. 6 , State
B of Maharashtra v. Limbaji Sayaji Mhaske7, Sarpanch Gram
  Panchayat, State of Punjab & Anr. v. Jagan Nath 8 and State
  of Orissa v. Sapneswar Thappa 9•

       10. To understand the controversy, it is necessary to have
C a look at Section 378 of the Code prior to its amendment by
  Act 25 of 2005 and Section 378 amended thereby.

        11. Section 378 of the Code prior to its amendment by Act
    25 of 2005 read as under:

D         "Appeal in case of acquittal.
          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
E         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.]

F                 (2) If such an order of acquittal is passed in any case

    1.   1976 (1) sec 385.
    2.   2001 (1 o) sec 372.
    3.   1973 (2) sec 583.
G 4.     1970 AWR 288.
    5.   1988 (2) KLT 205.
    6.   1959 AIR (Kant) 106.
    7.   1976 (Mah.) LJ 475.
    8.   1986 (90) PLR 466.
H   9.   1987 Cri.L.J. 612.
      SUBHASH CHAND v. STATE (DELHI                           203
ADMINISTRATION) [RANJANA PRAKASH DESAI, J.]
    in which the offence has been investigated by the Delhi          A
    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                B
    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       C
    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,        D
    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    E
    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.
                                                                     F
           (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)."                                                    G

    Thus, under earlier Section 378(1) of the Code,_ the State
Government could, 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        H
    204      SUPREME COURT REPORTS                 [2013] 1 S.C.R.


A High Court or an order of acquittal passed by the Court of
  Session in revision. Section 378(2) covered cases where order
  of acquittal was passed in any case in which the offence had
  been investigated by the Delhi Special Police Establishment
  constituted under the Delhi Special Police Establishment Act,
B 1946 or by any other agency empowered to make investigation
  into an offence under any Central Act other than the Code. In
  such cases, the Central Government could also direct the Public
  Prosecutor to present an appeal to the High Court from an order
  of acquittal. Section 378(3) stated that appeals under sub-
C sections (1) and (2) of Section 378 of the Code could not be
  entertained except with the leave of the High Court. Sub-section
  (4) of Section 378 of the Code provided for orders of acquittal
  passed in any case instituted upon complaint. According to this
  provision, if on an application made to it by the complainant,
  the High Court grants special leave to appeal from the order
0
  of acquittal, the complainant could present such an appeal to
  the High Court. Sub-section (5) of Section 378 of the Code
  provided for a period of limitation. Sub-section (6) of Section
  378 of the Code stated that if in any case, the application under
  sub-section (4) for the grant of special leave to appeal from an
E order of acquittal is refused, no appeal from that order of
  acquittal shall lie under sub-sections (1) or (2). Thus, if the High
  Court refused to grant special leave to appeal to the
  complainant, no appeal from that order of acquittal could be
  filed by the State or the agency contemplated in Section 378(2).
F It is clear from these provisions that earlier an appeal against
  an order of acquittal could only lie to the High Court. Sub-
  section (4) was aimed at giving finality to the orders of acquittal.
        12. Before we proceed to analyze the amended Section
G 378 of the Code, it is necessary to quote the relevant clause
  in the 154th Report of the Law Commission of India, which led
  to the amendment of Section 378 by Act 25 of 2005. It reads
  thus:

               "6. 12. Clause 37: In order to guard against the
H
      SUBHASH CHAND v. STATE (DELHI         205
ADMINISTRATION) [RANJANA PRAKASH DESAI, J.]
    arbitrary exercise of power and to reduce reckless              A
    acquittals, Section 378 is sought to be amended
    providing an appeal against an order of acquittal passed
    by a Magistrate in respect of cognizable and non-bailable
    offence filed on a police report to the Court of Session
    as directed by the District Magistrate. In respect of all       B
    other cases filed on a police report, an appeal shall lie
    to the High Court against an order of acquittal passed by
    any other court other than the High Court, as directed by
    the State Government. The power to recommend appeal
    in the first category is sought to be vested in the District    c
    Magistrate and the power in respect of second category
    would continue with the State Government."

    The Code of Criminal Procedure (Amendment) Bill, 1994
has the same note on Clause 37.
                                                                    D
     13. Though, the Law Commission's 154th report indicated
that Section 378 was being amended to provide that an appeal
against an order of acquittal passed by a Magistrate in respect
of a cognizable and non-bailable offence filed on a police report
would lie to the court of Sessions, the words "police report"       E
were not included in the amended Section 378. In this
connection, it is necessary to refer to the relevant extract from
the Law Commission's 221st report of April, 2009. After noting
amendment made to Section 378 the Law Commission stated
as under:                                                           F
     "2.9 All appeals against orders of acquittal passed by
     Magistrates were being filed in High Court prior to
     amendment of Section 378 by Act 25 of 2005. Now, with
     effect from 23.06.2006, appeals against orders of acquittal
     passed by Magistrates in respect of cognizable and non-        G
     bailable offences in cases filed on police report are being
     filed in the Sessions Court, vide clause (a) of sub-section
     (1) of the said section. But, appeal against order of
     acquittal passed in any case instituted upon complaint
     continues to be filed in the High Court, if special leave is   H
    206       SUPREME COURT REPORTS               [2013] 1 S.C.R.


