Jharkhand High Court
Tuklalyadav vs The State Of Jharkhand on 19 September, 2018
Equivalent citations: AIRONLINE 2018 JHA 396
Author: H.C. Mishra
Bench: H.C. Mishra, B.B. Mangalmurti, Anil Kumar Choudhary
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J) No. 1281 of 2016
With
Cr. Appeal (S.J) No.2066 of 2017
With
Cr. Appeal (S.J) No.2229 of 2017
With
Cr.Appeal (S.J) No.825 of 2014
With
Cr. M. P No.3260 of 2017
------------------
Cr.Appeal (S.J.) No.1281 of 2016
TuklalYadav ... ... Appellant
Versus
1. The State of Jharkhand
2. MahabirYadav ... ... Respondents
Cr.Appeal (S.J.) No.2066 of 2017
Radhika Devi ... ... Appellant
Versus
1. The State of Jharkhand
2. Shrishtidhar Mahto
3. Savitri Devi
4. Rameshwar Mahto
5. Dharni Devi .... .... Respondents
Cr.Appeal (S.J.) No.2229 of 2017
Tapas Kumar Sahu ... .... Appellant
Versus
1. The State of Jharkhand
2. SrimatiDebjaniBhattyacharjee ... .... Respondents
Cr. Appeal (S.J) No.825 of 2014
Anita Devi ... .... Appellant
Versus
1. The State of Jharkhand
2. Ganouri Prasad Gupta
3. Sunil Kumar Chandravanshi ... ..... Respondents
Cr.M.P. No.3260 of 2017
KavitaKumari ... .... Petitioner
Versus
1. The State of Jharkhand
2. Balmiki Singh
3. Gayitri Devi ... .... Opposite Party
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
-2-
-----------------
PRESENT
HON'BLE MR. JUSTICE H.C. MISHRA
HON'BLE MR. JUSTICE B.B. MANGALMURTI
HON'BLE MR.JUSTICE ANIL KUMAR CHOUDHARY
----------------
For the Appellants : M/s. Vishal Kumar Tiwary, Sachin Kumar,
Indrajit Sinha, K.S. Nanda, Namit Kumar,
Kirti Saboo, A.K. Sahani, Atul Kumar,
Advocates.
For the Respondents : M/s. Vikas Kishore, Pankaj Kumar, A.P.P.
---------------
C.A.V.on: - 31/08/2018 Pronounced on: - 19/09/2018
H.C. Mishra, J.:- Heard learned counsels for the appellants and learned counsel
for the State.
2. This reference to the Full Bench has arisen out of the Order
dated 09.07.2018, passed in Cr. Appeal (S.J) No.1281 of 2016,
Cr. Appeal (S.J) No.2066 of 2017, Cr. Appeal (S.J) No.2229 of 2017
and Cr. Appeal (S.J) No.825 of 2014, and all these appeals arise out
of the appellate judgments / orders passed by the different Courts of
Session, which were originally listed before the Hon'ble Single Judge
for adjudication. The Hon'ble Single Judge, however, referred those
matters to the Division Bench, in view of the Rule 152 of the High
Court of Jharkhand Rules, 2001.
3. While these matters were taken up, an objection was raised by
the learned counsel for the State that in view of the proviso to Section
372 of the Code of Criminal Procedure, these appeals shall lie before
the Single Judge and not before the Division Bench. It was pointed
out that the Proviso to Section 372 of the Cr.P.C., was brought in by
an Amendment Act, with effect from 31.12.2009, whereas, the High
Court of Jharkhand Rules were framed in the year 2001, and in view
of the settled principle of law that the provisions of the Rules cannot
override the provisions of the Act, the acquittal appeals arising out of
appellate judgments / orders passed by the Courts of Session, shall lie
before the Single Judge only, in view of the Proviso to Section 372 of
the Cr.P.C., which provides that the victim shall have a right to appeal
against acquittal, or conviction for lesser offence, or inadequate
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
-3-
compensation, which would lie to the Court, to which, an appeal
ordinarily lies against the order of conviction of such Court.
4. This Court took note of the law laid down by the Hon'ble
Supreme Court in Satyapal Singh Vs. State of Madhya Pradesh
and others, reported in (2015) 15 SCC 613, in which, in the cases
arising out of the police case, regarding the right of victim questioning
the correctness of the judgment / order of acquittal by preferring an
appeal to the High Court, the Hon'ble Apex Court laid down that such
right was conferred upon the victim, including the legal heirs and
others, as defined under Section 2 (wa) of the Cr.P.C., under the
Proviso to Section 372 of the Cr.P.C., but only after obtaining the
leave of the High Court, as required under Section 378 (3) of the
Cr.P.C.
5. However, the acquittal appeals, arising out of the appellate
orders of acquittal passed by the Courts of Session, which were being
decided by the Single Judge, were referred to the Division Bench,
citing Rule 152 of the High Court of Jharkhand Rules, 2001. There
also appeared to one procedural confusion, inasmuch as, whether the
application for leave to appeal under Section 378 (3) of the Cr.P.C.,
had to be filed separately as an independent application in the form of
Cr.M.P., or the same could be filed by way of Interlocutory
Application (I.A) in the same appeal. Both these procedures are
presently in vogue in the High Court of Jharkhand.
6. Another question that arose for consideration in two appeals,
namely, Cr.Appeal (S.J) No.1281 of 2016 and Cr.Appeal (S.J)
No. 2229 of 2017, which arose out of the complaint cases, and the
question was whether in case of acquittal, these cases would also be
governed by the Proviso to Section 372 of the Cr.P.C., read with
Section 378 (3) of the Cr.P.C., or they would be governed exclusively
by Section 378 (4) of the Cr.P.C. The Division Bench of the High
Court of Jharkhand in Bidya Lakhan Bhagat Vs. The State of
Jharkhand & Ors., reported in (2013) 2 JBCJ 40, and in Nirmal Kr.
Agrawal Vs. The State of Jharkhand & Anr., reported in
(2013) 4 JBCJ 60, had taken the view that the victim complainant in
those cases, aggrieved by the judgment / order of acquittal, had the
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
-4-
remedy under the Proviso to Section 372 of the Cr.P.C., and not under
Section 378 (4) of the Cr.P.C., and the special leave applications, filed
in those cases under Section 378 (4) of the Cr.P.C, were dismissed by
this High Court. However, in Subhash Chand Vs. State (Delhi)
Administration), reported in (2013) 2 SCC 17, the law has been
settled by the Apex Court that the complainant in such cases could
only file the special leave to appeal against the order of acquittal of
any kind only in the High Court and they could not file any appeal in
the Sessions Court.
7. In the State of Jharkhand, the confusion was thus, prevailing
with regard to the complaint cases, in as much as, in some Judgeships,
the acquittal appeals arising out of the acquittal judgments / orders
passed by the Magistrates even in complaint cases were being
entertained by the Sessions Judges, relying upon the decisions of this
Court in Vaidh Lakhan Bhagat and Nirmal Kr. Agrawal (supra),
whereas in some of the Judgeships, such appeals were not being
entertained by the Sessions Judges in view of the law laid down by
the Apex Court in Subhash Chand's case (supra).
8. Taking into consideration all these facts, the following questions
of law were referred by the Division Bench of this Court, for being
adjudicated by Larger Bench, by order dated 09.07.2018 passed in
these cases:-
(i) Whether the acquittal appeals arising out of the appellate
judgments / orders passed by the Courts of Session should be
heard by a Division Bench, or it should be heard by the Single
Judge in view of Proviso to Section 372, r/w 378 (3) of the
Cr.P.C., as was being done earlier.
