Gujarat High Court
State Of Gujarat vs Prafulbhai Kansinh Zala on 25 September, 2024
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.MA/14092/2024 JUDGMENT DATED: 25/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 14092 of 2024
In
F/CRIMINAL APPEAL NO. 27221 of 2024
With
R/CRIMINAL MISC.APPLICATION NO. 14330 of 2024
In
F/CRIMINAL APPEAL NO. 27519 of 2024
With
R/CRIMINAL MISC.APPLICATION NO. 15315 of 2024
In
F/CRIMINAL APPEAL NO. 5881 of 2024
With
R/CRIMINAL MISC.APPLICATION NO. 18542 of 2024
In
F/CRIMINAL APPEAL NO. 23272 of 2024
With
R/CRIMINAL MISC.APPLICATION NO. 11102 of 2023
In
R/CRIMINAL APPEAL NO. 1489 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 17428 of 2023
In
F/CRIMINAL APPEAL NO. 33862 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 2246 of 2024
In
F/CRIMINAL APPEAL NO. 4025 of 2024
With
R/CRIMINAL MISC.APPLICATION NO. 6982 of 2024
In
F/CRIMINAL APPEAL NO. 39003 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 7674 of 2024
In
F/CRIMINAL APPEAL NO. 15002 of 2024
With
R/CRIMINAL MISC.APPLICATION NO. 18846 of 2024
In
F/CRIMINAL APPEAL NO. 31042 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 18853 of 2024
In
F/CRIMINAL APPEAL NO. 25844 of 2024
With
R/CRIMINAL MISC.APPLICATION NO. 18860 of 2024
In
F/CRIMINAL APPEAL NO. 28311 of 2024
With
R/CRIMINAL MISC.APPLICATION NO. 18870 of 2024
In
F/CRIMINAL APPEAL NO. 24474 of 2024
With
R/CRIMINAL MISC.APPLICATION NO. 18877 of 2024
In
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Uploaded by SHITOLE MANISH P.(HC00188) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:21:01 IST 2024
NEUTRAL CITATION
R/CR.MA/14092/2024 JUDGMENT DATED: 25/09/2024
undefined
F/CRIMINAL APPEAL NO. 15401 of 2024
With
R/CRIMINAL MISC.APPLICATION NO. 18880 of 2024
In
F/CRIMINAL APPEAL NO. 23058 of 2024
With
R/CRIMINAL MISC.APPLICATION NO. 18882 of 2024
In
F/CRIMINAL APPEAL NO. 28803 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
=======================================================================
1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any order
made thereunder ?
=======================================================================
STATE OF GUJARAT
Versus
PRAFULBHAI KANSINH ZALA & ORS.
=======================================================================
Appearance:
MR HARDIK DAVE, PUBLIC PROSECUTOR assisted by M/S.UTKARSH SHARMA,
SOAHAM JOSHI and MEGHA CHITALIYA, APPs for the Applicant(s) No. 1
=======================================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 25/09/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. These Misc. Criminal Applications are the group of applications filed by the State under Section-378(3) of the Code of Criminal Procedure, 1973 praying Leave to Appeal against the Page 2 of 19 Uploaded by SHITOLE MANISH P.(HC00188) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:21:01 IST 2024 NEUTRAL CITATION R/CR.MA/14092/2024 JUDGMENT DATED: 25/09/2024 undefined judgment and order recording acquittal of the respondents-accused in the respective trials.
2. The question has arisen for consideration is whether filing of a separate application praying for Leave to Appeal is a requirement for dealing with the Appeal against the acquittal. Attention of this Court is drawn to the decision of this Court in case of Central Bureau Of Investigation Through K.K. Shukla S/O Amarnath Shukla Versus Ram Avtar Agarwal reported in 2023 (3) GLR 1795 authored by one of us (Samir J.Dave, J.) holding that there is no requirement to file separate Leave to Appeal filed by the State against the acquittal under Section-378(4) of Code of Criminal Procedure, 1973.
