Allahabad High Court
Anil Kumar Agarwal vs State Of U.P. And Another on 25 January, 2017
Equivalent citations: 2017 (4) ALJ 60, (2017) 172 ALLINDCAS 831 (ALL), (2017) 7 ADJ 211 (ALL), (2017) 98 ALLCRIC 831, (2017) 2 ALLCRIR 1260
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 9.11.2016 Delivered on 25.1.2017 Case :- APPLICATION U/S 482 No. - 3171 of 2016 Applicant :- Anil Kumar Agarwal Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Hare Krishna Tripathi Counsel for Opposite Party :- G.A. Hon'ble Om Prakash-VII, J.
The present application under Section 482 CrPC has been filed with the prayer to quash the judgment and order dated 16.11.2015 passed by the Additional District and Sessions Judge, Fast Track Court, Jhansi in Criminal Appeal No. 145 of 2013 (Anil Kumar Agarwal vs. Braj Bhushan Lahariya and another) under Section 378 CrPC, P.S. Nawabad, District Jhansi.
Heard Shri Hare Krishna Tripathi, learned counsel for the applicant as well as the learned AGA appearing for the State and perused the record.
It was submitted by the learned counsel for the applicant that the appeal against acquittal in a complaint case under Section 138 Negotiable Instruments Act (in short 'the Act') was maintainable before the concerned Sessions Judge. The impugned order passed by the Court below is illegal. In support of his submissions, learned counsel for the applicant placed reliance on the following decisions:
1. Ashok Kumar Srivastava and others vs. State of U.P. and another in application u/s 482 no. 5934 of 2012, decided on 30.3.2012.
2. Ved Prakash Yadav and 2 others vs. State of U.P. And 2 others, criminal revision no. 3539 of 2015, decided on 24.9.2015.
Per contra, learned AGA appearing for the State submitted that there is no infirmity or illegality in the impugned order. Acquittal order in a complaint case can be challenged by the complainant only before the High Court under Section 378(4) CrPC with the leave of the Court. It was further submitted that the proviso inserted under Section 372(2) CrPC does not make any change in law. Although victim's right for filing appeal under Section 372 CrPC is substantive and unfettered right of appeal yet the right created by this proviso would be available before the High Court. The appeal before the Sessions Judge would not be maintainable. In support of his submissions, learned AGA has placed reliance on the decision of Apex Court in Subhash Chand vs. State (Delhi Administration), (2013) 2 SCC 17.
I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the case laws.
It appears that the opposite party no.2 had taken Rs. 1,62,000/-, time to time, from the applicant and issued two cheques in turn of the said amount to the applicant, which were dishonoured due to insufficiency of fund in the account of the opposite party no.2. After fulfilling the legal formalities, the applicant filed a complaint under Section 138 of the Act and 420 IPC against the opposite party no.2. The Magistrate concerned vide its order after trial acquitted the opposite party no.2 from the charges. Aggrieved with the said judgment and order, the applicant filed aforesaid criminal appeal which was dismissed on the point of maintainability observing that the appeal against acquittal in a complaint case for the offence under Section 138 Negotiable Instruments Act would be maintainable only before the High Court under Section 378(4) CrPC with the leave of the Court. Hence, this application under Section 482 CrPC.
From the facts and circumstances of the case as well as the submissions made by the learned counsel for the parties, short question for consideration in the matter arises as to whether the victim in a criminal complaint case against the acquittal order can prefer appeal before the Sessions Judge or such appeal would lie before the High Court either taking recourse of the provisio to Section 372 CrPC or with the leave of Court under the provisions of Section 378(4) CrPC.
In the instant matter, as mentioned above, it is evident that the impugned order has been passed by the concerned Sessions Judge in an appeal preferred by the complainant against the acquittal order under Section 138 of the Act. Applicant was the complainant in the trial.