(ii) Whether the orders passed by the Hon'ble Single Judge,
referring the acquittal appeals filed against the appellate
judgments / orders passed by the Courts of Session, in view of
Rule 152 of the High Court of Jharkhand Rules, is in
consonance with Proviso to Section 372 of the Cr.P.C., or
whether such appeals shall lie to the Court to which the
appeals ordinarily lie against the orders of conviction, i.e.,
Single Judge, in view of Proviso to Section 372 of the Cr.P.C.
(iii) Whether Rule 152 of the High Court of Jharkhand
Rules, 2001, needs to be amended in view of subsequent
amendment of Section 372 of the Cr.P.C., w.e.f. 31.12.2009.
(iv) Whether the acquittal appeals arising out of acquittal
orders / judgments passed by the Magistrates in complaint
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
-5-
cases, can be entertained by the Courts of Session under the
Proviso to Section 372 of the Cr.P.C., or the complainant has
to prefer an application for special leave to appeal before the
High Court, and if special leave is granted to him, to file the
appeal in the High Court itself, as required under Section
378 (4) of the Cr.P.C.
(v) Whether such applications for leave / special leave to
appeal, even in the acquittal appeals arising out of the
appellate judgments / orders passed by the Courts of Session,
are to be heard and decided by the Division Bench, as is being
presently done, or they can be heard and decided by a Single
Judge, which is the Court of appeal in such cases under
Proviso to Section 372 of the Cr.P.C., on the analogy that the
Court which can decide the main appeal, can also decide the
question whether the leave / special leave to appeal in a
particular case be granted or not.
(vi) Whether the applications for leave / special leave to
appeal under Section 378 (3) Cr.P.C., and Section 378 (4)
Cr.P.C., have to be filed separately as independent applications
in the form of Cr.M.P., or the same can be filed by way of
interlocutory applications (I.A.), in the same appeal, in which
case the multiplicity of cases may also be avoided, thus,
reducing the pendency of the cases.
(vii) Whether the acquittal appeals should necessarily be
registered as Acquittal Appeals, and not as Criminal Appeals.
The nomenclature Cr. Appeals should only be for the appeals
arising out of the Judgments / Orders of conviction.
(viii) Any other question(s), which may arise, for consideration
before the larger Bench.
9. When these matters came up before the Full Bench, again a
question arose with respect to the complaint cases, i.e., in cases where
complainant is also the victim, the case may be covered by the
decision of the Apex Court in Subhash Chand's case (supra), but in
the cases, the complainant is not a victim, and such victim wanted to
prefer an appeal against the judgment of acquittal, whether the appeal
filed by such victim could be entertained under Section 378 (4) of the
Cr.P.C., or such victim had a right to file an appeal under the Proviso
to Section 372 of the Cr.P.C., particularly in view of the fact that
Section 378 (4) of the Cr.P.C., speaks about the acquittal appeals filed
by the complainants only. The word 'victim' is not there in Section
378 (4) of the Cr.P.C.
10. Yet another question that would arise, is what shall be the
remedy available to the complainant if he / she is victim also, in case
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
-6-
such complainant is aggrieved by the conviction of the accused for
lesser offence, or due to imposing inadequate compensation, as
Section 378 (4) of the Cr.P.C., does not provide any remedy in such
situations.
11. Thus all these questions of law, and all the possible situations
which could be foreseen, were addressed to us by the learned
counsels, appearing for the parties in these matters. We have given a
patient hearing to the learned counsels for both the sides,
particularly learned counsels, Sri Indrajit Sinha, Sri Sachin Kumar,
Sri Vishal Kumar Tiwary, Sri K.S. Nanda, appearing for the
appellants and Sri Pankaj Kumar, appearing for the State.
Re. Question Nos. (i), (ii) and (iii).
(i) Whether the acquittal appeals arising out of the appellate
judgments / orders passed by the Courts of Session should be
heard by a Division Bench, or it should be heard by the Single
Judge in view of Proviso to Section 372, r/w 378 (3) of the
Cr.P.C., as was being done earlier.
(ii) Whether the orders passed by the Hon'ble Single Judge,
referring the acquittal appeals filed against the appellate
judgments / orders passed by the Courts of Session, in view of
Rule 152 of the High Court of Jharkhand Rules, is in
consonance with Proviso to Section 372 of the Cr.P.C., or
whether such appeals shall lie to the Court to which the
appeals ordinarily lie against the orders of conviction, i.e.,
Single Judge, in view of Proviso to Section 372 of the Cr.P.C.
(iii) Whether Rule 152 of the High Court of Jharkhand
Rules, 2001, needs to be amended in view of subsequent
amendment of Section 372 of the Cr.P.C., w.e.f. 31.12.2009.
12. For deciding these questions, Sections 372 and 378 of the
Cr.P.C., and Rule 152 of the High Court of Jharkhand Rules, 2001,
need to be referred.
Section 372 of the Cr.P.C., reads as follows:-
"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.
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
-7-
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 appeal ordinarily lies against the order
of conviction of such Court."
(Proviso brought in by Amendment Act 5 of 2009, w.e.f.
31.12.2009.)
Relevant provisions of Section 378 of the Cr.P.C., reads as
follows:-
"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
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.
(2) --------------------- .
(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
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
-8-
acquittal shall lie under sub-section (1) or under
sub-section (2)."
Rule 152 of the High Court of Jharkhand Rules reads as
follows:-
"152. All Acquittal Appeals shall be listed before the
Division Bench for Admission, and if admitted, shall be
processed for hearing. The record of the Court below shall
immediately be sent for."
13. It may be stated that there is an amendment in the High Court
of Jharkhand Rules in the year 2005, whereby Rules 35 and 36, as
they presently exist, have been brought in the High Court Rules, 2001,
wherein Rules 35 (1) (f) and 36 (ii) read as follows:-
"35. (1)The following matters may be heard and disposed of
by a Single Judge:
(a) to (e) --------------- .
(f) Appeal against judgment of acquittal in which a
substantive sentence of less than 10 (ten) years of
imprisonment could have been passed;
(g) & (h) ------------ .
(2) ----------------- .
36. The following matters may be heard and disposed of by a
Division Bench:-
(i) ------------- .
(ii) Appeal against judgment of acquittal in which a
substantive sentence of 10 (ten) years imprisonment or more
could have been passed.
(iii) & (iv) -------------- ."
14. It is submitted by the learned counsels that these questions are
no more res integra, and are fully covered by the law laid down by
the Hon'ble Supreme Court of India in Satyapal Singh's case
(supra). The said case arose out of a police case, lodged by the father
of the deceased for the offences punishable under Sections 498-A and
304-B of the Indian Penal Code. Being aggrieved by the decision of
the Trial Court, acquitting the accused persons, the father approached
the High Court against the order of acquittal under the Proviso to
Section 372 of the Code of Criminal Procedure. The High Court
disposed of the appeal without examining as to whether the leave to
file appeal under Section 378 (3) of the Cr.P.C., could be granted to
the appellant or not. As such, the correctness of the Judgment of the
High Court was challenged before the Hon'ble Apex Court, where
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
-9-
reliance was placed upon the decision of the Delhi High Court in
Ram Phal Vs. State, reported in (2015) 221 DLT 1. The Hon'ble
Apex Court took into consideration the 154th report of the Law
Commission, which had prompted the Legislature to bring Proviso to
Section 372 of the Cr.P.C., in the statute book. It took note of the Law
Commission's report that the victims are the worst sufferers in the
crime, but they did not have much role in the Court proceedings, and
they needed to be given certain rights and compensation so that there
was no distortion of the Criminal Justice System. Therefore, the
Parliament, on the basis of the aforesaid report of the Law
Commission, which is victim oriented in approach, amended certain
provisions of the Cr.P.C., and Proviso to Section 372 of the Cr.P.C.,
was added to confer the statutory right upon the victim to prefer an
appeal against the acquittal order, or an order convicting the accused
for the lesser offence, or against an order imposing inadequate
compensation. The Apex Court held that the father of the deceased
was a victim under Section 2 (wa), as also under the Proviso to
Section 372 of the Cr.P.C. The Apex Court, however, did not find the
view of the Delhi High Court to be the correct view, i.e., the victim
had an independent statutory right under the Proviso to Section 372 of
the Cr.P.C., and there was no need for the victim to seek the leave of
the High Court as required under the proviso to Section 378 (3) of the
Cr.P.C., to prefer an appeal under the Proviso to Section 372 of the
Cr.P.C. The Hon'ble Apex Court laid down the law as follows:-
"14. Thus, from a reading of the above-said legal
position laid down by this Court in the cases referred to
supra, it is abundantly clear that the proviso to Section 372
Cr.P.C must be read along with its main enactment i.e.
