Karnataka High Court
Dr Rajalakhmi V Rao vs Smt Deepa Prashanth on 20 September, 2023
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MRS.JUSTICE M.G. UMA
CRIMINAL REVISION PETITION NO.528/2022
BETWEEN:
DR. RAJALAKHMI .V. RAO
W/O MR.K.V. RAO
AGED 62 YEARS
NO.131, 50 FEET ROAD
HANUMANTHANAGARA
BANGALORE - 560 050.
BRINDAVAN NURSING HOME
REP BY: DR.A. PRAKASH
PROPRIETOR
S/O LATE. LAKSHMINARAYAN RAO
AGED 64 YEARS
R/O NO.17, 4TH MAIN ROAD
CHAMARAJAPET
BANGALORE - 560 018
... PETITIONER
(BY SRI: DEEPAK B.R., ADVOCATE)
AND:
1. SMT. DEEPA PRASHANTH
W/O H.G. PRASHANTH
AGED 48 YEARS
2. SRI.H.G. PRASHANTH
S/O H.N. GOPINATH RAO
AGED 42 YEARS
3. KUM. PRAGATHI PRASHANTH
D/O H.G. PRASHANTH
AGED 20 YEARS
SL. NOS. 1 TO 3 ARE
R/O 129/2, 1ST FLOOR
2
TEMPLE STREET, ITI LAYOUT
BSK 3RD STAGE
BANGALORE - 560 070.
... RESPONDENTS
(BY SRI: H. MANJUNATH, ADVOCATE FOR R1 TO R3)
THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
SECTION 401 CR.P.C PRAYING TO SET ASIDE THE ORDER OF
MAINTAINABILITY PASSED BY THE LEARNED LXVII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE (CCH-68), BENGALURU IN
CRL.A.NO.626/2020 VIDE ORDER DATED 28.02.2022 AND HOLD
THAT THE CRIMINAL APPEAL PREFERRED BY THE APPELLANT
UNDER SECTION 372 OF CR.P.C. IS NOT MAINTAINABLE AND THE
LEARNED SESSIONS JUDGE HAS NO JURISDICTION TO ENTERTAIN
THE SAID CRIMINAL APPEAL.
THIS CRL.RP HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 08.09.2023 COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
Accused Nos.1 and 2 being the respondents in Criminal Appeal No.626 of 2020 on the file of the learned LXVII Additional City Civil and Sessions Judge, Bengaluru City (CCH-
68) (hereinafter referred to as the 'the First Appellate Court' for brevity), are impugning the order dated 28.02.2022 holding that the criminal appeal filed by the appellants - complainants under Section 372 of Cr.P.C. against the judgment of acquittal dated 28.05.2020 passed in CC No.2794 of 2002 on the file of learned XXIV Additional CMM, Bengaluru 3 (hereinafter referred to as the 'the Trial Court' for brevity), is maintainable.
2. Brief facts of the case are that, complainant Nos.1 to 3 have filed a private complaint against the accused alleging commission of offences punishable under Sections 415 and 418 of Indian Penal Code (for short 'the IPC'). It is stated that accused No.1 being the Gynecologist, accused No.2 being the Nursing Home, represented by its proprietor and accused No.3 being Physiotherapist have committed the offences under Sections 322, 323 and 338 read with Section 34 of IPC and are liable for conviction.
3. The sworn statement of the complainant was recorded and the learned Magistrate took cognizance for the above said offences and accordingly CC No.2794 of 2002 was registered for the offences punishable under Sections 322 and 338 read with Section 34 of IPC. The accused were summoned to appear before the Trial Court. Accused No.3 was dropped by this Court in Criminal Petition No.2739 of 2010 dated 26.04.2019. Accused Nos.1 and 2 were tried by 4 the Trial Court and passed the judgment of acquittal dated 28.05.2020, acquitting both the accused.
4. Being aggrieved by the same, the complainants have preferred Criminal Appeal No.626 of 2020 before the First Appellate Court under Section 372 of Cr.P.C. The accused being the respondents have appeared before the First Appellate Court raised the contentions that the appeal is not maintainable under Section 372 of Cr.P.C. as a specific provision under Section 378(4) of Cr.P.C. is available for the complainants to challenge the judgment of acquittal. The First Appellate Court on considering the materials on record, passed the impugned order rejecting the claim of the respondents and held that the appeal under Section 372 of Cr.P.C. is maintainable.
