No Acts & Articles mentioned in this case
1
AFR
In Chamber Reserved
Case : APPLICATION U/S 482 No. 3171 of 2016
Applicant : Anil Kumar Agarwal
Opposite Party : State of U.P. and Another
Counsel for Applicant : Hare Krishna Tripathi
Counsel for Opposite Party : G.A.
Connected with
Case : APPLICATION U/S 482 No. 7792 of 2017
Applicant : Usman Khan
Opposite Party : State of U.P. and Another
Counsel for Applicant : Sushil Shukla
Counsel for Opposite Party : G.A.
Connected with
Case : APPLICATION U/S 482 No. 7793 of 2017
Applicant : Usman Khan
Opposite Party : State of U.P. and Another
Counsel for Applicant : Sushil Shukla
Counsel for Opposite Party : G.A.
Connected with
Case : APPLICATION U/S 482 No. 7790 of 2017
Applicant : Usman Khan
Opposite Party : State Of U.P. And Another
Counsel for Applicant : Sushil Shukla
Counsel for Opposite Party : G.A.
Connected with
Case : APPLICATION U/S 482 No. 7795 of 2017
Applicant : Usman Khan
Opposite Party : State of U.P. and Another
Counsel for Applicant : Sushil Shukla
Counsel for Opposite Party : G.A.
Neutral Citation No. - 2020:AHC:119834-DB
(2)
Hon'ble Shashi Kant Gupta,J.
Hon'ble Saurabh Shyam Shamshery,J.
(Delivered by Hon’ble Shashi Kant Gupta, J.)
1. The questions referred to this Bench for opinion are as follows:
(i) Whether against acquittal order in a criminal
complaint case under Section 138 Negotiable
Instruments Act, the victim, who is complainant also,
may prefer appeal before the Sessions Judge taking
recourse to the proviso to Section 372 Cr.P.C. or the
said appeal shall lie before the High Court under the
said provisions.
(ii) Whether against the same judgment and order of
acquittal in a complaint case, in a situation when
victim and complainant both are different persons,
victim may file appeal under the proviso to Section
372 CrPC before the Sessions Judge or such appeal
shall lie before the High Court ?
2. Since the learned Single Judge could not subscribe to the views
expressed by the learned Single Judges of this Court in Criminal
Misc. Application (Under Section 482 Cr.P.C) No. 5934 of 2012,
Ashok Kumar Srivastava and others vs. State of UP and another,
(decided on 30.03.2012) and Criminal Revision No. 3539 of 2015,
Ved Prakash Yadav and 2 others Vs. State of UP and 2 others,
(decided on 24.09.2015), referred the matter to a larger bench for
resolving the conflict, the Chief Justice thereupon has referred the
matter to us for our opinion.
3. Since the legal controversy raised in all the criminal Misc.
Applications are similar, they are decided by a common order by
treating the Criminal Misc. Application No. 3171 of 2016 (U/S 482
CrPC) Anil Kumar Agrawal Vs. State of UP as a leading case. For the
purpose of deciding the matter, it would be appropriate to have a
quick glance to the fact of the Criminal Misc. Application No. 3171
(3)
of 2016 (U/s 482 Cr.P.C) Anil Kumar Agarwal Vs. State of U. P. and
another. The complainant therein had filed an application under
section 138 of Negotiable Instruments Act before the the court of
Chief Judicial Magistrate Jhansi. The accused were acquitted by the
concerned Magistrate after dismissal of the complaint.
4. Against the order of acquittal the complainant preferred an
appeal, being appeal no. 145 of 2013, Anil Kumar Agrawal Vs. Braj
Bhushan Lahariya and another before the Sessions Court , Jhansi
under section 372 Cr.P.C. The said appeal was dismissed by the
sessions court, Jhansi as not maintainable under section 372 Cr.P.C.
Hence, the application under section 482 Cr.P.C. was filed with a
prayer to quash the order dated 16.11.2015 passed by the
Additional District and Sessions Judge, Fast Track Court, Jhansi in
Criminal Appeal No. 145 of 2013 (Anil Kumar Agarwal vs. Braj
Bhushan Lahariya and another) .
5. Learned counsel for the applicant Sri Sushil Shukla has submitted
that the victim or the complainant has been given unfettered right
of appeal in terms of proviso to Section 372 Cr.P.C to challenge the
acquittal of an accused by preferring an appeal before the Court of
Session if the order of acquittal is passed by the Court of Magistrate
or before the High Court if order of acquittal is passed by the Court
of Session and for preferring such appeal there is no need to obtain
leave/special leave from such Courts after insertion of the proviso
to Section 372 Cr.P.C by Act 5 of 2009 w.e.f. 31.12.2009. He
further submitted that appeal against the order of acquittal would
lie to the Court to which an appeal ordinarily lies against the order
of conviction of such Court irrespective of the fact whether the
acquittal order is passed in a case instituted upon a complaint case
(4)
or police report. While placing reliance upon the decision
Malikarjun Kodagali (Dead) Represented through Legal
Representatives Vs. State of Karnataka and others(2019) 2 SCC
752, he has submitted that the victim for challenging the order of
acquittal in an appeal need not to obtain leave of the Court and that
his appeal has to be dealt as a regular appeal.
