Jharkhand High Court
Mossabha Khatoon vs The State Of Jharkhand & Ors ... ... Opp. ... on 1 March, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Subhash Chand
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 71 of 2010
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Mossabha Khatoon ... ... ... Appellant
Versus
The State of Jharkhand & Ors ... ... Opp. Parties
With
Cr. M.P. No. 97 of 2010
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Payal Suman ... ... ... Appellant
Versus
The State of Jharkhand & Ors ... ... Opp. Parties
With
Cr. M.P. No. 1363 of 2010
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Prayag Ram ... ... ... Appellant
Versus
The State of Jharkhand & Anr ... ... Opp. Parties
With
Cr. M.P. No. 71 of 2011
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Khusubudin Ansari ... ... ... Appellant
Versus
The State of Jharkhand & Anr ... ... Opp. Parties
With
Cr. M.P. No. 420 of 2012
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Baleshwar Pandey ... ... ... Appellant
Versus
The State of Jharkhand & Anr ... ... Opp. Parties
With
Cr. M.P. No. 585 of 2013
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Ajay Kumar Singh ... ... ... Appellant
Versus
The State of Jharkhand & Ors ... ... Opp. Parties
With
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Cr. M.P. No. 2149 of 2017
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Poonam Devi ... ... ... Appellant
Versus
The State of Jharkhand & Ors ... ... Opp. Parties
With
Cr. M.P. No. 2891 of 2017
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Rampati devi ... ... ... Appellant
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The State of Jharkhand & Ors ... ... Opp. Parties
With
Cr. M.P. No. 3260 of 2017
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Kavita Kumari ... ... ... Appellant
Versus
The State of Jharkhand & Ors ... ... Opp. Parties
With
Cr. M.P. No. 3602 of 2017
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Pinki Devi ... ... ... Appellant
Versus
The State of Jharkhand & Ors ... ... Opp. Parties
With
Acq. App. No. 2 of 2018
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Birendra Kumar ... ... ... Appellant
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The State of Jharkhand & Anr ... ... Opp. Parties
With
Cr. M.P. No. 790 of 2018
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Satyanarayan Jain ... ... ... Appellant
Versus
The State of Jharkhand & Ors ... ... Opp. Parties
With
Cr. M.P. No. 1294 of 2018
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Birendra Kumar ... ... ... Appellant
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The State of Jharkhand ... ... Opp. Party
With
Cr. M.P. No. 1381 of 2018
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Nikhat Parveen ... ... ... Appellant
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The State of Jharkhand ... ... Opp. Parties
With
Cr. M.P. No. 1389 of 2018
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Kumari Supriya Roy ... ... ... Appellant
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The State of Jharkhand ... ... Opp. Parties
With
Cr. M.P. No. 1429 of 2018
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Jitu Pal alias Jitu Paul ... ... ... Appellant
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The State of Jharkhand ... ... Opp. Parties
With
Cr. M.P. No. 1455 of 2018
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Amar Kumar Jaiswal ... ... ... Appellant
Versus
The State of Jharkhand ... ... Opp. Parties
With
Cr. M.P. No. 1752 of 2018
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Suresh Sah ... ... ... Appellant
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The State of Jharkhand ... ... Opp. Parties
With
Cr. M.P. No. 1997 of 2018
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4
Sanjay Kumar Gupta ... ... ... Appellant
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The State of Jharkhand ... ... Opp. Parties
With
Cr. M.P. No. 2053 of 2018
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Deepak Kumar Sinha ... ... ... Appellant
Versus
The State of Jharkhand ... ... Opp. Parties
With
Cr. M.P. No. 2256 of 2018
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Peda Kalika Murthy Yerapotina ... ... Appellant
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The State of Jharkhand ... ... Opp. Parties
With
Cr. M.P. No. 2321 of 2018
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Anup Kumar ... ... ... Appellant
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The State of Jharkhand ... ... Opp. Parties
With
Cr. M.P. No. 2744 of 2018
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Sujit Kumar Samanta ... ... ... Appellant
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The State of Jharkhand ... ... Opp. Parties
With
Cr. M.P. No. 3204 of 2018
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Md. Injamamul ... ... ... Appellant
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The State of Jharkhand ... ... Opp. Parties
With
Cr. M.P. No. 3226 of 2018
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Purnima Devi ... ... ... Appellant
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Versus
The State of Jharkhand ... ... Opp. Parties
With
Cr. M.P. No. 3230 of 2018
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Niranjan Singh ... ... ... Appellant
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The State of Jharkhand & Ors ... ... Opp. Parties
With
Cr. M.P. No. 3296 of 2018
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Sanjay Kumar ... ... ... Appellant
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The State of Jharkhand ... ... Opp. Parties
With
Cr. M.P. No. 3386 of 2018
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Hira Prasad ... ... ... Appellant
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The State of Jharkhand ... ... Opp. Parties
With
Cr. M.P. No. 3539 of 2018
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Om Prakash Sah ... ... ... Appellant
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The State of Jharkhand ... ... Opp. Parties
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Petitioner : Mr. A.K. Kashyap Sr. Advocate
Mr. Indrajit Sinha, Advocate
Mr. K.K. Singh, Advocate
Mr. Kripa Shankar Nanda, Advocate
Mr. K.K. Pandey, Advocate
Mr. Ranjan Kumar Singh, Advocate
Mr. Suraj Singh, Advocate
Mr. Sanjay Kumar Pandey, Advocate
Mr. Ranjan Kumar Tiwary, Advocate
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Ms. Prachi Pradipti, Advocate
[Cr.M.P. No. 790/18]
For the State/O.P. : Mr. Sanjay Kumar Srivastava, APP
Mr. Vishwanath Ray, Spl. P.P.
