Karnataka High Court
Bheemappa S/O Rayappa Dalawai vs Shantagangadhar And Anr on 10 December, 2021
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRL.R.P.No.200086/2020
BETWEEN:
BHEEMAPPA S/O RAYAPPA DALAWAI
AGE: 91 YEARS, OCC: AGRICULTURE
R/O KOLHAR VILLAGE
TQ. BASAVANA-BAGEWADI
DIST.VIJAYAPURA-586213
... PETITIONER
(BY SRI R.S.LAGALI, ADVOCATE)
AND:
1. SHANTAGANGADHAR
S/O SWAMIGALU SHIVAGANGAMATH
AGE: MAJOR, OCC: PONTIFF
R/O SINDAGI, TQ.SINDAGI
DIST.VIJAYAPURA-586128
2. THE STATE OF KARNATAKA
THROUGH THE SHO, KOLHAR PS
REP BY THE ADDL. STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
KALABURAGI-585107
... RESPONDENTS
(BY SRI GURURAJ V. HASILKAR, HCGP FOR R2;
SRI S.V.DESHMUKH, ADVOCATE FOR R1)
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THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W SECTION 401 OF CRIMINAL PROCEDURE
CODE, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 16.09.2020 PASSED BY THE I ADDL. SESSIONS JUDGE,
VIJAYAPUR IN CRIMINAL APPEAL NO.19/2018 IN DISMISSING
THE APPEAL PREFERRED BY THE PETITIONER, AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 23.02.2018
PASSED BY THE ADDL. CIVIL JUDGE AND JMFC, COURT,
BASAVANA BAGEWADI IN CRIMINAL CASE NO.7/2007 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 420 OF IPC,
HOLDING THAT THE APPEAL IS NOT MAINTAINABLE BEFORE
THE SESSIONS COURT AND REMAND THE MATTER BEFORE THE
I ADDL. SESSIONS COURT FOR CONSIDERATION ON MERITS.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and the learned counsel for respondent No.1 and learned High Court Government Pleader for the respondent No.2-State.
2. The factual matrix of the case is that the petitioner herein was complainant before the trial Court who had filed P.C.No.50/2014 before the Additional Civil Judge and JMFC Court Basavana Bagewadi for the offence 3 punishable under Section 420 of IPC. In the complaint an allegation is made that the petitioner and his brother were joint owners of agricultural land in Sy.No.235/1 measuring 3 acres 8 guntas situated in Kolhar village of Basavana Bagewadi Taluk. The petitioner is an elderly man in Kolhar village and respondent No.1 is the pontiff Shivagangamath at Sindagi. It is an allegation that respondent No.1 with an intention to cheat and cause wrongful gain approached the elderly residents of Kolhar village to give donation of land for constructing a Math in Kolhar village, considering the cause shown by the respondent No.1, the petitioner/ complainant and his brother came forward to donate their land. Accordingly on 14.11.1993, the foundation stone laying programme was organized and the petitioner had come forward to donate 2 acres of land in Sy.No.236/1 in the name of Math. Due to legal impediment, the said land could not be transferred in the name of the Math. So by way of alternative arrangement, the petitioner executed a registered gift deed in favour of respondent No.1 in respect of a portion of a land on 01.03.1994. In spite of passing of 4 sufficient time, the respondent No.1 did not build any Math in the said land. The petitioner along with other elders of the village went to enquire the respondent No.1 about the construction of the Math, respondent No.1 get postponing the construction of the Math by giving one or the other reason and further some portion of the land was acquired by the Government and the respondent No.1 received huge amount of compensation. The respondent No.1 has sold the remaining 35 guntas of land to the third party for personal gain instead of constructing the Math. Hence, a private complaint was filed before the Court and the learned Magistrate referred the matter under section 156(3) and after the investigation B-Report was filed. Thereafter, the same was challenged and cognizance was taken and charge was framed and thereafter examined the witnesses and got marked documents and thereafter the trial Court judge came to the conclusion that the charges leveled against the respondent No.1 has not been proved and ultimately acquitted the respondent No.1 herein. Hence, an appeal is filed before the I-Additional Sessions 5 Judge, in Criminal Appeal No.19/2018. The appellate Court dismissed the appeal by relying upon the judgment of the Hon'ble Apex Court in the case of Subhash Chand vs. State (Delhi Administration) reported in (2013)1 SCC Crl.802 in coming to the conclusion that no such leave is sought for filing an appeal and on technical ground the appeal was dismissed. Hence, the present revision petition is filed before this Court.
