Jharkhand High Court
Tuklal Yadav vs The State Of Jharkhand & Anr on 9 July, 2018
Author: H.C. Mishra
Bench: H.C. Mishra, B.B. Mangalmurti
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (S.J.) No.1281 of 2016
Tuklal Yadav .... Appellant
-Versus-
The State of Jharkhand & Anr. ..... Respondents
With
Criminal Appeal (S.J.) No.2229 of 2017
Tapas Kumar Sahu .... Appellant
-Versus-
The State of Jharkhand & Anr. ... Respondents
With
Criminal Appeal (S.J.) No.825 of 2014
Anita Devi ... Appellant
-Versus-
The State of Jharkhand & Ors. ... Respondents/Opp.Parties
With
Criminal Appeal (S.J.) No.2066 of 2017
Radhika Devi ... Appellant
-Versus-
The State of Jharkhand & Ors. ... Respondents
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CORAM: HON'BLE MR. JUSTICE H.C. MISHRA
HON'BLE MR. JUSTICE B.B. MANGALMURTI
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For the Appellants : M/s. Namit Kumar, K.S.Nanda,
Vishal Kumar Tiwary, Kirti Saboo
For the Respondents : M/s. Pankaj Kumar, A.P.P.
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13/ 09.07.2018. All these acquittal appeals arising out of appellate judgments / orders of acquittal passed by the Courts of Session, which were originally to be heard by the Single Judge and were also being listed before the Single Judge, have been referred by the Hon'ble Single Judge to the Division Bench, in view of Rule 152 of the High Court of Jharkhand Rules, 2001, which reads as follows:-
"152. All Acquittal Appeals shall be listed before the Division Bench for Admission, and if admitted, shall be processed for hearing. The record of the Court below shall immediately be sent for."
While these matters were being taken up, an objection was taken by the learned counsel for the State, that in view of the Proviso to Section 372 of the Code of Criminal Procedure, these appeals shall lie before the Single Judge, and not before the Division Bench, as these acquittal appeals arise out of the appellate orders passed by the Courts of Session.
Section 372 of the Cr.P.C., reads as follows:-
"372. No appeal to lie unless otherwise provided. - No appeal shall lie from any judgment or order of a Criminal Court except as provided by this Code or by any other law for the time being in force.-2-
Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to a Court to which an appeal ordinarily lies against the order of conviction of such Court."
It is pointed out that Proviso has been inserted in Section 372 of the Cr.P.C., by an Amendment Act, w.e.f. 31.12.2009, and the High Court of Jharkhand Rules were framed in the year 2001, and it is settled principle of law that the provisions of Rules cannot override the provisions of the Act.
It is further submitted that the appeals arising out of the appellate Judgments / orders of conviction passed by the Courts of Session, are listed before the Single Judge. As such, the Acquittal Appeals arising out of such cases should also be listed before the Single Judge only, in view of the Proviso to Section 372 of the Cr.P.C. As such, there was no occasion to refer these matters to the Division Bench.
After the amendment in Cr.P.C., there was some confusion whether a victim had a statutory right to prefer an appeal to the High Court against the order of acquittal under the proviso to Section 372 Cr.P.C., without obtaining the leave of the High Court, as required under Section 378 (3) Cr.P.C. That confusion has since been clarified by the Hon'ble Supreme Court laying down the law in Satya Pal Singh Vs. State of Madhya Pradesh and Ors., reported in (2015) 15 SCC 613, as under :-
"14. Thus, from a reading of the above-said legal position laid down by this Court in the cases referred to supra, it is abundantly clear that the proviso to Section 372 Cr.P.C must be read along with its main enactment i.e. Section 372 itself and together with sub-section (3) of Section 378 Cr.P.C otherwise the substantive provision of Section 372 Cr.P.C will be rendered nugatory, as it clearly states that no appeal shall lie from any judgment or order of a criminal court except as provided by Cr.P.C.