Mrs. Sweta Singh, APP
Mr. Sanat Kumar Jha, APP
Mr. Jitendra Pandey, APP
Mr. P.K. Chatterjee, APP
Mrs. Vandana Bharti, APP
Mr. Indrajit Sinha, Advocate
[Cr.M.P. 1389/18]
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C.A.V. on 28/02/2023 Pronounced on 01/03/2023
Per Sujit Narayan Prasad, J.:
All Cr. Misc. Petitions have been filed under Sections 378 (4) of the Code of Criminal Procedure seeking leave to file appeal against the order/judgment of acquittal passed by the trial Court.
2. Issue of maintainability of the instant applications has been raised.
3. Learned counsel for the petitioner(s)-complainant(s) has submitted that in view of law laid down by Full Bench of this Court in Tuklal Yadav Vs. The State of Jharkhand & Ors [2018 SCC OnLine Jhar 1193], the instant matter seeking leave to file appeal under Section 378(4) of the Code of Criminal Procedure will be maintainable.
4. On the other hand, learned counsel appearing for the Opp. Parties have submitted that the instant applications are not fit to be entertained by this Court as 7 the law laid down by Full Bench of this Court in Tuklal Yadav (supra) will be said to be over-ruled having the judgment having been passed by Hon'ble Apex Court in Joseph Stephen & Ors Vs. Santhanasamy & Ors [(2022) SCC OnLine SC 90] in which the judgment rendered in Mallikarjun Kodagali (dead) represented through legal representatives Vs. State of Karnataka & Ors [(2019) 2 SCC 752] has been taken into consideration and as such there is no requirement to get leave of this Court as required to be granted under Section 378(4) Cr.P.C.
5. In response thereto, learned counsel for the petitioners have submitted that the issue fell for consideration before the Hon'ble Apex Court in Joseph Stephen (supra) and Mallikarjun Kodagali (dead) is not the lis herein rather it has been decided on totally different issue.
6. This Court after having considered the submissions advanced by learned counsel for the parties is required to consider as to whether the judgment rendered by Hon'ble Apex Court in the case of Joseph Stephen (supra) and Mallikarjun Kodagali (supra) will be said to have prevailed over the judgment rendered by Full Bench of this Court in Tuklal Yadav (supra)?
7. This Court in order to examine the same is now proceeding to examine the case laws laid down by Full 8 Bench of this Court in Tuklal Yadav (supra) vis-à-vis Joseph Stephen (supra) and Mallikarjun Kodagali (dead) [Supra].
8. The subject matter of consideration in Mallikarjun Kodagali (dead) [Supra] is the victims of crime and their rights and the same has been tested on the basis of provision as has been available under Sections 372 Cr.P.C. and 378(4) Cr.P.C.
The Hon'ble Apex Court while considering the said issue at paragraph 76 held that the language of the proviso to Section 372 CrPC is quite clear, particularly when it is contrasted with the language of Section 378(4) CrPC. The text of this provision is quite clear and it is confined to an order of acquittal passed in a case instituted upon a complaint. The word "complaint" has been defined in Section 2(d) CrPC and refers to any allegation made orally or in writing to a Magistrate. This has nothing to do with the lodging or the registration of an FIR, and therefore it is not at all necessary to consider the effect of a victim being the complainant as far as the proviso to Section 372 CrPC is concerned.
