Madras High Court
Arulanandham vs Loordhu @ Kadalai on 30 November, 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.11.2016
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
Crl.R.C.(MD).Nos.2 of 2010 , 4, 23, 28, 45, 46, 135, 139, 149, 201, 233, 253, 262,
284, 303, 317, 334, 341, 397, 398, 406, 513, 538, 539, 552, 565, 621, 663,
683, 688, 767, 788, 799, 811, 815 and 825 of 2010, 119, 230, 236, 240, 255,
313, 411, 418, 437, 444, 504, 506, 512, 514, 515, 567, 596, 657, 705, 749,
776, 832 and 870 of 2011, 38, 51, 68, 69, 111, 153, 210, 243, 480, 504, 545,
552, 559, 388, 389 and 554 of 2013
and
M.P.(MD).No.1 of 2010 in Crl.R.C.(MD).No.28 of 2010
Crl.R.C.(MD).No.2 of 2010
Arulanandham .. Petitioner/
Defacto complainant
Vs.
1.Loordhu @ Kadalai
2.Das @ Devadas
3.Durairaj
4.Kulandhai
5.Benjamin
6.Royer @ Junior
7.John @ John Xavier .. Respondent 1 to 7/
Accused 1 to 7
8.State rep. by
the Sub Inspector of Police,
Paramakudi Taluk Police Station,
in Crime No.233 of 2007
Ramanathapuram District. .. 8th respondent/
Complainant
PRAYER: Criminal Revision filed under Section 401 r/w 397 of Cr.P.C. against
the judgment, dated 06.10.2009, made in S.T.C.No.421 of 2009, by the learned
Judicial Magistrate, Paramakudi.
!For appellant : Mr.R.Venkateswaran
^For respondents 1 to 7 : Mr.S.M.P.Amalan
For 8th respondent : Mr.Kandasamy,
Government Advocate
:COMMON JUDGMENT
In all these cases, the orders of acquittals recorded by the respective Judicial Magistrates are under challenge by way of criminal revisions.
2. These revisions have been admitted under the mistaken impression that as against the order of acquittal revision alone lies to this Court. In this regard, we have to refer to the proviso to Section 372 of the Code of Criminal Procedure, which was introduced by the Code of Criminal Procedure Amendment Act, 2008 with effect from 31.12.2009. As per this provision and the other provisions in Chapter 29 of the Code of Criminal Procedure, the orders under challenge in these revisions are to be challenged only by way of appeal. Since there was a doubt regarding the jurisdiction of this Court to entertain such appeals, the matter was referred to a Full Bench in S.Ganapathy v. N.Senthilvel reported in 2016(4) CTC 119, in that, the following questions were placed before the Full Bench for answering:
"1. Whether a victim of a crime, who has prosecuted an Accused by way of a Private Complaint, does not have Statutory right of Appeal against acquittal under proviso to Section 372 of the Code of Criminal Procedure?
2. Whether a Complainant, in a Private Complaint case, who is not a victim, has got the remedy to seek only leave to file Appeal under Section 378(4) of the Code of Criminal Procedure in the event of acquittal of the Accused?
3. In a Private Complaint case, if a victim does not happen to be a Complainant and in the event of acquittal, whether he has got right of Appeal under proviso to Section 372 of the Code of Criminal Procedure or he has to seek leave to file Appeal under Section 378(4) of the Code of Criminal Procedure?
4. Whether a victim in a case instituted on a police report, has a better place in the Criminal Justice Delivery System than a victim in a Private Complaint case?
5. Whether the term 'victim' as defined in Section 2(wa) of the Code of Criminal Procedure excludes a Complainant in a Private Complaint case, though he has suffered loss or injury on account of the offence committed against him? and
6. Whether the view held in the judgment of this Court in Selvaraj v. Venkatachalapathy, 2015(1) MWN (Cr.) DCC 26 (Mad.), reflects correct exposition of law or the same requires to be overruled?"
3. The Full Bench, by judgment dated 05.04.2016, answered the same in the following terms:
31. Since, subsequent to the Full Bench reference, the Supreme Court in Satya Pal Singh interpreted these provisions, we are duty bound to follow the same to the extent it binds us. With that in mind and in the light of the above legal precedents and the discussion, we answer the questions posed by the Referral Judge as follows:
"(1) A victim of the crime, who has prosecuted an Accused by way of a Private Complaint, has a Statutory right of Appeal within the limits prescribed under Section 372 of Cr.P.C.
(2) A Complainant (in a Private Complaint), who is not a victim, has a remedy and can file an Appeal in the event of acquittal of the Accused after obtaining leave to Appeal under Section 378(4) of Cr.P.C.
(3) In a Private Complaint, even if the victim is not a Complainant, he has a right to Appeal under the Proviso to Section 372 of Cr.P.C., but he has to seek leave as held by the Supreme Court in Satya Pal Singh.
(4) The term "victim" has been correctly interpreted by the Full Bench of the Delhi High Court in Ram Phal v. State & Ors., 2015(3) MWN (Cr.) 491 (FB) (Del.), and we are in agreement with the same.
(5) A victim (as defined under Section 2(wa) of the Cr.P.C.) does not cease to be a victim merely because he also happens to be a Complainant and he can avail all the rights and privileges of a victim also, and (6) The decision of the Single Judge in Selvaraj holding that the term "victim" found in Section 372 excludes a Complainant, is not legally correct and in a given case, a Complainant, who is also a victim, can avail right granted under Section 372 of Cr.P.C."
4. As held by the Full Bench, an appeal by the victim of a crime, who has prosecuted the accused, by way of a private complaint, against an order of acquittal recorded by the Magistrate shall lie only to the respective Sessions Court. It is also clear from the plain language employed in the proviso to Section 372 of the Code of Criminal Procedure. Therefore, I am of the view that these revisions, which have been admitted by this Court, need to be transferred to the respective Sessions Court and dispose of the same in accordance with law.
5. The learned counsel appearing on either side in all these revisions also conceded that the appeal only lies against the order of acquittal and these cases deserve to be transferred to the respective Sessions Court.
6. In view of the said position, all these Criminal Revision Petitions are disposed of and all these revision petitions shall stand transferred to the respective Principal Sessions Court which shall take these cases on file as criminal appeals and thereafter, either dispose of the appeals or make over the same to Additional Sessions Courts for disposal in accordance with law, after due notice of hearing to both parties. Since these revision petitions have been pending for more than 3 years, the Sessions Judges are directed to give priority for these cases and dispose of them at the earliest. Consequently, connected miscellaneous petition is closed.
7. The Registry is directed to ensure that the records of the Lower Court, if already received, shall also be forwarded to the Sessions Court along with the revision petitions.
To
1.The Judicial Magistrate, Paramakudi.
2.The Sub Inspector of Police, Paramakudi Taluk Police Station, Ramanathapuram District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai..