Jharkhand High Court
Poonam Devi Wife Of Parikshit Sonar D/O ... vs The State Of Jharkhand on 1 October, 2024
Author: Ananda Sen
Bench: Ananda Sen, Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 2149 of 2017
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Poonam Devi wife of Parikshit Sonar D/o Mahadeo Sawarnkar, resident of Isri
Bazar, Station Road, PO Ishri Bazar, P.S. Nimiaghat, District Giridih.
Petitioner
Versus
1. The State of Jharkhand
2. Ranjit Sonar
3. Ajit Sonar
Both sons of Brij Mohan Sonar
4. Brij Mohan Sonar S/o Late Khedu Ram
5. Jitani Devi @ Jitni Devi W/o Brij Mohan Sonar
All resident of Madhukarpur, PO PS Kasmar, District Bokaro.
... ... Opposite Parties
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WITH
Cr. M.P. No. 2891 of 2017
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Rampati Devi wife of Sri Tulsi Ram Ravidas, resident of Subhash
Nagar(Layakdih), Tar Bagan, PO PS Chirkunda, District Dhanbad.
Petitioner
Versus
1. The State of Jharkhand
2. Ishwar Lal Sharma son of Late Triveni Sharma
3. Vinod Sharma
4. Pramod Sharma
5. Sheo Shambu Sharma
All sons of Ishwar Lal Sharma
6. Rahul Kumar Sharma
7. Ravi Kumar Sharma
Sons of Vinod Sharma
All residents of Village Subhash Nagar (Layakdih), Tar Bagar, PO PS
Chirkunda, District Ranchi.
... ... Opposite Parties
----
WITH
Cr. M.P. No. 3260 of 2017
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Kavita Kumar D/o Shri Rajendra Prasad, resident of at Near Dhanbad Dairy,
H.No. 95, Rani Road, Bhuda, PS Dhansar, PO and District Dhanbad.
Petitioner
Versus
1
Cr. MP No.2149 of 2017 WITH Cr. MP No.2891 of 2017 WITH Cr. MP No.3260 of 2017 WITH Cr. MP No.1381 of 2018 WITH Cr. MP No.1389 of 2018 WITH Cr.
MP No.1429 of 2018 WITH Cr. MP No.1455 of 2018 WITH Cr. MP No.2053 of 2018 WITH Cr. MP No.2321 of 2018 WITH Cr. MP No.3226 of 2018 WITH Cr. MP
No.3296 of 2018 WITH Cr. MP No.3386 of 2018
1. The State of Jharkhand
2. Balmiki Singh son of Late Lala Singh
3. Gayitri Devi W/o Balmiki Singh
All resident of House of Sri K.K. Singh, near Govt. Primary School,
Nutandih, PO Jagjiwan Nagar, PS Saraidhela, District Dhanbad.
... ... Opposite Parties
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WITH
Cr. M.P. No. 1381 of 2018
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Nikhat Praveen aged about 38 years, W/o Anwar Hussain, Resident of Village
Jugsalai (Ishlam Nagar, Jamshedpur), PO PS Jugsalai, District East
Singhbhum, Jharkhand at present Q. No. PE-2, Tenughat No.3, PO Tenughat,
PS Gomia, District Bokaro, Jharkhand.
Petitioner
Versus
1. The State of Jharkhand
2. Md Kayum S/o Late Md Khalid
3. Afzal Hussain S/o Abdul Kayum
4. Saima Khatoon W/o Abdul Hussain
5. Sahnaz Praveen W/o Afzal Hussain
Sl.No.2 to 5 all resident of village Jugsalai (Ishlam Nagar, Jamshedpur), PO
PS Jugsalai, District East Singhbhum, Jharkhand.
... ... Opposite Parties
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WITH
Cr. M.P. No. 1389 of 2018
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Kumari Supriya Roy Wife of Mainak Roy, D/o Sri Ashok Kumar Roy, Aged
about 34 year, resident of Bibhuti Apartment Flat No.4/G, Luby Circular Road,
Hirapur PO PS and District Dhanbad.