Learned Single Judge of this Court in Ashok Kumar Srivastava case (supra) has held as under (paragraphs 31,32 and 33 of the said decision):
"31. The purpose of the said amendment of Act No.5 of 2009 was also to provide easy and early relief to the victim lady keeping her economic condition and other problems in mind. If such a lady, whose husband and in-laws are acquitted in the case under Section 498-A, 323, 504, 506 IPC and 3/4 Dowry Prohibition Act by the trial Court, is compelled to move an application to the High Court that too for seeking to grant the leave to appeal then she would be deprived of her right to get immediate relief in matrimonial case including cruelty caused to her physically, mentally or to her reputation or status in the society. Thus, intention of the legislature in making the aforesaid amendment Act No.5 of 2009 applicable w.e.f. 31.12.2009 is to provide remedy to her by filing criminal appeal against the order of acquittal by the Magisterial Court to the Session Court concerned.
32. The victim like Smt. Asha Srivastava cannot be deprived of her statutory right to file an appeal before the Sessions Judge concerned against the judgment and order of acquittal just on the basis of technicalities like absence of the word "complaint or complainant" in the proviso to Section 372 Cr.P.C. This is just a technicality. Since the word "complaint" is not mentioned or included in the proviso to Section 372 Cr.P.C., the victim lady should not be compelled to seek the leave to appeal from the High Court.
33. The Additional Sessions Judge, has rightly admitted the instant appeal by which the order of acquittal has been challenged by the victim lady after discussing the relevant aspects of the matter and citing the complete reasons. There is no error of law or jurisdiction committed by the Additional Sessions Judge, Allahabad, in the impugned order dated 9.2.2012. The application under Section 482 Cr.P.C. being devoid of merits, is dismissed."
Again, another learned Single Judge of this Court relying upon the law laid down in Ashok Kumar Srivastava case (supra) in Ved Prakash Yadav case (supra) held as under:
"..............In my opinion as Section 372 Cr.P.C. has been inserted in the Code of Criminal Procedure (Amendment) Act, 2008 and has come into force on 31.12.2009, hence against the order of acquittal passed by Chief Judicial Magistrate, the appeal of the complainant and the victim was maintainable u/s 372 Cr.P.C. before the Sessions Judge. Hence the contention of learned counsel for the revisionists that the appeal of the complainant was not maintainable and the judgment and order of the lower appellate court is without jurisdiction should be set-aside has no substance. As the revisionists have been convicted by the lower appellate court, hence against the impugned judgment and order, the present revision is not maintainable and the revisionists have a right to file an appeal before the appropriate court in view of Section 374 (2) Cr.P.C............"
In Bhajanpura Cooperative Urban Ltd. case vs. Sushil Kumar, Criminal Appeal Nos. 972/2012 & 1163/2012, decided on 3.9.2014, a learned Single Judge of Delhi High Court dealing with the similar matter held as under (paragraphs 14,15,16,17 and 18 of the said decision):
"14. The controversy now is no longer res integra in view of the pronouncement of law by Supreme Court in ''Subhash Chand vs. State (Delhi Administration)', (2013) 2 SCC 17. It was a complaint case under Section 7 of Prevention of Food Adulteration Act, in which Subhash Chand was tried and he was acquitted by the learned Metropolitan Magistrate. The State filed criminal appeal before the Sessions Court under Section 378 (1)(a) Cr.P.C. Preliminary objection regarding maintainability of the appeal before the Sessions Court was rejected. That order was challenged before this Court (Delhi High Court) and it was held that Sessions Court had no jurisdiction to entertain the appeal. The order of the High Court was challenged before the Supreme Court who remanded the case to this Court for fresh decision after taking into consideration the provisions of Sections 378(1) and 378(4) of Cr.P.C. and the relevant provisions of the Prevention of Food Adulteration Act. After remand, this Court held that the appeal filed by the State against an order of acquittal would lie to the Sessions Court under Section 378 (1) of the Cr.P.C. Again, this order was challenged by the accused before the Supreme Court and Supreme Court held :
''....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 complainant can challenge the order of acquittal by filing an application for special leave to appeal in the Delhi High Court and not in the Sessions Court....'
