JUDGMENT
A. Pasayat, J.
1. In spite of service of notice the opposite parties have not entered appearance.
2. A point regarding maintainability of the application has been raised. It is stated that the present application is by the complainant against the order of acquittal passed by the appellate authority, and therefore criminal revision in terms of Section 401 of the Code of Criminal Procedure, 1973 (in short, ‘the Code’) ought to have been filed.
3. Factual aspects need not be noted in detail except what is absolutely necessary for disposal of the point regarding maintainability. Opposite parties (hereinafter referred to as ‘the accused’) faced trial in the Court of Additional Munsif-cum-Judicial Magistrate, first class, Cuttack in ICC No. 45 of 1988 (Trial No. 204 of 1P91) on the basis of a complaint lodged by the petitioner. They were found guilty and were sentenced to undergo various sentences. In appeal the learned First Additional Sessions Judge, Cuttack acquitted the accused opposite parties holding them not guilty.
4. The present application has been filed under Section 378(4) of the Code for grant of leave to appeal. The question is whether a revision in terms of Section 397 read with Section 401 of the Code is to be filed or application praying for leave is to be considered in terms of Section 378(4) of the Code. For resolution of the controversy, reference to Section 378(4) is necessary. Same reads as follows :
"378. Appeal in case of acquittal, (1) to (3) xx xx xx
(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. The question is whether the expression “such an order of acquittal’ as appearing in Sub- section (4) refers to only original order of trial or includes also the appellate order. In this context, reference to Sub- section (1) of Section 378 is also necessary. Same reads as follows :
“(1) Save as otherwise provided in Sub-section (2) and subject to the provisions of Sub-section. (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.” A combined reading of Sub-section (1) and Sub- section (4) makes it clear that the expression ‘such an order of acquittal,’ as appearing in Sub- section ‘4) refers to an order of acquittal mentioned in Sub- section (1), which order of acquittal shall include the original as well as the appellate order of acquittal. Just as the State has been given a right of appeal from an original or appellate order of acquittal, in a given case a private party has also been given a right to appeal from the same kind of order of acquittal. The only limitation placed by the Legislature on the right conferred upon the private party in such a case is the limitation in the form of special leave to be obtained in appealing against the order of acquittal. Except this limitation there-is no other distinction between the right of appeal conferred upon a private party in specified cases. The expression as referred to above refers to ‘an order of acquittal’ passed by any Court other than a High Court either in exercise of original jurisdiction or appellate jurisdiction. To restrict the benefit only to original order and appellate order of acquittal would lead denial of a forum to the private prosecutor and is never the intention of the Legislature.
6. It is to be noted that Sub- section (4) of Section 378 is almost in pan’ materia to Sub- section (3) of Section 417 of the Code of Criminal Procedure, 1898 (in short, ‘the old Code’). Construing the similar provision in Section 417 of the old Code, Gujarat High Court and the Mysore High Court (as the Court was then) have taken similar view in Mahammadmiya Kalumiya v. Majidkhan Dildarkhan and Anr.: 1972 Crl. LJ 1409: and in Chairman, Village Panchayath v. Thimmasetty : AIR 1956 My. 62.
7. It is to be noted that prior to the amendment of corresponding old Section 417 by Act 26 of 1955, no one other than the State Government could prefer an appeal against an order of acquittal in any case. When the accused has been improperly acquitted in a prosecution for a grave crime, it is beyond controversy that State should be primarily concerned, for the fact that a guilty person escapes the retribution of justice even where materials warranting his conviction are adequate is one which affects public interest and welfare of the State. Law has taken precaution that no frivolous or vexatious appeal is filed at the instance of a private prosecutor.
8. In view of analysis made above, the inevitable conclusion is that the application for grant of leave under Section 378(4) of the Code is maintainable.
Put up for final disposal on 12-1-1996,