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CR.A/176/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 176 of 2011
=========================================================
SATARBHAI
ADAMBHAI VORA - Appellant(s)
Versus
STATE
OF GUJARAT & 51 - Opponent(s)
=========================================================
Appearance
:
MR
YV BRAHMBHATT for
Appellant(s) : 1,
PUBLIC PROSECUTOR for Opponent(s) : 1,
HL
PATEL ADVOCATES for Opponent(s) : 2 - 14,16 - 30,32 - 52.
None for
Opponent(s) : 15,
31,
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CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 09/05/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
1. Heard
learned advocate Mr. Brahmbhatt for the appellant.
2. This
is an appeal apparently preferred while invoking provisions of
section 378(2)(b) and section 378(4) of the Cr.P.C. Section 378 of
the Cr.P.C. runs as under:
“378.
Appeal in case of acquittal.
(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 the Public Prosecutor to
present an appeal to the Court of Session from an original 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 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].
(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 subsection (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. 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 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 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).”
2.1 When
attention of learned advocate Mr. Brahmbhatt was drawn as to how
section 378(2)(b) can be invoked by the appellant who is admittedly
only a witness to the incident or how section 378(4) would be
attracted when the case was instituted not upon complaint and when
the appellant himself is not a complainant, Mr. Brahmbhatt indicated
that this is an appeal under section 372 of the Cr.P.C. We indicated
that there is not a whisper about the said provision in the memo of
appeal nor even a whisper about the appellant being the victim of the
incident. Mr. Brahmbhatt indicated that the appellant may be
permitted to amend the memo of appeal as incorrect provisions of law
is sought to be invoked by mistake.
2.2 On
a point being asked as to whether there is any provision in the
Cr.P.C. permitting amendment of pleadings, Mr. Brahmbhatt had no
answer and then he relied upon invoking section 482 of the Cr.P.C.
for granting amendment.
2.3 Section
482 of Cr.P.C. provides for inherent powers of the High Court to
amend such orders as may be necessary to give effect to any order
under this Code (which is not the case here) or to prevent abuse of
the process of any Court (which again is not the case here) or
otherwise, to secure the ends of justice. Mr. Brahmbhatt relies on
the last words of the said provision. We are afraid whether such
inherent powers can be used by this Court to grant an amendment of
memo of appeal which would change the basic complexion of the appeal
on the question of locus of the appellant, particularly, in absence
of any averment to the effect that the appellant relied upon section
372 of the Cr.P.C. and section 378 was mentioned only by a mistake.
3. Mr.
Brahmbhatt proposes to bring an application for amendment after
making appropriate research on the law. It is indicated by Mr.
Brahmbhatt that the appellant, in his deposition, has deposed about
damage suffered by him, but there is not a whisper about it in the
memo of appeal. This result can be attributed not to the appellant,
but to the learned advocate who drafted the memo of appeal, whereas
the sufferer would be the appellant if at all the learned advocate
does not advise his client properly.
4. Learned
advocate Mr. Brahmbhatt, at this stage, extends apology and seeks
time. Hence, S.O. to 15.6.2011.
(A.L.
DAVE, J)
(BANKIM.N.MEHTA,
J)
shekhar/-
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