15. Of course, the scope of Section 372 Cr.P.C. and subsequent amendments in Cr.P.C. (Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009) did not come for consideration before the Supreme Court in this case. But it cannot be assumed that the Supreme Court was not aware of the existence of the provisions of Section 372. The Supreme Court further observed :
"Thus, whether a case is a case instituted on a complaint depends on the legal provisions to the offence involved therein. But once it is a case instituted on a complaint and order of acquittal is passed, whether the offence is bailable or non-bailable, cognizable non-cognizable, the complainant can file an application under Section 378 (4) for leave to appeal against it in the High Court. Section 378 (4) places no restriction the complainant...."
No distinction was made if the complainant was a private person or a public servant.
16. In a recent case ''Bhavuben Dineshbhai Makwana vs. State of Gujarat & ors.', 2013 Crl.L.J. 4225, Full Bench of Gujarat High Court answering the reference on question number (3) ''If the victim prefers an appeal before this Court, challenging the acquittal, invoking his right under proviso to section 372 of Cr.P.C., whether that appellant is required to first seek leave of the Court, as is required in case of appeal being preferred by the State?', held :- ''If the victim also happens to be the complainant and the appeal is against acquittal, he is required to take leave as provided in Section 378 of the Criminal Procedure Code but if he is not the complainant, he is not required to apply for or obtain any leave. For the appeal against inadequacy of compensation or punishment on a lesser offence, no leave is necessary at the instance of a victim, whether he is the complainant or not.'
17. Kerala High Court has also in a latest Division Bench judgment in ''Omana Jose vs. State of Kerala', ILR 2014 (2) Kerala 669 decided on 11.04.2014 on reference of Criminal Revision Petitions in the light of conflicting decisions in ''Sree Gokulam Chit and Finance Co.(P) Ltd. and another vs. T.Krishnakumar and others', 2013 (4) KLT 547 (supra) and ''Shibu Joseph & ors. vs. Tomy K.J. & ors.', ILR 2013 (4) Ker.866, concluded :
"For the aforesaid reasons, we hold that the complainant in a case under Section 138 of the Negotiable Instruments Act cannot challenge the order of acquittal before the Sessions Court under the proviso to Section 372 of the Cr.P.C. and his remedy is only to file an appeal to the High Court with special leave under Section 378 (4) Cr.P.C."
18. Considering all the relevant provisions, I am of the considered view that the remedy available to the complainants under Section 138 N.I.Act against order of acquittal is only to seek special leave before filing an appeal under Section 378 (4) Cr.P.C. before the High Court. In the instant case, the appellant has not sought any such leave. Consequentially the appeals filed by the appellant are dismissed as not maintainable. The appellant will, however, be at liberty to file special leave petitions to challenge acquittal orders before this Court and the period spent by him in contesting the present proceedings would be excluded in considering the delay."
The Hon'ble Supreme Court in Subhash Chand case (supra) has held as under (paragraph 23 of the said decision):
"23. 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. In the instant case the complaint alleging offences punishable under Section 16(1)(1A) read with Section 7 of the PFA Act and the Rules is filed by complainant Shri Jaiswal, Local Health Authority through Delhi Administration. The appellant was acquitted by the Metropolitan Magistrate, Patiala House Courts, New Delhi. The complainant can challenge the order of acquittal by filing an application for special leave to appeal in the Delhi High Court and not in the Sessions Court. Therefore, the impugned order holding that this case is not governed by Section 378(4) of the Code is quashed and set aside. In the circumstances the appeal is allowed."