3. The Court may reproduce the relevant Section of Cr.P.C. and its equivalent in Bharatiya Nagrik Suraksha Sahinta, i.e. Section-419 of BNSS, which is verbatim copy of Section-378 of Cr.P.C. Section 419 of BNSS reads as under:-
419. 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 Page 3 of 19 Uploaded by SHITOLE MANISH P.(HC00188) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:21:01 IST 2024 NEUTRAL CITATION R/CR.MA/14092/2024 JUDGMENT DATED: 25/09/2024 undefined 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 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) If such an order of acquittal is passed in a case in which the offence has been investigated by any agency empowered to make investigation into an offence under any Central Act other than this Sanhita, the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal--
(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
(b) 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.
(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.Page 4 of 19 Uploaded by SHITOLE MANISH P.(HC00188) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:21:01 IST 2024
NEUTRAL CITATION R/CR.MA/14092/2024 JUDGMENT DATED: 25/09/2024 undefined (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 acquittal shall lie under sub-section (1) or under sub-section (2).
4. The issue had firstly fallen for consideration of the Apex Court in case of the State of Rajasthan v/s. Ramdeen and Others reported in AIR 1977 SC 1328. The backdrop for the case in Ramdeen (supra) was coming into force of new Cr.P.C.,1973 with effect from 01-04-1974. The Sessions Court had decided the trial and the appeal against the decision of trial was filed under the New Code under Section-378. The appeal was accompanied with Leave to Appeal before the Rajasthan High Court while the Leave to Appeal was decided the time period for Page 5 of 19 Uploaded by SHITOLE MANISH P.(HC00188) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:21:01 IST 2024 NEUTRAL CITATION R/CR.MA/14092/2024 JUDGMENT DATED: 25/09/2024 undefined preferring Appeal had expired. The Apex Court was therefore, considering whether the Appeal can be treated to be Appeal filed within limitation. The Apex Court in Para-8 has held as under:
"8. The matter will, therefore, have to be decided in terms of section 378(1) and (3) of the Code of Criminal Procedure, 1973. Section 378(1), so far as it is material for our purpose, provides that the State Government may direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal. Sub- section (3) of that section provides that such an appeal shall not be entertained except with the leave of the High Court. Under 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. The right conferred by section 378(1), Cr.P.C., upon the State to prefer an appeal against acquittal will be jeopardised if such a procedure is adopted, for in certain cases it may so happen that Page 6 of 19 Uploaded by SHITOLE MANISH P.(HC00188) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:21:01 IST 2024 NEUTRAL CITATION R/CR.MA/14092/2024 JUDGMENT DATED: 25/09/2024 undefined the High Court may refuse to exercise its discretion to condone the delay. The right conferred under the section cannot be put in peril by an interpretation of section 378, Cr.P.C. which is likely to affect adversely or even perhaps to destroy that right."
5. The Apex Court again had an occasion to examine the issue of filing separate application seeking Leave to Appeal in case of State of M.P. Vs. Dewadas & Ors. reported in AIR 1982 SC 800, while dissecting the requirement of the various sub-clauses of Section-378 of the Code. The Apex Court in Para-10 to 12 has held as under:
"10. Under the scheme of the Code, the State Government or the Central Government may prefer an appeal under sub-s. (1) or sub-s. (2) of s. 378 of the Code, but such appeal shall not be entertained unless the High Court grants 'leave' under sub-s. (3) thereof. The words 'No appeal under sub-s. (1) or sub-s. (2) shall be entertained' used in sub-s. (3) of s. 378 create a qualified bar to the entertainment of an appeal filed by the State Government or the Central Government under sub-s. (1) or sub-s. (2) from an order of acquittal passed in a case instituted otherwise than upon a complaint. The Code, by enacting sub-s. (3) of s. 378, therefore, brought about a change in that there is no longer an unrestricted right of appeal against the orders of acquittal passed in such cases. The making of an application for grant of leave to appeal by the State Government or the Central Government under sub-s. (3) of s. 378 is, however, not a condition precedent to the Page 7 of 19 Uploaded by SHITOLE MANISH P.(HC00188) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:21:01 IST 2024 NEUTRAL CITATION R/CR.MA/14092/2024 JUDGMENT DATED: 25/09/2024 undefined entertainment of such an appeal. The prayer for grant of leave under sub-s. (3) may, as it should, be contained in the petition of appeal filed under s. 382 of the Code.