15. Thus, to conclude on the legal issue:
"Whether the appellant herein, being the father of the deceased, has statutory right to prefer an appeal to the High Court against the order of acquittal under the proviso to Section 372 Cr.P.C without obtaining the leave of the High Court as required under sub-section (3) of Section 378 Cr.P.C ?"
This Court is of the view that the right of questioning the correctness of the judgment and order of acquittal by preferring an appeal to the High Court is conferred upon the victim including the legal heir and others, as defined under Section 2 (wa) Cr.P.C, under the proviso to Section 372, but only after obtaining the leave of the High Court as required under sub-Section (3) of Section -3- 378 Cr.P.C. The High Court of M.P has failed to deal with this important legal aspect of the matter while passing the impugned judgment and order."
It appears that there is still some confusion in this regard, inasmuch as, the acquittal appeals arising out of the appellate orders of acquittal, passed by the Courts of Session, which were being decided by the Single Judge, are now being referred to the Division Bench, citing Rule 152 of the High Court of Jharkhand Rules, 2001.
It also appears that one procedural confusion is also prevailing, in as much as, whether the application for leave to appeal under Section 378 (3) Cr.P.C., has to be filed separately as an independent application in the form of Cr.M.P., or the same may be filed by way of interlocutory application (I.A.), in the same appeal. Presently, both the processes are being followed in this Court. Yet another question shall arise, i.e., whether the application for leave to appeal under Section 378 (3) Cr.P.C., has to be adjudicated by a Division Bench, even in the acquittal appeals filed against the appellate orders passed by the Courts of Session, or the same may be entertained by the Single Judge, in case it is held that such acquittal appeals shall lie before the Single Judge only.
Another question which arose for consideration in two of these appeals (Criminal Appeal Nos.1281 of 2016 and 2229 of 2017), is that whether such acquittal appeals arising out of complaint cases, would also be governed by proviso to Section 372 of the Cr.P.C., read with Section 378 (3) of the Cr.P.C., or they would be governed by Section 378 (4) of the Cr.P.C.
The relevant portion of Section 378 of the Cr.P.C. reads as follows:-
"378- 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 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 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]. (2) -------------------.
(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.
-4-(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) -------------------.
(6) -------------------."
It is submitted that Section 378 (4) clearly provides that in the matters arising out of complaint, the only course available to the complainant in the event of acquittal, is to file an application seeking special leave in the High Court, and if special leave is granted to him, to file the appeal in the High Court itself. In view of this specific provision, the complainant, in the event of acquittal, cannot prefer any appeal against the judgment / order of acquittal in the Courts of Session. It is however, pointed out that the appeals are being preferred by even the complainants in the Courts of Session against the acquittal orders passed by the Magistrates, in view of the law laid down by a Division Bench of this Court in Baidya Lakhan Bhagat Vs. State of Jharkhand, reported in 2013 (2) JBCJ 40 (HC), wherein the application for special leave filed by the complainant under Section 378 (4) of the Cr.P.C., against the order of acquittal passed by the Magistrate, was dismissed by this Court, directing that the victim complainant had to exhaust the remedy available to him under proviso to Section 372 of the Code of Criminal Procedure, by preferring an appeal before the Court of Session.
It has been pointed out that the aforesaid view taken by the Division Bench of this Court is in teeth of, and against the law laid down by the Hon'ble Supreme court in Subhash Chand Vs. State (Delhi Administration), reported in (2013) 2 SCC 17, wherein it has been held as under:-
"23. In view of the above, we conclude that a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court. He cannot file such appeal in the Sessions Court. ------------. The appellant was acquitted by the Metropolitan Magistrate, Patiala House Courts, New Delhi. The complainant can challenge the order of acquittal by filing an application for special leave to appeal in the Delhi High Court and not in the Sessions Court. Therefore, the impugned order holding that this case is not governed by Section 378 (4) of the Code is quashed and set aside. In the circumstances, the appeal is allowed."
