JUDGMENT

(per Sri S.K. Mishra, A.C.J.)

This Criminal Appeal has been preferred under the proviso to Section 372 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code', for brevity), wherein it is provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.

2. The appellant in this case, being the father of the deceased, has a right to maintain an appeal against the judgment, whereby the learned Trial Court has convicted the accused under Section 304 of the Indian Penal Code, 1860 (hereinafter referred to as ‘the Penal Code', for brevity). The grievance of the appellant is that he should have been convicted u/s 302 of the Penal Code. Hence, the appeal is maintainable at the instance of the appellant.

3. The other question that arises is whether the leave is necessary for instituting an appeal against such order of conviction for a lesser offence. In this regard examination of Section 378 of the Code is necessary, which reads as follows :-

“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),—

(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal 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 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, 5 [the Central Government may, subject to the provisions of sub-section (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) 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 to the High Court] under sub-section (1) or sub-section (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 sub-section (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 sub-section (2)."

4. Thus, a plain reading of the aforesaid provision leaves no doubt in the mind of the Court that in order to institute an appeal against any order passed by the Court acquitting the accused, or convicting for a lesser offence, or lesser sentence etc., by the State, either at the instance of the Distr