Petitioner
Versus
1. The State of Jharkhand
2. Mainak Roy S/o Late Nirmal Roy, aged about 35 years
3. Smt. Agomony roy W/o Late Nirmal Roy aged about 64 years
Both O.P. No.2 and 3, R/o Sakin 16/1, Gour Mondol Road, Asansol-1 Hoten
Road, PO Asansol PS South Asansol, District Bardwan (W.B).
4. Mahua Chakraborty W/o Sri Goutam Kumar Chakroborty, Aged about 39
years
5. Goutam Kumar Chakroborty S/o Sri B.D. Chokroborty, Aged about 47 years,
PO Asansol, P.S. South Asansol
Both O.P. No.4 and 5, R/o Diamond Park Kolkata, PO Kolkata, P.S.
2
Cr. MP No.2149 of 2017 WITH Cr. MP No.2891 of 2017 WITH Cr. MP No.3260 of 2017 WITH Cr. MP No.1381 of 2018 WITH Cr. MP No.1389 of 2018 WITH Cr.
MP No.1429 of 2018 WITH Cr. MP No.1455 of 2018 WITH Cr. MP No.2053 of 2018 WITH Cr. MP No.2321 of 2018 WITH Cr. MP No.3226 of 2018 WITH Cr. MP
No.3296 of 2018 WITH Cr. MP No.3386 of 2018
Harideopur, District South 24 Pargana (W.B.) and Permanent R/o Hill View
Park (Northe), 2nd Lane behind Sripally more Kalibari, Asansol-703304, PO
Asansol, PS South Asansol, Dist Burdwan (W.B.)
... ... Opposite Parties
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WITH
Cr. M.P. No. 1429 of 2018
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Jitu Pal @ Jitu Paul @ Jeetu Pal, aged about 44 years, son of Late Kalipado
Pal, resident of Sasanbaria, PO PS Nirsa, District Dhanbad, Jharkhand.
Petitioner
Versus
1. The State of Jharkhand
2. Bharat Chandra Pal @ Bharat Pal son of Late Kali Pado Pal
3. Chotu Pal son of Late Kali Pado Pal
4. Mithu Pal son of Bharat Chandra Pal
5. Ravi Pal son of Bharat Chandra Pal
Opposite Parties no. 2 to 5, all are residents of Sasanbaria, PO PS Nirsa,
District Dhanbad, Jharkhand.
... ... Opposite Parties
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WITH
Cr. M.P. No. 1455 of 2018
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Amar Kumar Jaiswal aged about 33 years, son of Suresh Prasad Bhagat,
resident of Village & PO Topchanchi, PS Topchanchi, District Dhanbad.
Petitioner
Versus
1. The State of Jharkhand
2. Sri Abhishekh Kumar (Sonu) aged about 39 years, son of Gaya Prasad,
resident of Near BSNL Telephone Exchange, Saraidhela, PO PS
Saraidhela, District Dhanbad.
... ... Opposite Parties
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WITH
Cr. M.P. No. 2053 of 2018
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Deepak Kumar Sinha aged about 55 years son of Sri Janki Prasad Sinha Jani
Prasad Sinha, Proprietor of Mayuri Equipment, resident of Mohalla Saket
Nagar, Near United High School, PO Hinoo, PS Doranda, District Ranchi 2.
Petitioner
Versus
1. The State of Jharkhand
2. Ajit Kumar @ Ajit Kumar Mishra, Partner M/s Jai Matadi Construction,
3
Cr. MP No.2149 of 2017 WITH Cr. MP No.2891 of 2017 WITH Cr. MP No.3260 of 2017 WITH Cr. MP No.1381 of 2018 WITH Cr. MP No.1389 of 2018 WITH Cr.
MP No.1429 of 2018 WITH Cr. MP No.1455 of 2018 WITH Cr. MP No.2053 of 2018 WITH Cr. MP No.2321 of 2018 WITH Cr. MP No.3226 of 2018 WITH Cr. MP
No.3296 of 2018 WITH Cr. MP No.3386 of 2018
Dimna Road, Mango Jamshedpur, At present Ashiyana Woodland, Flat
No.203, Building No.06 at Paridih, Near Kali Mandir, PO & PS Chandil,
District Serikela Kharsawan (Jamshedpur).
... ... Opposite Parties
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WITH
Cr. M.P. No. 2321 of 2018
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Anup Kumar aged about 47 years, son of Basant Kumar Gupta, resident of
Village Mandu, PO PS Mandu, District Ranchi.