We have been informed that confusion is prevailing in the State of Jharkhand with regard to the complaint cases, inasmuch as in some districts, the acquittal appeals arising out of acquittal orders passed by the Magistrates arising out of even complaint cases, are being entertained by the Sessions -5- Judges, relying upon the decision of the Division Bench of this Court in Baidya Lakhan Bhagat's case (supra), as has been done in two of these appeals before us, whereas in some districts, the victims complainants are being asked to prefer the application for special leave to appeal before the High Court, and the acquittal appeals filed by the complainants are not being entertained by the Courts of Session, in view of the law laid down by the Apex Court in Subhash Chand's case (supra).
Taking into consideration the contrary view taken by the Division Bench of this Court, and also for clearing the confusions in this regard, we are of the considered view that it would be appropriate that the matter be referred to a larger Bench for laying down the law in this regard, so that there may be no confusion, and an uniform practice is henceforth followed in the entire State.
We think that it would be appropriate that the larger Bench of this Court should clarify the law, particularly on the following points:-
(i) Whether the acquittal appeals arising out of the appellate judgments / orders passed by the Courts of Session should be heard by a Division Bench, or it should be heard by the Single Judge in view of Proviso to Section 372, r/w 378 (3) of the Cr.P.C., as was being done earlier.
(ii) Whether the orders passed by the Hon'ble Single Judge, referring the acquittal appeals filed against the appellate judgments / orders passed by the Courts of Session, in view of Rule 152 of the High Court of Jharkhand Rules, is in consonance with Proviso to Section 372 of the Cr.P.C., or whether such appeals shall lie to the Court to which the appeals ordinarily lie against the orders of conviction, i.e., Single Judge, in view of Proviso to Section 372 of the Cr.P.C.
(iii) Whether Rule 152 of the High Court of Jharkhand Rules, 2001, needs to be amended in view of subsequent amendment of Section 372 of the Cr.P.C., w.e.f. 31.12.2009.
(iv) Whether the acquittal appeals arising out of acquittal orders / judgments passed by the Magistrates in complaint cases, can be entertained by the Courts of Session under the Proviso to Section 372 of the Cr.P.C., or the complainant has to prefer an application for special leave to appeal before the High Court, and if special leave is granted to him, to file the appeal in the High Court itself, as required under Section 378 (4) of the Cr.P.C.
(v) Whether such applications for leave / special leave to appeal, even in the acquittal appeals arising out of the appellate judgments / orders passed by the Courts of Session, are to be heard and decided by the Division Bench, as is being presently done, or they can be heard and decided by a Single Judge, which is the Court of appeal in such cases under Proviso to Section 372 of the Cr.P.C., on the analogy that the Court which can decide the main appeal, can also decide the question -6- whether the leave / special leave to appeal in a particular case be granted or not.
(vi) Whether the applications for leave / special leave to appeal under Section 378 (3) Cr.P.C., and Section 378 (4) Cr.P.C., have to be filed separately as independent applications in the form of Cr.M.P., or the same can be filed by way of interlocutory applications (I.A.), in the same appeal, in which case the multiplicity of cases may also be avoided, thus, reducing the pendency of the cases.
(vii) Whether the acquittal appeals should necessarily be registered as Acquittal Appeals, and not as Criminal Appeals. The nomenclature Cr. Appeals should only be for the appeals arising out of the Judgments / Orders of conviction.
(viii) Any other question(s), which may arise, for consideration before the larger Bench.
We request the Hon'ble Acting Chief Justice to constitute a larger Bench at the earliest for deciding these issues, as several matters are pending adjudication in this High Court, which shall be governed by the law, clarified by the larger Bench.
Registry is directed to place the matter before the Hon'ble Acting Chief Justice in the administrative side, for constituting larger Bench at the earliest.
(H.C. Mishra, J.) (B.B. Mangalmurti, J.) D.S/B.S