STATE OF KERALA vs RAJAN @ THEYILA RAJAN
- Court
- Kerala High Court
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
RD
TUESDAY, THE 3 DAY OF NOVEMBER 2026 / 12TH KARTHIKA, 1948
CRL.L.P. NO. 32 OF 2026
AGAINST THE JUDGMENT DATED 30.03.2024 IN CC NO.308 OF 2012
OF JUDICIAL MAGISTRATE OF FIRST CLASS (FOREST OFFENCES),
NEDUMANGAD
PETITIONER/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE FOREST RANGE OFFICER,
PARUTHIPPALLY FOREST RANGE, KUTTICHAL P.O,
THIRUVANANTHAPURAM, PIN - 695574
BY SR.PUBLIC PROSECUTOR SRI.SAJEEV P.K.
RESPONDENT/ACCUSED NOS.1 TO 3:
1 RAJAN @ THEYILA RAJAN
VINOD RAJ BHAVAN , TC 43/1400, PERUNNELLI, MUTTATHARA
VILLAGE, THIRUVANANTHAPURAM TALUK, PIN - 695009
2 UNNI @ JUNGLE UNNI EXPIRED
S/O.VISHWANADHAN
TC 43/1411, PUTHUVAL PUTHEN VEEDU, MUTTATHARA ,
THIRUVANANTHAPURAM TALUK, PIN - 695009
3
GOPA KUMAR, S/O.VENU GOPALAN
TC 43/1313, PUTHUVAL PUTHEN VEEDU, MUTTATHARA,
THIRUVANANTHAPURAM TALUK, PIN - 695009
R1 & R3 BY ADV.SRI.SHAJIN S.HAMEED
THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION
ON 16.10.2026, THE COURT ON 03.11.2026 PASSED THE FOLLOWING:
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A.BADHARUDEEN, J.
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rd
Dated this the 03 day of November, 2026
CR
COMMON ORDER
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
nd
3 filed objection to the petition for condonation of the delay since the 2
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
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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
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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
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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-section (1) or
sub-section (2) shall be entertained except with the leave of
the High Court.
(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.
(5) No application under sub-section (4) for the grant of
special leave to appeal from an order of acquittal shall be
entertained by the High Court after the expiry of six
months, where the complainant is a public servant, and
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sixty days in every other case, computed from the date of
that order of acquittal.
(6) If, in any case, the application under sub-section (4) for
the grant of special leave to appeal from an order of
acquittal is refused, no appeal from that order of acquittal
shall lie under sub-section (1) or under sub-section (2).”
5. In this connection, the learned Public Prosecutor has
placed reliance on three decisions of this Court in Chief Executive
Officer , Cantonment Board, Shillong v. Tenzing Gopu Lama
reported in [2008 KHC 5940] , Suku alias Paravattom Suku v.
State of Kerala and Others reported in [2014 (1) KHC 559] and
Subhash Chand v. State (Delhi Administration) reported in
[2013 KHC 4023] .
6. The learned counsel for the respondents/accused Nos.1
and 3 has placed two decisions, one rendered by a learned Single
Judge of this Court in State of Kerala v. Vayalombran Shantha
reported in [2025 KHC 1337] wherein in paragraph Nos.6 and 7, it
has been held as under:
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“6. When the learned counsel for the respondents cited the
above decision of the Division Bench of this Court, the
learned Public Prosecutor filed Crl.M.A No. 1 of 2025 to
amend the cause title of the Memorandum of Appeal so as
to change the appeal as one under Section 378 (4) Cr.P.C.
But the learned counsel for the respondents pointed out
that in the proposed amendment, the name of the
appellant is shown as "State of Kerala represented by the
Drugs Inspector, Assistant Drugs Controller Office,
Kannur, through the Public Prosecutor" and that the State
of Kerala cannot seek the special leave contemplated
under Section 378 (4)Cr.P.C. It is pointed out that the right
of the complainant to file an appeal is circumscribed by
certain conditions precedent and in this connection cited
the decision of the Hon'ble Supreme Court in Khem Singh
(D) v. State of Uttaranchal (MANU/SC/1143/2025),
wherein it is held as follows in paragraphs 8 and 8.1:
"8. Section 378 CrPC is a specific provision dealing with
appeals. Sub-section (4) of Section 378 CrPC is pertinent.