11. There is no warrant for the view expressed by the High Court in Narendrasingh's case that the legislative object in re-enacting the provisions of s. 417 of the old Code with the addition of the new provision contained in sub-s. (3) of s. 378 of the Code, was that there was to be a preliminary scrutiny of a State appeal by the Court even prior to the stage of admission, requiring the Court to consider at the very outset whether the appeal should be entertained or not, and that it was only after the appeal was entertained with the leave of the Court that it was to be heard for admission under sub-s. (1) of s. 384 read with sub-s. (1) of s. 385 of the Code. The High Court appears to rest its decision more on the Report of the Law Commission than the actual language of sub-s. (3) of s. 378 of the Code, in coming to the conclusion that sub-s. (3) contemplated two stages. Sub-s. (3) of s. 378 is not susceptible of any such construction. The Law Commission in its 48th Report had observed.
"While one may grant that cases of unmerited acquittals do arise in practice, there must be some limit as to the nature of cases in which the right should be available."
And, keeping in view the general rule in most common law countries not to allow an unrestricted right of appeal against acquittals, it recommended:
"With these considerations in view, we recommend that Page 8 of 19 Uploaded by SHITOLE MANISH P.(HC00188) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:21:01 IST 2024 NEUTRAL CITATION R/CR.MA/14092/2024 JUDGMENT DATED: 25/09/2024 undefined appeals against acquittals under s. 417, even at the instance ' of the Central Government or the State Government, should be allowed only if the High Court grants special leave.
It may be pointed out that even now the High Court can summarily dismiss an appeal against an acquittal, or for that matter, any criminal appeal. (Section 422, Criminal P.C.).
Therefore, the amendment which we are recommending will not be so radical a departure as may appear at the first sight. It will place the State and the private complainant on equal footing. Besides this, we ought to add that under s. 422 of the Code, it is at present competent to the appellate Court to dismiss the appeal both of the State and of the complainant against acquittal at the preliminary hearing."
The recommendations of the Law Commission were not, however, fully carried into effect. Sub-s. (3) of s. 378 of the Code was introduced by Parliament to create a statutory restriction against entertainment of an appeal filed by the State Government or the Central Government under sub-s. (1) or sub-s. (2) of s. 378 from an order of acquittal passed in a case instituted otherwise than upon complaint. At the same time, Parliament re-enacted sub-ss. (3) and (4) of s. 417 as sub-ss. (4) and (5) of s. 378, which deal with an order of acquittal passed in any case instituted upon a complaint. The result of this has been that there is a difference in the procedure regulating entertainment of Page 9 of 19 Uploaded by SHITOLE MANISH P.(HC00188) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:21:01 IST 2024 NEUTRAL CITATION R/CR.MA/14092/2024 JUDGMENT DATED: 25/09/2024 undefined State appeals against acquittals under sub-s. (1) or sub- s. (2) of s. 378 and appeals against acquittals filed by a complainant under sub-s. (5) of s. 378. On a comparison of the language employed in sub-s. (3) and sub-s. (4) of s. 378, it is clear that the legislature has chosen to treat State appeals in a manner different from appeals by a complainant in the matter of preferring appeals against acquittals. In the case of an appeal from an order of acquittal passed in a case instituted otherwise than upon complaint preferred by the State Government or the Central Government under sub-s. (1) or sub-s. (2) of s 378, the Code does not contemplate the making of an application for leave under sub-s. (3) thereof, while the making of an application under sub-s. (4) of s. 378 is a condition precedent for the grant of 'special leave' to a complainant under sub-s. (5), The difference in language used in sub-s. (3) and sub-s. (4) of s. 378 manifests the legislative intent to preserve a distinction between the two classes of appeals by prescribing two different procedures in the matter of entertainment of appeals against acquittals. It, therefore, follows that the State Government or the Central Government may, while preferring an appeal against acquittal under sub- s. (1) or sub-s. (2) of s. 378, incorporate a prayer in the memorandum of appeal for grant of leave under sub-s. (3) thereof, or. make a separate application for grant of leave under sub-s. (3) of s. 378, but the making of such an application is not a condition precedent for a State appeal.