Dealing with similar controversy, a Division Bench of Patna High Court in the case of Parmeshwar Mandal vs. The State of Bihar and Others (criminal appeal (DB) No. 1078 of 2012, decided on 26.11.2013, discussing the law laid down by the Full Bench of Punjab and Haryana High Court in M/s Tata Steel Ltd. vs. M/s Atma Tube Products Ltd. and others, 2013 (1) ILR 719 (P&H) has held as under (paragraph 44 of the said decision):
"44. With all reverence to the Full Bench, this Court is unable to agree with this proposition of law also. If that would have been the intention of the Legislature, instead of giving unfettered right to the victim to file appeal in the opening section of the Chapter itself, it could have added one more sub-section in Section 378 itself. It has to be presumed that when unfettered right of appeal was being conferred upon the victim in the opening section of the Chapter itself, the Legislature was conscious of the restricted right of appeal granted to the State and the complainant under Section 378 of the Code. The recommendations in the Malimath Committee Report, which has been adopted and implemented in the form of amendment in various provisions of the Code of Criminal Procedure by Act 5 of 2009, would show that, by the amendment, victim was intended to be placed at much higher pedestal in criminal justice delivery system than the State (prosecuting agency) or the complainant. Therefore, instead of adding one more sub-section in Section 378, providing for a right of appeal to a victim also, at par with the complainant of a complaint case, or with Patna High Court CR. APP (DB) No.1078 of 2012 dt.26-11-2013 State in a police case, he/she has been conferred upon the right in the opening section of the Chapter itself without any qualifications. Clearly by introducing this amendment, the Legislature has recognized the victim in his/her independent capacity in the criminal justice delivery system than the State or informant or complainant. If the interpretation of the Full Bench is accepted, it will result into the victim getting a right to file an appeal only for a lesser wrong done to him/her by a criminal court, i.e. for convicting the accused for lesser offence or for awarding lesser compensation, but will not be able to file an appeal, without a special leave, for greater wrong done to him/her by acquitting the accused altogether. Therefore, this Court is of the opinion that no distinction can/should be made between a case instituted by a complainant/informant with the police and by a complainant before the Court directly, for the purposes of determining the scope and ambit of right of a victim to file an appeal under the said proviso to Section 372. Consequently, this Court is of the opinion that, any person, covered under the definition of ,,victim‟ as contained in clause (wa) of Section 2 of the Code, and thus getting a right to file an appeal in terms of the said proviso to Section 372, cannot be held, in any way, handicapped in exercise of his/her said right by the provisions of Section 378 of the Code specially in the background of disadvantageous status of victim in the present criminal justice delivery system in the country. This view of Patna High Court CR. APP (DB) No.1078 of 2012 dt.26-11-2013 the Court, on this issue, stand buttressed also by the findings of the Full Bench in respect of question (C) holding that the victim is not obligated to seek ,,leave‟ or ,,special leave‟ of the High Court for presentation of appeal under the said proviso to Section 372 of the Code and also by the learned Single Judge of Allahabad High Court in the case Ashok Kumar Srivastava (supra) and by a Division Bench of Delhi High Court in its judgment dated 24.01.2011 in the case of Jagmohan Bhola Vs. Dilbagh Rai Bhola & Ors."
A Full Bench of Gujarat High Court in the case of Bhavuben Dineshbhai Makwana v. State of Gujarat & others, 2013 Cri. L.J. 4225, discussing the law laid down by the Bombay High Court in the case of Balasaheb Rangnath Khade vs. The State of Maharashtra, in Criminal Appeal Nos. 991 of 2011 and 992 of 2011, held as under (paragraph nos. 33 to 36 of the said CLJ):
"33. Therefore, in the case before us, the legislature while conferring the right of appeal upon the victim, who is not a complainant, not having imposed any condition of taking leave or special leave, we cannot infer such condition and impose the same upon the victim although the legislature was quite conscious of existence of such provision in case of an appeal by a complainant and has retained that provision without consequential amendment thereby making its intention clear that the provision of special leave is not applicable to an appeal preferred by a victim against acquittal if he is not the complainant.