It states that if an order of acquittal is passed in any case
instituted upon a complaint and the High Court, on an
application made to it by the complainant in that behalf,
grants special leave to appeal from the order of acquittal,
the complainant may present such an appeal to the High
Court. The limitation period for seeking special leave to
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appeal is six months where the complainant is a public
servant and sixty days in every other case, computed
from the date of the order of acquittal. Sub-Section (6)
states that if, in any case, the application under sub-
section (4) for grant of special leave to appeal from an
order of acquittal is refused, no appeal from that order of
acquittal shall lie under sub-section (1) or under sub-
section (2) of Section 378 CrPC.
8.1. A reading of section 378 CrPC would clearly indicate
that in case the complainant intends to file an appeal
against the order of acquittal, his right is circumscribed
by certain conditions precedent. When an appeal is to be
preferred by a complainant, the first question is, whether
the complainant is also the victim or only an informant.
If the complainant is not a victim and the case is
instituted upon a complaint, then sub section (4) requires
that the complainant must seek special leave to appeal
from an order of acquittal from the High Court. As noted
under sub-section (6), if the application under sub section
(4) for grant of special leave to appeal from the order of
acquittal is refused, no appeal from that order of
acquittal would lie, inter alia, under sub section (1) of
Section 378 CrPC. However, if the complainant is also a
victim, he could proceed under the proviso to Section 372
CrPC, in which case the rigour of sub-section (4) of
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Section 378 CrPC, which mandates obtaining special
leave to appeal, would not arise at all, as he can prefer
an appeal as a victim as a matter of right. Thus, if a
victim who is a complainant proceeds under Section 378
CrPC, the necessity of seeking special leave to appeal
would arise but if a victim, whether he is a complainant
or not, files an appeal in terms of proviso to Section 372
CrPC, then the mandate of seeking special leave to appeal
would not arise."
7. It is well settled that the terms 'leave' and 'special
leave' under Clause 3 and Clause 4 of Section 378 Cr.P.C
are distinct and serve different purposes. In Subash
Chand v. State (Delhi Administration)
[MANU/SC/0016/2013 : 2013:INSC:15 : (2013) 2 SCC
17), it was held thus in paragraphs 17 and 19:
"17. At the outset, it must be noted that as per Section
378(3) appeals against orders of acquittal which have to
be filed in the High Court under Sections 378(1)(b) and
378(2)(b) of the Code cannot be entertained except with
the leave of the High Court. Section 378(1)(a) provides
that, in any case, if 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.
Sub-section (1)(b) of Section 378 provides that, in any
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case, the State Government may direct the Public
Prosecutor to file 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. Sub-section (2) of Section 378 refers
to orders of acquittal passed in any case investigated by
the Delhi Special Police Establishment constituted under
the Delhi Special Police Establishment Act, 1946 or by any
other agency empowered to make investigation into an
offence under any Central Act other than the Code. This
provision is similar to sub-section (1) except that here the
words "State Government" are substituted by the words
"Central Government".
xxxx xxx xxx
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
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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. Sub-section (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 sub-section (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.”
7. Another decision placed by the learned counsel for the
respondents/accused Nos.1 and 3 is State of Kerala v. Saji @
Dada Saji and Others reported in [2021 (1) KHC 740], wherein
in paragraph Nos.9 to 11 and 13, it has been held as under:
“9. Lal Singh, as decided by a Full Bench of the Punjab
& Haryana High Court was a case in which the State
Government, elected to office, had taken a decision to
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prefer an appeal under S. 378(1) against an order of
acquittal. However, before its presentation President's
Rule was imposed in the State and the Governor in
Council took a decision not to file an appeal for reason
of the minimal chance of success; as advised by
experts. The earlier decision stood reversed and the
father of one of the deceased persons approached the
High Court seeking a direction to the Public
Prosecutor to file the appeal as earlier directed by the
elected Government. The question arose as to whether
a review was permissible especially since the Cr.P.C.
did not provide for that. The learned Judges first
emphasized the distinction between decisions of the
State Government, which are purely administrative in
nature passed under the umbrella of executive powers
vested under Art. 162 of the Constitution and the
power exercised, also administrative in nature, by
virtue of that conferred by a specific provision in a
Statute. Insofar as the former, the decision was not
final and could be reviewed. But, the power exercised
under a Statute has to be examined with reference to
the provisions in the statute to discern whether there is
a degree of finality; which if found would restrict a
review unless that power is also conferred under the
Statute. The learned Judges were quite definite that
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the opinion expressed or the right of appeal enforced
by the State Government through a direction issued to
the Public Prosecutor would not in any event have the
colour of a quasi judicial order. On the above
reasoning it was found that the corner stone of S.
