Rajasthan High Court - Jodhpur
Dhanne Singh vs State & Anr on 27 April, 2013
Author: Sandeep Mehta
Bench: Sandeep Mehta
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
S.B.CRL. REVISION NO.411/2012 DHANNE SINGH VS.
STATE OF RAJ.
Date of order : 27th April, 2013 HON'BLE MR. JUSTICE SANDEEP MEHTA Mr. M.S.Purohit, for the petitioner.
Ms. Chandralekha, P.P. Mr. M.L.Bishnoi, for the respondent no.2.
<><><> The instant revision has been filed by the petitioner challenging the order dated 7.2.2012 passed by the learned Addl. Sessions Judge (F.T.) No.2, Bikaner whereby the learned Addl. Sessions Judge rejected the appeal filed by the petitioner against the judgment dated 25.4.2011 passed by the learned Addl. Chief Judicial Magistrate No.4, Bikaner in Case No. 333/2003.
The petitioner filed a complaint in the Court of the Addl. Chief Judicial Magistrate No.4, Bikaner against Mohanlal. The complaint was forwarded to the police for 2 investigation and the police filed a final report in the case. The complainant appeared before the trial court in pursuance to the final report and filed a protest petition. An enquiry was held under Section 200 and 202 Cr.P.C. and the statements of the complainant and his witnesses were recorded i.e. to say the case was proceeded with as a complaint case.
The learned A.C.J.M. No. 4 by the judgment dated 25.4.2011 proceeded to acquit the respondent Mohanlal after trial. The complainant filed an appeal to the learned Sessions Judge against the judgment of acquittal under the proviso to Section 372 Cr.P.C. as a victim's appeal.
The Appellate Court i.e. learned Addl. Sessions Judge (F.T.) No. 2 Bikaner rejected the appeal as not being maintainable holding that as the case was tried as a complaint case, the remedy available to the complainant to challenge the judgment of acquittal was by filing an application for leave to appeal under Section 378(4) of the Cr.P.C. to the High Court. The said order of the Appellate Court has been assailed in the instant revision.
Counsel for the petitioner submits that in view of the decision of this Court in the case of Laxmilal Menariya & Ors. Vs. Rajendra Kumar & Ors. Reported in 2012(4) Cr.L.R. (Raj.)-2015, the complainant being a victim is entitled to challenge the judgment of acquittal recorded by a Judicial Magistrate through an appeal to the Sessions Court under the 3 proviso to Section 372 Cr.P.C.
Per contra, Mr. Bishnoi, learned counsel for the respondent no. 2 submits that in view of the decision of the Apex Court in the case of Subhash Chand Vs. State (Delhi Administration) reported in 2013(2) SCC-17, the complainant can challenge a judgment of acquittal recorded in a complaint case only by filing an application for special leave to appeal under Section 378(4) of the Cr.P.C. to the High Court.
Heard and considered the arguments advanced at the bar. Perused the order impugned and respectfully considered the case law cited.
While appreciating the arguments advanced by the counsel for the parties, this Court came across conflicting views expressed by various Single Benches on the issue as to whether after the introduction of the proviso to Section 372 Cr.P.C. by way of the amendment introduced in the Cr.P.C. in the year 2009, the complainant of a complaint case could challenge the judgment of acquittal recorded by a Magistrate by way of an appeal before the Sessions Judge under the proviso to Section 372 Cr.P.C. The Hon'ble Single Bench of this Court in the case of Manju Kawadiya Vs. Ghanshyam Sahu reported in 2011(1) Cr.L.R.(Raj.)-421 held that an order of acquittal recorded in a complaint case could only be assailed by filing an application for leave to appeal in the High Court. Another Single Bench in the case of Laxmilal Menaria's case 4 (supra) held that after the addition of the proviso to Section 372 Cr.P.C. (introduced by the Amendment to Cr.P.C. in the year 2009) , the victim (complainant) was entitled to challenge the judgment of acquittal by filing an appeal to the Court to which an appeal ordinarily lies against such court's judgment.