In the State of Rajasthan v. Ramdeen & Ors., this Court Page 10 of 19 Uploaded by SHITOLE MANISH P.(HC00188) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:21:01 IST 2024 NEUTRAL CITATION R/CR.MA/14092/2024 JUDGMENT DATED: 25/09/2024 undefined dealt with a case where the Rajasthan High Court granted the State Government leave to appeal under sub-s. (3) of s. 378 of the Code, but dismissed the appeal filed thereafter on the ground that it had not been filed within ninety days from the judgment appealed from and was therefore barred by limitation under Art. 114 of the Limitation Act, 1963. The application for grant of leave under sub-s. (3) contained all the requisites of a memorandum of appeal and had been filed within ninety days from the date of order of acquittal but was not accompanied by a petition of appeal. It was held that an appeal under sub-s. (1) of s. 378 was an integral part of an application for leave to appeal under sub-s (3):
Accordingly, the order passed by the High Court dismissing the appeal as barred by limitation was set aside. In dealing with the question, it was observed:
"Under 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 Page 11 of 19 Uploaded by SHITOLE MANISH P.(HC00188) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:21:01 IST 2024 NEUTRAL CITATION R/CR.MA/14092/2024 JUDGMENT DATED: 25/09/2024 undefined High Court may always in such cases condone the delay on application filed before it does not, in law, solve the legal issue. The right conferred by section 378 (1), Cr. P.C., upon the State to prefer an appeal against acquittal will be jeopardised if such a procedure is adopted, for in certain cases it may so happen that the High Court may refuse to exercise its discretion to condone the delay. The right conferred under the section cannot be put in peril by an interpretation of section 378 Cr. P.C., which is likely to affect adversely or even perhaps to destroy that right."
The view expressed by the High Court in Narendrasingh's case being in conflict with the decision of this Court in Ramdeen's case must be overruled.
12. It must accordingly be held that the learned Single Judge had no competence to entertain, hear or dispose of the question of grant of leave under sub-s. (3) of s. 378, as it had virtually entailed dismissal of the appeal preferred by the State Government under sub-s. (1) thereof. The matter should have been dealt with by a Bench of two Judges in terms of r. 1 (q) (ii), Chap. 1, Part I, of the Madhya Pradesh High Court Rules."
6. The Madhya Pradesh High Court was faced with the same issue directly answering the question 'whether the State Government under Section-378(3) of Cr.P.C. can file an application together with prayer for Leave to Appeal against the order of acquittal in a case not instituted on a complaint without a certified copy. Relying on its own earlier decision in case of State of M.P. Page 12 of 19 Uploaded by SHITOLE MANISH P.(HC00188) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:21:01 IST 2024 NEUTRAL CITATION R/CR.MA/14092/2024 JUDGMENT DATED: 25/09/2024 undefined v/s. Chandrabhan (M.Cr.C. No.4132 of 1995 decided on 01-08- 1996) setting the position of law that for filing appeal against the order of acquittal, it is not necessary to file separate application for Leave to Appeal and the Memo of Appeal can contain both the prayers.
7. Directly answering the issue of separate application for Leave to Appeal, Kerala High Court in case of State of Kerala Vs. Abdul Rasak alias Srank & Ors., reported in 2001 CRI.L.J. 2670 holding that application for Leave to Appeal by the State and equipment to Appeals, hence, the State need to file only a composite application and there is no need to file a separate petition for Leave to Appeal before preferring an Appeal against acquittal.