378(1) is the vesting of the right of appeal in the State
Government and the presentation of that appeal to the
High Court, through the medium of the Public
Prosecutor. Section 378(1) was found in essence to
have just conferred the right of appeal and also spoke
of the mode in which such right has to be enforced;
without anything stated about the procedural steps
that would culminate in the filing of the appeal itself.
It was held that the formation of opinion or the
decision by the State Government, to prefer an appeal
against the order of acquittal is purely administrative
in nature and derives its source from the general
executive power of the State under Art. 162 of the
Constitution of India. We respectfully accept the above
proposition, but that does not resolve the question as
to whether the opinion expressed by an Investigating
Officer or a Public Prosecutor who conducted the trial
on behalf of the State would suffice and also whether
there could be an expose facto sanction by the
Government itself.
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10. We have to pertinently notice that in Mohinder
Singh, the Supreme Court reversed the judgment of the
High Court on the compelling fact of there being a
direction by the Under Secretary-in-charge to the
Government, to file an appeal against all the
appellants. The High Court it was held could not have
made a roving enquiry into the various stages through
which the sanction to file an appeal was canalised.
Hence the reversal of the Division Bench judgment of
the P. & H. High Court does not necessarily interfere
with the principles broadly stated in the Full Bench
decision of the same High Court. In the above
circumstances, we have to hold that the specific
mandate in S. 378(1)(b) of the Cr.P.C. is that there
should be a direction from the State Government to
enable institution of an appeal by the Public.
Prosecutor in the High Court, against an order of
acquittal passed by any Court other than a High Court
or a Magistrate's Court.
11. We also perused the rules framed by the
Government to better perceive how the executive
Government, the rule making authority, understood
the provision for appeal. The Kerala Government Law
Officers Appointment and Conditions of Service and
Conduct of Case Rules, 1978 refers to 'Criminal
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Matters' in Chap. VIII. Rule 69(1) provides that
Government Law Officers in courts other than the
High Court shall deal with the Collector of the District
concerned in regard to criminal cases. The various
sub-rules deal with judgments in every case and the
interactions between the Government Law Officers,
the Collector, the District Superintendent of Police, the
Advocate General and eventually the Government.
Sub-rule (6) refers to cases of acquittal in murder
cases; the forum for an appeal from which, is
definitely the High Court. Sub-rules (3) and (6) of R.
69 reads as here under and the concerned Government
Law Officer, spoken of there, is obviously the one who
conducted the trial. He has to transmit the records of
the case to the Advocate General along with his
opinion and with opinion of the District
Superintendent of Police.
R.69(3). "In cases of acquittal, if the concerned
Government Law Officer and the District
Superintendent of Police concerned agree that an
appeal should be filed, either of them may make a
report to the Advocate General direct with connected
records. A copy of the report shall also be sent to the
District Collector concerned by the reporting officer.
The Advocate General shall thereupon send his opinion
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to the Government in the Home Department and await
their instructions in the matter. Whenever
Government consider it necessary to file an appeal in
any case instituted otherwise than on Police report, a
Government order as contemplated under Section
377(1) of the Criminal Procedure Code, 1973 shall also
be sent to the Advocate General along with the request
to file an appeal so that any possible objections of
incompetency may be avoided."
xxx xxx xxx
R. 69(6). "In all cases of acquittal in murder cases, the
concerned Government Law Officer shall sent to the
Advocate General as expeditiously as possible complete
records of the case with certified copies of judgments
and depositions of witnesses, his opinion and the
opinion of the District Superintendent of Police
regarding the advisability or otherwise of filing
appeals."
13. The Public Prosecutors had, from the records
available with them, showed us the opinion of the Public
Prosecutor who conducted the trial and also that of the
Investigating Officer. Both of which were in favour of
filing an appeal from the order of acquittal. The
contention raised is that they have formed such opinion
as Officers of the Government, in public interest and it
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would be akin to a direction issued by the Government.
We are unable to accept the above contention especially
looking at the Rules of Business of the Government of
Kerala. We specifically refer to Part I Rules of Business
and Rr. 11 & 12, which are extracted here under:
"11. All orders or instruments made or executed
by or on behalf of the Government of the State
shall be expressed to be made or executed in the
name of the Governor.
12. Every order or instruments of the
Government of the State shall be signed by a
Secretary, an Additional Secretary, a Joint
Secretary, a Deputy Secretary, an Under
Secretary or by such other Officer as may be
specifically empowered in that behalf and such
signature shall be deemed to be the proper
authentication of such order or instrument."
