# Smt. Girja Devi & Ors v. State Of U.P. & Anr - **Citation:** (2016) 8 ILRA 365 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-08-31 - **Bench:** Pramod Kumar Srivastava - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-girja-devi-ors-v-state-of-u-p-anr-44257 - **Pages:** 4 ## Headnote Criminal law -Section 482 CrPC - Criminal Appeal - Order of acquittal - Case instituted upon complaint - Section 378(4) CrPC - Special leave to appeal - Without grant of leave - Proceedings illegal and without jurisdiction - Subhash Chand Vs. State (Delhi Admin) - Proceedings stayed. The proceedings of criminal Complaint Case No. 2133 of 2014 (Smit. Prema Devi Vs. Smt. Girja Devi & others) was carried out for prosecution on four accused persons (present applicants) for offences under sections 500 and 501 IPC. After affording opportunity to prosecution and defence side, the Judicial Magistrate, Court No.- 10, Jhansi had passed judgment dated 12.2.2015 by which accused persons were acquitted of the charges.(Para 2) Against said judgment dated 12.2.2015 passed by the trial court, a Criminal Appeal No. 23 of 2015 (Smt. Prema Devi Vs. State of UP & others) was preferred by complainant of the original case. In this appeal the respondents (present applicants) had moved application 16-B for quashing the proceedings of the said appeal. After affording opportunity of hearing to the parties, the Additional Sessions Judge, Court No.-10, Jhansi has rejected the said Application No. 16-B and fixed the date for hearing of the appeal. Against said order of Sessions Court, present application has been preferred by accused of original case.(Para 3) Held: (Para:-8,9,13) 1.This is settled legal position that without any formal grant of leave to appeal by High Court, the proceedings of appeal on behalf of complainant cannot be carried out against order of acquittal in case instituted upon complaint. If no special leave is granted to complainant, he cannot appeal against order of acquittal in complaint case. 2.Therefore the arguments of learned counsel for the applicants are apparently acceptable. 3.Till further orders, proceedings of Criminal Appeal No. 23 of 2015, Smt. Prema Devi Vs. State of UP & others, under section 372 CrPC, police station Prem Nagar, District Jhansi pending in the court of Addl. Sessions Judge, Jhansi shall remain stayed. Case Law discussed: 366 INDIAN LAW REPORTS ALLAHABAD SERIES 1.Subhash Chand Vs. State (Delhi Admin), (2013) 2 SCC 17 - para 7 ## Text 8 All. Smt. Girja Devi & Ors. Vs State Of U.P. & Anr. 365 (2016) 8 ILRA 365 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 31.08.2016 BEFORE THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J. Application U/S 482 No.- 23654 Of 2016 Smt. Girja Devi & Ors. ...Applicants Versus State Of U.P. & Anr. ...Opposite Parties Counsel for the Applicants: Divya Ojha Counsel for the Opposite Parties: G.A. Criminal law -Section 482 CrPC - Criminal Appeal - Order of acquittal - Case instituted upon complaint - Section 378(4) CrPC - Special leave to appeal - Without grant of leave - Proceedings illegal and without jurisdiction - Subhash Chand Vs. State (Delhi Admin) - Proceedings stayed. The proceedings of criminal Complaint Case No. 2133 of 2014 (Smit. Prema Devi Vs. Smt. Girja Devi & others) was carried out for prosecution on four accused persons (present applicants) for offences under sections 500 and 501 IPC. After affording opportunity to prosecution and defence side, the Judicial Magistrate, Court No.- 10, Jhansi had passed judgment dated 12.2.2015 by which accused persons were acquitted of the charges.(Para 2) Against said judgment dated 12.2.2015 passed by the trial court, a Criminal Appeal No. 23 of 2015 (Smt. Prema Devi Vs. State of UP & others) was preferred by complainant of the original case. In this appeal the respondents (present applicants) had moved application 16-B for quashing the proceedings of the said appeal. After affording opportunity of hearing to the parties, the Additional Sessions Judge, Court No.-10, Jhansi has rejected the said Application No. 16-B and fixed the date for hearing of the appeal. Against said order of Sessions Court, present application has been preferred by accused of original case.(Para 3) Held: (Para:-8,9,13) 1.This is settled legal position that without any formal grant of leave to appeal by High Court, the proceedings of appeal on behalf of complainant cannot be carried out against order of acquittal in case instituted upon complaint. If no special leave is granted to complainant, he cannot appeal against order of acquittal in complaint case. 2.Therefore the arguments of learned counsel for the applicants are apparently acceptable. 3.Till further orders, proceedings of Criminal Appeal No. 23 of 2015, Smt. Prema Devi Vs. State of UP & others, under section 372 CrPC, police station Prem Nagar, District Jhansi pending in the court of Addl. Sessions Judge, Jhansi shall remain stayed. Case Law discussed: 366 INDIAN LAW REPORTS ALLAHABAD SERIES 1.Subhash Chand Vs. State (Delhi Admin), (2013) 2 SCC 17 - para 7 (Delivered by Hon'ble Pramod Kumar Srivastava, J.) 1. Present Ms. Divya Ojha for applicants and AGA for the OP No.-1 State. Heard and perused the records. 2. The proceedings of criminal Complaint Case No. 2133 of 2014 (Smit. Prema Devi Vs. Smt. Girja Devi & others) was carried out for prosecution on four accused persons (present applicants) for offences under sections 500 and 501 IPC. After affording opportunity to prosecution and defence side, the Judicial Magistrate, Court No.-10, Jhansi had passed judgment dated 12.2.2015 by which accused persons were acquitted of the charges. 3. Against said judgment dated 12.2.2015 passed by the trial court, a Criminal Appeal No. 23 of 2015 (Smt. Prema Devi Vs. State of UP & others) was preferred by complainant of the original case. In this appeal the respondents (present applicants) had moved application 16-B for quashing the proceedings of the said appeal. After affording opportunity of hearing to the parties, the Additional Sessions Judge, Court No.