Petitioner
Versus
1. The State of Jharkhand
2. Ishwar Prasad son of Lala Prasad, resident of Gattlatu Neori, Vikas, PO
Neori, PS Sadar, District Ranchi.
... ... Opposite Parties
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WITH
Cr. M.P. No. 3226 of 2018
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Purnima Devi aged about 38 years, wife of Pasupati Ray, resident of Village -
Kumardaga, PO Kumardaga, PS Pindrajora, District Bokaro, at presently
residing at Kumhri, PO Chas, PS Chas (M), Distt. Bokaro.
Petitioner
Versus
1. The State of Jharkhand
2. Pashupati Ray son of Late Mohan Rai
3. Sundar Lal Ray son of Late Mohan Rai
4. Gita Devi wife of Sundar Lal
All respondent no. 2 to 4 are resident of village Kumardaga, PO
Kumardaga, PS Pindrajora, Distt. Bokaro.
... ... Opposite Parties
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WITH
Cr. M.P. No. 3296 of 2018
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Sanjay Kumar aged about 47 years, son of Sri Shiv Dayal Singh Resident of
Flat No.602, School Tower, Pragati Path, Near Oxford Public School,
Samlong, PO PS Chutia, Distt. Ranchi (Jharkhand).
Petitioner
Versus
1. The State of Jharkhand
2. M/s Gautam Construction & Developers Pvt. Ltd.
4
Cr. MP No.2149 of 2017 WITH Cr. MP No.2891 of 2017 WITH Cr. MP No.3260 of 2017 WITH Cr. MP No.1381 of 2018 WITH Cr. MP No.1389 of 2018 WITH Cr.
MP No.1429 of 2018 WITH Cr. MP No.1455 of 2018 WITH Cr. MP No.2053 of 2018 WITH Cr. MP No.2321 of 2018 WITH Cr. MP No.3226 of 2018 WITH Cr. MP
No.3296 of 2018 WITH Cr. MP No.3386 of 2018
3. Mr. P.K. Singh @ Pawan Kumar, aged about 57 years, son of Sri Gopal
Sharan, Both resident of Gautam Niwas, Jay Prakash Nagar, Bariatu, PO
Bariatu, PS Sadar, Distt. Ranchi (Jharkhand).
... ... Opposite Parties
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WITH
Cr. M.P. No. 3386 of 2018
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Hira Prasad aged about 69 years, S/o Late Jagannath Prasad, R/o H. No.12/II,
Shail Purti Bastu Bihar, Duplex Complex Baikunt Nagar, PO PS Mango,
Jamshedpur, District East Singhbhum.
Petitioner
Versus
1. The State of Jharkhand
2. Mita Dutta aged about 49 years, W/o Subodh Dutta, R/o Holding No.C/3/4,
Jagabandhu Apartment, PO PS Mango, Town Jamshedpur, District East
Singhbhum.
... ... Opposite Parties
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CORAM : SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
......
For the Petitioners : Mr. Manoj Kumar Bhagat, Advocate
Mr. Indrajit Sinha, Advocate
Mr. Akhouri Awinash Kumar, Advocate
Mr. Jagdeesh, Advocate
Mr. P.K. Mukhopadhyay, Advocate
Mr. Pradeep Kumar Prasad, Advocate
Mr. K.S. Nanda, Advocate
Ms. Neeharika, Advocate
Mr. Amit Kumar Verma, Advocate
Mr. Gautam Kumar, Advocate
Ms. Pushpanjali Kumar Singh, Advocate
For the Opp. Parties : Ms. Vandana Bharti, A.P.P.
Ms. Nehala Sharmin, Spl. P.P.
Mr. Pankaj Kumar Mishra, A.P.P.
Mr. Rajneesh Vardhan, A.P.P.
Ms. Shweta Singh, A.P.P.
Mr. Sanjay Kumar Srivastava, A.P.P.
Mr. V.S. Sahay, A.P.P.
Ms. Ruby Pandey, A.P.P.
Mr. Abhay Kumar Tiwari, A.P.P.
Mr. Anup Pawan Topno, A.P.P.