Section 372 itself and together with sub-section (3) of
Section 378 Cr.P.C otherwise the substantive provision of
Section 372 Cr.P.C will be rendered nugatory, as it clearly
states that no appeal shall lie from any Judgment or order
of a criminal court except as provided by Cr.P.C.
15. Thus, to conclude on the legal issue:
"Whether the appellant herein, being the father of the
deceased, has statutory right to prefer an appeal to the
High Court against the order of acquittal under the proviso
to Section 372 Cr.P.C without obtaining the leave of the
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 10 -
High Court as required under sub-section (3) of Section 378
Cr.P.C?"
this Court is of the view that the right of questioning the
correctness of the judgement and order of acquittal by
preferring an appeal to the High Court is conferred upon
the victim including the legal heir and others, as defined
under Section 2(wa) Cr.P.C, under the proviso to Section
372, but only after obtaining the leave of the High Court as
required under sub-section (3) of Section 378 Cr.P.C."
(Emphasis supplied).
15. Having heard learned counsels, and taking a cue from the law
laid down by the Hon'ble Apex Court, we find that though the victim
has a right to appeal under the Proviso to Section 372 of the Cr.P.C.,
but the Proviso itself speaks that "such appeal shall lie to the Court to
which an appeal ordinarily lies against the order of conviction of
such Court". There is no provision of any appeal to the High Court
against the orders / judgments of conviction passed by the
Magistrates. As such no appeal can lie to the High Court against the
appellate judgments / orders of acquittal passed by the Courts of
Session. Even in Satyapal Singh's case (supra), the Apex Court has
clarified the law that a statutory right under Section 372 Cr.P.C. to
prefer an appeal is available against an order passed by the Trial Court
(and not by the Appellate Court), as follows:-
"9. The proviso to Section 372 CrPC was amended by
Act 5 of 2009. The said proviso confers a statutory right
upon the victim, as defined under Section 2(wa) CrPC to
prefer an appeal against an order passed by the trial court
either acquitting the accused or convicting him/her for a
lesser offence or imposing inadequate compensation. -------.
(Emphasis supplied)
16. Thus, in view of the discussions made above, the correct
positions in law as regards these questions, with respect to appeals
arising out of police cases, emerge as follows:-
(A). In cases of the appellate judgments / orders of acquittal
passed by the Courts of Session, the informant, whether he is
a victim or not, shall have no right to challenge the same
under the Proviso to Section 372 of the Cr.P.C., in view of the
expression in the Proviso "such appeal shall lie to the Court
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 11 -
to which an appeal ordinarily lies against the order of
conviction of such Court", there being no provision for any
appeal to the High Court against the orders / judgments of
conviction passed by the Magistrates. As such, no question
survives to decide whether such appeals shall be heard by a
Single Judge, or by a Division Bench.
(B). The appeals arising out of original judgments / orders
of acquittal, or of conviction for lesser offence, or imposing
inadequate compensation, passed by the Courts of Session,
shall lie to the High Court, in view of the Proviso to Section
372 of the Cr.P.C, but only after obtaining the leave under
Section 378 (3) of the Cr.P.C. And in view of Proviso to
Section 372 of the Cr.P.C, read with Rule 36 (ii) of the High
Court of Jharkhand Rules, 2001, the appeals shall lie before
the Division Bench of the High Court.
(C). As a necessary corollary, the appeals arising out of
judgments / orders passed by the Court of Magistrates,
whether against acquittal, or convicting for a lesser offence, or
imposing inadequate compensation, filed by the victims as
defined under Section 2 (wa) of the Cr.P.C., shall lie before
the Courts of Session, in which case, leave to appeal is not
required. If such orders / judgments are also affirmed by the
Courts of Session, there shall be no further appeal to the High
Court under the Proviso to Section 372 of the Cr.P.C., in view
of the expression in the Proviso "such appeal shall lie to the
Court to which an appeal ordinarily lies against the order of
conviction of such Court", there being no provision for any
appeal to the High Court against the orders / judgments of
conviction passed by the Magistrates.
(D). We also find that in view of the Rules 35 (1) (f) and
36 (ii) brought by amendment in the year 2005, in the High
Court of Jharkhand Rules 2001, Rule 152 of the High Court
Rules, which had originally been framed in the year 2001
itself, needs to be declared redundant, as the new Rules
35 (1) (f) and 36 (ii) take care of the situation.
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 12 -
Re. Question No. (iv).
(iv) Whether the acquittal appeals arising out of acquittal
orders / judgments passed by the Magistrates in complaint
cases, can be entertained by the Courts of Session under the
Proviso to Section 372 of the Cr.P.C., or the complainant has
to prefer an application for special leave to appeal before the
High Court, and if special leave is granted to him, to file the
appeal in the High Court itself, as required under Section
378 (4) of the Cr.P.C.
17. As regards this question, it is submitted by the learned counsels
that in Subhash Chand's case (supra), arising out of acquittal of the
accused in a complaint case filed by the State under the provisions of
Prevention of Food Adulteration Act, the Hon'ble Supreme Court of
India was considering the question whether the appeal by the State
shall lie to the Court of Session, under Section 378 (1) of the Cr.P.C.,
or to the High Court under Section 378 (4) of the Cr.P.C. The Apex
Court has laid down the law as follows:-
"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 Sections 16(1) & (1-A) 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." (Emphasis supplied).
18. It is submitted by Sri Indrajit Sinha, that in this case, the
Hon'ble Supreme Court has not discussed the right of the victims
under the Proviso to Section 372 of the Cr.P.C., and the law has been
laid down only taking into consideration Section 378 (4) of the
Cr.P.C. Learned counsel has also pointed out that in the said case, the
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 13 -
case arose out of a complaint, filed by a Public Officer, under the
various provisions of the Prevention of Food Adulteration Act. The
Hon'ble Apex Court has not taken into consideration the situations
where the complainant is also the victim, and where the complainant
is not a victim. It is pointed out that Proviso to Section 372 of the
Cr.P.C., deals with the right to appeal by a victim only, whereas
Section 378 (4) of the Cr.P.C., deals with the appeal to be filed by the
complainant only. Our attention has been drawn towards the decisions
of the various High Courts on this point by the learned counsel,
Sri Indrajit Sinha. In Tata Steel Ltd. Vs. M/s Atma Tube Products
Ltd. & Ors., [(CRM-790-MA-2010) (O&M), decided on March 18,
2013], taking into consideration the Hon'ble Apex Court's decision in
Subhash Chand's case (supra), and various other decisions, the Full
Bench of the Punjab and Haryana High Court has laid down the law
as follows :-
"139. (A) ------------- .
(B) (iii) The 'complainant' in a complaint case who is also a
'victim' and the 'victim' other than a 'complainant' in such case,
shall have 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 of the Code.
(iv) The 'victim', who is not the complainant in a private
complaint case, is not entitled to prefer appeal against acquittal
under proviso to Section 372 and his / her right to appeal, if any,
continues to be governed by the unamended provisions read with
Section 378 (4) of the Code.
