Madras High CourtCRL RC/1191/2017dismissed with liberty

A.Ashok Kumar, 50 Years v. Kaliappan

2022-01-28Honourable Ms Justice R.N.Manjula2 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 28.01.2022

CORAM

THE HON'BLE Ms. JUSTICE R.N.MANJULA Crl.R.C.No.1191 of 2017 A.Ashok Kumar ... Petitioner/Complainant Vs.

Kaliappan ... Respondent/Accused Criminal Revision Case filed under Section 397(1) & 401 of Cr.P.C., praying to set aside the order dated 05.07.2017 passed by the learned III Additional Sessions Judge, Salem in C.A.No.40 of 2016 against the order dated 03.03.2016 passed by the learned Judicial Magistrate No.1, Salem in C.C.No.126 of 2012.

For Petitioner : M/s.L.Mouli For Respondent : Mr.S.Kalyanaraman

ORDER

This Criminal Revision Case has been preferred challenging the judgment of the learned III Additional Sessions Judge, Salem, dated 05.07.2017 in which C.A.No.40 of 2016, filed by the petitioner challenging the judgment of acquittal passed by the learned Judicial Magistrate No.I, Salem, dated 03.03.2016 passed in C.C.No.126 of 2012, was returned by stating that as per the judgment of the Hon'ble Supreme Court held in C.A.No.50 of 2013 (Subhash Chanda Vs. State (Delhi Administration), no appeal against the acquittal order of the Magistrate can be maintainable before the Sessions Court and the appeal has to be preferred only before the High Court.

2. However, the learned counsel for the petitioner challenged the above written order of the III Additional Sessions Judge, Salem, on the ground that in the earlier Full Bench decision of this Court in the case of 'S.Ganapathy Vs. N.Senthilvel' reported in '(2016) 4 CTC 119', the Sessions Court cannot return the appeal by stating that it lacks jurisdiction. But later, in the latter judgment of the Full Bench of this Court in the case of 'K.Rajalingam Vs. R.Suganthalakshmi' reported in '2020 SCC OnLine Mad 1052', the earlier judgment rendered in the case of S.Ganapathy (supra), was overruled. And now the position of law is https://hcservices.ecourts.gov.in/hcservices/

settled that the appeal against the order of acquittal passed by a Magistrate on a complaint, an appeal alone will lie only before the High Court under Section 378(4) of Cr.P.C. Hence, the learned counsel for the petitioner submitted that he may be permitted to withdraw this revision case with a liberty to file a fresh appeal before the High Court.

3. Since the remedy open to the petitioner is only by way of preferring an appeal and the confusion caused due to the conflicting judgments have now been settled by the later Full Bench Judgment of this Court, in the interest of justice, the petitioner should be allowed to withdraw this case with a liberty to file an appeal against the order of acquittal passed by the Magistrate.

In the result, this Criminal Revision Case is dismissed as withdrawn with a liberty to file an appeal. Since the certified copy of the judgment has been annexed with the appeal filed by the petitioner before the District Court, the set of papers filed by the petitioner may be returned by substituting the xerox copy attested by him.

Sd/- Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar Sni To 1.The III Additional Sessions Judge, Salem.

2.The Judicial Magistrate No.1, Salem.

3.The Deputy Registrar, Criminal Side, High Court of Madras.

+1 cc to Mr.L.Mouli, Advocate Sr.NO. 5736 Crl.R.C.No.1191 of 2017 mt(CO) A.SK(28.02.2022) https://hcservices.ecourts.gov.in/hcservices/