8. Independent of the above, the Court may undertake the analysis of the very Section-378 of Cr.P.C. (Section-419 of BNSS). Sub-section (3) provides that No appeal to the High Court under Sub-section(1) and (2) be entertained except with the leave of the Court. Therefore, sub-section does refer to the grant of leave, but no reference to separate application for leave as compare to the Court finds that sub-section (4), which also provides for Leave to Appeal, which is termed 'Special' leave to appeal, when such appeal is brought by a complainant in any case instituted upon a complaint. The immediately followed by Sub-section (5) referring Page 13 of 19 Uploaded by SHITOLE MANISH P.(HC00188) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:21:01 IST 2024 NEUTRAL CITATION R/CR.MA/14092/2024 JUDGMENT DATED: 25/09/2024 undefined to Sub-section (4) opens with "No application under Sub-section (4) for grant of leave to appeal shall be entertained after the expiry of period prescribed therein, thereby clearly and impliedly providing for a separate application seeking Leave to Appeal. This is particularly not provided for Section-378(3) of the Code.
9. The Court may also touch upon the another provision of Code for filing an Appeal, which is Section-372 of Cr.P.C., which is a right of victim to file appeal post the amendment in 2009 (Section-413 of BNSS). Under this provision also, the Hon'ble Supreme Court had an occasion to examine the issue of grant of leave and filing separate application for Leave to Appeal in case of Mallikarjun Kodagali Vs. The State Of Karnataka, reported in 2019 (2) SCC 752. The Apex Court also examined Full Bench decision of our Court in case of Bhavuben Dineshbhai Makwana v/s. State of Gujarat, reported in 2013 (2) GLR 1415. The question dealt with by the Full Bench of this Court was narrated by the Apex Court in Para-29, which is as under:
29. Among the first few Full Bench decisions that addressed this issue was the judgment of the Gujarat High Court in Bhavuben Dineshbhai Makwana v. State of Gujarat & Ors. 7. The questions framed for consideration in this case were:
(i) Whether an appeal filed by the victim, invoking his right under proviso to Section 372 of Cr.P.C, Page 14 of 19 Uploaded by SHITOLE MANISH P.(HC00188) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:21:01 IST 2024 NEUTRAL CITATION R/CR.MA/14092/2024 JUDGMENT DATED: 25/09/2024 undefined challenging acquittal, or conviction for a lesser offence, or awarding inadequate compensation, is not maintainable, on the ground that the State has filed an appeal against the same order and for the same purpose?
(ii) Whether an appeal filed by the State should not be entertained, on the ground that the appeal preferred by the victim invoking his right under proviso to Section 372 of Cr.P.C., against the same order, is admitted by the Court?
(iii) If the victim prefers an appeal before this Court, challenging the acquittal, invoking his right under proviso to Section 372 of Cr.P.C., whether that appellant is required to first seek leave of the Court, as is required in case of appeal being preferred by the State?
9.1 Thereafter, the Apex Court answered the issue as under:
"34. On the third question, the Full Bench noted that if the victim restricts the appeal to the grievance to inadequacy of the compensation or punishment for a lesser offence, it does not become an appeal against acquittal but the appeal is really directed against "any other sentence or order not being an order of acquittal"
within the meaning of Art. 115(b) of the Limitation Act, 1963 and thus, no question of taking special leave arises. The Full Bench took the view that for the purposes of Section 378(4) of the Cr.P.C. a victim who Page 15 of 19 Uploaded by SHITOLE MANISH P.(HC00188) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:21:01 IST 2024 NEUTRAL CITATION R/CR.MA/14092/2024 JUDGMENT DATED: 25/09/2024 undefined is not a complainant will not come within the purview of that section and would not be required to take recourse to the provision of special leave as provided therein. It was held (Bhavuben Dineshbhai, SCC OnLine Guj Para
33).
"33. Therefore, in the case before us, the legislature while conferring the right of appeal upon the victim, who is not a complainant, not having imposed any condition of taking leave or special leave, we cannot infer such condition and impose the same upon the victim, although, the legislature was quite conscious of existence of such provision in case of an appeal by a complainant and has retained that provision without consequential amendment thereby making its intention clear that the provision of special leave is not applicable to an appeal preferred by a victim against acquittal if he is not the complainant."