34. We now propose to deal with the decisions cited by Mr. Mehta.
34.1 In the case of Smt. Ram Kaur @ Jaswinder Kaur v. Jagbir Singh alias Jabi and others, in Criminal Appeal No. 205- DB of 2010 decided by a Division Bench of the Punjab & Haryana High Court on 1st April 2010, the question was whether without taking the leave to appeal from the Court in terms of sub- section 3 of Section 378 of the Code, a victim can file appeal under section 372 of the Code. The Division Bench, in the facts of the said case, held that the appellant who was a complainant, was not a 'victim' who was entitled to prefer an appeal under section 372 of the Code and, therefore, she could not prefer an appeal under section 372 of the Code in the police case. According to the Division Bench, even otherwise, if the appellant was supposed to be covered by the definition of "victim" under sub-section (wa) of Section 2 of the Code, having a right to prefer an appeal against the order of acquittal , according to the Division Bench, she was required to file an application for grant of leave to appeal. The Division Bench further pointed out that even against an order of acquittal passed in a case instituted upon a complaint, the complainant has been provided the right to appeal, and he can file such appeal with an application for grant of special leave to appeal from the order of acquittal. Thus, under the Code, the Division Bench proceeded, the appeal against acquittal could have been preferred only with the permission of the High Court on an application filed for grant of leave to appeal against the order in appeal. According to the Division Bench of the said High Court, the proviso to section 372 of the Code gives a right upon the victim to prefer an appeal against the order of acquittal being sufferer from the act or omission of the offender but such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. The Division Bench further held that by the proviso, a right to file an appeal has been conferred on the victim against the order of acquittal, but the procedure for filing such appeal will be the same as provided under Section 378 of the Code.
34.1.1 We have already pointed out that if the 'victim' also happens to be the complainant, in such a case, he is required to file an application for special leave, but with great respect to the Division Bench of the Punjab & Haryana High Court, we cannot accept the other finding that even if he is not the complainant, as a victim, he is required to file an appeal with an application for special leave to appeal, for the reasons assigned by us above.
34.2 In the case of Gouranga Debnath v. State of Tripura & Others in C.M. Appl. (Crl.) No. 89 of 2011 in Crl. A. No. 13 of 2011, a Division Bench of the High Court of Gauhati, Agartala Bench, was considering an application under section 5 of the Limitation Act for condoning the delay of 114 days in filing the connected appeal against the judgment and order of the Sessions Judge by which the Sessions Judge acquitted the respondents No.2 and 3 from the charges levelled against them under section 302 read with section 34 of the Indian Penal Code. The appellant was the father of the deceased who got married with the respondent No.2. It appears that the appellant filed the appeal against an order of acquittal by taking aid of the proviso to Section 372 read with Section 378 of the Code, claiming to be a 'victim'. A question was raised as to whether the father of the deceased could be said to be a 'victim' . The Division Bench held that in view of the amendment with effect from 31st December 2009, a limited right to the victim to file an appeal against the order of acquittal was of course given but such right could not be conferred in case of an offence which was committed prior to the date of incorporation of the said proviso. In that context, the Division Bench held that right to appeal of the petitioner had accrued only after the decision in the sessions trial where the respondent No.2 and 3 were acquitted on 30th September 2010 and the petitioner was, thus, entitled to prefer an appeal. The Division Bench further held that the father of the deceased was also a 'victim' within the meaning of sub-section (wa) of section 2 of the Code. In the above case, the 'victim' having filed an application for leave, the third question involved in this application was not really the subject matter of dispute.
34.2.1 We, thus, find that the subject decision does not support the point that in an appeal against acquittal by a victim, an application for leave to appeal must be filed.
