Madhya Pradesh High Court
Anita Shrivastava vs Smt. Mamta Bhattacharya on 30 June, 2025
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:28359
1 CRA-4132-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 30th OF JUNE, 2025
CRIMINAL APPEAL No. 4132 of 2025
ANITA SHRIVASTAVA
Versus
SMT. MAMTA BHATTACHARYA AND OTHERS
Appearance:
Shri Chandrabhan Singh - Advocate for the appellant.
Shri Rajeev Pandey- Panel Lawyer for the respondent/State.
ORDER
This appeal has been filed under Section 378/378(4) of Code of Criminal Procedure/Section 419 (4) of BNSS by "victim" of an offence as defined under Sections 294 and 506(Part-I) of IPC against judgment dated 28.02.2025 passed by JMFC, Jabalpur in RCT No.8508 of 2023 whereby respondents/accused have been acquitted of an offence under Sections 294 and 506(Part-I) of IPC.
2. Aforesaid criminal case was instituted on the basis of private complaint filed by the victim/appellant.
3. The question before this Court is whether instant appeal is covered under proviso to section 413 of BNSS (372 of Cr.P.C.).
4. Aforesaid issue has been recently dealt with and adjudicated by Hon'ble Apex Court in Celestium Financial Vs. A. Gnanasekaran Etc., 2025 SCC Online SC 1320.
Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 01-07-2025 14:57:50NEUTRAL CITATION NO. 2025:MPHC-JBP:28359 2 CRA-4132-2025
5. The central issue arising for adjudication in Celestium Financial (supra) was, whether an appeal would be maintainable under the proviso to Section 372 of the Code of Criminal Procedure, 1973 against an order of acquittal passed in a case instituted under Section 294 and 506(Part-I) of IPC by treating the complainant in such a proceeding as a victim within the meaning ascribed to the term under Section 2(wa) of the Cr.P.C.
6. Aforesaid issue has been adjudicated and answered by Hon'ble Apex Court in para 9 and 10 of Celestium Financial (supra) as under:-
"9. In the circumstances, we find that under Section 138 of the Act being in the nature of a penal provision by a deeming fiction against an accused who is said to have committed an offence under the said provision, if acquitted, can be proceeded against by a victim of the said offence, namely, the person who is entitled to the proceeds of a cheque which has been dishonoured, in terms of the proviso to Section 372 of the CrPC, as a victim. As already noted, a victim of an offence could also be a complainant. In such a case, an appeal can be preferred either under the proviso to Section 372 or under Section 378 by such a victim. In the absence of the proviso to Section 372, a victim of an offence could not have filed an appeal as such, unless he was also a complainant, in which event he could maintain an appeal if special leave to appeal had been granted by the High Court and if no such special leave was granted then his appeal would not be maintainable at all. On the other hand, if the victim of an offence, who may or may not be the complainant, proceeds under the proviso to Section 372 of the CrPC, then in our view, such a victim need not seek special leave to appeal from the High Court. In other words, the victim of an offence would have the right to prefer an appeal, inter alia, against an order of acquittal in terms of the proviso to Section 372 without seeking any special leave to appeal from the High Court only on the grounds mentioned therein. A person who is a complainant under Section 200 of the CrPC who complains about the offence committed by a person who is charged as an accused under Section 138 of the Act, thus has the right to prefer an appeal as a victim under the proviso to Section 372 of the CrPC.Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 01-07-2025 14:57:50
NEUTRAL CITATION NO. 2025:MPHC-JBP:28359 3 CRA-4132-2025
10. As already noted, the proviso to Section 372 of the CrPC was inserted in the statute book only with effect from 31.12.2009. The object and reason for such insertion must be realised and must be given its full effect to by a court. In view of the aforesaid discussion, we hold that the victim of an offence has the right to prefer an appeal under the proviso to Section 372 of the CrPC, irrespective of whether he is a complainant or not. Even if the victim of an offence is a complainant, he can still proceed under the proviso to Section 372 and need not advert to sub-section (4) of Section 378 of the CrPC."
7. Hence, having regard to factual matrix of the instant case and principle of law laid down by Hon'ble Apex Court in Celestium Financial (supra), in this Court's considered opinion, in the instant appeal also, victim/appellant has the right to prefer an appeal as a victim under the proviso to Section 413 of BNSS (372 of Cr.P.C.) and he should proceed under the proviso to Section 413 of BNSS (372 of Cr.P.C.) and need not advert to sub Section 4 of Section 419 of BNSS (378(4) of Cr.P.C.). Hence, liberty is reserved to the victim/appellant herein to file the appeal, having regard to the proviso to Section 413 of BNSS (372 of Cr.P.C.) within four months from today.
8. However, it is made clear that if appeal was filed before this Court within limitation or if appeal was not filed within limitation before this Court but issue of limitation has already been decided by this Court and the delay in filing the appeal has been condoned and appeal before concerned Sessions Court is filed within the period of four months from today, then, issue of limitation shall not be raised by respondent or by the Appellate Court, but if appeal was not filed before this Court within limitation as Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 01-07-2025 14:57:50 NEUTRAL CITATION NO. 2025:MPHC-JBP:28359 4 CRA-4132-2025 prescribed in the Limitation Act or any application for condonation of delay is pending today, then, the issue of limitation/ the same shall be decided by the Appellate Court in accordance with provisions of law.
9. Certified copy of documents, if any, filed by the victim/appellant in the instant appeal, shall be returned back to victim/appellant after substituting photocopy of the same.
10. Record of the trial Court, if available, shall be sent back immediately to the concerned Court.
11. Appeal filed by the appellant/victim is disposed of in term as above.
(ACHAL KUMAR PALIWAL) JUDGE vai Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 01-07-2025 14:57:50