The Hon'ble Apex Court considered the issue of the complainant's remedy to challenge a judgment of acquittal recorded in a complaint case, in the case of Subhash Chand Vs. State (supra) and held as below:-
"In view of the above, we conclude that a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court. He cannot file such appeal in the Sessions Court."
The matter came up before this Court in the case Nathu Ram Bansal Vs. State & Anr. S.B.Crl. Leave to Appeal No. 74/2012 and this Court was called upon to consider as to whether the judgment passed by Hon'ble Single Bench in the case of Laxmilal Menaria's case still held the field after the judgment of the Hon'ble Apex Court in the case of Subhash Chand(supra). After considering the various provisions of law and considering the impact of the judgment of the Hon'ble Apex Court in the case of Subhash Chand (supra) this Court held that in view of the provision of Section 378(4) Cr.P.C. 5 which provides for a specific remedy to the complainant for challenging a judgment of acquittal in a complaint case by way of an application for special leave to appeal to the High Court, the judgment of acquittal could not be challenged by filing an appeal to the Sessions Court under the proviso to Section 372 Cr.P.C.
It appears that the controversy did not rest there and another Hon'ble Single Bench of this Court in the case of Nirmal Jeet Rana Vs. Amar Singh being S.B.Cr. Leave to Appeal No. 115/2011 decided on 23.3.2013 has taken upon itself to over-rule and hold the decision of the Apex Court in Subhash Chand's case as well as, this Court's decision in the case of Nathu Ram Bansal (supra) per incuriam and concluded that a judgment of acquittal recorded by a Magistrate in a complaint case is amenable to challenge by way of an appeal before the Sessions Court under the proviso to Section 372 Cr.P.C.
Recently a Full Bench of Hon'ble Punjab & Haryana High Court had the occasion to consider this very controversy in the case of M/s. Tata Steel Ltd. Vs. M/s. Atma Tube Products Ltd. & Ors. CRM-A-547-MA-2011 (O&M) decided on 18.3.2013 (Manu/Ph/0175/2013). The Hon'ble Punjab and Haryana High Court after giving exhaustive consideration to the various facets of law held as below:-
82. The above discussion thus can be 6 summed up to say that- 'complainant' in a complaint-case who is a 'victim' also, shall continue to avail the remedy of appeal against acquittal under Section 378(4) only except where he/she succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser offence or imposition of an inadequate compensation, for which he/she shall be entitled to avail the remedy of appeal under proviso to Section 372;
The principal provision of Section 372 Cr.P.C. begins with a non obstante clause and provides that 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. A plain reading of this provision would make it clear that the legislature intended that the proviso of Section 372 Cr.P.C can be resorted to only when the remedy of appeal is not provided elsewhere in the Cr.P.C. or any other law.
The Hon'ble Single Benches of this Court in the cases of Laxmilal Menaria and Nirmal Jeet Rana's failed to consider the import of this non-obstante clause in Section 372 Cr.P.C. whilst holding that the complainant of a case instituted upon a complaint is entitled to bring an appeal against acquittal under the proviso to Section 372 Cr.P.C. and that a leave to appeal application against such an acquittal would not be maintainable. The view taken by the Hon'ble Single Bench in the case of Laxmi Lal Menaria's case (supra) and Nirmal Jeet 7 Rana's case (supra) render the provision of special leave to appeal under Section 378(4) Cr.P.C. virtually redundant.
In view of these conflicting judgments of different Single Benches of this Court, I am of the humble opinion that the matter should be placed before Hon'ble the Chief Justice to seek necessary directions for consideration of the question framed below by a Division Bench:-
"In a case instituted upon a complaint, whether the complainant is entitled to challenge the judgment of acquittal of the accused recorded by a Magistrate by filing an appeal before the Sessions Court under the proviso to Section 372 Cr.P.C. or that such acquittal can be assailed only by bringing a special leave to appeal application to the High Court under Section 378(4) Cr.P.C.?"
(SANDEEP MEHTA), J.
/Sushil/