1. State sought leave to appeal against an acquittal for forest offences, raising questions on maintainability under the Bharatiya Nagarik Suraksha Sanhita (BNSS). (Para 1 , 2 )
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2026 Supreme(Online)(Ker) 68007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. Badharudeen, J
STATE OF KERALA – Appellant
Versus
RAJAN @ THEYILA RAJAN – Respondent
Crl.L.P. 32/2026
Important Points
For acquittals in cognizable and non-bailable offences, the remedy is an appeal to the Court of Session under Section 419(1)(a) BNSS. Such cases are expressly excluded from the State's right to seek leave to appeal in the High Court under Section 419(1)(b) of the BNSS.
Subject
Criminal Law - Criminal Procedure & Appeals
Act Referred
Kerala Forest Act, 1961: S.27(1)(e)(iii), S.27(1)(e)(iv), S.47C, S.47G
Bharatiya Nagarik Suraksha Sanhita, 2023: S.419(1)(a)
Code of Criminal Procedure: S.173(1), S.378(1), S.372, S.377(1)
Constitution of India: Art.162
Bharatiya Nagarik Suraksha Sanhita, 2023: S.419(1)(a)
Code of Criminal Procedure: S.173(1), S.378(1), S.372, S.377(1)
Constitution of India: Art.162
Headnote
(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 419 - Appeal against acquittal - Maintainability of leave petition - In cases where an order of acquittal is passed by a Magistrate in respect of a cognizable and non-bailable offence, the District Magistrate may direct the Public Prosecutor to present an appeal to the Court of Session under Section 419(1)(a). Where such a remedy is available, the State Government cannot seek leave to appeal to the High Court under Section 419(1)(b), as the latter specifically excludes cases falling under clause (a) (Paras 9)
(B) Criminal Procedure - Distinction between 'leave' and 'special leave' - Leave under Section 419(3) of the BNSS (formerly Section 378(3) Cr.P.C.) relates to appeals by the State, whereas 'special leave' under Section 419(4) (formerly Section 378(4) Cr.P.C.) is the mandatory requirement for a complainant in a case instituted upon a complaint to appeal against acquittal (Paras 4, 6).
Facts of the case:
The State filed a criminal leave petition seeking leave to appeal against a judgment of acquittal involving offences under the Forest Act. The respondents challenged the maintainability of the petition, contending that the case was a complaint case and that the appeal should have been filed by the complainant rather than the State, or alternatively, that it was not maintainable in the High Court given the nature of the offences.
Findings of Court:
The court observed that the offences charged were cognizable and non-bailable. Under the provisions of the BNSS, the statutory remedy for an acquittal of a cognizable and non-bailable offence is an appeal to the Court of Session upon the direction of the District Magistrate.
Issues: Whether a leave petition filed by the State before the High Court under Section 419(1)(b) of the BNSS is maintainable when the offences are cognizable and non-bailable, thereby bringing the case within the ambit of Section 419(1)(a).
Ratio Decidendi: The court ruled that Section 419(1)(b) of the BNSS explicitly excludes cases that fall under Section 419(1)(a). Since the offences in question were cognizable and non-bailable, the absolute statutory right to appeal lies with the Court of Session under the direction of the District Magistrate. Consequently, the leave petition to the High Court is not maintainable.
Result: Leave petition dismissed with liberty to the aggrieved person to invoke the right of appeal provided under Section 419(1)(a) of the BNSS, with the period of pendency of the leave petition to be excluded for limitation purposes.
(B) Criminal Procedure - Distinction between 'leave' and 'special leave' - Leave under Section 419(3) of the BNSS (formerly Section 378(3) Cr.P.C.) relates to appeals by the State, whereas 'special leave' under Section 419(4) (formerly Section 378(4) Cr.P.C.) is the mandatory requirement for a complainant in a case instituted upon a complaint to appeal against acquittal (Paras 4, 6).
Facts of the case:
The State filed a criminal leave petition seeking leave to appeal against a judgment of acquittal involving offences under the Forest Act. The respondents challenged the maintainability of the petition, contending that the case was a complaint case and that the appeal should have been filed by the complainant rather than the State, or alternatively, that it was not maintainable in the High Court given the nature of the offences.
