In a recent case, The Madras High Court has held that the appeal against the acquittal of the accused in a cheque bounce case can be filed only before the High Court under Section 378(4) of the Code of Criminal Procedure, 1973.
The decision of another full bench in S.Ganapathy V. N.Senthilvel ((2016 4 CTC 119) was declared as “Per Incuriam” by a High Court Bench comprising Justices MM Sundresh, V Bharathidasan, and N.Anand Venkatesh.
The bench observed: “As against the order of acquittal passed by a Magistrate on a complaint, an appeal will lie only before the High Court, under Section 378 (4) of the code for criminal procedure. In such cases, the complainant has to seek Special Leave under Section 378 (5) of the code of criminal procedure. The decision rendered in S.Ganapathi case is declared as a judgment per-incuriam since it has been decided without reference to the binding authority in Damodar S Prabhu and Subash Chand.”
The appeal by the complainant in S.Ganapathi was held against an order of acquittal is maintainable before the sessions court which invoked the proviso to Section 372 of the Criminal Procedure Code. A single bench challenging this view referred to a larger bench with the issue of whether the remedy lies as against the order of acquittal passed by a Magistrate on a complaint which may be under proviso to section 372 of the code of criminal procedure of under section 378(4) of the Criminal Procedure Code.
The referrals of the Supreme Court judgments by the bench were Damodar S. Prabhu V. Sayed Babalal H. ((2010) 5 Supreme court cases 663) [ Subash Chand Vs. State (Delhi Administration)] 2013 2 SCC 17 and Mallikarjun Kodagali (Dead) represented through Legal Representatives V. State of Karnataka ((2019) 2 Supreme court cases 752) and the Bench observed that the decision rendered in S. Ganapathi case is Per incuriam.
The impact of this decision on the cases decided by the Session Courts during interregnum was also clarified by The Bench.
● An appeal which was pending before this Court and furthermore, remanded to the Court of Sessions pursuant to S.Ganpathi (Supra) and the same is pending, it should be transferred back to the file of the High Court and should be considered to be pending before the respective High Court. The same effect will be given even for cases where the original appeal was filed before the Sessions Court and is moreover, pending.
● In cases where the Court of Sessions has confirmed the order of acquittal by the Magistrate and there has been a revision filed before this Court by the complainant and the same is pending, the order of the Respective Court of Sessions must be disregarded and the revision petition filed before this Court must be treated as an Appeal by virtue of Section 401 (5) of the Code of Criminal Procedure, 1973. Those petitions must be renumbered as Criminal Appeals by the respective Registry.
● In cases, where the Court of Sessions has confirmed the order of acquittal and it has not become final or it has not been acted upon by the parties and the complainant wants to challenge the same, he can do so by filing a Criminal Appeal before this Court against the order passed by the Magistrate, disregarding the order passed by the Sessions Court, within the Limitation period prescribed for filing Appeal which shall be calculated or approximated from the date on which the Court of Sessions order was made ready. In such cases, the Complainant has to seek a Special Leave under Section 378 (5) of the Code of Criminal Procedure, 1973.
● In cases where the Court of Sessions have reversed the order of acquittal which was passed by the Magistrate and convicted the accused and this order has not become final or the same has not been acted upon, the Accused has to necessarily challenge the order filing a revision petition before the Court by quoting the full Bench Judgment. After the notice is served on the complainant and the complainant enters an appearance, the same should be treated as an Appeal pending before this Court against the order of Acquittal passed by the Magistrate, by disregarding the order passed by the Sessions Court. In all those cases, the complainant must file a transpose petition and it is the duty of the Registry to convert the revision as Criminal Appeal by showing the complainant as the Appellant and the accused as the respondent. The very Memorandum of Grounds of Appeal of Criminal nature filed before the Court of Sessions will be considered as the memorandum of grounds of appeal in the renumbered Criminal Appeal.
● In all those cases where either after the remand or by means of filing, an Appeal has been finally decided by the Sessions Court and the same has not been challenged or it has been acted upon, the order passed by the Court of Sessions will be final inter-partes and it cannot be re-opened by virtue of this judgment.
● In all those cases where the order of the Court of Sessions was put to a challenge before this Court, either by the complainant or by the accused, as whatever the case may be, and final orders have been lawfully passed by this Court and it has become final inter-partes, it cannot be re-opened by the virtue of this judgment.
A concurring judgment was written by Hon. Justice Anand Venkatesh in which he had noted that 13 High Courts have held that a complainant can file an Appeal against acquittal only before the High Court under Section 378(4) of the Code of Criminal Procedure, 1973.