Mr. Indrajit Sinha, Advocate
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ORDER
Reserved on 31.07.2024 Pronounced on 01.10.2024 5 Cr. MP No.2149 of 2017 WITH Cr. MP No.2891 of 2017 WITH Cr. MP No.3260 of 2017 WITH Cr. MP No.1381 of 2018 WITH Cr. MP No.1389 of 2018 WITH Cr. MP No.1429 of 2018 WITH Cr. MP No.1455 of 2018 WITH Cr. MP No.2053 of 2018 WITH Cr. MP No.2321 of 2018 WITH Cr. MP No.3226 of 2018 WITH Cr. MP No.3296 of 2018 WITH Cr. MP No.3386 of 2018 Order No.18 Dated 01.10.2024 Per Ananda Sen, J. These are a batch of 12 Criminal Miscellaneous Petitions seeking leave to appeal challenging the judgment of acquittal of the respective accused. All these petitions arise out of complaint cases and the respective complainants are before us praying for leave.
2. Issue in this batch of cases, which we feel is of utmost importance, is whether, in an appeal arising out of complaint, where complainant is victim, it is necessary to take leave of the Court by the victim- complainant to file an appeal?
This question assumes more significance in view of the ratio laid down by the Hon'ble Supreme Court in the case of Joseph Stephen & Others versus Santhanasamy & Others reported in (2022) 13 SCC 115.
3. A Coordinate Bench of this Court, vide order dated 01.03.2023 passed in the case of Mossabha Khatoon versus the State of Jharkhand & Ors. [Cr. M.P. No.71 of 2010] and other analogous cases, held that the law laid down by the Full Bench of this Court in Tuklal Yadav versus State of Jharkhand & Another reported in 2018 SCC OnLine Jhar 1193, still holds good. The aforesaid finding was arrived by the Coordinate Bench, despite taking note of the judgments passed by the Hon'ble Supreme Court of India in the case of Mallikarjun Kodagali (dead) represented through Legal Representatives versus State of Karnataka & Others reported in (2019) 2 SCC 752 and in the case of Joseph Stephen & Others versus Santhanasamy & Others reported in (2022) 13 SCC 115.
4. In view of the observations by the Coordinate Bench of this Court dated 01.03.2023, in the aforesaid case, these Criminal Miscellaneous Petitions have been listed before this Bench to decide each individual cases and arrive at a conclusion as to whether or not an application seeking leave to appeal in terms of Section 378(4) of the Code of Criminal Procedure 1973 or an appeal in terms of proviso to Section 372 of the Code of Criminal Procedure, 1973 would be maintainable or not.
5. The issue, which was the subject matter of the earlier order dated 01.03.2023 was whether in terms of proviso to Section 372 of the Code of Criminal Procedure, a complainant, who may be a victim, will be entitled to file an appeal against a judgment of acquittal or the complainant, irrespective 6 Cr. MP No.2149 of 2017 WITH Cr. MP No.2891 of 2017 WITH Cr. MP No.3260 of 2017 WITH Cr. MP No.1381 of 2018 WITH Cr. MP No.1389 of 2018 WITH Cr. MP No.1429 of 2018 WITH Cr. MP No.1455 of 2018 WITH Cr. MP No.2053 of 2018 WITH Cr. MP No.2321 of 2018 WITH Cr. MP No.3226 of 2018 WITH Cr. MP No.3296 of 2018 WITH Cr. MP No.3386 of 2018 of whether he / she is a victim or not, has to necessarily approach the High Court in terms of Section 378(4) of the Code of Criminal Procedure and have to seek leave to file an appeal.
6. The Full Bench of this Court in the case of Tuklal Yadav (supra) vide judgment dated 19th September, 2018, at paragraph 34 thereof, has held as follows: -
34. Having considered the various stands advanced by the learned counsels on this question, taking into consideration the views of the other High Courts, as also the law laid down by the Apex Court, as referred above, and trying to harmonize the provisions of Proviso to Sections 372 of the Cr.P.C., and Section 378 of the Cr.P.C., we propose to answer this question, with respect to appeals arising out of complaint cases, as follows:--
(A). The complainant, whether the State or a private person, who is also the victim as defined under Section 2 (wa) of the Cr.P.C., if aggrieved by the judgment/order of acquittal passed by the Trial Court, their case is now set at rest by the decision of the Hon'ble Apex Court in Subhash Chandra's case (supra), and as such, they have the only remedy against the order/judgment of acquittal passed by the Trial Court, to seek special leave of the High Court under Section 378 (4) of the Cr.P.C., and in case the special leave is granted, to file appeal in the High Court itself. In case the special leave is not granted to the private complainant, the appeal even by the State shall be barred in terms of Section 378 (6) of the Cr.P.C.
