Delhi District Court
Kumarpal Singh vs Ram Bharose on 21 December, 2020
IN THE COURT OF MS. NEENA BANSAL KRISHNA :
PRINCIPAL DISTRICT & SESSIONS JUDGE,
SOUTH EAST DISTRICT, SAKET COURT, NEW DELHI.
C.A. 439/2019
KUMARPAL SINGH
S/o Lt. Sh. Ramcharan
R/o H.NO.C-253, Pul Prahladpur,
New Delhi 110044.
......Appellant/Complainant
Versus
1 RAM BHAROSE
S/o Sh. Ram Prasad
2 KUMARPAL
S/o Sh. Ram Prasad
3 SMT. ANITA
D/o Sh. Ram Bharose
4 SMT. OMWATI
W/o Sh. Ram Bharose
All R/o H.NO.B-43, Transit Camp,
Govindpuri, New Delhi.
5 STATE
......Respondents/Accused
JUDGMENT
An Appeal under Section 372 read with Section 378 Cr.P.C has been filed by the appellant/complainant against the judgment dated Kumar Pal Singh Vs. Ram Bharose & Ors. Page 1 of 8 28.06.2019 vide which the Respondents have been acquitted under Section 323/379/451//509/452/506 (Part-II)/34 IPC. 2 The facts relevant for the purpose are that a complaint case was filed by the appellant against the respondents under Section 200 Cr.P.C. The respondents were summoned and charges under Section 323/379/451/509/34 IPC were framed against the respondent Anita and Respondent Omwati and Charge under Section 452/506 (Part-II)/34 IPC was framed against the Respondent Rambharose and Kunwarpal vide order dated 21.08.2017. On the basis of evidence led by both the parties, the Ld. M.M concluded that no evidence was proved against the respondents and hence, were acquitted vide judgment dated 28.06.2019. 3 Aggrieved by the said order of acquittal, the present appeal has been preferred by the complainant.
4 I have heard the arguments and have perused the record. My observations are as under:
5 The short question involved in the present case is whether a Revision is maintainable before the Sessions Court under Section 372 of Cr.P.C. against an order of acquittal in a complaint case filed by the appellant.
6 The enabling provision to appeal against an order/ judgement was Section 378 Cr.P.C. which recognized the right of the accused and the Kumar Pal Singh Vs. Ram Bharose & Ors. Page 2 of 8 Prosecution but the victim was not given any right. Proviso of Section 372 Cr.P.C was inserted by Section 29 Cr.P.C [Amendment Act 2008 (5 of 2009)] with the object of giving an opportunity to the person who is affected by the decision of the Court but who did not have any right to file any appeal under the provisions of the Code to challenge such decision by filing an appeal.
7 Prior to insertion of the proviso, appeal against inadequacy of sentence lay under Section 377 and against acquittal under Section 378 of the Code but in neither case the victim had a right to appeal though in a case instituted upon a complaint, the complainant had a right to present an appeal under sub section 4 of Section 378 of the Code. Thus, by insertion of the proviso an exception to the general rule was carved by providing the victim a right to prefer an appeal against an order of acquittal or convicting for a lesser offence or imposing of an inadequate compensation.
8 The term "victim" has been defined under Section 2(wa) inserted by Code by Act No.5 of 2009 and reads as under :
"Victim" means a person who has suffered any loss or injury caused by reason of the Act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir.
9 The Bombay High Court in Ganesh Bandu Badgujar Vs. Kumar Pal Singh Vs. Ram Bharose & Ors. Page 3 of 8 Mangalabai Ashokbhai Patel Vs. State of Maharashtra Crl. Revision No.100/2013 decided on 09.12.2013 filed against an acquittal order took a view that a complainant who has filed a private complaint which results in an acquittal, is not entitled to take the benefit of the proviso of Section 372 Cr.P.C.
10 In Subhash Chand Vs. State (Delhi Administration) (2013) 2 SCC 17 in a complaint case under Section 7 of Prevention of Food Adulteration Act the accused was acquitted and an appeal was filed before the Sessions Court by the State under Section 378 (1) (a) of Cr.P.C. The matter went up to the Supreme Court. The Hon'ble Supreme Court held that a complainant can file an application for leave to appeal against an order of acquittal of any kind only to the High Court. He cannot file said appeal in the Sessions Court. Thus, a complainant can challenge the order of acquittal by filing an application for special leave to appeal in High Court and not in the Sessions Court.
11 The Supreme Court observed:
"Thus, whether a case is a case instituted on a complaint depends on the legal provisions relating to the offence involved therein. But once it is a case instituted on a complaint and an order of acquittal is passed, whether the offence is bailable or non-bailable, cognizable or non- cognizable, the complainant can file an application under Section 378(4) for special leave to appeal against it in the High Court. Section 378(4) places no restriction on the complainant...."Kumar Pal Singh Vs. Ram Bharose & Ors. Page 4 of 8
No distinction was made if the complainant was a private person or a public servant.