34.3 In the case of Guru Prasad Yadav v. The State of Bihar & Ors. in CR. APP (DB) No. 582 of 2011 decided on 2nd August 2011, a Division Bench of the Patna High Court was considering an appeal by the appellant claiming himself to be a 'victim' against an order of acquittal. Such an appeal was filed without moving any application for grant of leave to appeal. In such a case, the Division Bench held that by the proviso to Section 372 of the Code, a right has been conferred to the victim to prefer an appeal against the order of acquittal, but the procedure for filing such an appeal will be the same as provided under Section 378 of the Code and, thus, even if the victim has a right to prefer an appeal against the order of acquittal, he has to seek leave of the High Court. With great respect to the Division Bench, we are unable to subscribe to the said opinion in view of the fact that in Section 378, the legislature did not make any consequential amendment necessitating the filing of application for leave at the instance of a 'victim' although the legislature decided to confer a new right upon the 'victim' who may be a complainant or may not be a complainant.
34.4 In the case of Balasaheb Rangnath Khade v. The State of Maharashtra in Criminal Appeals No. 991 of 2011 and No. 992 of 2011, there was a difference of opinion between the two Judges of a Division Bench of the Bombay High Curt and, therefore, the matter was referred to a third Judge on the question whether a victim can file file an appeal against the order of acquittal passed by the trial Court without filing an application for leave to file appeal. The third-Judge was of the view that the victim was not required to apply for or obtain leave of the Court to file any of the appeals under the proviso to Section 372. The learned third-Judge held that the plain meaning implicit in the substantive right granted by the legislature to the victim is to grant the victim the right which was otherwise not available. The third-Judge further held that it demonstrates the fact that the right of appeal given to the State was not sufficient, adequate and enough for the victim's rights and notwithstanding the fact that the State had a right to appeal from an order of acquittal, the victim was also granted the right to appeal from the order of acquittal, lesser offence or inadequate compensation. The third-Judge further held that a proviso shows an exception to the Section that may qualify the main enactment and proviso to Section 372 of the Code shows that no matter what is the position in the Code, the right of appeal is given to the victim and such a right of appeal given to the victim is an unqualified right and could be exercised not only as provided in the Code and was a right untremmelled by other procedural provisions and requirements such as the leave of the Court. In such circumstances, according to the learned third-Judge, it was improper to be shackled by the position of the past in which a victim played no role at all in the criminal justice system and to say that the victim cannot claim to be on higher pedestal in a criminal prosecution than the State and that such can never be the intention of the legislature.
34.4.1 We do not agree fully with the said view, as we have pointed out that if the 'victim' happens to be the complainant, he being a complainant, is required to take leave as there is no consequential amendment of Section 378 of the Code.
35. We, thus, find that the decisions cited are of no avail to support the contentions of Mr. Mehta.
36. On consideration of the entire materials on record, we, thus, answer the Reference as under:
Question No.1 Appeal by the victim is maintainable. Question No.2 Appeal by the State is maintainable. Question No.3 If the victim also happens to be the complainant and the appeal is against acquittal, he is required to take leave as provided in Section 378 of the Criminal Procedure Code but if he is not the complainant, he is not required to apply for or obtain any leave. For the appeal against inadequacy of compensation or punishment on a lesser offence, no leave is necessary at the instance of a victim, whether he is the complainant or not. "
Now the Court proceeds to deal with the present matter in light of the law laid down in the above decisions.
As is evident from the decision of the Apex Court in Subhash Chand case (supra), against acquittal in a criminal complaint case, the complainant can file appeal before the High Court taking recourse to the provisions of Section 378(4) CrPC. Appeal filed by the complainant against acquittal in criminal complaint case before the Sessions Judge would not be maintainable. Learned Single Judge of the Delhi High Court in Bhajanpura Cooperative Urban Ltd. Case (supra) has observed that it cannot be assumed that the Supreme Court was not aware of the existence of the provisio inserted in Section 372 CrPC. Although the Division Bench of Patna High Court in Parmeshwar Mandal case (supra) did not agree with the ratio laid down by the Full Bench of Punjab & Haryana High Court in M/s Tata Steel Ltd. Case (supra) yet considering the ratio laid down by the Gujarat High Court in Bhavuben Dineshbhai Makwana case (supra) and also the Full Bench decision of the Punjab and Haryana High Court in M/s Tata Steel Ltd. Case (supra), I am of the opinion that the complainant against acquittal in complaint case under Section 138 of the Act can only approach the High Court taking recourse to the provisions of Section 378(4) CrPC. Appeal preferred by the complainant before the Sessions Judge taking recourse to the proviso to Section 372 CrPC will not be maintainable. If victim is different person to the complainant, he / she may prefer appeal only before the High Court under Section 372 CrPC without leave of the Court. Therefore, the order passed by the Court below cannot be termed to be illegal.