(B). Such complainants, even if they are victims as defined under Section 2 (wa) of the Cr.P.C., now cannot take recourse to Proviso to Section 372 of the Cr.P.C. They cannot be allowed two forums of appeal, as argued by learned counsels, and they can also be given only one forum of appeal, as is given to the victims in case of judgment/order of acquittal in police cases.
(C). In cases the victims are not the complainant, their cases cannot come under Section 378 (4) of the Cr.P.C., as Section 378 (4) clearly speaks about the right of complainant only. Such victims as defined under Section 2 (wa) of the Cr.P.C., can avail the remedy of appeal under the Proviso to Section 372 of the Cr.P.C. In such cases, if the order/judgment of acquittal is passed by the Court of Magistrate, the appeal shall lie to the Court of Session, in which case there shall be no requirement to seek any leave to appeal. If the order/judgment of acquittal is passed by the Court of Session, the appeal shall lie to the High Court, subject to leave to be taken under Section 378 (3) of the Cr.P.C. (D). At the same time, we cannot ignore the right of the victim complainant, if such victim complainant is aggrieved by the conviction of the accused for lesser offence, or imposing inadequate compensation. Such appeals shall not be against the judgment/order of acquittal and shall not come within the purview of Section 378 (4) of the Cr.P.C., and are also not covered by the decision of the Apex Court in Subhash Chandra's case (supra). In such cases, we are of the considered view that the victims as defined under Section 2 (wa) of the Cr.P.C., whether they are complainant or not, shall have the right to appeal under the Proviso to Section 372 of the Cr.P.C. against the judgment/order of 7 Cr. MP No.2149 of 2017 WITH Cr. MP No.2891 of 2017 WITH Cr. MP No.3260 of 2017 WITH Cr. MP No.1381 of 2018 WITH Cr. MP No.1389 of 2018 WITH Cr. MP No.1429 of 2018 WITH Cr. MP No.1455 of 2018 WITH Cr. MP No.2053 of 2018 WITH Cr. MP No.2321 of 2018 WITH Cr. MP No.3226 of 2018 WITH Cr. MP No.3296 of 2018 WITH Cr. MP No.3386 of 2018 convicting the accused for lesser offence, or imposing inadequate compensation. In such cases also, if the order/judgment is passed by the Court of Magistrate, the appeal shall lie to the Court of Session, in which case there shall be no requirement to seek any leave to appeal, and if the order/judgment is passed by the Court of Session, the appeal shall lie to the High Court, subject to leave to be taken under Section 378 (3) of the Cr.P.C.
7. Immediately after pronouncement of the aforesaid judgment of the Full Bench of this Court, the Hon'ble Supreme Court of India, on 12th October, 2018, in the case of Mallikarjun Kodagali (supra) at paragraph 34, 35 and 76 thereof has held as follows: -
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 Article 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) CrPC a victim who 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 case, 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 : (SCC OnLine Guj para 36) "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 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 CrPC does not introduce or incorporate any such distinction.
...
76. 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 8 Cr. MP No.2149 of 2017 WITH Cr. MP No.2891 of 2017 WITH Cr. MP No.3260 of 2017 WITH Cr. MP No.1381 of 2018 WITH Cr. MP No.1389 of 2018 WITH Cr. MP No.1429 of 2018 WITH Cr. MP No.1455 of 2018 WITH Cr. MP No.2053 of 2018 WITH Cr. MP No.2321 of 2018 WITH Cr. MP No.3226 of 2018 WITH Cr. MP No.3296 of 2018 WITH Cr. MP No.3386 of 2018 to Section 372 CrPC is quite clear, particularly when it is contrasted with the language of Section 378(4) CrPC. 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) CrPC 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 CrPC is concerned.
