Patna High Court - Orders
Ragini Devi vs The State Of Bihar on 4 March, 2024
Author: Ashutosh Kumar
Bench: Ashutosh Kumar, A. Abhishek Reddy
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (U/S) No.7 of 2019
Arising Out of PS. Case No.-2010 Year-2004 Thana- MUZFFARPUR COMPLAINT CASE
District- Muzaffarpur
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Ragini Devi, Wife of Binod Kumar Singh, Daughter of Deo nandan
Chaudhary Resident of Village- Bisunpur mandal, P.S. Kudhani, District-
Muzaffarpur, Presently reside at Mohalla- Fardogola Sir Ganesh Dutt Nagar,
P.S. Sadar, District- Muzaffarpur.
... ... Appellant/s
Versus
1. The State of Bihar
2. Vinod Kumar Singh, son of Lachchandeo Singh, R/O Quarter No. 37, Flat
No. 4, Safali Road Old Cable Town Tin Plate Chowk, Tata Jamshedpur.
3. Lachchandeo Singh, Son of Late Ramdhari Singh, Resident of village-
Chakrashul, P.O. Nandlalpur, P.S. and District- Vaishali Pin -844113.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur, Amicus Curiae
Ms. Surya Nilambari, Amicus Curiae
Mr. Nachiketa Jha, Advocate
For the Respondent/s : Mr. Bipin Kumar, APP
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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE A. ABHISHEK REDDY
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
13 04-03-2024Heard Mr. Ajay Kumar Thakur, learned Advocate and Ms. Surya Nilambari as Amicus and Mr. Bipin Kumar, learned APP for the State.
2. The appellant/ complainant had filed a case under Sections 498-A, 494, 406 and 420/34 of the IPC against the accused persons, who were convicted and sentenced by the Trial court, which in this case was the Patna High Court CR.APP(U/S) No.7 of 2019(13) dt.04-03-2024 2/22 Magisterial Court.
3. The accused persons preferred an appeal before the appellate court, which is the Sessions Court, where they were convicted.
4. The appellant/ complainant preferred a revision petition before the High Court but the Bench hearing the revision petition, exercising its powers under Section 401 Cr.P.C., directed the revision to be converted into one under Section 378(4) Cr.P.C. The leave to appeal was granted and the case was heard under Section 378(4) by the learned Single Judge, who vide his referral order found that the conversion of the case from revision to appeal was incorrect as it would be in the nature of a second appeal.
5. The reasoning given by the learned Single Judge is that the proviso to Section 372 Cr.P.C. gives a right to a victim to prefer an appeal against any order passed by a court, acquitting the accused; or convicting him for a lesser offence; or imposing inadequate Patna High Court CR.APP(U/S) No.7 of 2019(13) dt.04-03-2024 3/22 compensation and that such appeal would lie to the court to which the appeal ordinarily lies against the order of conviction of such court.
6. The High Court, ordinarily, is the appellate court against the orders passed by the sessions court in accordance with the hierarchy of courts and the provisions connected thereto.
7. The learned Single Judge, after noticing the provisions contained in Section 378(4) and referring to the judgment of the Supreme Court in case of Subhash Chand vs. State (Delhi Administration) (AIR 2013 SC 395) found that in case where the order of acquittal has been pronounced by the appellate court and not the original court, the victim or the complainant preferring a petition under Section 378(4) or proviso to Section 372 would be invoking the appellate jurisdiction for the second time, which may not be appropriate in keeping with the scheme of the Code.
8. Under such circumstances, it was observed Patna High Court CR.APP(U/S) No.7 of 2019(13) dt.04-03-2024 4/22 by the learned Single Judge that if the acquittal is not by the original court in a complaint case and the accused persons in case of conviction prefer an appeal before the Sessions Court, which is the regular appellate court against the orders of the Magistrate, and the appellate court reverses the judgment of conviction; allows the appeal and acquits the accused person, the challenge to such judgment would be available to the complainant by way of revision only.