In the decisions of this Court in Ashok Kumar Srivastava case (supra) and Ved Prakash Yadav case (supra), the learned Single Judges have not dealt with the situation / contingency which may arise that if the victim and complainant both are different persons and the victim prefers to file appeal against the acquittal order before the Sessions Judge taking recourse to the provisio to Section 372 CrPC and complainant, being different person, files application for leave before the High Court for filing appeal under Section 378(4) CrPC against the same judgment and order, in that circumstance what would be the solution has not been offered. In other words, if leave is granted to the complainant by the High Court to file appeal under Section 378(4) CrPC and the appeal is admitted and the criminal appeal preferred by the victim before the Sessions Judge is also admitted, there is every chance of conflict of opinion against the same judgment and order of acquittal. If the law laid down by the learned Single Judges of this Court in Ashok Kumar Srivastava case (supra) and Ved Prakash Yadav case (supra) is sustained, it will be seen that neither in the said judgments any solution in this regard has been given nor the legislature itself has made any provision to deal with such a situation, as illustrated above.
Now the question arises that if the legislature has given a substantive and unfettered right to the victim to file appeal which could not be subjected or subservient to the provisions already existed in the CrPC under Section 378(4) CrPC, how the situation would be dealt with. It is settled legal position that if the two provisions of any enactment appear to be contradictory, in that situation rule of harmonious construction may be applied so that aim and object of the legislature inserting new provisions can be achieved harmonizing both the provisions. If the provisio inserted in Section 372 CrPC and the already existing provision under Section 378(4) CrPC both are minutely scrutinized / analyzed, virtually there is no contradiction in both the provisions. In my opinion, victim in a complaint case against the acquittal order can prefer appeal only before the High Court without any application to grant leave. Further, if the complainant, who is another person, moves application to grant leave and the said application is allowed and appeal is admitted by the High Court, both the appeals may be decided by the same Court to avoid any conflict of opinion. Thus, with the deepest regard, I disagree with the verdict given / views taken by the learned Single Judges of this Court in Ashok Kumar Srivastava case (supra) and in Ved Prakash Yadav case (supra).
In this background, since I am unable to respectfully subscribe to the views expressed by the learned Single Judges in the case of Ashok Kumar Srivastava (supra) and in the case of Ved Prakash Yadav (supra), I find it appropriate that the matter be referred to a larger bench for an authoritative pronouncement on the issue which has arisen in the present matter.
Consequently, I frame the following questions for being referred to a larger bench :
(i) Whether against acquittal order in a criminal complaint case under Section 138 Negotiable Instruments Act victim, who is complainant also, may prefer appeal before the Sessions Judge taking recourse to the proviso to Section 372 CrPC or the said appeal shall lie before the High Court under the said provisions ?
(ii) Whether against the same judgment and order of acquittal in a complaint case, in a situation when victim and complainant both are different persons, victim may file appeal under the proviso to Section 372 CrPC before the Sessions Judge or such appeal shall lie before the High Court ?
Accordingly, in view of the questions framed here-in-above, let this matter be placed before the Hon'ble The Chief Justice under the High Court Rules for constituting a larger Bench to resolve the conflict.
Order date : 25.01.2017 safi (Om Prakash-VII, J.)