Bombay High Court
Sau. Geeta Bapurao Kapse vs Anil Vithalrao Kadu on 4 February, 2013
Author: M.L. Tahaliyani
Bench: M.L. Tahaliyani
Judgment 1 appr170.12.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APPR) NO.170 OF 2012
IN
CRIMINAL REVISION APPLICATION NO. OF 2012.
Sau. Geeta Bapurao Kapse,
aged about 54 years, Occu.: Household,
Sant Tukaram Ward, Hinganghat,
Tah. Hinganghat, Distt. Wardha.
ig .... APPLICANT.
.....VERSUS.....
Anil Vithalrao Kadu,
aged about 51 years, Occu.: Service,
R/o. Ram Mandir Ward, Hinganghat,
Tah. Hinganghat, Dist. Wardha.
.... RESPONDENT.
_____________________________________________________________________
Smt. Geeta R. Tiwari, Advocate (appointed) for Applicant.
Mr Amol Mardikar, Advocate for Respondent.
_____________________________________________________________________
CORAM : M.L. TAHALIYANI, J.
DATED : FEBRUARY 04, 2013.
ORAL JUDGMENT :
1. Heard finally by consent of the parties.
2. The applicant was original complainant in Criminal (Summary) Complaint Case No.232 of 2009 decided by Judicial Magistrate First Class, Wardha. Non-applicant Anil Kadu was original accused No.2. Non-applicant ::: Downloaded on - 09/06/2013 19:37:53 ::: Judgment 2 appr170.12.odt and original accused No.1 Sanjay Varbhe were convicted by the learned Magistrate by his judgment and order dated 12th October, 2011. The said judgment and order was challenged by the non-applicant and original accused No.1 before the Sessions Court by filing two independent appeals. The non-
applicant was appellant in Criminal Appeal No. 104 of 2011 and the original accused No.1 was appellant in Criminal Appeal No. 106 of 2011. Both the appeals were heard together. The appeal of the original accused No.1 was dismissed and appeal of non-applicant / original accused No.2 was allowed and the non-applicant was directed to be acquitted.
3. This is an application for condonation of delay in filing revision application against the said order of acquittal. During the course of hearing of the application for condonation of delay for filing revision application it was pointed out by the Court that Criminal Appeal under Section 378(4) of the Code of Criminal Procedure is maintainable against the order of acquittal passed by the Sessions Court. The learned counsel for the applicant was not sure about the same.
4. The question which needs determination is as to whether the words "such an order of acquittal" appearing in Section 378(4) of the Code of Criminal Procedure include the order of acquittal passed by the appellate Court in a case instituted upon a complaint.
5. In my considered opinion, "such an order of acquittal" cannot be interpreted to mean an order passed by the trial Court only. It includes the ::: Downloaded on - 09/06/2013 19:37:53 ::: Judgment 3 appr170.12.odt order of acquittal passed by the Sessions Court in an appeal. I subscribe the view expressed by the learned single Judge of Gujarat High Court in the case reported at AIR 1969 GUJARAT 342 (Sankalchand Varchhaji Vs. Khengaram Vardhaji). I am also in agreement with the view expressed by the single Judge of the same High Court in the judgment reported at 1972 CRI.L.J. 1409 (Mahammadmiya Kalumiya Vs. Dildarkhan). This view also gets support from the judgment of the Karnataka High Court reported at 2010 CRI.L.J. 2687 = 2010 CRI.L.J. 4755 (K.H. Ganesh Rao Vs. H. Gopal).
5. In view of what has been stated by me herein above, the applicant is allowed to convert the criminal revision application into criminal appeal. The applicant is at liberty to file an application for condonation of delay in filing appeal, if necessary.
The present application for condonation of delay stands disposed of accordingly.
JUDGE.
RRaut..
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