TaxTMI 
TaxTMI 
2023 (4) TMI 1020
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....d the factory of the petitioner and noted that the manufacturing activities of inner tubes of rubber tyres of different sizes were done in the factory of the petitioner. It is the case of the respondent that the petitioner had wrongly claimed the benefit of the Notification bearing No.188/86 CE dated 03.03.1986 with an intention to evade payment of duty, and it is the further case of the respondent that in order to evade Central Excise Duty, the petitioner misused the exemption given under the Central Excise Act, 1944 (for short, 'the Act') and thereby evaded payment of excise duty to the tune of Rs. 13,98,261/- to the respondent-Department. It is under these circumstances, a private complaint under Section 200 Cr.PC was filed by respondent before the I Addl. Civil Judge & CJM, Mangaluru (hereinafter referred to as 'the Trial Court') as provided under Section 9A of the Act alleging that the petitioner had committed the offences punishable under Sections 9(1)(b), 9(1)(bb), 9(1)(bbb) of the Act and Rules 9(1), 173B, 173G & 173F of the Central Excise Rules, 1944 (for short, 'the Rules'), which are all non-cognizable offences. 4. The learned Magistrate after ta....
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....8. 6. Per contra, learned Counsel appearing for the respondent submits that the objection with regard to maintainability of the appeal was not raised by the petitioner before the Sessions Court. He submits that the respondent is an authority under the Act who is authorized to initiate prosecution under Section 9A of the Act, and therefore, as against the judgment of acquittal, an appeal under Section 378(2) of Cr.PC is maintainable before the Sessions Court. He submits that the petitioner who has participated in the appeal proceedings without raising any objection cannot challenge the same after having suffered an order. He also submits that even if the Sessions Court had no jurisdiction to entertain an appeal as against the judgment of acquittal, since the order of conviction passed against the order after appreciation of oral and documentary evidence by the Sessions Court, is in accordance with law, this Court in exercise of its power under Section 401 Cr.PC cannot interfere with the same. In support of his arguments, he has placed reliance on the judgments in the case of T.C.BASAPPA VS T.NAGAPPA & OTHERS - MANU/SC/0098/1954, STATE OF RAJASTHAN VS GURCHARANDAS CHADHA - MANU/SC/....
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.... (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 2 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, 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) No appeal to the High Court] under subsection (1) or sub-section (2) shall be ent....
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....on. Sub-section (6) is important. It states that if in any case the complainant's application for "special leave" under sub-section (4) is refused no appeal from the order of acquittal shall lie under sub-section (1) or under subsection (2). Thus, if "special leave" is not granted to the complainant to appeal against an order of acquittal the matter must end there. Neither the District Magistrate nor the State Government can appeal against that order of acquittal. The idea appears to be to accord quietus to the case in such a situation. 23. In view of the above, we conclude that a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court. He cannot file such appeal in the Sessions Court. In the instant case the complaint alleging offences punishable under Sections 16(1) & (1- A) read with Section 7 of the PFA Act and the Rules is filed by complainant Shri Jaiswal, Local Health Authority through Delhi Administration. The appellant was acquitted by the Metropolitan Magistrate, Patiala House Courts, New Delhi. The complainant can challenge the order of acquittal by filing an application for special leave to ....
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....s participated in its proceedings, I am of the view that the complainant be given an opportunity to prefer an appeal under Section 378(4) of the Cr.P.C." 15. In Ramesh's case supra, the Division Bench of this Court was considering the question whether the appeal against the order of acquittal passed by the Court of Magistrate in a case involving both cognizable and non-cognizable offences as well as bailable and non-bailable offences, the appeal would lie under Section 378(1)(a) or (b) of Cr.PC. The Division Bench of this Court in the light of the judgment of the Hon'ble Supreme Court in Subhash Chand's case supra, has held that Section 378(1)(b) of Cr.PC specifically leaves out the orders of acquittal passed by a Magistrate in respect of a cognizable or noncognizable offence from the control of the State Government, and therefore, in cases where the order of acquittal is passed by the Magistrate which involves both cognizable and noncognizable, bailable and non-bailable offences, the appeal would like to the Sessions Court under Section 378(1)(a) of Cr.PC and not under Section 378(1)(b) of Cr.PC. The said judgment would, therefore, not be applicable to the facts of t....