Point of Law: Appeal against acquittal – State Appeal – Public Prosecutor without leave granted by High Court cannot file a revision petition and get over the provisions of S. 378(1)(b) and 378(3) Cr.P.C.

JUDGMENT :

SUBRAMONIUM PRASAD, J.

1. The present petition under Section 397/401 Cr.P.C is directed against the order dated 30.08.2017, passed by the Additional Session Judge/Special Judge (NDPS) (West), Tis Hazari Courts, Delhi in Criminal Appeal No. 67/2016 acquitting the accused/respondent herein and setting aside the judgment of conviction dated 05.08.2016 and order on sentence dated 02.09.2016 passed by the learned Metropolitan Magistrate-07 (West), Tis Hazari Courts, Delhi.

2. The facts, in brief, leading to the instant revision petition are as under:

a) It is the case of the prosecution that on 28.11.2006, at about 7.15 PM, the accused/respondent herein beat up the complainant, one Sandeep Dutta, and caused grievous hurt to him and had also caused damage to his Maruti car having registration No.HR-26H-4333. It is stated that the incident took place near house No. BG-6/344, Paschim Vihar. On the basis of the complaint, an FIR was lodged being FIR No.73/2007 dated 24.01.2007 registered at Police Station Paschim Vihar for offences under Sections 325 & 427 IPC. After completion of investigation, charge sheet was filed against the accused/respondent herein. Charges under Sections 325/427 IPC were framed against the accused/respondent herein, to which the respondent pleaded not guilty and claimed trial. b) In order to prove their case the prosecution examined 4 witnesses. The learned Trial Court found that the injured witness i.e. PW-1 was reliable and convicted the respondent herein for an offence under Section 325 IPC. 02.09.2016, the learned Metropolitan Magistrate sentenced the respondent herein to undergo rigorous imprisonment for six months and to pay fine of Rs.20,000/- (which was to be paid to the injured/complainant Sandeep Dutta), in default of payment of fine, the respondent was directed to undergo simple imprisonment for 15 days. The accused/respondent herein was granted benefit under Section 389(3) Cr.P.C on furnishing a personal bond in the sum of Rs.10,000/- along with one surety of the like amount.

c) Against the said order the accused/respondent herein filed an appeal before the Sessions Court. The learned Additional Session Judge held that no effort has been made on the part of the prosecution to contact independent public witnesses to join the investigation. It was found that notice under Section 160 Cr.P.C. was not served on any of the public persons. The learned Additional Session Judge held that there is nothing on record to show that after receiving the Notice under Section 160 Cr.P.C the public witnesses have refused to join investigation and the names and addresses of the public witnesses have not been mentioned by the Investigating Officer. The learned Additional Session Judge relied on the judgment of the Supreme Court in Pawan Kumar v. The Delhi Administration, 1989 CRI.L.J. 127, to hold that when there is no effort made by the Investigating Officer to contact the witnesses, even though a number of them were present, and no possible explanation is given by the prosecution for not calling independent witnesses, serious doubts are raised on the case of the prosecution. The learned Additional Sessions Judge also found that the date of incident is 28.11.2006 and FIR in the matter has been lodged on 24.01.2007 i.e. after about two months from the date of the incident. He also found that even though the MLC records that the complainant suffered grievous injuries, it is not stated that the complainant was unfit to give statement. No reason has been given by the prosecution as to why the IO had not recorded the statement of the injured/complainant on the same date. The learned Additional Session Judge also noted that the weapon of offence used in the crime was not produced in the Court. He also noted that the site plan was prepared at the instance of the complainant but the signatures of the complainant were not found on the site plan. The learned Additional Session Judge also found that the doctor who examined