JUDGMENT

(Prayer: Criminal Appeals are filed under Section 378(4) of the Code of Criminal Procedure, 1973 as against the judgment dated 21.12.2018 made by the III Additional Sessions Judge, City Civil Court, Madras, in C.A.Nos.171 of 2018 and 172 of 2018.

Criminal Revision Case No.536 of 2019 is filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973, as against the judgment dated 02.01.2019 made in C.A.No.16 of 2016 by the III Additional Sessions Judge, Tiruvallur at Poonamallee dismissing the complaint by judgment dated 14.12.2015 in STC No.495 of 2012 on the file of Judicial Magistrate No.II, Ponneri.)

Common Judgment

M.M. Sundresh, J.

1. The decision rendered by the Full Bench of this Court in S.Ganapathy V. N.Senthilvel ((2016) 4 CTC 119) was doubted by the learned single Judge while dealing with Criminal Revision Case Nos.494 & 536 of 2019 and Crl.A.SR.Nos.25084 and 25112 of 2019. The doubt raised is to the maintainability of the appeal by the complainant against an order of acquittal confirmed before the Court of Sessions invoking the proviso to Section 372 of the Criminal Procedure Code. The incidental issue is on the question of leave to be obtained. As a corollary, the learned single Judge, framed some more issues as well. This reference has been sought for on the seminal question as to whether the remedy lies as against an order of acquittal passed by a Magistrate on a complaint whether it is under proviso to Section 372 of the Criminal Procedure Code or under Section 378(4) of Criminal Procedure Code. The issues framed are profitably quoted hereunder.

i. When a Magistrate acquits an accused in a case instituted upon a private complaint, like a prosecution under Section 138 of the NI Act, where does the remedy lie for the unsuccessful complainant - Whether to the Court of Session under the proviso to Section 372 Cr.P.C. or before the High Court under Section 378(4) and (5) Cr.P.C. or are there concurrent remedies available, with the right to the complainant to elect the forum of choice?

ii. If the remedy is under the proviso to Section 372 Cr.P.C., should the complainant seek special leave from the Court of Session and if so, under what provision of law?

iii. What is the period of limitation for filing an appeal against acquittal before the Court of Session under the proviso to Section 372 Cr.P.C. in a private complaint case like Section 138 of the NI Act?

iv. If the answer to Question No.i under reference is that the appeal will have to be filed under the proviso to Section 372 Cr.P.C., then, if such appeal filed by the complainant before the Court of Session is dismissed and the order of acquittal passed by the Magistrate is upheld, does the complainant have a remedy to file a revision under Section 397 read with Section 401 Cr.P.C. before the High Court or file another round of appeal against such acquittal by the Court of Session before the High Court under Section 378(4) & (5) Cr.P.C.?

v. If the complainant has the revisional remedy before the High Court under Section 397 read with Section 401 Cr.P.C., can the High Court set aside only the Appellate Court’s order or the Trial Court’s order or the orders of both the Courts below?

vi. In the event of the larger Bench holding that the complainant who has lost before the Trial Court and the Court of Session has the remedy to file a revision under Section 397 read with Section 401 Cr.P.C. before the High Court, then, after setting aside the orders, should the High Court remand the case to the Court of Session or to the Trial Court for re-trial?

vii. In the event of the law laid down by the Full Bench in S. Ganapathy (supra) being overruled, what impact would such overruling have on the cases which have been decided by the Courts of Session during the interregnum?

2. The Honourable Chief Justice, after going through the issues framed and the reasons assigned