9. We have examined the provisions contained under Sections 378, 372 and 393 of the Cr.P.C. For the sake of completeness, we deem it appropriate to extract all the three provisions, referred to above, in the ascending order :-
"372. No appeal to lie unless otherwise provided. - No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.
[Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an Patna High Court CR.APP(U/S) No.7 of 2019(13) dt.04-03-2024 5/22 appeal ordinarily lies against the order of conviction of such Court.]
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),--
(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 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, 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].
Patna High Court CR.APP(U/S) No.7 of 2019(13) dt.04-03-2024 6/22 (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 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).
393. Finality of judgments and orders on appeal.--Judgments and orders passed by an Appellate Court upon an appeal shall be final, except in the cases provided for in section 377, section 378, sub-section (4) of section 384 or Chapter XXX:
Provided that notwithstanding the final disposal of an appeal against conviction in any case, the Appellate Court may hear and dispose of, on the merits,--
(a) an appeal against acquittal under section 378, arising out of the same case, or
(b) an appeal for the enhancement of sentence under section 377, arising out of the same case."
Patna High Court CR.APP(U/S) No.7 of 2019(13) dt.04-03-2024 7/22
10. On perusal of Section 378 of the Cr.P.C., it would be very clear that any order of acquittal passed by a Magistrate in respect of a cognizable or non-cognizable offence, be it complaint or a police case, an appeal could be filed on the direction of the District Magistrate of the district to the Public Prosecutor before the court of sessions.
11. The State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original and appellate order of acquittal passed by any court other than a High Court but not being an order under Clause (a) of Section 378 or an order of acquittal passed by the court of sessions in revision.
12. Both the provisions are applicable in cases of complaint or in police case, where the judgment of acquittal is recorded.
13. However, if the complainant wishes to prefer an appeal against the order of acquittal in a Patna High Court CR.APP(U/S) No.7 of 2019(13) dt.04-03-2024 8/22 complaint case, Section 378(4) provides that an application will have to be made by the complainant before the High Court, obtain special leave to appeal against the order of acquittal and then only the appeal could be presented before the High Court.
14. This would not be possible and the High Court shall not entertain any application for Special leave to Appeal 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 the order of acquittal.
15. There is yet another condition provided under Section 378(6) Cr.P.C. which provides that in any case, the application under sub-section (4) of the grant of Special Leave to Appeal from the order of acquittal is refused, no appeal against the order of acquittal shall lie under sub-section (1) or under sub-section (2).
16. Section 393 Cr.P.C. clarifies that the judgments and orders passed by the appellate court Patna High Court CR.APP(U/S) No.7 of 2019(13) dt.04-03-2024 9/22 upon an appeal shall be final except in certain cases, one amongst which would be Section 378(4).
17. In the present case, the discussion arose because the Magisterial Court, acting on the complaint of the appellant, convicted the accused persons. The accused persons had obtained acquittal in appeal by the sessions court. Though a revision was filed by the appellant herein but at the instance of the court, the application was converted into one under Section 378(4) Cr.P.C.
18. The first of the issues, therefore, which requires a definitive pronouncement is whether a complainant has a right to ask for special grant of leave to appeal in case of acquittal of the accused persons, not by the original court where the complaint is filed, but by the appellate court.
19. In Devendra Kumar vs. Khem Chand, Criminal Revision Petition No. 679 of 2012 (2015 Delhi Law Times 419) in Delhi High Court, one of us Patna High Court CR.APP(U/S) No.7 of 2019(13) dt.04-03-2024 10/22 (Ashutosh Kumar, J) had held as follows :-
"28. Sub-clause (4) of the aforesaid Section makes a provision of acquittal in case of a complaint. If a complainant applies before the High Court against an order of acquittal, on grant of special leave to appeal from such order of acquittal, an appeal may be preferred before the High Court.