(v) Those victims of complaint cases whose right to appeal have
been recognized under proviso to Section 372, are not required
to seek leave or special leave to appeal from the High Court in
the manner contemplated under Section 378 (3) & (4) of the
Code.
( C ) & (D)- (vi) The right conferred on a 'victim' to present
appeal under proviso to Section 372 is a substantive and
independent right which is neither inferior to nor contingent
upon the filing of appeal by the State in that case. Resultantly,
the condition of seeking 'leave to appeal' or 'special leave to
appeal' as contained in Section 378 (3) & (4) cannot be imposed
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 14 -
for the maintainability of appeal by a 'victim' under proviso to
Section 372 of the Code."
The same view has been expressed by the Division Bench of
the Rajasthan High Court in Dhanne Singh Vs. State of Rajasthan
[(D.B. Criminal Revision Petition No.411 of 2012) decided on
2nd December, 2014].
The Full Bench of the Madras High Court (Madurai Bench) in
S. Ganapathy Vs. N. Senthilvel, reported in 2017 Cr L J 602 (Mad)
has taken the view 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 the 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 the 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 Satyapal Singh.
The view taken by the Full bench of the Gujarat High Court in
Bhavuben Dineshbhai Makwana Vs. State of Gujarat & Ors.,
reported in 2013 CrL J 4225 (Guj.), is as follows:-
"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."
The Division Bench of Kerela High Court in Omanajose &
Anr., Vs. State of Kerela & Ors., reported in 2015 CrL J 2784
(Ker), has held as follows :-
"35. 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 Code of
Criminal Procedure and his remedy is only to file an Appeal to
the High Court with Special Leave under Section 378 (4) of
the Code of Criminal Procedure."
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 15 -
It is further pointed out by the learned counsel that the
Allahabad High Court vide its order dated 25.1.2017 passed in
Anil Kr. Agrawal Vs. State of U.P. &Anr., (Application U/S 482
No. 3171 of 2016) has referred the following questions before the
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
Cr.P.C 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 Cr.P.C before the Sessions
Judge or such appeal shall lie before the High Court?
Similarly, the Calcutta High Court has also referred the
following questions for decision by the Larger Bench in
Mirnal Kanti Sil Vs. Smt. Sampa Kabiraj and analogous cases (in
CRR No.3048 of 2016 and analogous cases) by order dated
14th March 2017:-
a) Whether a victim in a complaint case can avail of the right
to appeal under proviso to Section 372 Cr.P.C?
b) If so, what is the form and manner of availing of such
remedy?
19. To the contrary, other learned counsels have drawn our attention
towards the discussions made in Subhash Chand's case (supra),
which are as follows :-
"18. If we analyse Sections 378(1)(a) and (b), it is clear
that the State Government cannot direct the Public
Prosecutor to file an appeal against an order of acquittal
passed by a Magistrate in respect of a cognizable and non-
bailable offence because of the categorical bar created by
Section 378(1)(b). Such appeals, that is, appeals against
orders of acquittal passed by a Magistrate in respect of a
cognizable and non-bailable offence can only be filed in the
Sessions Court at the instance of the Public Prosecutor as
directed by the District Magistrate. Section 378(1)(b) uses
the words "in any case" but leaves out orders of acquittal
passed by a Magistrate in respect of a cognizable and non-
bailable offence from the control of the State Government.
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 16 -
Therefore, in all other cases where orders of acquittal are
passed appeals can be filed by the Public Prosecutor as
directed by the State Government to the High Court.
19. Sub-section (4) of Section 378 makes provision for
appeal against an order of acquittal passed in a case
instituted upon complaint. It states that in such case if the
complainant makes an application to the High Court and
the High Court grants special leave to appeal, the
complainant may present such an appeal to the High Court.
This sub-section speaks of "special leave" as against sub-
section (3) relating to other appeals which speaks of
"leave". Thus, the complainant's appeal against an order
of acquittal is a category by itself. The complainant could
be a private person or a public servant. This is evident from
sub-section (5) which refers to application filed for "special
leave" by the complainant. It grants six months' period of
limitation to a complainant who is a public servant and
sixty days in every other case for filing application. Sub-
section (6) is important. It states that if in any case the
complainant's application for "special leave" under sub-
section (4) is refused no appeal from the order of acquittal
shall lie under sub-section (1) or under sub-section (2).
Thus, if "special leave" is not granted to the complainant to
appeal against an order of acquittal the matter must end
there. Neither the District Magistrate nor the State
Government can appeal against that order of acquittal. The
idea appears to be to accord quietus to the case in such a
situation.
20.---------------. Section 2(d) defines a "complaint" to
mean any allegation made orally or in writing to a
Magistrate with a view to his taking action under the Code,
that some person, whether known or unknown has
committed an offence, but does not include a police report.
The Explanation to Section 2(d) states that a report made
by a police officer in a case which discloses after
investigation, the commission of a non-cognizable offence,
shall be deemed to be a complaint, and the police officer by
whom such report is made shall be deemed to be the
complainant. ------------------. Thus, whether a case is a case
instituted on a complaint depends on the legal provisions
relating to the offence involved therein. But once it is a case
instituted on a complaint and an order of acquittal is
passed, whether the offence be bailable or non-bailable,
cognizable or non-cognizable, the complainant can file an
application under Section 378(4) for special leave to appeal
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 17 -
against it in the High Court. Section 378(4) places no
restriction on the complainant. So far as the State is
concerned, as per Section 378(1)(b), it can in any case, that
is, even in a case instituted on a complaint, direct the
Public Prosecutor to file an appeal to the High Court from
an original or appellate order of acquittal passed by any
court other than High Court. But there is, as stated by us
hereinabove, an important inbuilt and categorical
restriction on the State's power. It cannot direct the Public
Prosecutor to present an appeal from an order of acquittal
passed by a Magistrate in respect of a cognizable and non-
cognizable offence. In such a case the District Magistrate
may under Section 378(1)(a) direct the Public Prosecutor to
file an appeal to the Sessions Court. This appears to be the
right approach and correct interpretation of Section 378 of
the Code."
20. Referring to this decision, it is submitted that irrespective of the
fact whether the complainant is a victim or not or the complainant is a
private person or the State, the only possible view is that the
complainant can file an application for special leave to appeal against
the order of acquittal of any kind only to the High Court. In such
cases, the complainant cannot file an appeal before the Sessions
Court.
21. Another view by learned counsels is based on Satyapal Singh's
case (supra), wherein the Hon'ble Supreme Court has discussed the
law as follows :-
"9. The proviso to Section 372 CrPC was amended by
Act 5 of 2009. The said proviso confers a statutory right
upon the victim, as defined under Section 2(wa) CrPC to
prefer an appeal against an order passed by the trial court
either acquitting the accused or convicting him/her for a
lesser offence or imposing inadequate compensation. -------.
The said amendment to the provision of Section 372 Cr.P.C
was prompted by the 154th Law Commission Report. -------.
Further, the Law Commission in its Report has noted the
relevant aspect of the matter, namely, that the victims are
the worst sufferers in a crime and they do not have much
role in the court proceedings. They need to be given certain
rights and compensation so that there is no distortion of the
criminal justice system. The said Report of the Law
Commission has also taken note of the views of the
criminologist, penologist and reformers of criminal justice
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 18 -
system at length and has focused on victimology, control of
victimization and protection of the victims of crimes and the
issues of compensation to be awarded in favour of them.
Therefore, Parliament on the basis of the aforesaid Report
of the Law Commission, which is victim-oriented in
approach, has amended certain provisions of Cr.P.C and in
that amendment the proviso to Section 372 Cr.P.C was
added to confer the statutory right upon the victim to prefer
an appeal before the High Court against the acquittal
order, or an order convicting the accused for the lesser
offence or against the order imposing inadequate
compensation."