5. Being aggrieved by the same, accused Nos.1 and 2 are before this Court.
6. Heard Sri B R Deepak, learned counsel for the revision petitioners and Sri H Manjunath, learned counsel for respondent Nos.1 to 3. Perused the materials on record. 5
7. Learned counsel for the revision petitioners contended that the Trial Court passed the judgment of acquittal, acquitting the accused for the offence alleged against them. Challenging the same, the complainants have preferred Criminal Appeal No.626 of 2020 under Section 372 of Cr.P.C. The proviso to Section 372 of Cr.P.C. as amended during 2009 provides for preferring the appeal by the victim against the order passed by the Trial Court, acquitting the accused. But Section 378 of Cr.P.C specifically deals with the appeal in case of acquittal. Sub-section (4) of Section 378 of Cr.P.C. specifically states that if an order of acquittal is passed in any case instituted upon the complainant, special leave could be granted on an application to prefer an appeal before the High Court. When such a specific provision of law is available, the appellants could not have invoked Section 372 of Cr.P.C.
8. Learned counsel submitted that the complainants in the present case are not the victims and therefore, the proviso of Section 372 of Cr.P.C. could not have been invoked by them. He placed reliance on the Circular dated 17.04.2023 issued by this Court as per the directions issued by the co- 6 ordinate Bench of this Court in Criminal Appeal No.1624 of 2021. Placing reliance on the said Circular, learned counsel contended that the Sessions Court in the State were directed not to entertain appeals against the judgment of acquittal in view of Section 378(4) of Cr.P.C. Therefore, learned counsel would contend that the First Appellate Court has not taken into consideration the position of law on the subject and proceeded to pass the impugned order. Therefore, he prays for allowing the petition by setting aside the impugned order passed by the First Appellate Court.
9. Per contra, learned counsel for the respondents - complainants opposing the revision submitted that the complainants are the victims and they allege medical negligence against the accused. In view of the amendment to Section 372 Cr.P.C. the proviso is appended to enable the victims to prefer an appeal against the order of acquittal and therefore, the First Appellate Court was right in passing the impugned order.
10. Learned counsel placed reliance on the decision of the Hon'ble Apex Court in Mallikarjun Kodagali (Dead) 7 Represented through Legal Representatives Vs State of 1 Karnataka and Others , in support of his contention that the right of the victim is recognized under the proviso and there is no need to seek special leave to challenge the judgment of acquittal as required under Section 378(4) of Cr.P.C. Since there are no merits in the revision, he prays for dismissal of the revision petition.
11. In view of the rival contentions urged by learned counsel for both the parties, the short question that would arise for my consideration is:
"Whether the revision petitioners - accused have made out any grounds to allow the revision petition and whether the impugned order passed by the First Appellate Court suffers from infirmities and calls for interference by this Court?"
My answer to the above point is in the 'Negative' for the following:
REASONS
12. Learned counsel for the revision petitioners placed reliance on the Circular dated 17.04.2023 issued by this Court 1 (2019) 2 SCC 752 8 as per the directions passed by the co-ordinate Bench of this Court in Criminal Appeal No.1624 of 2021. The co-ordinate Bench of this Court considering the facts and circumstances placed before it, found that the Court has come across the instances, where the Sessions Courts are entertaining the appeals against the acquittal of accused under Section 138 of NI Act. Therefore, a direction was issued to the Registrar (Judicial) to bring it to the notice of all the Sessions Courts in the State that under such circumstances, the appeal is required to be preferred under Section 378(4) of Cr.P.C. before the High Court and not before the Sessions Courts.