A         granted by it on an application made to it by the
          complainant, vide sub-section (4) of the said section.
          2.10 Section 378 needs change with a view to enable
          filing of appeals in complaint cases also in the Sessions
B         Court, of course, subject to the grant of special leave by
          it."

        These two extracts of the Law Commission's report make
  it clear that though the words 'police report' are not mentioned
  in Section 378(1) (a), the Law Commission noted that the
C effect of the amendment was that all appeals against an order
  of acquittal passed by a Magistrate in respect of a cognizable
  and non-bailable offence in cases filed on police report are
  being filed in the Sessions Court. The Law Commission
  lamented that there is no provision enabling filing of appeal in
D complaint cases in the Sessions Court subject to the grant of
  special leave by it. Thus, the Law Commission acknowledged
  that there is no provision in the Code under which appeals in
  complaint cases could be filed in the Sessions Court. We agree
  with this opinion for reasons which we shall now state.
E
        14. Having analysed un-amended Section 378 it is
  necessary to have a look at Section 378 of the Code, as
  amended by Act 25 of 2005. It reads as under:

          "378. Appeal in case of acquittal.
F
          [(1) Save as otherwise provided in sub-section (2) and
          subject to the provisions of subsections (3) and (5), -

          (a) the District Magistrate may, in any case, direct the
          Public Prosecutor to present an appeal to the Court of
G
          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
H         Public Prosecutor to present an appeal to the High Court
      SUBHASH CHAND v. STATE (DELHI         207
ADMINISTRATION) [RANJANA PRAKASH DESAI, J.]
   from an original or appellate order of acquittal passed by     A
   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
                                                                  8
   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          C
   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          D
   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        E
   of acquittal] passed by the Court of Session in revision.]

   (3)[No appeal to the High Court] under subsection (1) or
   subsection (2) shall be entertained except with the leave
   of the High Court.
                                                                  F
   (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         G
   Court.

  (5) No application under subsection (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          H
    208       SUPREME COURT REPORTS                [2013] 1 S.C.R. ,


A         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
B
          shall lie under sub-section (1) or under subsection (2)."

          15. 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 Section 378(1)(b) and 378(2)(b)
C   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
D   of Sessions. 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
E   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
F   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'.

       16. If we analyse Section 378(1)(a) & (b), it is clear that
G the State Government cannot direct the Public Prosecutor to
  file an appeal against an order of acquittal passed by a
  Magistrate in respect of a cognizable and non-bailable offence
  because of the categorical bar created by Section 378(1)(b).
  Such appeals, that is appeals against orders of acquittal
H passed by a Magistrate in respect of a cognizable and' non-
       SUBHASH CHAND v. STATE (DELHI         209
 ADMINISTRATION} [RANJANA PRAKASH DESAI, J.]
bailable offence can only be filed in the Sessions Court at the      A
instance of the Public Prosecutor as directed by the District
Magistrate. Section 378(1}(b} uses the words "in any case" but
leaves out orders of acquittal passed by a Magistrate in
respect of a cognizable and non-bailable offence from the
control of the State Government. Therefore, in all other cases       B
where orders of acquittal are passed appeals can be filed by
the Public Prosecutor as directed by the State Government to
the High Court.

      17. Sub-Section (4) of Section 378 makes provision for
appeal against an order of acquittal passed in case instituted       C
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 bomplainant may present
such an appeal to the High Court. This sub-section speaks of
'special leave' as against sub-section (3) relating to other         D
appeals which speaks of 'leave'. Thus, 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         E
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 complainant's
application for 'special leave' under sub-Section (4) is refused
no appeal from order of acquittal shall lie under sub-section (1)    F
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 not the
State Government can appeal against that order of acquittal.
The idea appears to be to accord quietus to the case in such         G
a situation.

    18. Since the words 'police report' are dropped from
Section 378(1} {a} despite the Law Commission's
recommendation, it is not necessary to dwell on it. A police         H
report is defined under Section 2(r} of the Code to mean a
    210       SUPREME COURT REPORTS                  [2013) 1 S.C.R.