It is, thus, evident that the Hon'ble Apex Court in the said judgment has considered the implication of Section 372 Cr.P.C. However, Hon'ble Mr. Justice Deepak Gupta, as the then was, partly concurring and party dissenting 9 with the judgment, has given his view at paragraph 95 that the right of the victim to file an appeal is not taken away or in any manner weakened only because he has to seek leave to appeal. If Sections 378(3), 378(4) and 372 CrPC are read together, it is clear that the victim is also required to apply for leave to appeal before his appeal can be entertained.
It is, thus, evident that the consideration has been given in the judgment rendered by Hon'ble Apex Court regarding the victim's right holding therein that the scheme of Code of Criminal Procedure by insertion of the proviso to Section 372 read with Section 378(4) Cr.P.C goes to suggest that due consideration has been given so far rights of victims are concerned and as such said judgment cannot be said to be over-ruled the proposition laid down by Full Bench of this Court in Tuklal Yadav (supra).
9. The Hon'ble Apex Court in Joseph Stephen (supra) at paragraph 18 framed three issues for consideration. For ready reference, the same is reproduced hereunder as:
18. Having heard the learned counsel for the respective parties, the following questions arise for the consideration of this Court:
i) Whether the High Court in exercise of the revisional jurisdiction under Section 401 Cr.P.C. is justified in setting aside the order of acquittal and convicting the accused by converting the finding of acquittal into one of conviction?;
ii) In a case where the victim has a right of appeal against the order of acquittal, now as provided under Section 372 Cr.P.C and the victim has not availed such a remedy and has not 10 preferred the appeal, whether the revision application is required to be entertained at the instance of a party/victim instead of preferring an appeal?; and
iii) While exercising the powers under sub-section (5) of Section 401 Cr.P.C. treating the revision application as petition of appeal and deal with the same accordingly, the High Court is required to pass a judicial order?
The Second issue which is of relevance herein is that if a case where the victim has a right of appeal against the order of acquittal, now as provided under Section 372 Cr.P.C and the victim has not availed such a remedy and has not preferred the appeal, whether the revision application is required to be entertained at the instance of a party/victim instead of preferring an appeal.
Thus, the aforesaid issue in the context as to whether even though the provision has been made after inserting the proviso to Section 372 Cr.P.C giving a forum to a victim to file an appeal the revision application is required to be entertained.
The Hon'ble Apex Court while answering the aforesaid issue has been pleased to observe at paragraph 22 that it cannot be disputed that now after the amendment in Section 372 Cr.P.C. after 2009 and insertion of proviso to Section 372 Cr.P.C., a victim has a statutory right of appeal against the order of acquittal. Therefore, no revision shall be entertained at the instance of the victim against the order of acquittal in a case where no appeal is 11 preferred and the victim is to be relegated to file an appeal. Even the same would be in the interest of the victim himself/herself as while exercising the revisional jurisdiction, the scope would be very limited, however, while exercising the appellate jurisdiction, the appellate Court would have a wider jurisdiction than the revisional jurisdiction. Similarly, in a case where an order of acquittal is passed in any case instituted upon complaint, the complainant (other than victim) can prefer an appeal against the order of acquittal as provided under sub-section (4) of Section 378 Cr.P.C., subject to the grant of special leave to appeal by the High Court.
For ready reference, paragraph 22 is quoted hereunder as:
22. It cannot be disputed that now after the amendment in Section 372 Cr.P.C. after 2009 and insertion of proviso to Section 372 Cr.P.C., a victim has a statutory right of appeal against the order of acquittal. Therefore, no revision shall be entertained at the instance of the victim against the order of acquittal in a case where no appeal is preferred and the victim is to be relegated to file an appeal. Even the same would be in the interest of the victim himself/herself as while exercising the revisional jurisdiction, the scope would be very limited, however, while exercising the appellate jurisdiction, the appellate Court would have a wider jurisdiction than the revisional jurisdiction. Similarly, in a case where an order of acquittal is passed in any case instituted upon complaint, the complainant (other than victim) can prefer an appeal against the order of acquittal as provided under sub-section (4) of Section 378 Cr.P.C., subject to the grant of special leave to appeal by the High Court.12
Further, the Hon'ble Apex Court at paragraph 23 has been observed by making reference of judgment rendered in Mallikarjun Kodagali (supra) that so far as the victim is concerned, the victim has not to pray for grant of special leave to appeal, as the victim has a statutory right of appeal under Section 372 proviso and the proviso to Section 372 does not stipulate any condition of obtaining special leave to appeal like subsection (4) of Section 378 Cr.P.C. in the case of a complainant and in a case where an order of acquittal is passed in any case instituted upon complaint. The Hon'ble Apex Court therefore, has held that two forums are available i.e., (i).Proviso to Section 372 Cr.P.C and (ii).Section 378(4) Cr.P.C.