8. Further, on 25th January, 2022, the Hon'ble Supreme Court of India in the case of Joseph Stephen (supra) at paragraph 13 has held as follows: -
13. Now so far as Issue (ii), namely, in a case where no appeal is brought though appeal lies under the Code, whether revision application still to be entertained at the instance of the party who could have appealed, the answer lies in sub-section (4) of Section 401 CrPC itself. Sub-section (4) of Section 401 CrPC reads as under:
"401. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed."
13.1. It cannot be disputed that now after the amendment in Section 372 CrPC after 2009 and insertion of the proviso to Section 372 CrPC, a victim has a statutory right of appeal against the order of acquittal. Therefore, no revision shall be entertained at the instance of the victim against the order of acquittal in a case where no appeal is preferred and the victim is to be relegated to file an appeal. Even the same would be in the interest of the victim himself/herself as while exercising the revisional jurisdiction, the scope would be very limited, however, while exercising the appellate jurisdiction, the appellate court would have a wider jurisdiction than the revisional jurisdiction. Similarly, in a case where an order of acquittal is passed in any case instituted upon complaint, the complainant (other than victim) can prefer an appeal against the order of acquittal as provided under sub-section (4) of Section 378 CrPC, subject to the grant of special leave to appeal by the High Court.
[Emphasis supplied by us] 13.2. As observed by this Court in Mallikarjun Kodagali, so far as the victim is concerned, the victim has not to pray for grant of special leave to appeal, as the victim has a statutory right of appeal under Section 372 proviso and the proviso to Section 372 does not stipulate any condition of obtaining special leave to appeal like sub-section (4) of Section 378 CrPC in the case of a complainant and in a case where an order of acquittal is passed in any case instituted upon complaint. The right provided to the victim to prefer an appeal against the order of acquittal is an absolute right. Therefore, so far as Issue (ii) is concerned, namely, in a case where the victim and/or the complainant, as the case may be, has not preferred and/or availed the remedy of appeal against the order of acquittal as provided under Section 372 CrPC or Section 378(4), as the case may be, the revision application against the order of acquittal at the instance of the victim or the complainant, as the case may be, shall not 9 Cr. MP No.2149 of 2017 WITH Cr. MP No.2891 of 2017 WITH Cr. MP No.3260 of 2017 WITH Cr. MP No.1381 of 2018 WITH Cr. MP No.1389 of 2018 WITH Cr. MP No.1429 of 2018 WITH Cr. MP No.1455 of 2018 WITH Cr. MP No.2053 of 2018 WITH Cr. MP No.2321 of 2018 WITH Cr. MP No.3226 of 2018 WITH Cr. MP No.3296 of 2018 WITH Cr. MP No.3386 of 2018 be entertained and the victim or the complainant, as the case may be, shall be relegated to prefer the appeal as provided under Section 372 or Section 378(4), as the case may be. Issue (ii) is therefore answered accordingly.
9. The observations of the Hon'ble Supreme Court in the aforesaid judgment, especially, at paragraph 13.1 is of utmost importance, and the same, according to us, clinches the issue. Though in the aforesaid judgment the Hon'ble Supreme Court was dealing with the applicability of Section 401 of the Code of Criminal Procedure, yet in paragraph 13.1 has held that where an order of acquittal is passed in any case instituted upon complaint, the complainant (other than victim) can prefer an appeal against the order of acquittal as provided in Sub Section 4 of Section 378 of the Code of Criminal Procedure, subject to grant of special leave to appeal by the High Court. The words "other than victim" according to us has been consciously used by the Hon'ble Supreme Court. This means that if the complainant is a victim, then there is no necessity of seeking special leave to appeal from the High Court. Special leave is to be sought for where the complainant is not a victim.
10. In the light what has been held by the Hon'ble Supreme Court in the case of Mallikarjun (supra) and Joseph Stephen (supra), according to us, it can easily be concluded that the Judgment rendered by the Full Bench of this Court in the case of Tukalal Yadav (supra) to the extent of its pronouncement on the issue relating to filing of appeal against acquittal in a complaint case can be said to have been impliedly over-ruled or needs to be reconsidered.