Findings of Court:
The court observed that the offences charged were cognizable and non-bailable. Under the provisions of the BNSS, the statutory remedy for an acquittal of a cognizable and non-bailable offence is an appeal to the Court of Session upon the direction of the District Magistrate.
Issues: Whether a leave petition filed by the State before the High Court under Section 419(1)(b) of the BNSS is maintainable when the offences are cognizable and non-bailable, thereby bringing the case within the ambit of Section 419(1)(a).
Ratio Decidendi: The court ruled that Section 419(1)(b) of the BNSS explicitly excludes cases that fall under Section 419(1)(a). Since the offences in question were cognizable and non-bailable, the absolute statutory right to appeal lies with the Court of Session under the direction of the District Magistrate. Consequently, the leave petition to the High Court is not maintainable.
Result: Leave petition dismissed with liberty to the aggrieved person to invoke the right of appeal provided under Section 419(1)(a) of the BNSS, with the period of pendency of the leave petition to be excluded for limitation purposes.
Legal Category Hierarchy
Advocates:
For the Appellants/Petitioners: Sajeev P.K.
For the Respondents: Shajin S. Hameed
For the Appellants/Petitioners: Sajeev P.K.
For the Respondents: Shajin S. Hameed
Table of Contents
2. State argued appeal was maintainable under BNSS, whereas respondents contended the case was a complaint case required to be filed by the complainant before the Sessions Court. (Para 2 , 3 )
3. The court examined Section 419 of the BNSS and found that for cognizable and non-bailable offences, specific appeal routes are provided, necessitating returns if the wrong forum is invoked. (Para 4 )
4. Does the requirement for 'special leave' under Section 419(4) of the BNSS apply to the State when instituting appeals?
No. Section 419(4) concerning 'special leave' specifically relates to cases instituted upon a complaint where the complainant seeks to appeal. It does not govern appeals directed by the District Magistrate or State Government under sub-sections (1) or (2). (Para 4 , 6 )
COMMON ORDER
1.This Criminal Leave Petition has been filed seeking leave to institute appeal against the judgment in C.C.No.308/2012 on the files of the Judicial First Class Magistrate Court for the trial of Forest Offences, Nedumangad, whereby the respondents herein, who are accused Nos.1 to 3 were acquitted after trial on finding that they did not commit the offences punishable under Sections 27(1)(e)(iii)(iv) and 47C r/w 47G of the Kerala Forest Act, 1961 .
2. The learned counsel for the respondents/accused Nos.1 and 3 filed objection to the petition for condonation of the delay since the 2nd respondent/accused No.2 is no more, and also raised a question of law as to the maintainability of this leave petition before this Court on two grounds. The first ground raised is that this is a case filed by the Forest Range Officer, Paruthippally Forest Range as the representative of the State arising from O.R.No.14/2010 of & Paruthippally Forest Range Office and therefore, this case is to be categorized as a complaint case and not a case originated based on the police report. Secondly, it is submitted that, in order to sustain this appeal before this Court, as provided under Section 419(1)(b) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, 'the BNSS' hereinafter), the right to file the appeal is that of the State Government. At the same time, when the same is a complaint case, the appeal should have been filed by the complainant. Here, the appeal has been filed by the State.
3. Whereas, it is submitted by the learned Public Prosecutor that, in the instant case, cognizance was taken by the learned Magistrate acting on the report filed in the O.R., akin to a final report under Section 173(1) and (2) of the Code of Criminal Procedure (for short, 'the Cr.P.C.' hereinafter) and therefore, the same would not fall under the category of complaint case. According to the learned Public Prosecutor, in view of the matter, the judgment of acquittal challenged herein can be assailed before the Sessions Court resorting to Section 419(1)(a) of the BNSS. According to him, if at all this appeal is to be maintainable before this Court, then the mandate & under Section 419(3) of the BNSS, requiring leave of this Court, would also become necessary. In this connection, it is necessary to decide whether the leave petition is liable to be granted or the appeal is liable to be returned, granting liberty to the complainant to file an appeal before the Sessions Court against the impugned judgment.
4. In this regard, extraction of Section 419 of the BNSS is necessary, which is extracted as under:
“419. (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 a case in which the offence has been investigated by any agency empowered to & make investigation into an offence under any Central Act other than this Sanhita, 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-sec
