J U D G M E N T

By way of this appeal, the appellant has challenged judgment and order dated 18.11.2009/25.11.2019, passed by the Court of learned Additional Sessions Judge, Solan, District Solan, Himachal Pradesh in Criminal Appeal No. 9-S/10 of 2009, titled as State of Himachal Pradesh Vs. Amar Chand, in terms whereof, learned Appellate Court while setting aside the judgment of acquittal dated 04.02.2009, passed in favour of the appellant by the Court of learned Additional Chief Judicial Magistrate, Kasauli in Criminal Case No. 183/2 of 2000, titled as State Vs. Amar Chand, convicted him for commission of offence punishable under Section 354 of the Indian Penal Code and sentenced him to undergo simple imprisonment for one year and to pay fine of Rs.10,000/- and in default of payment of fine, to further undergo simple imprisonment for one year.

2. Brief facts necessary for the adjudication of present appeal are as under:-

FIR No. 71 dated 04.11.1999 under Section 354 of the Indian Penal Code was lodged against the appellant by one Smt. Champa Devi, who alleged that on 01.11.1999, one of her four daughters, after returning from School, i.e., Primary School at Patta Mahlog was crying, who on her query, informed her that appellant had physically molested her in the fields. Pursuant to the lodging of FIR, investigation was carried out and challan was filed in the Court. As a prima facie case was found against the accused, therefore, he was tried for commission of offence punishable under Section 354 of the Indian Penal Code, as at the stage of framing of charge, the appellant pleaded not guilty. In terms of judgment dated 04.02.2009 passed by the Court of learned Additional Chief Judicial Magistrate Kasauli, District Solan, H.P., the appellant was acquitted by the learned Trial Court by holding that on the basis of the evidence led by the prosecution, it had failed to prove its case against the accused beyond the shadow of doubt. Learned Trial Court held that the statements of prosecution witnesses were contrary and further, delay in lodging the FIR was also not satisfactorily explained. This judgment was challenged by the State by way of an appeal before the Court of learned Additional Sessions Judge, Solan, District Solan, H.P. In terms of judgment dated 16.11.2009, passed by the Court of learned Sessions Judge, Solan, which has been assailed by way of this appeal, the judgment of acquittal was set aside and the appellant was convicted for commission of offence punishable under Section 354 of the Indian Penal Code.

3. Learned Counsel for the appellant has argued that the judgment in issue is per se void and not sustainable in the eyes of law for the reason that the same has been delivered by the Court which in terms of the provisions of the Code of Criminal Procedure was having no jurisdiction to entertain and adjudicate an appeal of acquittal passed by the Court of Judicial Magistrate 1st Class.

4. To substantiate his arguments, he has drawn the attention of this Court to the provisions of Section 378(1) of The Code of Criminal Procedure, which provide as under:-

“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 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.…..”

On the basis of language of said Section, learned counsel for the appellant has argued that in the case of acquittal by the Court of learned Judicial Magistrate 1st Class, where the offence is cognizab