29. Sub-sections (1) to (3) deal with the appeal by the State against acquittals. It is only sub-section (4) which deals with appeal against acquittal in a case instituted on complaint. In cases where such complaints end in acquittal before the Trial Court, only appeal is permissible under sub-section (4) of Section 378 of the Cr.P.C., after the grant of leave to file such appeal by the High Court. There is some dispute about a situation when the Trial Court convicts an accused of a complaint case and on appeal by the accused before the Sessions Court, he is acquitted. In that event, whether a revision would lie against such order of acquittal or since it is an acquittal, though by the Appellate Court, the provision of Sec 378 sub-section (4) would apply. There is no direct indication in sub-section (4) of Sec 378 of Cr. P.C. that an appeal by the complainant could be made against an order of acquittal passed by the Trial Court only and not against an order of acquittal passed by the Appellate Court. In sub-section (1) and (2) of Section 378 of the Cr. PC, the State Government and the Central Government, as the case may be, have been given the discretion to direct the public prosecutor concerned to prefer an appeal as against an original or appellate order of acquittal passed by any Court other than the High Court. Thus, the aforesaid sub- sections indicate the scheme of the code and therefore sub-Section (4) of Section 378 of the Cr.P.C. Patna High Court CR.APP(U/S) No.7 of 2019(13) dt.04-03-2024 11/22 in which also there is a use of phrase "such an order of acquittal", is covered by the same scheme. This permits the complaint to prefer straight away an appeal to the High Court. The aforesaid provision i.e. Section 378 of the Cr.P.C. has direct proximity to Section 378 (1) and (2). Under Section 378 (1) an appeal would lie only to the High Court not only from an original order of acquittal but also from the Appellate order of acquittal passed by the Courts below.
30. I am, therefore, of the opinion that Section 378 (4) of the Cr.P.C. would apply not only to an original order of acquittal in a case of complaint but also to an order of acquittal passed by the Sessions Court in appeal. There is nothing in Section 378 (4) of the Cr. P.C. to limit its application only to the order of acquittal passed in the first instance by the Trial Court.
31. In that event, a revision would not be maintainable against the Appellate order passed by the Sessions Court, before this Court.
32. In this context, Section 401 of the Cr.P.C. would be required to be analyzed.
"Section 401. High Court's Powers of revisions.
(1) In the case of any proceeding the record of which has been called for by itself or Which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. (2) Patna High Court CR.APP(U/S) No.7 of 2019(13) dt.04-03-2024 12/22 No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
(5) Where under this Code tan appeal lies but an application for revision has been made to the High Court by any person and the High Court Is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly."
33. Sub-Clause (4) of Section 401 of Cr.P.C. provides that when an appeal is provided for and no such appeal is filed, no proceeding by way of revision shall be entertained at the instance of the party, who could have appealed. Sub-clause 5, however, permits the High Court on its satisfaction about the interest of justice to treat the application of revision as petition of appeal and deal with the same accordingly."
20. But this view was on a plain reading of all the sub-sections of Section 378 of the Cr.P.C., especially sub-clause (4) thereof which does not make any Patna High Court CR.APP(U/S) No.7 of 2019(13) dt.04-03-2024 13/22 distinction between an acquittal in a complaint case by the original court or by the appellate court.
21. Presently, Ms. Surya Nilambari, the learned Amicus has very ably suggested the other grounds also in support of the afore-noted proposition. She has argued that sub-section (4) of Section 378 of the Cr.P.C. clearly refers to such an order of acquittal , which could be appealed against by the complainant in cases of acquittal. Such order of acquittal , therefore, is referable to the acquittal as conceived of in Section 378(1) which does not make any distinction between the acquittal by the original court or the appellate court. (emphasis provided)
22. Reading anything more into Section 378(4), in this background, would tantamount to reading down a statute where it is not required. The term ' such', the Amicus has argued, in plain English, is used as an adjective to denote "of a kind or character to be indicated or suggested" or "of the same class, type or Patna High Court CR.APP(U/S) No.7 of 2019(13) dt.04-03-2024 14/22 sort". She, therefore, submits that to interpret the words 'order of acquittal' in Section 378(4) Cr.P.C. to mean an original order of acquittal passed by the Trial court alone, would be to ignore the use of the word ' such' by the Legislature which precedes the phrase 'order of acquittal' under Section 378(4).