The third question was then answered in the following words:
"36..... 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 Page 16 of 19 Uploaded by SHITOLE MANISH P.(HC00188) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:21:01 IST 2024 NEUTRAL CITATION R/CR.MA/14092/2024 JUDGMENT DATED: 25/09/2024 undefined necessary at the instance of a victim, whether he is the complainant or not."
35. In our opinion, the Gujarat High Court made an artificial and unnecessary distinction between a victim as a victim and a victim as a complainant in respect of filing an appeal against an order of acquittal. The proviso to Section 372 of the Cr.P.C. does not introduce or incorporate any such distinction."
9.2 The Apex Court in the very judgment has precisely given a view how the language of the provisions is to be read and in para-72, the Apex Court held as under:-
"72. What is significant is that several High Courts have taken a consistent view to the effect that the victim of an offence has a right of appeal under the proviso to Section 372 of the Cr.P.C. This view is in consonance with the plain language of the proviso. But what is more important is that several High Courts have also taken the view that the date of the alleged offence has no relevance to the right of appeal. It has been held, and we have referred to those decisions above, that the significant date is the date of the order of acquittal passed by the Trial Court. In a sense, the cause of action arises in favour of the victim of an offence only when an order of acquittal is passed and if that happens after 31st December, 2009 the victim has a right to challenge the acquittal, through an appeal. Indeed, the right not only extends to challenging the order of acquittal but also challenging the conviction of Page 17 of 19 Uploaded by SHITOLE MANISH P.(HC00188) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:21:01 IST 2024 NEUTRAL CITATION R/CR.MA/14092/2024 JUDGMENT DATED: 25/09/2024 undefined the accused for a lesser offence or imposing inadequate compensation. The language of the proviso is quite explicit, and we should not read nuances that do not exist in the proviso."
10. In view of the aforesaid analysis of the provisions of law and also the relevant judgment of the Apex Court as well as other High Court on the very issue, this Court is of the view for the purpose of seeking leave to appeal under Section 378(3) of the Code of Criminal Procedure, equivalent Section 419 of BNSS. Against the judgment and order of acquittal by the trial Court/Sessions Court, no separate application seeking leave to appeal is required to be filed by the appellants. It is sufficient fulfillment of the requirement of the provisions of law to make a prayer seeking leave to appeal within the memo of appeal. The composite petition/appeal memo praying for leave to appeal, admission of appeal and challenge to impugned judgment and order of acquittal will meet with the requirement of provisions of the Code.
12. The Court has also taken into consideration as data on filing of leave to appeal from the Registry of this Court for last five years and we are informed that the filing is in bracket of 900 to 1000 which is substantial and will definitely save the Registry as well as the lawyers and consequently the litigant from making a separate or facing a separate application for leave to appeal and Page 18 of 19 Uploaded by SHITOLE MANISH P.(HC00188) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:21:01 IST 2024 NEUTRAL CITATION R/CR.MA/14092/2024 JUDGMENT DATED: 25/09/2024 undefined reduce a stage in the proceedings and would prevent adding up to the pendency at the threshold.
13. The Court deems it fit to direct that the Registry may not require the filing of a separate application for leave to appeal in Appeal Proforma under Section 378(3) of the Cr.P.C. (Section 419 of BNSS). In the appeals already filed and pending for leave/admission, the appellants to amend the prayer clause in the Appeal Memo to include prayer to seek leave to appeal.
14. In all the applications covered under the order, the Registry to get the prayer clause in the Appeal Memo amended appropriately through the appellants/advocates within a period of two weeks from today and place the appeals for admission forthwith thereafter.
15. With the aforesaid direction, the applications stand disposed of. The copy of the order be furnished to the Registrar General for its implementation, the office of the Public Prosecutor and the Secretary, Legal Department, State of Gujarat and the Union of India through learned ASG.
Sd/-
(A.Y. KOGJE, J) Sd/-
(SAMIR J. DAVE,J) SHITOLE Page 19 of 19 Uploaded by SHITOLE MANISH P.(HC00188) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:21:01 IST 2024