Hence any order or instrument executed by or on behalf
of the Government has to be in the name of the
Governor and the same shall be signed by the Officers
specifically referred to in R. 12 or such other Officer
specially empowered. The opinion of the Public
Prosecutor or that of the Investigating Officer fails to
satisfy the requirement of a direction by the
Government as contemplated in S. 378(1) Cr.P.C. We
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have also been shown an order where sanction was
accorded by the Government to file an appeal in a
Sessions Case; which is signed by an Under Secretary in
the name of the Governor; which is the correct
procedure.”
8. While addressing the questions, it is necessary to refer
Section 378 of the Cr.P.C. before its amendment by Act 25 of 2005
w.e.f. 21.06.2006, which reads 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), 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 2[or an order*
of acquittal passed by the Court of Session in revision.]
(2) If such an order of acquittal is passed in any case in
which the offence has been investigated by the Delhi Special
Police Establishment constituted under the Delhi Special
Police Establishment Act, 1946 (25 of 1946), or by any other
agency empowered to make investigation into an offence
under any Central Act other than this Code, the Central
Government may also direct the Public Prosecutor to
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present an appeal, subject to the provisions of Sub-section
(3), to the High Court from the order of acquittal.
(3) No appeal under Sub-section (1) or Sub-section (2) shall
be entertained except with the leave of the High Court.
(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.
(5) No application under Sub-section (4) for the grant of
special leave to appeal from an order of acquittal shall be
entertained by the High Court after the expiry of six
months, where the complainant is a public servant, and
sixty days in every other case, computed from the date of
that order of acquittal.
(6) If in any case, the application under Sub-section (4) for
the grant of special leave to appeal from an order of
acquittal is refused, no appeal from that order of acquittal
shall lie under Sub-section (1) or under Sub-section (2).”
9. Section 378 of the Cr.P.C. after amendment w.e.f.
21.06.2006 is analogous to Section 419 of the BNSS. Going by
Section 419(1)(a) of the BNSS, the District Magistrate may, in any
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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. Section 419(1)(a) of the
BNSS is subject to the provisions of sub-section (2) and sub-sections
(3) and (5). Coming to sub-section (2) of Section 419 of the BNSS,
the same deals with investigation into an offence under any Central
Act other than the Sanhita. Therefore, sub-section (2) of Section 419
of the BNSS has no application in this case. Sub-section (3) provides
that no appeal to the High Court under sub-section (1) or sub-section
(2) shall be entertained except with the leave of the High Court.
Thus, the statutory provisions are clear. That is to say, to file an
appeal, as directed by the District Magistrate to 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 is an absolute statutory right and in fact, this is a provision
not available in Section 378 of the Cr.P.C. before its amendment w.e.f.
21.06.2006 and before 21.06.2006, appeal to the High Court with
leave of the High Court alone was permissible. However, even though
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Section 378(1)(a) of the Cr.P.C. was introduced by way of amendment
w.e.f. 21.06.2006, the earlier provision contained in Section 378(1),
now incorporated in clause (b), was also retained with a rider that it
should not be an order under clause (a). Thus, as per Section 419(1)
(a) of the BNSS, which is in pari materia with Section 378(1)(a) of
the Cr.P.C., a Public Prosecutor can 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, acting on the direction of
the District Magistrate. In other situations, appeal to the High Court
with leave of the High Court alone is the remedy. Thus, in the instant
case also, if so directed by the District Magistrate, the Public
Prosecutor could very well file an appeal against the impugned
judgment of acquittal in respect of the offences punishable under
Sections 27(1)(e)(iii) and (iv) and 47C r/w 47G of the Kerala Forest
Act, 1961, which are cognizable and non-bailable offences. When an
order comes within the purview of Section 419(1)(a) of the BNSS,
Section 419(1)(b) of the BNSS would not apply, in view of specific
exclusion of cases which would fall under Section 419(1)(a) of the
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BNSS in Section 419(1)(b) of the BNSS. If so, the leave petition filed
by the State, seeking leave to appeal against the impugned judgment
of acquittal, involving cognizable and non-bailable offence is not
maintainable in view of the specific remedy provided as an absolute
right under Section 419(1)(a) of the BNSS.
10. In such view of the matter, the contention raised by the
learned counsel for the respondents that this leave petition is not
maintainable before this Court is to be accepted, where the learned
Public Prosecutor also does not dispute the legal position.
Holding so, this leave petition is dismissed with liberty to the
aggrieved person to invoke right of appeal provided under Section
419(1)(a) of the BNSS, at the earliest.
In view of the above finding, the delay petition does not require
any specific order. However, it is made clear that the period of
pendency of this leave petition before this Court from 02.07.2026 till
this date shall be excluded in counting the period of limitation.
Sd/-
A. BADHARUDEEN
JUDGE
Bb