10. The Full Bench of the High Court of Delhi in Ram
Phal case after examining the relevant provisions under
Section 2(wa) and the proviso to Section 372 CrPC, in the
light of their legislative history has held that the right to
prefer an appeal conferred upon the victim or relatives of
the victim by virtue of the proviso to Section 372 is an
independent statutory right. Therefore, it has held that there
is no need for the victim in terms of definition under Section
2(wa) CrPC to seek the leave of the High Court as required
under sub-section (3) of Section 378 CrPC to prefer an
appeal under the proviso to Section 372 CrPC. The said
view of the High Court is not legally correct for the reason
that the substantive provision of Section 372 CrPC clearly
provides that no appeal shall lie from any judgment and
order of a criminal court except as provided for by CrPC.
Further, sub-section (3) of Section 378 CrPC provides that
for preferring an appeal to the High Court against an order
of acquittal it is necessary to obtain its leave."
22. The same view is taken by the Supreme Court in a subsequent
decision in Roopendra Singh Vs. State of Tripura & Anr., reported
in (2017) 13 SCC 612, wherein, it is held as follows:-
"8.------------. Though the High Court observed that no
such leave was necessary, the matter now assumes different
complexion in the light of the decision in Satya Pal Singh.
However, since there was already an application on behalf
of the victim to treat the appeal under Section 372 read with
Section 378 CrPC, in our considered view, the leave ought
to be granted, which we presently do. ----------."
23. Placing reliance on these decisions, learned counsels drew our
attention towards Section 378 (4) of the Cr.P.C., wherein the right to
appeal against the order of acquittal in a complaint case is given to the
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 19 -
complainant by filing an application for special leave and if the
application is allowed to present the appeal in the High Court itself. It
is submitted by the learned counsels that Section 378 (4) of the
Cr.P.C., does not speak about the right of a victim and as such, a
person, who is a victim, under Section 2 (wa) of the Cr.P.C, whether
such person is a complainant or not, has the right to appeal under the
Proviso to Section 372 of the Cr.P.C, which right cannot be said to be
taken away by Section 378 (4) of the Cr.P.C.
24. Learned counsels also drew our attention towards the decision
of the Hon'ble Supreme Court of India in S. Sundaram Pillai &
Ors., Vs. V.R. Pattabiraman & Ors., reported in (1985) 1 SCC 591,
wherein where the Hon'ble Supreme Court has discussed the effect of
bringing proviso to a main section. Discussing the previous decisions
of the Apex Court of India on this point, it has been held as follows:-
"43. We need not multiply authorities after authorities on
this point because the legal position seems to be clearly and
manifestly well established. To sum up, a proviso may serve
four different purposes:
(1) qualifying or excepting certain provisions from the
main enactment:
(2) it may entirely change the very concept of the
intendment of the enactment by insisting on certain
mandatory conditions to be fulfilled in order to make the
enactment workable:
(3) it may be so embedded in the Act itself as to become an
integral part of the enactment and thus acquire the tenor
and colour of the substantive enactment itself; and
(4) it may be used merely to act as an optional addenda to
the enactment with the sole object of explaining the real
intendment of the statutory provision."
25. Learned counsels submitted that even though Section 372 of the
Cr.P.C. lays down that no appeal shall lie from any judgment or order
of a Criminal Court, except as provided by this Court or by any other
law for the time being in force, but the proviso enlarges the scope of
Section 372 of the Cr.P.C., and gives the right to the victim,
irrespective of the fact that the victim is complainant, or not a
complainant, to prefer an appeal in cases of acquittal, conviction of
the accused for lesser offence, or imposing inadequate compensation.
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 20 -
Learned counsels submitted that there has to be harmonious
construction of the statute, and where two contradictory views were
possible, one which avoids the anomalies and creates the reasonable
results should be preferred, which view has been expressed by the
Supreme Court in S. Sundaram Pillai's case itself, (supra, para 86).
Learned counsels also placed reliance upon the decision of the
Hon'ble Supreme Court of India in Municipal Corporation of Delhi
Vs. Shiv Shanker, reported in (1971) 1 SCC 442, wherein it has been
held as follows :-
"5.-------------. If the objects of the two statutory
provisions are different and the language of each statute is
restricted to its own objects or subject, then they are
generally intended to run in parallel lines without meeting
and there would be no real conflict though apparently it
may appear to be so on the surface. Statutes in parimateria
although in apparent conflict, should also, so far as
reasonably possible, be construed to be in harmony with
each other and it is only when there is an irreconcilable
conflict between the new provision and the prior statute
relating to the same subject-matter, that the former, being
the later expression of the legislature, may be held to
prevail, the prior law yielding to the extent of the conflict.---
-----------------." (Emphasis supplied).
26. Placing reliance on these decisions, it is submitted by the
learned counsels that the complainant, who is also a victim, has the
right to avail both the remedies, i.e., either under the proviso to
Section 372 of the Cr.P.C., or under Section 378 (4) of the Cr.P.C., as
per his choice. It may be a case that if such victim comes before the
Court of Session under the proviso to Section 372 of the Cr.P.C., and
loses there also, he may have another remedy under the proviso to
Section 378 (4) of the Cr.P.C., by filing appeal to this Court after
seeking special leave. It is submitted that the harmonious construction
of the statues requires that since both these provisions are not in
conflict with each other, both of them should co-exist. It is submitted
that the statutory right to the complainant cannot be curtailed in any
manner. However, where the victim is not a complainant, he / she has
the only remedy under the Proviso to Section 372 of the Cr.P.C. It is
also submitted that in cases, the victim is also a complainant or even if
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 21 -
the victim is not a complainant, and is aggrieved by the fact that the
accused is convicted for the lesser offence, or by imposing inadequate
compensation, they shall have the right to appeal only under Proviso
to Section 372 of the Cr.P.C., as in such cases, no remedy is available
of filing appeal in the High Court under Section 378 (4) of the Cr.P.C.
It is submitted that if this view is not taken, such victim cannot file
appeal under Section 372 of the proviso, and this provision shall
become redundant for such victim. As such, harmonious construction
of the statute is required to be made, recognizing the rights of such
victims.
27. Yet another view is advanced by the learned counsels that as
Section 378 (4) of the Cr.P.C., uses the term 'complainant' only, but it
shall encompass within its meaning the 'victim' also in the complaint
cases, and as such, even if the victim is not a complainant, such victim
can also file an appeal against the judgment / order of acquittal passed
in complaint cases by filing appeal in the High Court after seeking
special leave under Section 378 (4) of the Cr.P.C.
28. Having considered the various stands advanced by the learned
counsels on this question, taking into consideration the views of the
other High Courts, as also the law laid down by the Apex Court, as
referred above, and trying to harmonize the provisions of Proviso to
Sections 372 of the Cr.P.C., and Section 378 of the Cr.P.C., we
propose to answer this question, with respect to appeals arising out of
complaint cases, as follows:-
(A). The complainant, whether the State or a private
person, who is also the victim as defined under Section 2 (wa)
of the Cr.P.C., if aggrieved by the judgment / order of
acquittal passed by the Trial Court, their case is now set at rest
by the decision of the Hon'ble Apex Court in
Subhash Chandra's case (supra), and as such, they have the
only remedy against the order / judgment of acquittal passed
by the Trial Court, to seek special leave of the High Court
under Section 378 (4) of the Cr.P.C., and in case the special
leave is granted, to file appeal in the High Court itself. In case
the special leave is not granted to the private complainant, the
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 22 -
appeal even by the State shall be barred in terms of Section
378 (6) of the Cr.P.C.
(B). Such complainants, even if they are victims as defined
under Section 2 (wa) of the Cr.P.C., now cannot take recourse
to Proviso to Section 372 of the Cr.P.C. They cannot be
allowed two forums of appeal, as argued by learned counsels,
and they can also be given only one forum of appeal, as is
given to the victims in case of judgment / order of acquittal in
police cases.