A   report forwarded by a police officer to a Magistrate under sub-
    section (2) of Section 173 of the Code. It is a culmination of
    investigation by the police into an offence after receiving
    information of a cognizable or a non-cognizable offence.
    Section 2(d) defines a complaint to mean any allegation made
B   orally or in writing to a Magistrate with a view to his taking action
    under the Code, that some person, whether known or unknown
    has committed an offence, but does not include a police report.
    Explanation to Section 2(d) states that a report made by a
    police officer in a case which discloses after investigation, the
c   commission of a non-cognizable offence shall be deemed to
    be a complaint, and the police officer by whom such report is
    made shall be deemed to be the complainant. Sometimes
    investigation into cognizable offence conducted under Section
    154 of the Code may culminate into a complaint case (cases
D   under the Drugs & Cosmetics Act, 1940). Under the PFA Act,
    cases are instituted on filing of a complaint before the Court of
    Metropolitan Magistrate as specified in Section 20 of the PFA
    Act and offences under the PFA Act are both cognizable and
    non-cognizable. Thus, whether a case is a case instituted on a
    complaint depends on the legal provisions relating to the
E   offence involved therein. But once it is a case instituted or. a
    complaint and an order of acquittal is passed, whether the
    offence be bailable or non-bailable, cognizable or non-
    cognizable, the complainant can file an application under
    Section 378(4) for special leave to appeal against it in the High
F   Court. Section 378(4) places no restriction on the complainant.
    So far as the State is concerned, as per Section 378(1)(b), it
    can in any case, that is even in a case instituted on a complaint,
    direct the Public Prosecutor to file an appeal to the High Court
    from an original or appellate order of acquittal passed by any
G   court other than High Court. But there is, as stated by us
     hereinabove, an important inbuilt and categorical restriction on
    the State's power. It cannot direct the Public Prosecutor to
     present an appeal from an order of acquittal passed by a
     Magistrate in respect of a cognizable and non-cognizable
H   offence. In such a case the District Magistrate may under
      SUBHASH CHAND v. STATE (DELHI         211
ADMINISTRATION) [RANJANA PRAKASH DESAI, J.]
Section 378(1 )(a) direct the Public Prosecutor to file an appeal    A
to the Session Court. This appears to be the right approach
and correct interpretation of Section 378 of the Code.

      19. Mr. Malhotra is right in submitting that it is only when
Section 417 of the Criminal Procedure Code, 1898 was
                                                                     8
amended in 1955 that the complainant was given a right to
seek special leave from the High Court to file an appeal to
challenge an acquittal order. Section 417 was replaced by
Section 378 in the Code. It contained similar provision. But, Act
No.25 of 2005 brought about a major amendment in the Code.
It introduced Section 378(1)(a) which permitted the District         C
Magistrate, in any case, to 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. For the first time a provision was
introduced whereunder an appeal against an order of acquittal        D
could be filed in the Sessions Court. Such appeals were
restricted to orders passed by a Magistrate in cognizable and
non-bailable offences. Section 378(1)(b) specifically and in
clear words placed a restriction on the State's right to file such
appeals. It states that the State Government may, in any case,       E
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 Sessions Court
in revision. Thus, the State Government cannot present an            F
appeal against an order of acquittal passed by a Magistrate
in re~pect of a cognizable and non-bailable offence. We have
already noted Clause 37 of the 154th Report of the Law
Commission of India and Clause 37 of the Code of Criminal
Procedure (Amendment) Bill, 1994 which state that in order to        G
guard against the arbitrary exercise of power and to reduce
reckless acquittals Section 378 was sought to be amended to
provide appeal against an order of acquittal passed by a
Magistrate in respect of cognizable and non-bailable offence.
Thus, this step is taken by the legislature to check arbitrary and   H
    212      SUPREME COURT REPORTS                [20i3j 1 S.C.R.

A reckless acquittals. It appears that being conscious of rise in
  unmerited acquittals, in case of certain acquittals, the
  legislature has enabled the District Magistrate to direct the
  Public Prosecutor to present an appeal to the Sessions Court,
  thereby avoiding the tedious and time consuming procedure of
8 approaching the State with a proposal, getting it sanctioned and
  then filing an appeal.

        20. It is true that the State has an overall control over the
  law and order and public order of the area under its jurisdiction.
  Till Section 378 was amended by Act 25 of 2005 the State
C could prefer appeals against all acquittal orders. But the major
  amendment made in Section 378 by Act 25 of 2005 cannot be
  ignored. It has a purpose. It does not throw the concern of
  security of the community to the winds. In fact, it makes filing
  of appeals against certain types of acquittal orders described
D in Section 378(1 )(a) easier, less cumbersome and less time
  consuming. The judgments cited by Mr. Malhotra pertain to
  Section 417 of the Criminal Procedure Code, 1898 and
  Section 378 prior to its amendment by Act 25 of 2005 and will,
  therefore, have no relevance to the present case.
E
        21. In view of the above, we conclude that a complainant
  can file an application for special leave to appeal against an
  order of acquittal of any kind only to the High Court. He cannot
  file such appeal in the Sessions Court. In the instant case the
F complaint alleging offences punishable under Section 16(1)(1A)
  read with Section 7 of the PFA Act and the Rules is filed by
  complainant Shri Jaiswal, Local Health Authority through Delhi
  Administration. The appellant was acquitted by the Metropolitan
  Magistrate, Patiala House Courts, New Delhi. The complainant
  can challenge the order of acquittal by filing an application for
G special leave to appeal in the Delhi High Court and not in the
  Sessions Court. Therefore, the impugned orde~ holding that this
  case is not governed by Section 378(4) of the Code is quashed
  and set aside. In the circumstances the appeal is allowed.

H B.B.B.                                           Appeal allowed.