12 Hon'ble Supreme Court in its judgment in Satyapal Singh Vs. State of M.P. & Ors. [2015 (4) MLJ (Crl.) 219 (SC)], in para 11, observed as follows:-
"Thus, from a reading of the above-said legal position laid down by this Court in the cases referred to supra, it is abundantly clear that the proviso to Section 372 of Cr.P.C. must be read along with its main enactment i.e., Section 372 itself and together with Sub-Section (3) to Section 378 of Cr.P.C. otherwise the substantive provision of Section 372 of Cr.P.C. will be rendered nugatory, as it clearly states that no appeal shall lie from any judgment or order of a Criminal Court except as provided by Cr.P.C"
13 To conclude on the legal issue, it was held thus:
"Whether the appellant herein, being the father of the deceased, has statutory right to prefer an appeal to the High Court against the order of acquittal under proviso to Section 372 of Cr.P.C. without obtaining the leave of the High Court as required under SubSection (3) to Section 378 of Cr.P.C.", this Court is of the view that the right of questioning the correctness of the judgment and order of acquittal by preferring an appeal to the High Court is conferred upon the victim including the legal heir and others, as defined under Section 2(wa) of Cr.P.C., under proviso to Section 372, but only after obtaining the leave of the High Court as required under sub-Section (3) to Section 378 of Cr.P.C...."
14 Full Bench of Gujarat High Court in Bhavuben Dineshbhai Makwana Vs. State of Gujarat 2013 Crl. L.J. 4225 answering the reference about maintainability of appeal before Sessions against an order Kumar Pal Singh Vs. Ram Bharose & Ors. Page 5 of 8 of acquittal held that if the victim also happens to be the complainant and the appeal is against acquittal, he is required to take leave as provided under Section 378 of Cr.P.C. But, if he is not a complainant, then he is not required to apply for or obtain any leave. It held thus:
In our opinion, the correct law, as emerging from the Scheme of the Code, would be that the right of a victim to prefer an appeal (on limited grounds enumerated in proviso to Section 372 of the Code) is a separate and independent statutory right and is not dependent either upon or is subservient to right of appeal of the State. In other words, both the victim and the State/prosecution can file appeals independently without being dependent on the exercise of the right by the other. Moreover, from the act or omission for which the accused has been charged, there may be more than one victim and the loss suffered by the victims may vary from one victim to the other victims. Therefore, each of such victims will have separate right of appeal and in such appeals, the grievance of each of the appellant may be different. For instance, in an 57 act of arson when a joint property of different persons has been set on fire, the loss suffered by each of the co-sharers may be different. In such a case, each co-sharer has a separate right of appeal and such right of one does not depend even on the filing of such appeal by another victim. If the "victim" happens to be the complainant, he being the complainant is required to take leave as there is no consequential amendment of Section 378 of the Code. If the victim also happens to be the complainant and the appeal is against acquittal, he is required to take leave as provided in Section 378 of the Criminal Procedure Code but if he is not the complainant, he is not required to apply for or obtain any leave. For the appeal against inadequacy of compensation or punishment on a lesser offence, no leave is necessary at the instance of a victim, whether he is the complainant or not."
15 Similarly, the Kerala High Court in Omana Jose Vs. State of Kerala ILR 2014 (2) Kerala 669 wherein it was held that the complainant in a case under Section 138 of the Negotiable Instruments Act cannot challenge the order of acquittal before the Sessions Court under the proviso to Section 372 of the Cr.P.C. and his remedy is only to Kumar Pal Singh Vs. Ram Bharose & Ors. Page 6 of 8 file an appeal to the High Court with special leave under Section 378 (4) Cr.P.C.
16 Ld. Counsel on behalf of the appellant has referred to Full Bench Judgment or Allahabad High Court in Manoj Kumar Singh Vs. State of U.P & Ors. 2016 Law Suit (All) 3429 to argue that a victim includes a complainant and therefore, the appeal has rightly been filed by the appellant. The judgment of Manoj Kumar also reiterates and reaffirms the proposition of law as discussed above. The facts in the said case were that an FIR under Section 304B/34 IPC along with Section 498 A and Section 3 & 4 Dowry Prohibition Act was registered against the mother- in-law, jeth and husband for having caused the death of Mamta Singh. It was explained in the said case that the father of the deceased would be covered within the definition of victim being the legal heir of the deceased and thus, had a right to appeal under Section 372 of the Code. The right to appeal was thus, given to the legal heir of the deceased victim who was not the complainant as provided under Section 200 and the case had been registered and charge sheet filed for and on behalf of the State. In the said judgment as well a reference was made to Section 378(4) which confers a right on the complainant to file an appeal in case a complaint case filed by him, is dismissed.
17 The Hon'ble Delhi High Court in Bhajanpura Cooperative Urban Kumar Pal Singh Vs. Ram Bharose & Ors. Page 7 of 8 Thrift & Credit Society Ltd. Vs. Sushil Kumar 2014 SCC OnLine Delhi 4507 referred to the above mentioned judgments and concluded that the complainant whose complaint under Section 138 Negotiable Instruments Act ends in acquittal has a remedy under Section 378(4) Cr.P.C to seek leave for appeal before the High Court of Delhi and cannot resort to Section 372 Cr.P.C.
18 In the present case the Appellant is the complainant whose complaint has ended up in acquittal. In view of the law discussed above, the present appeal is not maintainable under Section 372 Cr.P.C. The appellant is at liberty to file the application for leave to appeal in terms of Section 378 (4) Cr.P.C before the Hon'ble High Court of Delhi. 19 The present Appeal is thus, not maintainable and is hereby dismissed. A copy of this order be sent to the Ld. Trial Court along with the Trial Court Record.
Digitally signed Appeal file be consigned to record room. NEENA by NEENA BANSAL BANSAL KRISHNA Date: KRISHNA 2020.12.22 16:14:36 +0530 ANNOUNCED in the open Court (Neena Bansal Krishna) today on 21st day of December, 2020 Principal District & Sessions Judge South East, Saket Courts New Delhi. Kumar Pal Singh Vs. Ram Bharose & Ors. Page 8 of 8