(C). In cases the victims are not the complainant, their
cases cannot come under Section 378 (4) of the Cr.P.C., as
Section 378 (4) clearly speaks about the right of complainant
only. Such victims as defined under Section 2 (wa) of the
Cr.P.C., can avail the remedy of appeal under the Proviso to
Section 372 of the Cr.P.C. In such cases, if the order /
judgment of acquittal is passed by the Court of Magistrate, the
appeal shall lie to the Court of Session, in which case there
shall be no requirement to seek any leave to appeal. If the
order / judgment of acquittal is passed by the Court of
Session, the appeal shall lie to the High Court, subject to leave
to be taken under Section 378 (3) of the Cr.P.C.
(D). At the same time, we cannot ignore the right of the
victim complainant, if such victim complainant is aggrieved
by the conviction of the accused for lesser offence, or
imposing inadequate compensation. Such appeals shall not be
against the judgment / order of acquittal and shall not come
within the purview of Section 378 (4) of the Cr.P.C., and are
also not covered by the decision of the Apex Court in
Subhash Chandra's case (supra). In such cases, we are of
the considered view that the victims as defined under Section
2 (wa) of the Cr.P.C., whether they are complainant or not,
shall have the right to appeal under the Proviso to Section 372
of the Cr.P.C. against the judgment / order of convicting the
accused for lesser offence, or imposing inadequate
compensation. In such cases also, if the order / judgment is
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 23 -
passed by the Court of Magistrate, the appeal shall lie to the
Court of Session, in which case there shall be no requirement
to seek any leave to appeal, and if the order / judgment is
passed by the Court of Session, the appeal shall lie to the High
Court, subject to leave to be taken under Section 378 (3) of
the Cr.P.C.
Re. Question Nos. (v) & (vi)
(v) Whether such applications for leave / special leave to
appeal, even in the acquittal appeals arising out of the
appellate judgments / orders passed by the Courts of Session,
are to be heard and decided by the Division Bench, as is being
presently done, or they can be heard and decided by a Single
Judge, which is the Court of appeal in such cases under
Proviso to Section 372 of the Cr.P.C., on the analogy that the
Court which can decide the main appeal, can also decide the
question whether the leave / special leave to appeal in a
particular case be granted or not.
(vi) Whether the applications for leave / special leave to
appeal under Section 378 (3) Cr.P.C., and Section 378 (4)
Cr.P.C., have to be filed separately as independent applications
in the form of Cr.M.P., or the same can be filed by way of
interlocutory applications (I.A.), in the same appeal, in which
case the multiplicity of cases may also be avoided, thus,
reducing the pendency of the cases.
29. Addressing question No.(vi), it is submitted by the learned
counsels that the application for leave under Section 378 (3) of the
Cr.P.C., need not be filed separately as an independent application in
the form of Cr.P.C, rather the same can be filed by way of
Interlocutory Application (I.A) in the same appeals, in order to avoid
the multiplicity of cases. It is submitted that the same view has been
taken by the Supreme Court also in State of Rajasthan Vs. Ramdeen
& Ors., reported in (1977) 2 SCC 630, which is as follows :-
"8. The matter will, therefore, have to be decided in terms
of Section 378(1) and (3) of the Code of criminal
Procedure, 1973. ---------------. Sub-section (3) of that
section provides that such an appeal shall not be
entertained except with the leave of the High Court. Under
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 24 -
the law it will be perfectly in order if a composite
application is made giving the necessary facts and
circumstances of the case along with the grounds which
may be urged in the appeal with a prayer for leave to
entertain the appeal, it is not necessary, as a matter of law,
that an application for leave to entertain the appeal should
be lodged first and only after grant of leave by the High
Court an appeal may be preferred against the order of
acquittal. If such a procedure is adopted, as above, it is
likely, as it has happened in this case, the appeal may be
time-barred if the High Court takes more than ninety days
for disposal of the application for leave. The possibility that
the High Court may always in such cases condone the delay
on application filed before it does not, in law, solve the
legal issue. -----------------."
(Emphasis supplied).
30. As regards filing the application for special leave under the
proviso to Section 378 (4) of the Cr.P.C., there are two divergent
views. It is submitted by some of the learned counsels that Section
378 (4) states that when special leave is granted then only the
complainant may present such appeal before the High Court and as
such, an application for special leave under the proviso to Section
378 (4) of the Cr.P.C. has to be filed separately, and when such an
application is allowed, only thereafter, the appeal may be filed.
However, the divergent view has also taken by some of the learned
counsels, taking cue from Ramdeen's case (supra), that filing of the
application for special leave separately may result in the delay in
filing the appeal itself, thus, getting the appeal time barred, if the high
Court takes more than six months or sixty days, as the case may be,
for disposal of the application for special leave. Though the High
Court in such cases, may condone the delay on an application filed for
that purpose, but in order to avoid such situation, it would be
appropriate that even an application for special leave under the
proviso to Section 378 (4) of the Cr.P.C., should be filed by way of
interlocutory application (I.A) in the main appeal itself, and in such
cases, the I.A should be decided by the High Court first, and if the
special leave is granted, the appeal shall be adjudicated.
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 25 -
31. Having given due consideration to the submissions of learned
counsels, we are of the considered view that the application for leave /
special leave under Section 378 (3) & (4) of the Cr.P.C., need not be
filed separately as independent application in the form of Cr.M.P.,
rather the same can be filed by way of Interlocutory Application (I.A)
in the same appeals, in order to avoid the multiplicity of cases. This
shall not only avoid the multiplicity of cases, rather shall result in
reduction in the pendency of cases as well. This shall also avoid the
possibility of the appeal itself getting time barred. If the composite
appeal is filed against the order / judgment of acquittal in the High
Court, coupled with an interlocutory application therein, seeking leave
to appeal under Section 378 (3) of the Cr.P.C., the same may be
decided along with the appeal itself, and in cases of appeal against
acquittal in complaint cases, the Court shall decide the interlocutory
application filed under Section 378 (4) of the Cr.P.C. first, and in
case, the special leave is granted, shall enter for adjudication of the
main appeal.
32. As regards question No.(v), learned counsels submitted that the
application for leave / special leave should be decided by the
co-ordinate Bench, which decides the main appeal, on the analogy
that a Bench, which can decide the main appeal, can also decide the
issue as to whether the leave to appeal / special leave to appeal in a
given case should be granted or not. This will also avoid a piquant
situation in which if the application for leave / special leave is decided
by the Division Bench in a separate application and thereafter, the
appeal is to be decided by the Single Judge, the Single Judge may be
bound with the view of the Division Bench and may have some
difficulty in taking the divergent view, already taken by the Division
Bench on an issue.
33. We are in agreement with the general views of the learned
counsels in this regard. We may further clarify that this situation shall
now not arise with respect to the appellate judgments / orders of
acquittal passed by the Courts of Session, in view of our answer to the
Question Nos. (i) (ii) and (iii) above, as now there is no scope left for
filing any appeal in the High Court against the appellate judgments /
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 26 -
orders of acquittal passed by the Courts of Session. The situation shall
not arise even with respect to the original judgments / orders of
acquittal passed by the Courts of Session, if the composite appeals are
filed with the I.A. for leave / special leave to appeal, under Section
378 (3) & (4) of the Cr.P.C., as the case may be, as in such cases the
matters shall be heard by a Division Bench only. However, this
situation shall govern only the matters in which the applications for
special leave under Section 378 (4) of the Cr.P.C., arising out of the
judgements / orders of acquittal passed by the Magistrates, have
already been filed separately, and are pending.
