Amendment to Section 378 CrPC (2005) is Procedural and Prospective; Appeals Against Acquittals Filed Post-June 2006 Must Be Heard by Sessions Court Without High Court's Leave
In a significant judgment dated October 6, 2026, the Bombay High Court, through Justice Ranjitsinha Raja Bhonsale, dismissed a criminal writ petition challenging the maintainability of a State appeal filed before the Sessions Court against an acquittal order passed by a Magistrate in a cognizable and non-bailable offence case. The judgment clarifies the procedural framework following the 2005 amendment to Section 378 of the Code of Criminal Procedure (CrPC), which redefined the forum of appeal against acquittals in such cases.
The case arose from a complaint registered in 2005 under Sections 353, 506(1), and 504 read with Section 34 of the Indian Penal Code (IPC). At the time of the complaint, the offence under Section 353 IPC was cognizable and bailable. However, on June 23, 2006, an amendment (Act 25 of 2005) to Section 378 CrPC came into effect, making the offence non-bailable and changing the appellate forum from the High Court to the Sessions Court for appeals against acquittals by Magistrates in cognizable and non-bailable offences.
The Judicial Magistrate acquitted the accused in October 2008. The State, acting on directions from the District Magistrate, filed an appeal in February 2009 under Section 378(1)(a) CrPC before the Sessions Court. The accused petitioners contended that since the offence was bailable at the time of commission, the appeal should have been filed before the High Court and that the Sessions Court lacked jurisdiction. They also argued that the amendment should not apply retroactively.
Rejecting these contentions, the Sessions Court dismissed the petitioners' application questioning the maintainability of the appeal. The petitioners then moved the Bombay High Court under Article 227 of the Constitution challenging this order.
In its detailed judgment, the High Court reiterated established legal principles that procedural amendments, such as the change in the forum of appeal, are prospective and do not affect substantive rights. The Court referred to authoritative precedents including the Apex Court's ruling in Maria Cristina De Souza Sodder v. Amria Zurana Pereira Pinto and multiple judgments from the Bombay and Gujarat High Courts, which affirm that the forum of appeal is procedural and may be changed by amendment without infringing vested substantive rights.
The Court held that the amendment to Section 378 CrPC is procedural and governs appeals filed on or after June 23, 2006. Thus, appeals against acquittals by Magistrates in cognizable and non-bailable offences filed post-amendment must be filed before the Sessions Court. The requirement of obtaining leave from the High Court applies only to appeals under Section 378(1)(b) and (2), which are filed before the High Court, not to appeals filed before the Sessions Court under Section 378(1)(a).
The High Court underscored that insisting on High Court's leave for appeals before the Sessions Court would lead to absurdity and defeat the legislative intent to streamline and distribute appellate workload effectively. It further observed that the District Magistrate's direction to file the appeal before the Sessions Court was valid and complied with the amended procedural law.
Consequently, the High Court dismissed the writ petition and directed the Sessions Court to dispose of the appeal expeditiously.
This judgment affirms the procedural clarity and legislative intent behind the 2005 amendment to Section 378 CrPC, confirming that the forum of appeal against acquittals in cognizable non-bailable offences lies with the Sessions Court post-amendment and that no leave of the High Court is necessary in such cases.
Bottom Line:
Criminal Procedure Code, 1973 Section 378(1)(a) as amended by Act 25 of 2005 - Amendment changing forum of appeal against acquittal from High Court to Sessions Court in cases of acquittal by Magistrate in respect of cognizable and non-bailable offences is procedural and prospective - Appeal filed after 23-6-2006 against acquittal recorded on 22-10-2008 under Section 353 IPC was maintainable before Sessions Court - No leave of High Court required for appeal under Section 378(1)(a).
Statutory provision(s):
Criminal Procedure Code, 1973 Section 378(1)(a), Section 378(1)(b), Section 378(2), Indian Penal Code Section 353, Constitution of India Article 227
Shivshankar Shripal Tiwari v. State of Maharashtra, (Bombay) : Law Finder Doc Id # 2994708