-10, Jhansi has rejected the said Application No. 16-B and fixed the date for hearing of the appeal. Against said order of Sessions Court, present application has been preferred by accused of original case. 4. Learned counsel for the applicants contended that impugned order dated 27.6.2016 is erroneous because under section 378(4) CrPC, appeal against acquittal can be admitted only after grant of leave to special appeal by this court. She submitted that since this mandatory formality has not been complied with in proceedings of Criminal Appeal no. 23 of 2015 so the proceedings before lower sessions court is illegal and without jurisdiction. She cited case of Subhash Chand Vs. State (Delhi Admin), (2013) 2 SCC 17. 5. These contentions were refuted by the learned AGA and who contended that such matter has been referred by Single Judge of this Court to Division Bench for consideration. Since there appears direct judgment of Hon'ble Apex Court, therefore, the contentions of learned AGA are not acceptable. 6. Section 378(4) of CrPC reads as under: 378 (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." 7. Subhash Chand Vs. State (Delhi Admin), (2013) 2 SCC 17 the Apex Court had held : 8 All. Smt. Girja Devi & Ors. Vs State Of U.P. & Anr. 367 "19. Sub-section (4) of Section 378 makes provision for appeal against an order of acquittal passed in a case instituted upon complaint. It states that in such case if the complainant makes an application to the High Court and the High Court grants special leave to appeal, the complainant may present such an appeal to the High Court. This sub-section speaks of "special leave" as against sub-section (3) relating to other appeals which speaks of "leave". Thus, the complainant's appeal against an order of acquittal is a category by itself. The complainant could be a private person or a public servant. This is evident from sub-section (5) which refers to application filed for "special leave" by the complainant. It grants six months' period of limitation to a complainant who is a public servant and sixty days in every other case for filing application. Subsection (6) is important. It states that if in any case the complainant's application for "special leave" under sub-section (4) is refused no appeal from the order of acquittal shall lie under subsection (1) or under sub-section (2). Thus, if "special leave" is not granted to the complainant to appeal against an order of acquittal the matter must end there. Neither the District Magistrate nor the State Government can appeal against that order of acquittal. The idea appears to be to accord quietus to the case in such a situation." 8. This is settled legal position that without any formal grant of leave to appeal by High Court, the proceedings of appeal on behalf of complainant cannot be carried out against order of acquittal in case instituted upon complaint. If no special leave is granted to complainant, he cannot appeal against order of acquittal in complaint case. 9. Therefore the arguments of learned counsel for the applicants are apparently acceptable. 10. Notice on behalf of State has been accepted by the AGA. Issue notice to opposite party no.-2. 11. The respondents may file counter-affidavit within three weeks. After it rejoinder affidavit may be filed within two weeks. 12. List thereafter. 13. Till further orders, proceedings of Criminal Appeal No. 23 of 2015, Smt. Prema Devi Vs. State of UP & others, under section 372 CrPC, police station Prem Nagar, District Jhansi pending in the court of Addl. Sessions Judge, Jhansi shall remain stayed. ---------- 368 INDIAN LAW REPORTS ALLAHABAD SERIES (2016) 8 ILRA 368 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 30.08.2016 BEFORE THE HON'BLE SUDHIR AGARWAL, J. THE HON'BLE DR. KAUSHAL JAYENDRA THAKER, J. Central Excise Appeal No.- 214 Of 2016 Commissioner, Service Tax Commissionerate, Noida ...Appellant Versus M/S Atrenta India Pvt. Ltd. Noida ...Respondent Counsel for the Appellant: Krishna Agarawal Counsel for the Respondent: Central Excise Act, 1944 - Cenvat Credit - Refund - Period prior to registration - Service tax registration - Condition precedent - Notification 5/2006-C.E. (N.T.) - Rule 5 Cenvat Credit Rules 2004 - Input service used in providing output service exported - Refund cannot be denied - Appeal dismissed This appeal has arisen from judgment and order dated 15.12.2015 passed by Customs, Excise & Service Tax Appellate Tribunal, Allahabad (hereinafter referred to as "Tribunal") in Excise Appeal Nos. 52520 and 53049 of 2014 whereby Tribunal has rejected appeal of Revenue against order passed by Commissioner allowing refund to Assessee.(Para 1) Learned Counsel for appellant contended that Assessee was registered with Department on 20.12.2011 but refund was claimed for the period earlier thereto, i.e April 2011 to September 2011, and no refund therefore, could have been claimed when Assessee was not registered(Para 2) Held (Paras:- 15,20-23) 1.We do not find anything in the aforesaid rules which requireregistration as a condition or eligibility to claim refund. Even Form-A no where suggests that any such condition must be observed. 2.The judgement of Madras High Court therefore, was clearly rendered in the facts of that case. Be that as it may, we are inclined to accept the view taken by Karnataka High Court considering the fact that in the rules of refund of Cenvat credit, we do not find any such requirement of registration as a condition precedent or elegibility condition for claiming refund. 3.Moreover, if refund is otherwise admissible to a party by a Tax Department, interpretation to the Statute which justify refund to the party must be given for the reason that State or Tax Department cannot be expected to retain Revenue which legally is refundable to the party. It should not be allowed to be retained when legally Revenue is not entitled to such money.