11. The Coordinate Bench in its order dated 01.03.2023 in the case of Mossabha Khatoon (supra), at paragraphs 10 and 11 observed as under: -
10. This Court, after taking into consideration the judgment rendered in Joseph Stephen (supra) vis-à-vis the issue involved in the present case, is of the considered view that the issue of maintainability of the appeal to be filed before this Court after seeking leave as required to be taken under Section 378(4) of the Code of Criminal Procedure was not the subject matter of lis therein. As such the argument which has been advanced on behalf of learned counsel for the Opp. Parties that after the judgment having been rendered in Joseph Stephen (supra) the judgment rendered by Full Bench of this Court in Tuklal Yadav (supra) will be said to be over-ruled has no force.
11. This Court after having considered the argument advanced on behalf of the parties and after negating the argument advanced on behalf of Opp. Parties about the over-riding effect of judgment rendered in Joseph Stephen (supra) over the judgment rendered by Full Bench of this Court in Tuklal Yadav (supra) is of the considered view that 10 Cr. MP No.2149 of 2017 WITH Cr. MP No.2891 of 2017 WITH Cr. MP No.3260 of 2017 WITH Cr. MP No.1381 of 2018 WITH Cr. MP No.1389 of 2018 WITH Cr.
MP No.1429 of 2018 WITH Cr. MP No.1455 of 2018 WITH Cr. MP No.2053 of 2018 WITH Cr. MP No.2321 of 2018 WITH Cr. MP No.3226 of 2018 WITH Cr. MP No.3296 of 2018 WITH Cr. MP No.3386 of 2018 the judgment rendered by Full Bench of this Court still holds good.
12. At this stage, it is emphasized that we are not oblivious of the observations made by the Hon'ble Supreme Court in paragraph 100 in the case of State of U.P. versus Jeet S. Bisht, reported in (2007) 6 SCC 586. It is necessary to quote the said paragraph, which reads as follows: -
100. For the views been taken herein, I regret to express my inability to agree with Brother Katju, J. in regard to the criticisms of various orders passed in this case itself by other Benches. I am of the opinion that it is wholly inappropriate to do so. One Bench of this Court, it is trite, does not sit in appeal over the other Bench particularly when it is a coordinate Bench. It is equally inappropriate for us to express total disagreement in the same matter as also in similar matters with the directions and observations made by the larger Bench. Doctrine of judicial restraint, in my opinion, applies even in this realm. We should not forget other doctrines which are equally developed viz. Judicial Discipline and respect for the Brother Judges.
13. The observations made by the Hon'ble Supreme Court in the case of State of U.P. (supra) was considered by the Larger Bench of the Hon'ble Supreme Court in the case of Official Liquidator (supra) Official Liquidator versus Dayanand, reported in (2008) 10 SCC 1, wherein at paragraph 91, while dealing with judicial discipline, the Hon'ble Supreme Court of India has held as follows: -
91. We may add that in our constitutional set-up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.
14. Keeping the above principle in mind and also having regard to Article 141 of the Constitution of India, we are of the opinion that the Coordinate Bench, while passing the order dated 01.03.2023 in the case of Mossabha Khatoon (supra) has not considered the law laid down by the Hon'ble Supreme Court in the case of Mallikarjun (supra) and Joseph Stephen (supra), especially the import of paragraph 13.1 of the judgment in 11 Cr. MP No.2149 of 2017 WITH Cr. MP No.2891 of 2017 WITH Cr. MP No.3260 of 2017 WITH Cr. MP No.1381 of 2018 WITH Cr. MP No.1389 of 2018 WITH Cr. MP No.1429 of 2018 WITH Cr. MP No.1455 of 2018 WITH Cr. MP No.2053 of 2018 WITH Cr. MP No.2321 of 2018 WITH Cr. MP No.3226 of 2018 WITH Cr. MP No.3296 of 2018 WITH Cr. MP No.3386 of 2018 the case of Joseph Stephen (supra). The ground taken by the Coordinate Bench that the judgment of the Full Bench of this Court rendered in the case of Tuklal Yadav (supra) has not been over-ruled is doubted.
15. The crux of the issue relates to jurisdiction of the Court to entertain a petition against a judgment of acquittal. Conferment of jurisdiction is a legislative function. Even by consent, a Court cannot confer jurisdiction nor can it be done by a judicial interpretation, which is in teeth of the judgment passed by the Hon'ble Supreme Court of India. The proposition is well settled and has no room for doubt that only a judgment passed by a Court of competent jurisdiction is binding, hence, it is necessary to decide the issues relating to jurisdiction with absolute precision.