For ready reference, paragraph 23 of the judgment is quoted as under:
"23. As observed by this Court in the case of Mallikarjun Kodagali (supra), so far as the victim is concerned, the victim has not to pray for grant of special leave to appeal, as the victim has a statutory right of appeal under Section 372 proviso and the proviso to Section 372 does not stipulate any condition of obtaining special leave to appeal like subsection (4) of Section 378 Cr.P.C. in the case of a complainant and in a case where an order of acquittal is passed in any case instituted upon complaint. The right provided to the victim to prefer an appeal against the order of acquittal is an absolute right. Therefore, so far as issue no. 2 is concerned, namely, in a case where the victim and/or the complainant, as the case may be, has not preferred and/or availed the remedy of appeal against the order of acquittal as provided under Section 372 Cr.P.C. or Section 378(4), as the case may be, the 13 revision application against the order of acquittal at the instance of the victim or the complainant, as the case may be, shall not be entertained and the victim or the complainant, as the case may be, shall be relegated to prefer the appeal as provided under Section 372 or Section 378(4), as the case may be. Issue no. 2 is therefore answered accordingly."
10. This Court, after taking into consideration the judgment rendered in Joseph Stephen (supra) vis-à-vis the issue involved in the present case, is of the considered view that the issue of maintainability of the appeal to be filed before this Court after seeking leave as required to be taken under Section 378(4) of the Code of Criminal Procedure was not the subject matter of lis therein. As such the argument which has been advanced on behalf of learned counsel for the Opp. Parties that after the judgment having been rendered in Joseph Stephen (supra) the judgment rendered by Full Bench of this Court in Tuklal Yadav (supra) will be said to be over-ruled has no force.
11. This Court after having considered the argument advanced on behalf of the parties and after negating the argument advanced on behalf of Opp. Parties about the over-riding effect of judgment rendered in Joseph Stephen (supra) over the judgment rendered by Full Bench of this Court in Tuklal Yadav (supra) is of the considered view that the judgment rendered by Full Bench of this Court still holds good.
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12. It is settled position of law that so long as the law propounded by the larger Bench of Court is being reversed by the Hon'ble Apex Court by laying down a law having its binding effect under Article 141 of the Constitution of India the judicial discipline warrants to follow the law propounded by the larger Coram of this Court.
The Hon'ble Apex Court in the judgment rendered in Tribhuvandas Purshottamdas Thakur v. Ratilal Motilal Patel [AIR 1968 SC 372] while dealing with a case in which a Judge of the High Court had failed to follow the earlier judgment of a larger Bench of the same court observed as under:
"The judgment of the Full Bench of the Gujarat High Court was binding upon Raju, J., If the learned Judge was of the view that the decision of Bhagwati, J., in Pinjare Karimbhai's case [1962 (3) Guj LR 529] and of Macleod, C.J., in Haridas's case (AIR 1922 Bom 149(2) : 23 Bom LR 802) did not lay down the correct law or rule of practice, it was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it. Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by Courts of coordinate authority or of superior authority."
Likewise in Lily Thomas v. Union of India, reported in (2000) 6 SCC 224, the Hon'ble Supreme Court, reiterated the principle that rulings of Larger Bench should be followed.
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13. Accordingly, the law laid down by the Full Bench of this Court in Tuklal Yadav (supra) since still holds good as per the discussions made hereinabove, therefore, the petitions filed for seeking leave to file an appeal under Sections 378(4), according to our considered view is held to be maintainable.
14. Another issue has been raised that there are cases where the victims and complainants are not the same person.
Since law has already been laid down in the case of Tuklal Yadav (supra) and as such said aspect of the matter will be considered individually regarding status of the victim/complainant.
15. With the consent of learned counsel for the parties, list these matters for hearing on merit on 02.03.2023.
I Agree (Sujit Narayan Prasad, J.)
(Subhash Chand, J.) (Subhash Chand, J.)
Alankar/-
N.A.F.R.