IMPORTANT POINT
General principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal culled out.

JUDGMENT

Dr. Arijit Pasayat, J.—

1. Challenge in this appeal is by the State of Rajasthan questioning the judgment of a learned Single Judge of the Rajasthan High Court, Jodhpur dismissing the appeal filed in terms of Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 (in short the ‘Code’). The learned Special Judge (Prevention of Corruption Act) had directed acquittal of the respondent who faced trial for alleged commission of offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (in short the ‘Act’). The trial Court found that the accusations have not been established. The same was challenged in appeal before the High Court which dismissed the same.

2. The Stand of the State was that the presumption under Section 20 of the Act has not been kept in view. It is pointed out that money was recovered from the almirah of the respondent. It is to be noted that the trial Court acquitted the respondent only on the ground that the prosecution version was not credible.

3. Learned counsel for the respondent supported the judgment impugned in the appeal.

4. There were two complainants; one of them was not examined and the other did not support the prosecution version. The independent witness also did not support the prosecution. PW-11 the then Superintendent of Police stated in his statement that on 22.11.1996 the complainant Ram Pal submitted a complaint Ex.P-21 before him and about this report Motbirs were informed. Then the complainant admitted the report to be correct before Motbir witnesses. Strangely none of the Motbir witnesses corroborated this statement of this witness. A witness stated that this is correct to say that he did not hear any conversation between the complainant and the accused and he also did not see any transaction. Narpat Singh (PW- 6), Chunni Lal (PW-7) and Lal Singh (PW-9) did not speak in Court that the Motbir witnesses searched the sitting room of the accused and in course of search by them currency notes smeared with powder were recovered from the almirah. In cross examination by learned public prosecutor, Motbir witness stated that currency notes smeared with powder were recovered from the almirah. But he had not stated that the sitting room was searched by him or other Motbir witness. No evidence was there to show how the currency notes smeared with powder reached in the almirah. The evidence was to the effect that the amount was demanded by the accused which was paid but instead of accepting it directly the accused asked the person concerned to put the currency notes in the almirah. It is the accepted case of the prosecution that the money was recovered from the open almirah.

5. In view of rival submissions of the parties, we think it proper to consider and clarify the legal position first. Chapter XXIX (Sections 372-394) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the present Code”) deals with appeals. Section 372 expressly declares that no appeal shall lie from any judgment or order of a criminal court except as provided by the Code or by any other law for the time being in force. Section 373 provides for filing of appeals in certain cases. Section 374 allows appeals from convictions. Section 375 bars appeals in cases where the accused pleads guilty. Likewise, no appeal is maintainable in petty cases (Section 376). Section 377 permits appeals by the State for enhancement of sentence. Section 378 confers power on the State to present an appeal to the High Court from an order of acquittal. The said section is material and may be quoted in extenso:

“378. Appeal in case of acquittal.—(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