3. The learned counsel for the petitioner would vehemently contend that the Sessions judge has committed an error in dismissing the appeal in coming to the conclusion that special leave is not sought. The appellate Court has committed a serious error in ignoring the procedure of Code of Criminal Procedure. The appellate Court has passed the judgment ignoring section 372 of Cr.P.C., which enables or provides to prefer an appeal against the judgment and order of acquittal or for inadequate sentence or for a compensation. The learned counsel also brought to the notice of this Court the 6 amended provisions of section 372 of Cr.P.C., wherein it is made it clear that no appeal shall lie from any judgment or order of a criminal Court except as provided that 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 appeal ordinarily lies against the order of conviction of such Court. The learned counsel referring the said judgment would contend that the victim will get a right to prefer an appeal with regard to acquittal as well as inadequate compensation imposed by the trial Court then appeal ordinarily lies against the order of conviction of said Court and hence, the amended provisions is very clear that appeal lies before the Sessions Court. The second count of argument of learned counsel for the petitioner before this Court is that, the Hon'ble Apex Court in the judgment of Roopendra Singh vs. State of Tripura and Another in Criminal Appeal No.690 of 2017 dated 11.04.2017 in paragraph-10 of the judgment held that when section 372 7 of Cr.P.C., has conferred upon a victim a substantive and independent right to maintain an appeal against the acquittal. The widow of the deceased in the present matter comes within the purview of 'victim' as incorporated section 2(wa). Merely because leave to appeal was not granted to the State to prefer an appeal against acquittal, the appeal preferred by the victim ought not to have been rejected by the High Court summarily. The Hon'ble Apex Court in this judgment held that leave is not mandatory and the victim/informant has got independent and substantive right to maintain an appeal. Hence, the order suffers from illegality.
4. The learned counsel for respondent No.1 would submit that the trial Court judge considering the material aspect while appreciating the evidence available on record and the appellate Court also taken note of that no special leave was sought and hence, the impugned order cannot be interfered.
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5. Having heard the respective counsels and also on perusal of the material on record, the points that would arise for consideration before this Court are:
i. Whether the Trial Court committed an error in dismissing the appeal that no special leave is sought?
ii. Whether the appeal lies before the Sessions Court or before the High Court, in view of amendment of section 372 of Cr.P.C.? iii. What order?
6. Having heard the learned counsels for the parties and also on perusal of material available on record, it is not in dispute that the petitioner herein has filed a private complaint against the respondent No.1 herein. The matter was taken up for trial and after the trial only the acquittal order was passed and the respondent No.1 was acquitted for the offence punishable under Section 420 of IPC. Being aggrieved by the said order, an appeal is filed before the learned Sessions Judge. The appellate Court dismissed the appeal on the ground that no special leave is 9 sought while filing the appeal and referring the judgment of the Hon'ble Apex Court in the case of Subhash Chand referred supra came to the conclusion that in the absence of any special leave, the appeal is not maintainable before the Sessions Court. Learned counsel relied upon the judgment of the Hon'ble Apex Court in the case of Roopendra Singh referred supra wherein the Hon'ble Apex Court discussed the scope of section 372 of Cr.P.C., In paragraph No.11 and also discussed with regard to invoking of section 372 of Cr.P.C. The appeal under section 372 of Cr.P.C., preferred by the informant, who also happens to be the widow of the deceased was rejected in the light of the earlier rejection dated 20.06.2012. It is observed that it appears that State of Maharashtra did not challenge the rejection of their appeal seeking special leave to appeal but Court had issued the notice and further proceeded that in appeal filed under section 372 of Cr.P.C., and the said powers had conferred upon the victim substantive and independent right to maintain an appeal against the acquittal. It is further observed that widow of 10 the deceased comes within the definition of 'victim' as incorporated in section 2(wa) of Cr.P.C. It is further observed that merely because leave to appeal was not granted to the State to prefer an appeal against the acquittal, the appeal preferred by the victim/informant ought not to have been rejected by the High Court summarily and the Hon'ble Apex Court set aside the order of the High Court and remitted back to the High Court for fresh consideration. Further observed that it should be open to the High Court to consider the matter for grant of leave to appeal to the appellant in the light of paragraphs- 17 and 18 of the decision of the Court in Satya Pal Singh's case.