34. In the High Court of Jharkhand Rules, 2001, Rule 84 (l) gives
the nomenclature of I.A. as "Interlocutory Applications in pending
civil cases.". The Format given in Rule 83 shows that that I.As. may
be filed in Criminal cases also. As such it is apparent that word 'civil'
in Rule 84 (l) of the High Court of Jharkhand Rules, 2001, is
redundant and needs to be deleted.
35. As such, these questions are being answered by us in the
following manner:-
(A). An application for special leave to appeal under
Section 378 (4) of the Cr.P.C., shall henceforth be heard by
the co-ordinate Bench, which ultimately decides the appeal,
i.e., in the cases the appeals lie before the Division Bench,
such applications shall also be heard by Division Bench and in
cases the appeals lie before the Single Judge, such
applications shall also be heard by the Single Judge.
(B). An application for leave to appeal under Section
378 (3) of the Cr.P.C., shall henceforth be maintainable only
in the acquittal appeals arising out of the original judgments /
orders passed by the Courts of Session, and shall necessarily
lie before the Division Bench only.
(C). Applications for leave to appeal / special leave to
appeal shall henceforth be filed in the same appeals by way of
interlocutory applications (I.A.) and not by way of separate
application in the form of Cr.M.P.
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 27 -
(D). The word 'civil' in Rule 84 (l) of the High Court of
Jharkhand Rules, 2001, is redundant and needs to be deleted.
Re. Question No. (vii)
(vii) Whether the acquittal appeals should necessarily be
registered as Acquittal Appeals, and not as Criminal Appeals.
The nomenclature Cr. Appeals should only be for the appeals
arising out of the Judgments / Orders of conviction.
36. This is a question of convenience of the High Court. The
acquittal appeals, filed other than by the complainants, henceforth
shall not be nomenclated as Criminal Appeals, rather they shall be
nomenclated as Acquittal Appeals. The nomenclature of Criminal
Appeal shall be confined only for the appeals, arising out of the
judgment / order of conviction and not otherwise. The acquittal
appeals filed by the complainants, shall henceforth be nomenclated as
Acquittal Appeal (C), so as to differentiate them from the acquittal
appeals, arising out of the police cases. The appeals filed by the
victims against the conviction for a lesser offence, or imposing
inadequate compensation shall be nomenclated as Criminal
Appeal (V), so as to differentiate them from the criminal appeals,
filed by the convicts against their conviction. Acquittal appeals,
arising out of the complaint cases, which are filed by the victims, who
are not the complainant, shall be nomenclated only as Acquittal
Appeals.
37. While dealing with these matters, we learnt the Stamp Reporters
of the High Court have stopped giving the report regarding the
maintainability of the appeals / applications, or the locus standi of the
petitioner / appellant in the cases filed in the High Court. We are
informed that such objections are not raised by the Stamp Reporters,
in view of the two Judicial Orders passed by the Hon'ble Single Judge
of this Court, one being the order dated 17th April 2009, passed in
W.P(C) No.1277 of 2009 (Sujit Kumar Vs. The State of Jharkhand
& Ors.), and other being the order dated 07.01.2014 passed in
W.P(HB) No.208 of 2013 (Awadhesh Singh @ Abhay Pratap Singh
Vs. The State of Jharkhand & Ors.). It has been directed by the
Hon'ble Single Judge that the objections relating to nomenclature or
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 28 -
maintainability should not be raised by the Registry, holding that
these are legal matters, which can be raised by the counsel for the
respondents and the matter can be adjudicated upon by the Court.
38. We are afraid that the view taken by the Hon'ble Single Judge
is not a correct view. There may be many matters, which may not be
maintainable in law, and in absence of pointing out by the Stamp
Reporter, the matters may even be allowed with favorable orders, if
not pointed out by the counsel of respondent. The Stamp Reporter
earlier used to point out such defects in the matters filed in the High
Court. In absence of any such objection, many matters, which are not
maintainable in law, may be adjudicated upon by the High Court, and
we are afraid that many such matters might have been adjudicated and
decided by now. We are amply sure that many appeals, both against
acquittal and also against conviction, arising out of appellate
judgments / orders, passed by the Courts of Session, which were
otherwise not even maintainable in law, have been adjudicated by the
High Court by now, in absence of the required reporting by the Stamp
Reporter, and not pointing out by the counsel of respondent.
39. We are of the considered view that the Stamp Reporter must
report about the maintainability, locus of the applicant and nature of
the matters in its report. Such reports, if adverse, may be listed 'for
Orders' before the Court, where the objection to such reports may be
taken by the aggrieved party and matter may be decided by the
concerned Bench about the correctness or otherwise of the report.
This shall also save the High Court from an embarrassment of
adjudicating a non-maintainable matter. We accordingly, hold that the
view taken by the Hon'ble Single Judge in the aforesaid two writ
applications are not the correct view, and we hereby, direct the
Registry / Stamp Reporter, to resume to make reporting about the
maintainability, locus and nature of the matters filed in the High
Court.
40. To conclude, we answer the questions referred to the Full Court,
as follows:-
Question Nos. (i), (ii) and (iii).
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 29 -
With respect to appeals arising out of police cases
(1). In cases of the appellate judgments / orders of
acquittal passed by the Courts of Session, the informant,
whether he is the victim or not, shall have no right to
challenge the same under the Proviso to Section 372 of the
Cr.P.C. As such, no question survives to decide whether
such appeals shall be heard by a Single Judge, or by a
Division Bench.
(2). The appeals arising out of original judgments /
orders of acquittal, or of conviction for lesser offence, or
imposing inadequate compensation, passed by the Courts
of Session, shall lie to the High Court, in view of the
Proviso to Section 372 of the Cr.P.C, subject to the leave
to be taken of the High Court under Section 378 (3) of the
Cr.P.C. In view of Proviso to Section 372 of the Cr.P.C,
read with Rule 36 (ii) of the High Court of Jharkhand
Rules, 2001, such appeals shall lie before the Division
Bench of the High Court.
(3). The appeals arising out of judgments / orders
passed by the Court of Magistrates, whether against
acquittal, or convicting for a lesser offence, or imposing
inadequate compensation, filed by the victims as defined
under Section 2 (wa) of the Cr.P.C., shall lie before the
Courts of Session, in which case, leave to appeal is not
required. If such orders / judgments are also affirmed by
the Courts of Session, there shall be no further appeal to
the High Court, under the Proviso to Section 372 of the
Cr.P.C.
Question No. (iv).
With respect to appeals arising out of complaint cases
(4). The complainant, whether the State or a private
person, who is also the victim as defined under Section
2 (wa) of the Cr.P.C., if aggrieved by the judgment / order
of acquittal passed by the Trial Court, shall have the only
remedy against the order / judgment of acquittal passed by
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 30 -
the Trial Court, to seek special leave of the High Court
under Section 378 (4) of the Cr.P.C., and in case the
special leave is granted, to file appeal in the High Court
itself.
(5). In case the special leave is not granted to the
private complainant, the appeal even by the State shall be
barred in terms of Section 378 (6) of the Cr.P.C.
(6). Complainants, even if they are victims as defined
under Section 2 (wa) of the Cr.P.C., cannot take recourse
to Proviso to Section 372 of the Cr.P.C., for challenging
the acquittal of the accused.
(7). In cases the victims are not the complainant, their
cases cannot come under Section 378 (4) of the Cr.P.C.
Such victims as defined under Section 2 (wa) of the
Cr.P.C., can avail the remedy of appeal under the Proviso
to Section 372 of the Cr.P.C. In such cases, if the order /
judgment of acquittal is passed by the Court of Magistrate,
the appeal shall lie to the Court of Session, in which case
there shall be no requirement to seek any leave to appeal.
If the order / judgment of acquittal is passed by the Court
of Session, the appeal shall lie to the High Court, subject
to leave to be taken under Section 378 (3) of the Cr.P.C.