23. In Subhash Chand (supra), the Supreme Court while dealing with the provision contained under Section 378(4) made an important observation, agreeing with the law commission, that there is no provision in the Code under which appeals in complaint cases could be filed in the sessions court.
24. In that case, the complaint was filed by the State through its Local Authority in the court of the Metropolitan Magistrate, alleging violation of the provisions of the Prevention of Food Adulteration Act, 1956. The accused was tried and acquitted. The respondent/ State (the complainant) preferred an appeal before the sessions court. An objection was raised with Patna High Court CR.APP(U/S) No.7 of 2019(13) dt.04-03-2024 15/22 respect to the forum, especially in view of the provisions contained under Section 378(4) but such objection was overruled by the sessions court.
25. Against the afore-noted rejection of the objection by the accused, the accused preferred a criminal miscellaneous case before the High Court where the objections were sustained and it was held that the sessions court had no jurisdiction to entertain an appeal filed in a complaint case. A direction was issued for transferring the appeal to the High Court.
26. This was challenged by the State in SLP before the Supreme Court.
27. The Supreme Court, thereafter, remanded the matter to the High Court to decide afresh, in view of the provisions contained in Section 378(1) and (4) of the Cr.P.C. as also the provisions contained in Prevention of Food Adulteration Act, 1956. On remand, the High Court had held that the appeal filed by the State against the order of acquittal would lie under Section 378(1) and not Patna High Court CR.APP(U/S) No.7 of 2019(13) dt.04-03-2024 16/22 Section 378(4).
28. This proposition was again not accepted and the matter was taken to the Supreme Court by Special Leave.
29. The Supreme Court set aside the reasoning of the High Court that an appeal in this case would be filed under Section 378(1) and not Section 378(4) and held that the appeal could have been filed only under Section 378(4) Cr.P.C.
30. The complainant could either be a private person or a public servant. What was emphasized is that an appeal against an order of acquittal in a complaint case was a category in itself, for which Special Leave to Appeal is required to be granted by the High Court.
31. The referral of the learned Single Judge holding that seeking Special leave to Appeal against an order of acquittal which has been passed by an appellate court i.e. the sessions court, would amount to entertaining a second appeal.
Patna High Court CR.APP(U/S) No.7 of 2019(13) dt.04-03-2024 17/22
32. Such reservation of the learned Single Judge is not tenable for the reason that an appeal against an appellate order of acquittal becomes maintainable only subject to special leave to appeal and unlike Section 397(3), which is an express enactment with respect to the non-maintainability of the second revision application, there is no such provision in the Code of Criminal Procedure with respect to an appeal. The learned Amicus has referred to us the case of D.N. Taneja vs. Bhajan Lal reported in (1988) 3 SCC 26 where it has been held by the Supreme Court that right of appeal is a creature of statute and the question whether there is a right of appeal or not, will have to be considered on an interpretation of the statute and not on the ground of propriety or any other consideration.
33. In James Joseph vs. State of Kerala reported in (2010) 10 SCC 642 , certain principles were formulated with reference to appeal, which read as under :-
Patna High Court CR.APP(U/S) No.7 of 2019(13) dt.04-03-2024 18/22 "(i) An appeal is a proceeding where an higher forum reconsiders the decision of a lower forum, on questions of fact and questions of law, with jurisdiction to confirm, reverse, modify the decision or remand the matter to the lower forum for fresh decision in terms of its directions.
(ii) The appellate jurisdiction can be limited or regulated by the legislature and its extent has to be decided with reference to the language employed by the statute conferring the appellate jurisdiction.
(iii) The width of jurisdiction or the limitations on jurisdiction with reference to an appeal, does not depend on whether the appeal is a first appeal or a second appeal, but depends upon the limitations, if any, placed by the statute conferring the right of appeal.