13. In the present case, the facts and circumstances of the case are entirely different. It is not a case under the provisions of NI Act, but the offence for which the accused were tried is under Section 338 read with Section 34 of IPC. The materials on record discloses that complainant No.1 is the wife of complainant No.2 and complainant No.3 is their minor daughter. It is alleged that accused Nos.1 and 2 being the doctors had treated complainant No.1 in their Nursing home on 05.08.2001, when she was admitted for her delivery and complainant No.3 was born in the said Nursing home. It is 9 stated that accused No.1 - the Gynecologist had used forceps, resulting in causing grievous hurt to the left hand of complainant No.3 and it was twisted due the negligent act of accused No.1. Therefore, the complainants sought for trying the accused for the above said offences.
14. Section 372 of Cr.P.C. reads as under:
"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 any other law for the time being in force."
15. The proviso to Section 372 of Cr.P.C was inserted by Act 5 of 2009 with effect from 31.12.2009 providing a right to the victim to prefer an appeal against any order passed by the Court acquitting the accused or convicting him for a lesser offence or imposing inadequate compensation.
16. Learned counsel for the respondents placed reliance on the decision of Mallikarjun Kodagali (supra), wherein, the Hon'ble Apex Court considered the question as to whether the victim as defined in Cr.P.C. has a right of appeal in view of proviso to Section 372 of Cr.P.C. against the order 10 of acquittal, when the incident had taken place much before the amendment i.e., on 06.02.2009. The learned Sessions Judge acquitted the accused and being aggrieved by the same, the victim preferred the appeal before the High Court under Section 372 of Cr.P.C. The said appeal came to be dismissed as not maintainable by the High Court on the ground that the proviso to Section 372 of Cr.P.C. came into effect from 31.12.2009, but the incident had occurred much prior to that date. Therefore, the appeal is not maintainable. The victim thereafter preferred an appeal under Section 378(4) of Cr.P.C. The appeal was again dismissed as not maintainable on the ground that the said provision of law is available in a case instituted upon a complaint before a Magistrate. Being aggrieved by the same, the victim approached the Hon'ble Apex Court challenging both the orders of High Court dismissing the appeals under Section 372 of Cr.P.C. and also under Section 378(4) of Cr.P.C. As per majority decisions, the appeals were allowed, judgment and order passed by the High Court were set aside and the matter was remitted back to the High Court to hear and decide the 11 appeal against the judgment of acquittal passed by the learned Sessions Judge afresh.
17. The Hon'ble Apex Court in Mallikarjun Kodagali (supra) at para No.76 held as under:
"76. As far as the question of the grant of special leave is concerned, once again, we need not be overwhelmed by submissions made at the Bar. The language of the proviso to Section 372 Cr.P.C. is quite clear, particularly when it is contrasted with the language of Section 378(4) Cr.P.C. The text of this provision is quite clear and it is confined to an order of acquittal passed in a case instituted upon a complaint. The word "complaint" has been defined in Section 2(d) Cr.P.C. and refers to any allegation made orally or in writing to a Magistrate. This has nothing to do with the lodging or the registration of an FIR, and therefore, it is not at all necessary to consider the effect of a victim being the complainant as far as the proviso to Section 372 Cr.P.C. is concerned."
(emphasis supplied) Thus, the position of law is very well settled on the subject that a victim can invoke Section 372 of Cr.P.C. to challenge the judgment of acquittal.
12
18. Learned counsel for the revision petitioners contended that the complainants are not victims as defined under Section 2(wa) of Cr.P.C.
19. The definition of the word victim reads as under:
"2(wa) - "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim"
includes his or her guardian or legal heir."
20. If the facts and circumstances of the present case is taken into consideration, complainant No.3 who is the minor daughter of complainant Nos.1 and 2 is said to have suffered injury by reason of the act of the accused. As per the definition referred to above, she is the victim who suffered injury. Complainant Nos.1 and 2 being her guardian/legal heirs are also considered to be the victims. Under such circumstances, the appeal preferred by the complainants before the learned Sessions Judge under Section 372 of Cr.P.C. is maintainable.
21. I have gone through the impugned order passed by the First Appellate Court. The First Appellate Court after 13 taking into consideration all the materials on record held that the appeal filed under Section 372 Cr.P.C. against the judgment of acquittal is maintainable. I do not find any reason to interfere with the same. Hence, I answer the above point in the Negative and proceed to pass the following:
ORDER The Criminal Revision Petition is dismissed.
Sd/-
JUDGE *bgn/-