Bombay High Court
Shashikala D/O. Ambadas Bhange vs Sanjay Asaram Dale And Others on 26 March, 2019
Author: K.K. Sonawane
Bench: K.K. Sonawane
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO.40 OF 2019
SHASHIKALA D/O. AMBADAS BHANGE
VERSUS
SANJAY ASARAM DALE AND OTHERS
...
Advocate for Appellant : Mr. Sachin S. Panale
Advocate for Respondents No. 1 to 8 : Mr. R. K. Temkar
APP for Respondent No.9 : Mr. K. N. Lokhande
...
CORAM : K.K. SONAWANE, J.
DATED : 26th MARCH, 2019 Order :-
Heard learned counsel for applicant and learned counsel for respondents No. 1 to 8 (original accused) as well as learned APP for respondent No. 9 - State of Maharashtra. Perused application and other relevant documents including impugned Judgment and order passed by learned Adhoc Assistant Sessions Judge-4, Ahmednagar, in Sessions Case No. 115 of 2017, dated 30-11-2017.
2. Admittedly, the applicant is original complainant, filed the First Information Report (FIR) against respondents No.1 to 8 (original accused), for the offence of abetment of suicide. Pursuant to FIR, police registered the crime and set the law in motion. The Investigation Officer (IO), after completion of investigation, filed chargesheet before learned Judicial Magistrate, First Class, Shevgaon, District Ahmednagar. Thereafter, matter was committed to concerned Sessions Court bearing Sessions Case No. 115 of 2017. The learned Sessions Judge framed the ::: Uploaded on - 27/03/2019 ::: Downloaded on - 29/03/2019 01:01:49 ::: 2 928-ALP-40-19 charge and proceeded further to explore the evidence of prosecution witnesses. After considering the entire evidence on record, the learned Sessions Judge arrived at the conclusion that the prosecution did not succeed to bring home guilt of the accused. Therefore, respondents- (original accused No.1, 2 and 4 to 9) were acquitted from the charges pitted against them.
3. Being aggrieved by the findings of acquittal of respondents-accused, the original complainant i.e present applicant herein is intending to prefer an appeal by invoking remedy under proviso of Section 372 of the Code of Criminal Procedure, 1973 (Cr.P.C.) to redress her grievances. However, the applicant seeks leave as contemplated under Section 378(3) of Cr.P.C. to present an appeal against impugned Judgment and order of acquittal of accused- respondents passed by learned trial Court.
4. Learned counsel for the applicant submits that the applicant is the original complainant and victim of the crime as defined under Section 2(wa) of Cr.P.C. Therefore, in view of exposition of law delineated by the Honourable Apex Court in a case - Mallikarjun Kodagali (D) rep. thr. L.R's Versus State of Karnataka and others, reported in 2018 All SCR (Cri) 1843, it is not necessary to seek leave on behalf of victim of the crime for filing an appeal against impugned Judgment and order of acquittal passed by learned trial Court.
5. Learned counsel for respondents-accused fairly conceded on the ratio laid down in judicial precedent of the Honourable Apex Court in a Mallikarjun's case (cited supra). ::: Uploaded on - 27/03/2019 ::: Downloaded on - 29/03/2019 01:01:49 :::
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6. Admittedly, their Lordships of the Honourable Apex Court in paragraph Nos. 77 and 78 of aforesaid case observed as under -
"77. Under the circumstances, on the basis of the plain language of the law and also as interpreted by several High Courts and in addition the resolution of the General Assembly of the United Nations, it is quite clear to us that a victim as defined in Section 2(wa) of the Cr.P.C. would be entitled to file an appeal before the Court to which an appeal ordinarily lies against the order of conviction. It must follow from this that the appeal filed by Kodagali before the High Court was maintainable and ought to have been considered on its own merits.
78. 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 of the Cr.P.C. is quite clear, particularly when it is contrasted with the language of Section 378(4) of the 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) of the 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 of the Cr.P.C. is concerned."
7. In view of aforesaid observations of the Honourable Apex Court, it is crystal clear that the leave as contemplated under Section 378(3) of Cr.P.C. is not essential for the victim of the crime to present an appeal against the impugned Judgment and order of acquittal passed by learned trial Court by invoking remedy under proviso of Section 372 (2) of Cr.P.C. Hence, there is no impediment to allow the application. ::: Uploaded on - 27/03/2019 ::: Downloaded on - 29/03/2019 01:01:49 :::
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8. Accordingly, Criminal Application stands allowed. The appeal filed by applicant being an victim of the crime under proviso of Section 372(2) of Cr.P.C. be registered for further process into the matter. Registry to take requisite steps for further process.
9. The criminal application stands disposed of accordingly.
10. On registration of appeal, issue notice to the respondents. Mr. M. R. Temkar, learned counsel waives service for respondents No.1 to 8, whereas, learned APP waives service of notice for respondent No.9 - State of Maharashtra.
11. Record and proceedings has already been received in this matter.
12. After compliance of procedural formalities, list the appeal for admission on 23-04-2019.
[ K. K. SONAWANE, J. ] rrd ::: Uploaded on - 27/03/2019 ::: Downloaded on - 29/03/2019 01:01:49 :::