No HC Leave Required Under Section 378(3) CrPC To Appeal Acquittal Before Sessions Court: Bombay High Court

The Bombay High Court has held that an appeal against acquittal filed before the Sessions Court under Section 378(1)(a) of the Code of Criminal Procedure, 1973, does not require leave of the High Court under Section 378(3). The Court observed that the amendment to Section 378 changed only the procedural forum for filing an appeal and did not affect the substantive right of appeal.

Justice Ranjitsinha Raja Bhonsale was hearing a criminal writ petition filed by three accused challenging an order of the Sessions Court, Pune, which had rejected their application seeking dismissal of the State's appeal against their acquittal as not maintainable.

The original complaint was lodged on August 2, 2005, for offences under Sections 353, 506(1) and 504 read with Section 34 of the Indian Penal Code. At that time, the offence under Section 353 IPC was cognizable and bailable. However, an amendment to Section 378 CrPC made an appeal against acquittal by a Magistrate in a cognizable and non-bailable offence maintainable before the Sessions Court, on the direction of the District Magistrate. The Judicial Magistrate First Class, Pune, acquitted the accused on October 22, 2008. The State filed an appeal before the Sessions Court.

The accused challenged the maintainability of the appeal, contending that the offence was bailable when committed and that the appeal ought to have been filed before the High Court. The State opposed the petition, submitting that the amendment had changed only the procedure and forum for filing an appeal.

The Court noted that the intention of the amendment is to make available two forums for the litigant and to ensure that only one Court is not burdened with the hearing of the Appeals against the acquittal.

… the High Court being the highest Court of the State is not to be approached in all matters where the acquittal can be effectively questioned and addressed in a Court of Sessions, which is superior to that of the Court of the Magistrate,” the Court remarked.

The Court referred to various earlier decisions, including State of Maharashtra v. Hanmant Prabhakar Waidande, and noted that the amendment to Section 378(1)(a) applied prospectively and that appeals against acquittal filed after June 23, 2006, in cases involving cognizable and non-bailable offences were required to be filed before the Sessions Court.

The Court emphasised that the forum of appeal is a matter of procedural law and that no litigant has a vested right to choose the forum. The amendment did not take away the substantive right of appeal, and the accused could raise all available contentions before the Sessions Court.

“No litigant has any vested right as regards procedural law so as to choose the forum of appeal. The Amendment Act only changes the forum and does not disturb or take away any substantive right of appeal. The amendment only makes a change in the procedural law,” the Court observed.

Rejecting the argument that leave under Section 378 was required, the Court explained that the provision expressly concerns appeals to the High Court under Section 378(1) or Section 378(2). Since an appeal under Section 378(1)(a) lies before the Sessions Court, the requirement of leave from the High Court does not apply.

“Clause (b) of sub-section (1) of Section 378 clearly excludes the order which is appealable under clause (a) of sub section (1) of Section 378… It cannot be the intention of the legislature, while bringing in the Amendment Act that, for an appeal to be filed before the Sessions Court, leave of the High Court of the State would be required. The said interpretation if accepted would lead to an absurdity,” the Court remarked.

Finding that the District Magistrate had issued the necessary direction for filing the appeal, the Court held that no case was made out to interfere with the Sessions Court's order. It dismissed the writ petition and requested the Additional Sessions Judge, Pune, to dispose of the criminal appeal expeditiously.

Case Title: Shivshankar Shripal Tiwari v. State of Maharashtra [Criminal Writ Petition No. 341 of 2012]