16. We must indicate that it was urged before us at the time of hearing that the observations of the Hon'ble Supreme Court at paragraphs 13.1 and 13.2 in the case of Joseph Stephen (supra) is an obitor dicta, hence no error has been committed by the Coordinate Bench of this Court in not following the same in its order dated 01.03.2023 in the case of Mossabha Khatoon (supra).
17. We are not agreeing to the aforesaid proposition of the learned counsel. Even obiter dicta of the Hon'ble Supreme Court is binding on the High Courts. The Hon'ble Supreme Court in the case of Secunderabad Club versus CIT, reported in 2023 SCC OnLine SC 1004, at paragraph 20 thereof, has held as follows:-
20. As against the ratio decidendi of a judgment, an obiter dictum is an observation by a court on a legal question which may not be necessary for the decision pronounced by the court. However, the obiter dictum of the Supreme Court is binding under article 141 to the extent of the observations on points raised and decided by the court in a case.
Although the obiter dictum of the Supreme Court is binding on all courts, it has only persuasive authority as far as the Supreme Court itself is concerned.
[Emphasis supplied by us]
18. Without making any further comment on the correctness of the order dated 01.03.2023 passed by the Coordinate Bench of this Court in the case of Mossabha Khatoon (supra), we are of the opinion that the issue needs to be relooked and reconsidered and the valuable right of the victim and the remedy, which the victim has under the procedure, which has to be followed, needs clarity. Therefore, we feel that the following issues needs decision by a Larger Bench: -
12Cr. MP No.2149 of 2017 WITH Cr. MP No.2891 of 2017 WITH Cr. MP No.3260 of 2017 WITH Cr. MP No.1381 of 2018 WITH Cr. MP No.1389 of 2018 WITH Cr. MP No.1429 of 2018 WITH Cr. MP No.1455 of 2018 WITH Cr. MP No.2053 of 2018 WITH Cr. MP No.2321 of 2018 WITH Cr. MP No.3226 of 2018 WITH Cr. MP No.3296 of 2018 WITH Cr. MP No.3386 of 2018
(i) Whether the decision of the Full Bench of this Court in the case of Tuklal Yadav versus State of Jharkhand & Another reported in 2018 SCC OnLine Jhar 1193 still be considered to be a binding precedence in view of the judgment of the Hon'ble Supreme Court in the case of Mallikarjun Kodagali (dead) represented through Legal Representatives versus State of Karnataka & Others reported in (2019) 2 SCC 752 and in the case of Joseph Stephen & Others versus Santhanasamy & Others reported in (2022) 13 SCC 115?
(ii) Whether a victim irrespective of her or him being a complainant or not, is entitled to invoke the proviso to Section 372 of the Code of Criminal Procedure against a judgment of acquittal?
(iii) Another detail also fall for consideration and has not been considered by the Court is what will be the remedy available to the victim if he or she intends to challenge the acquittal of accused in an appeal filed under the proviso to Section 372 of the Code of Criminal Procedure (Section 413 of the Bharatiya Nagarik Suraksha Sanhita).
19. Issue No.3 needs decision as there are no judgments, which deals with the aforesaid situation. All these issues need to be answered necessarily by a Larger Bench to have better clarity.
20. Considering what has been observed above by us, let all these matters be placed before Hon'ble the Chief Justice for placing the same before a Larger Bench.
(Ananda Sen, J) Per Gautam Kumar Choudhary, J. : I agree (Gautam Kumar Choudhary, J.) Kumar-Cp.03 13 Cr. MP No.2149 of 2017 WITH Cr. MP No.2891 of 2017 WITH Cr. MP No.3260 of 2017 WITH Cr. MP No.1381 of 2018 WITH Cr. MP No.1389 of 2018 WITH Cr. MP No.1429 of 2018 WITH Cr. MP No.1455 of 2018 WITH Cr. MP No.2053 of 2018 WITH Cr. MP No.2321 of 2018 WITH Cr. MP No.3226 of 2018 WITH Cr. MP No.3296 of 2018 WITH Cr. MP No.3386 of 2018