Section 378 of CrPc-The Code of Criminal Procedure-Appeal in case of acquittal

Section 378 of CrPc-The Code of Criminal Procedure-Appeal in case of acquittal:

²[(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 thePublic 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;

(b) 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 Court [not being an order under clause (a)] ¹[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 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 Code. ³[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 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 of acquittal] passed by the Court of Session in revision.]

(3)⁴[No appeal to the High Court] under subsection (1) or subsection (2) shall be entertained except with the leave of the High 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, 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 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 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 shall lie under sub-section (1) or under subsection (2).

Cr PC (Amendment) Act, 2005 (Notes on Clauses)

In order to guard against the arbitrary exercise of power and to reduce reckless acquittals, section 378 has been 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 Session, and the District Magistrate will be authorised to direct the Public Prosecutor to file such appeals. In respect of all other cases filed on a police report, an appeal against an order of acquittal passed by any Court other than the High Court should lie only to the High Court and the authority to direct the Public Prosecutor to present an appeal shall continue to be with the State Government.

COMMENTS

(i) In an appeal against acquittal the appellate court has the undoubted power to review the entire evidence and to come to its own conclusion, but, in doing so, it should not only consider every matter on record having a bearing on the question of fact and the reasons given by the court below in support of its order of acquittal but also should express the reasons in its judgment which let it to hold that the acquittal was not justified; State of Maharashtra v. Joseph Mingel Koli, (1997) 2 Crimes 228 (Bom).

(ii) If two conclusions can be based upon the evidence on record the High Court should not disturb the finding of acquittal recorded by the trial court; State of Maharashtra v. Suresh Nivrutti Bhurare, (1997) 2 Crimes 257 (Bom).

——————–

1. Ins. by Act 45 of 1978, Sec. 30 (w.e.f.18-12-1978).

2. Subs. by Act 25 of 2005, sec. 32, for sub-section "(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 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 passed by the Court of Session in revision".

3. Subs. by Act 25 of 2005, sec. 32, for "the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3), to the High Court form the order of acquittal".

4. Subs. by Act 25 of 2005, sec. 32, for "No appeal".