Madras High Court
D.Prabhu vs R.Manikandan on 14 November, 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.11.2016 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Crl.A.(MD)Nos.130 of 2010 , 149, 219, 221, 222, 223, 224, 239, 252, 253, 270, 278, 287, 298, 319, 320, 325, 326, 337, 356, 359, 360, 361, 387, 415, 426, 450, 488, 489, 492/2010, 19, 21, 28, 29, 33, 34, 35, 57, 58, 80, 117, 121, 124, 162, 176, 231, 262, 263, 289, 317, 322, 327, 339, 340, 341, 346, 355, 359, 363, 365, 152/2011, 17/2013, 142/2014, 13, 14, 22, 31, 45, 52, 53, 70, 72, 82, 101, 116, 117, 119, 148, 163, 169, 197, 199, 204, 220, 224, 187, 238, 249, 252, 258, 273, 279/2012, 16, 32, 46, 54, 55, 66, 67, 71, 86, 97, 98, 104, 105, 111, 112, 168, 176, 181, 182, 184, 196, 198, 202, 203, 205, 223, 224, 226, 246, 251, 255, 257, 274, 291, 293, 296, 300, 301, 302, 310, 329, 342, 354, 355, 358, 359, 360, 361, 362, 366, 370, 375, 380, 390/2013, 9, 23, 38, 39, 41, 42, 43, 40, 50, 51, 53, 55, 56, 57, 68, 71,72, 75, 76, 83, 84, 85, 89, 91, 92, 94, 95, 98, 102, 103, 113, 115, 123, 124, 239, 245, 288, 298, 313, 317, 318, 321, 323, 334/2014, 3, 8, 9, 11, 12, 13/2015, 318/2011, 152/2012, 126, 127, 130, 131, 132, 133, 141, 143, 164, 165, 167, 170, 173, 174, 176, 190, 192, 200, 221/2014, 78, 79, 80, 81, 83, 92, 95, 104, 107, 231, 238, 265, 272, 276, 277, 284, 273, 318, 330/2015, 40, 64, 67, 75, 76, 85, 108, 109, 110, 116, 117, 118, 134, 144, 147/2016, 45, 206/2014, 388, 433/2010, 8, 150/2012, 225, 368, 379/2013, 74, 237, 16/2015, 65, 68, 111, 112, 133/2016, 99, 100, 101/2015, 18/2012, 64, 284/2014, 60/2015, 348/2011, 115, 21, 46/2015, 302/2014, 58/2015, 347/2010, 196/2014, 55/2015, 336, 337/2013, 297, 241/2015, 179, 184, 286, 287, 306/2011, 79, 100, 108/2012, 14, 15, 20, 30, 38, 48, 50, 51, 53, 64, 65/205, 178/2013 and 75/2015 and Crl.O.P.(MD)No.10314/2010, 833/2011, 887/2011, 4955/2011, 16523/2011, 15906/2011 and 13564/2011 and M.P.(MD)Nos.1/2014 and 1/2015 and Crl.M.P.(MD)No.2942/2016 Crl.A.(MD)No.130 of 2010: D.Prabhu : Appellant/Complainant vs. R.Manikandan : Respondent/Accused PRAYER: Criminal Appeal is filed under Section 378 of the Code of Criminal Procedure, to set aside the order passed by the learned District Munsif -cum- Judicial Magistrate, Usilampatti, in C.C.No.46 of 2006, dated 05.02.2010 and convict the respondent/accused. For Appellant : Mr.R.Velmurugan For Respondent : Mr.T.R.Jayapalam :COMMON JUDGMENT
These appeals have been filed by the victims of crimes challenging the acquittal of the accused recorded by the respective Judicial Magistrates. These cases were originally instituted before the Jurisdictional Magistrates by way of private complaints by the victims for various offences.
2. Challenging such acquittals, the victims have come up with these appeals, probably, under the impression that such an appeal would lie only to this Court under the proviso to Section 372 of the Code of Criminal Procedure. Since there was a doubt regarding the jurisdiction of this Court to entertain such appeals, the matter was referred to a Full Bench in S.Ganapathy v. N.Senthilvel reported in 2016(4) CTC 119, in that, the following questions were placed before the Full Bench for answering:
"1. Whether a victim of a crime, who has prosecuted an Accused by way of a Private Complaint, does not have Statutory right of Appeal against acquittal under proviso to Section 372 of the Code of Criminal Procedure?
2. Whether a Complainant, in a Private Complaint case, who is not a victim, has got the remedy to seek only leave to file Appeal under Section 378(4) of the Code of Criminal Procedure in the event of acquittal of the Accused?
3. In a Private Complaint case, if a victim does not happen to be a Complainant and in the event of acquittal, whether he has got right of Appeal under proviso to Section 372 of the Code of Criminal Procedure or he has to seek leave to file Appeal under Section 378(4) of the Code of Criminal Procedure?
4. Whether a victim in a case instituted on a police report, has a better place in the Criminal Justice Delivery System than a victim in a Private Complaint case?
5. Whether the term 'victim' as defined in Section 2(wa) of the Code of Criminal Procedure excludes a Complainant in a Private Complaint case, though he has suffered loss or injury on account of the offence committed against him? and
6. Whether the view held in the judgment of this Court in Selvaraj v. Venkatachalapathy, 2015(1) MWN (Cr.) DCC 26 (Mad.), reflects correct exposition of law or the same requires to be overruled?"
3. The Full Bench, by judgment dated 05.04.2016, answered the same in the following terms:
31. Since, subsequent to the Full Bench reference, the Supreme Court in Satya Pal Singh interpreted these provisions, we are duty bound to follow the same to the extent it binds us. With that in mind and in the light of the above legal precedents and the discussion, we answer the questions posed by the Referral Judge 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 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 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 Satya Pal Singh.
(4) The term "victim" has been correctly interpreted by the Full Bench of the Delhi High Court in Ram Phal v. State & Ors., 2015(3) MWN (Cr.) 491 (FB) (Del.), and we are in agreement with the same.
(5) A victim (as defined under Section 2(wa) of the Cr.P.C.) does not cease to be a victim merely because he also happens to be a Complainant and he can avail all the rights and privileges of a victim also, and (6) The decision of the Single Judge in Selvaraj holding that the term "victim" found in Section 372 excludes a Complainant, is not legally correct and in a given case, a Complainant, who is also a victim, can avail right granted under Section 372 of Cr.P.C."
4. As held by the Full Bench, an appeal by a victim of crime, who has prosecuted an accused, by way of a private complaint, against acquittal recorded by a Magistrate shall lie only to the respective Sessions Court. It is clear from the plain language employed in the proviso to Section 372 of the Code of Criminal Procedure. Therefore, I am of the view that these appeals, which have been admitted by this Court, need to be transferred to the respective Sessions Court for disposal in accordance with law.
5. The learned counsel appearing on either side in all these appeals also conceded that these appeals deserve to be transferred to the respective Sessions Court.
6. In view of the above, these Criminal Appeals are disposed of and these appeals as well as the connected Original Petitions and the Miscellaneous Petitions are transferred to the respective Principal Sessions Court forthwith, who shall either dispose of the appeals or make over the same to Additional Sessions Courts for disposal in accordance with law, after due notice of hearing to both parties. It is also directed that the Lower Appellate Court shall give priority for these appeals, as these appeals have become old appeals.
7. The Registry is directed to ensure that the records of the Lower Court, if received, shall also be forwarded to the Sessions Court along with the appeal papers.
To The District Munsif -cum- Judicial Magistrate, Usilampatti..