(iv) If the Legislature's intention is to limit the jurisdiction in an appeal, it may indicate such limits in the provision providing for appeal. Alternatively, it may expressly or impliedly incorporate the provisions of section 100 of the Code, into the provision for appeals.
(v) Generally statutory provisions for appeals against original orders or decrees (that is, first appeals) will not have any limitations and therefore rehearing on both law and fact is contemplated; and statutory provisions for appeals against appellate orders (that is, second appeals) will be restricted to questions of law. But such restriction is not on account of any legal principle that all second appeals should always be with reference to questions of law, but would depend upon the wording of the statute placing the restrictions upon the scope of second appeal.
(vi) Where the statute does not place any limitations or restrictions in regard to Patna High Court CR.APP(U/S) No.7 of 2019(13) dt.04-03-2024 19/22 the scope and width of the appeal, it shall be construed that the appeal provides a right of rehearing on law as well as facts. If the Legislature enacts a self contained provision for second appeals, without any limitation upon the scope of the second appeal and excludes the possibility of reading the provision of section 100 of the Code, into such provision, then, it will not be permissible to read the limitations of section 100 of the Code into the special provision."
34. Even otherwise, restricting such an appellate right to a complainant in cases of acquittal on the ground that only revision is maintainable would be taking away a very substantive right of appeal without any reason. Revision petitions are restrictive in nature, whereas in an appeal, there is always a rehearing on law and facts. The appellate jurisdiction is much wider than the revisional jurisdiction.
35. Read with Section 393 of the Cr.P.C., Section 378 (4) offers an unambiguous provision for an appeal in cases of acquittal by a complainant, which acquittal could either be by the original court or the appellate court. If at all a second appeal is entertained in this instance, it is within the exception engrafted under Patna High Court CR.APP(U/S) No.7 of 2019(13) dt.04-03-2024 20/22 Section 393 Cr.P.C. which normally gives finality to judgments given by the appellate courts in appeal, except in certain cases including Section 378(4).
36. Precisely, for this reason, before preferring an appeal, a Special Leave to Appeal is required to be granted under Section 378(4).
37. A circumstance was pointed out by the learned Amicus beckoning an answer, viz., that if an accused facing trial in a complaint case is acquitted for a graver offence and convicted of a lesser offence, what would be the forum for a complainant to agitate? This does not require any discussion as Section 378(4) is an enabling provision for seeking Special Leave to Appeal against an order of acquittal. Acquittal for a graver offence but conviction under a lesser offence would be challengable under the proviso to Section 372 Cr.P.C. by the victim if he/ she is a complainant. There could be a circumstance when a complainant may not be a victim and would not even fall in the expansive definition of the Patna High Court CR.APP(U/S) No.7 of 2019(13) dt.04-03-2024 21/22 expression 'victim' as defined under Section 2(WA) of the Cr.P.C. In that event, there would be some confusion as to the forum.
38. Be that as it may, for the present, we answer the reference, viz., that in case of acquittal in a complaint case, be it recorded by either the original court or the appellate court, the forum available to the complainant is under Section 378(4) Cr.P.C. which would not be treated as any second appeal but a special appeal under the provisions of the Code to the High Court.
39. We rest it at that.
40. The reference stands answered.
41. Before parting, we again record our appreciation for Mr. Ajay Kumar Thakur, learned Advocate and Ms. Surya Nilambari, learned Advocate for the labour that they have put in and for the insight provided in the matter. Mr. Ajay Kumar Thakur had agreed to become Amicus pro bono. We only deem it appropriate to direct the Bihar State Legal Services Patna High Court CR.APP(U/S) No.7 of 2019(13) dt.04-03-2024 22/22 Authority to pay to Ms. Surya Nilambari, the learned Advocate, an amount of Rs. 15,000/- as a token of appreciation for the able assistance rendered by her.
(Ashutosh Kumar, J)
(A. Abhishek Reddy, J)
Rajesh/Krishna
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