(8). The victims as defined under Section 2 (wa) of the
Cr.P.C., whether they are complainant or not, shall have
the right to appeal under the Proviso to Section 372 of the
Cr.P.C. against the judgment / order of convicting the
accused for lesser offence, or imposing inadequate
compensation. In such cases also, if the order / judgment
is passed by the Court of Magistrate, the appeal shall lie to
the Court of Session, in which case there shall be no
requirement to seek any leave to appeal, and if the order /
judgment is passed by the Court of Session, the appeal
shall lie to the High Court, subject to leave to be taken
under Section 378 (3) of the Cr.P.C.
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 31 -
Question Nos. (v) & (vi)
(9). An application for special leave to appeal under
Section 378 (4) of the Cr.P.C., shall henceforth be heard
by the co-ordinate Bench, which ultimately decides the
appeal, i.e., in the cases the appeals lie before the Division
Bench, such applications shall also be heard by Division
Bench, and in cases the appeals lie before the Single
Judge, such applications shall also be heard by the Single
Judge.
(10). An application for leave to appeal under Section
378 (3) of the Cr.P.C., shall henceforth be maintainable only
in the appeals arising out of the original judgments / orders
of acquittal, or of conviction for lesser offence, or imposing
inadequate compensation, passed by the Courts of Session,
and shall necessarily lie before the Division Bench only.
(11). Applications for leave / special leave to appeal
shall henceforth be filed in the same appeals by way of
Interlocutory Applications (I.A.) and not by way of
separate application in the form of Cr.M.P.
Question No. (vii)
(12). The acquittal appeals, filed other than by the
complainants, henceforth shall not be nomenclated as
Criminal Appeals, rather they shall be nomenclated as
Acquittal Appeals. The nomenclature of Criminal Appeal
shall be confined only for the appeals, arising out of the
judgment / order of conviction. The acquittal appeals filed
by the complainants, shall henceforth be nomenclated as
Acquittal Appeals (C). The appeals filed by the victims
against the conviction for a lesser offence or imposing
inadequate compensation shall be nomenclated as
Criminal Appeal (V). Acquittal appeals, arising out of the
complaint cases, which are filed by the victims, who are
not the complainant, shall be nomenclated only as
Acquittal Appeals.
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 32 -
Other Matters
(13). We direct the Registry / Stamp Reporter to resume
to make reporting about the maintainability, locus and
nature of the matters filed in the High Court.
(14). In view of the Rules 35 (1) (f) and 36 (ii) brought
by the amendment in the year 2005, in the High Court of
Jharkhand Rules, 2001, Rule 152 of the High Court
Rules, which had originally been framed in the year 2001
itself, is hereby, declared redundant.
(15). The word 'civil' in Rule 84 (l) of the High Court
Rules, 2001, giving the nomenclature of I.A., is hereby,
declared redundant.
(16). The Registry is directed to place the matter before
the Hon'ble the Chief Justice in the administrative side for
carrying out necessary amendments in the High Court of
Jharkhand Rules, 2001, for deleting Rule 152 and the
word 'civil' in Rule 84 (l) from the High Court of
Jharkhand Rules, 2001, and also for making following
insertions in Rule 84 of the High Court of Jharkhand
Rules, 2001, after Rule 84 (z9), by way of amendment:-
Abbreviated form Nature of Proceedings
(z10) Acq. App.(C). Acquittal appeals filed by
the complainants.
(z11) Cr. App.(V). Appeals filed by the victims
against the conviction for a
lesser offence, or imposing
inadequate compensation.
(17). Even pending the exercise of carrying out the
amendments as above, in the High Court of Jharkhand
Rules, 2001, these decisions shall be followed and
carried out by all concerned.
(18). The pending appeals arising out of the appellate
judgments / orders of acquittal passed by the Courts of
Session, shall now be listed before the appropriate
Bench, after fresh stamp reporting, as early as possible.
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 33 -
41. Let this Judgment be communicated to all the Sessions
Divisions in the State of Jharkhand, so that the ambiguity in
entertaining the appeals against the judgments / orders of acquittal is
resolved and set at rest. It is directed that in the State of Jharkhand,
the appeals against acquittals, punishment for lesser offences and
imposing inadequate compensations, shall henceforth be strictly be
governed by this Judgment.
42. The Registry of the High Court is also directed to ensure the
strict compliance of all the aforesaid directions, henceforth.
43. Before parting with this Judgment, we must record that we have
been given very valuable assistance by all the learned counsels for the
parties and we shall be failing in our duty if we do not record our
sense of appreciation for their assistance given to this Court, which
we hereby, do.
44. In view of our answers to the questions referred above,
Cr. Appeal (S.J) No.1281 of 2016, Cr. Appeal (S.J) No.2066 of 2017,
Cr. Appeal (S.J) No.2229 of 2017 and Cr. Appeal (S.J) No.825
of 2014, are not at all maintainable, as all these appeals arise out of
the appellate judgments / orders passed by the different Courts of
Session. All these appeals are accordingly, dismissed as not
maintainable. Consequently, all the I.As. filed therein, which are
pending, also stand dismissed. The appellants, shall however, be at
liberty to avail the other remedy in law, if available, and subject to the
limitation, in which case the time spent in pursuing these appeals shall
be accounted for, while counting the period of limitation, if any.
45. Cr.M.P. No.3260 of 2017 has been filed seeking special leave
to appeal under Section 378 (4) of the Cr.P.C., against the judgement
of acquittal passed in a complaint case. Let the same be listed before
the appropriate bench.
(H.C. Mishra, J.)
B.B. Mangalmurti, J:.-
(B.B. Mangalmurti, J.)
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 34 -
A.K. Choudhary, J:.- I have gone through the well discussed Judgment of
profundity of my learned Brother Mr. H.C. Mishra, J., and I am in full
agreement with the same, except with regard to the Answer No. B on
the Question Nos. (i) to (iii), wherein, learned Brother has held that if
the appeal, arising out of the original Judgment, Orders of Acquittal
or of conviction for lesser offence or imposing inadequate
compensation passed by the Court of Session, the appeal shall lie
before the Division Bench of the High Court.
Whether an appeal shall lie before the Division Bench or to the
Single Judge of the High Court is determined on the basis of the High
Court of Jharkhand Rules 2001. Certainly, the Code of Criminal
Procedure does not prescribe, whether an appeal will lie before the
Single Judge or the Division Bench of the High Court.
Rule 35 (1) (f) of the High Court of Jharkhand Rules as already
referred to in Para-13 of the Judgment of my learned Brother,
provides that the appeal against the Judgment of acquittal, in which,
the substantive sentence of less than ten years of imprisonment could
have been passed, such appeals shall be heard and disposed of by the
Single Judge and as per Rule 36(ii) of the High Court of Jharkhand
Rules, 2001, the appeal against the Judgment of acquittal, in which,
the substantive sentence of ten years of imprisonment or more could
have been passed, shall be heard and disposed of by the Division
Bench.
Hence, in my considered opinion, if the appeal, arising out of
the original Judgment, Orders of acquittal or conviction for a lesser
offence or imposing inadequate compensation passed by the Court of
Cr. Appeal (S.J) No. 1281 of 2016
And connected matters.
- 35 -
Session, is in respect of an offence in which the substantive sentence
of less than ten years of imprisonment could have been passed, the
same shall lie before the Single Judge of this Court and not before the
Division Bench and if such appeal is in respect of the offence
punishable with a substantive sentence of ten years imprisonment or
more, it will lie before the Division Bench of this High Court. Subject
to this reservation, I am in full agreement with the Judgment passed
by the Hon'ble Mr. H.C. Mishra, J.
(A.K. Choudhary, J.) Jharkhand High Court, Ranchi. Dated the 19th of September, 2018. A.F.R/ BS/-