7. Hence, it is clear that in view of the principles laid, it is clear that when the victim has got a substantive and independent right to maintain an appeal against the acquittal, he can maintain the appeal. The learned counsel also relied upon the judgment of the Hon'ble Apex Court in the case of Mallikarjun Kodagali (Dead) through legal 11 representatives vs The State Of Karnataka reported in AIR 2018 SC 5206. In this judgment also the Hon'ble Apex Court discussed section 372 of Cr.P.C., and proviso 2 (wa) right of victim to file an appeal against acquittal. Date of judgment/order date of order and not date of offence is relevant date for determining the applicability of provisions of section 372 of Cr.P.C. The order of acquittal passed after proviso to section 372 has come into force. The victim has right to file an appeal to the High Court. The learned counsel also brought to the notice of this Court paragraph No.77 wherein the Court has discussed with regard to victim as defined under section 2(a) of Cr.P.C., and held that it is quite clear that victim would be entitled to file an appeal before the Court to which an appeal ordinarily lies against the order of conviction.
8. Having read proviso to section 372 of Cr.P.C., it is quite clear that 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) of the Cr.P.C. 12 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 of the Cr.P.C. is concerned.
9. In the case on hand, it has to be noted that a private complaint was filed and the trial Court thereafter proceeded in accordance with law and the trial was also conducted and after appreciation of evidence an order of acquittal was passed in view of amendment to section 372 of Cr.P.C., made in the year 2009 and the same came into force on 31.12.2009 and hence, the right of appeal lies to the victim to approach the appellate Court only. The victim gets a right of appeal challenging the same before the Court in which an order of conviction is passed appeal lies and also with regard to inadequate compensation was awarded.
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10. Having taken note of the principles laid down in the judgment of Mallikarjun supra, as well as in Roopendra Singh's case referred supra, it is clear that under section 372 of Cr.P.C., a right has been conferred upon the victim a substantive and independent right to maintain an appeal against the acquittal order and further observed that merely because leave to appeal was not granted to the State to prefer an appeal against the acquittal, the appeal preferred by the victim cannot be dismissed. It is observed that it is open to the High Court to consider the matter for grant of leave to appeal to the appellant and when such being the principles laid down in the judgment referred supra in both the cases, the very order passed by the learned Sessions Judge that in the absence of any special leave, appeal is not maintainable as an erroneous order and the same is not sustainable in the eye of law, when the substantive right is conferred upon the victim to approach the Court under section 372 of Cr.P.C. Subsequent to the amendment made in the year 2009, the appellate Court instead of going on technicalities 14 ought to have considered the matter on merits and hence, it requires interference of this Court. The appeal lies before the Sessions Court in view of the amendment brought in the year 2009 in respect of Section 372 of Cr.P.C., and hence, answered both the points for consideration as affirmative.
11. In view of the discussion made above, I pass the following:
ORDER The revision petition is allowed. The impugned order dated 16.09.2020 passed by the I-Additional Sessions Judge, Vijayapura in Criminal Appeal No.19/2018 is set aside.
The matter is remitted back to the appellate Court to dispose of the same in accordance with law on merits.
Sd/-
JUDGE VNR