1990 P Cr (PLP)

ABDUL HAYEE KURESHI, CJ.

Advocates agree that, once leave is granted it should be deemed to have been granted with reference to the merits of the case. In such event, placing a case for Katcha Peshi once again would only amount to duplication of work, besides taking a risk of having a different decision from another Bench. In such circumstances, the only plausible interpretation is A that, after leave is granted to the private complainant, the matter should be proceeded with as an acquittal appeal.

2. The next point that arises, is whether, after the grant of leave, a fresh memo. of appeal should be submitted. Subsection (2) of section 417, Cr.P.C. reads as follows: "417(1) ................................................................................................................ (2) 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:"

3. The words `grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court' would call for interpretation. The' interpretation that appears to us to be reasonable is that the words `the complainant may present such an appeal to the High Court' are merely directory, and not mandatory. What is more that, even if a fresh acquittal B appeal is filed, it will only incorporate such averments as have already been raised in the application made by the complainant to set aside an acquittal. Even otherwise, the word `may' would always be construed in a liberal manner, so as to avoid any inconvenience to the parties and duplication of work.

4. We have also been reminded that, even in the Supreme Court, the practice is that, once leave is granted on a petition for special leave to appeal, then the very memo, whereby special leave is sought, is treated as an appeal. Such view could be imported in the circumstances of this and identical cases.

5. The next question that arises is, whether such acquittal appeals have to be heard by a Single Judge, or, by a D.B. The scheme of section 417, Cr.P.C. as it stands today, does not seem to envisage any difference between an acquittal appeal preferred by the State, and an acquittal appeal preferred by the complainant, in which leave is granted. In any case, on an acquittal appeal at the instance of a private complainant, an acquittal could be converted into a conviction. That being so, there is hardly any reason why such acquittal appeal should not be treated at par with other acquittal appeals by the State.

6. We, therefore, take the view that a fresh memo of acquittal appeal need not be filed after the grant of leave, and such earlier memo. may be treated as the C memo. of acquittal appeal. We further hold that acquittal appeal at the instance of a private complainant shall be heard by a D.B. N.H.Q./B-146/K Reference answered.