6. Per contra, learned Standing Counsel Mr. Syed Ali Murtaza
appearing on behalf of the State has submitted that the complainant
in a compliant case, who is a victim also is entitled to prefer appeal
before the High Court against the order of acquittal whether it is
passed by a Magistrate or Sessions Judge and appeal would lie
again before the High Court even when the victim and complainant
both are different persons in a case arising from the same judgment
and order of acquittal in a complaint case.
7. Learned AGA in support of his contention has placed reliance
upon the following decisions of the High Court as well as of the
Apex Court:
i.Mallikarjun Kodagali (Dead) Represented Through Legal
Representative Vs. State of Karnataka & others, (2019) 2
SCC 752
ii.Subhas Chand Vs. State Delhi Administration, (2013) 2
SCC 17
iii.M/s Tata Steel Ltd. Vs. M/s Atma Tube Products Ltd. &
others, 2013 (1) ILR 719 (P&H)
iv.Damodar S. Prabhu Vs. Sayed Babalal H. 2010 CrLJ 2860,
v.Dharmveer Singh Tomar Vs. Ramraj Singh Tomar, 2011,
Law Suit (MP) 55,
vi.Top Notch Infotronix (I) Pvt. Ltd. Vs. Infosoft Systems &
Ors, 2011 Law Suit (Bom) 711.
(5)
8. Before we proceed further, it would be relevant to note certain
provisions of CrPC, which are relevant for our purpose, to address
the questions. The word 'complaint' and the word 'victim' have been
defined by clauses (d) and (wa) of Section 2 of CrPC, which read as
under :
"(d) "complaint" means any allegation made orally or in
writing to a Magistrate, with a view to his taking action
under this Code, that some person, whether known or
unknown, has committed an offence, but does not include
a police report.
Explanation. A report made by a police officer in a case
which discloses, after investigation, the commission of a
noncognizable offence shall be deemed to be a complaint;
and the police officer by whom such report is made shall
be deemed to be the complainant; (wa) "victim" means a
person who has suffered any loss or injury caused by
reason of the act or omission for which the accused person
has been charged and the expression "victim" includes his
or her guardian or legal heir".
9. We are referring to above definitions, 'complainant and victim' as
they are referred to in Section 372 and Section 378 of CrPC
respectively around which the whole web of arguments has been
woven by learned counsel for the parties. Chapter XXIX CrPC deals
with appeal. The heading of section 372 CrPC is “No appeal to lie
unless otherwise provided”. Unamended Section 372 CrPC prior to
31.12.2009 stood 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 for by this Code by any other law
for the time being in force:
10. Section 372 CrPC was amended by Act 5 of 2009 with effect
from 31.12.2009, whereby a proviso was added. It would be
advantageous at this stage to reproduce the amended Section 372
CrPC, which reads as under:
(6)
"372. No appeal to lie unless otherwise provided. No
appeal shall lie from any judgment or order of a Criminal
Court except as provided for by this Code or by any other
law for the time being in force:
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 the
Court to which an appeal ordinarily lies against the order
of conviction of such Court."
11. A bare reading of the proviso inserted to Section 372 CrPC, it is
evident that there are following three circumstances in which the
victim shall have the right to prefer an appeal against any order:
(a) acquitting the accused;
(b) convicting for lesser offence;
(c) imposing inadequate compensation.
12. Similarly, we are also concerned with Section 378, which
provides for appeal in case of acquittal. The provisions contained in
Section 378, read as follows:
"378. Appeal in case of acquittal. (1) Save as otherwise
provided in subsection (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 nonbailable 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) If such an order of acquittal is passed in any case in
which the offence has been investigated by the Delhi Special
Police Establishment constituted under the Delhi Special
Police Establishment Act, 1946 (25 of 1946) or by any other
(7)
agency empowered to make investigation into an offence
under any Central Act other than this Code, the Central
Government may, subject to the provisions of subsection
(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 subsection (1) or
subsection (2) shall be entertained except with the leave of
the High Court.
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 subsection (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 subsection (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)."
13. Prior to the amendment in section 372 Cr.P.C. there was no
specific provision for the victim. By way of amendment in section
372 Cr.P.C. the proviso was added to enable the victim to file a
statutory appeal against any order passed by the court acquitting or
convicting the accused for a lesser offence or imposing inadequate
compensations and further providing that that such appeal shall lie
to the court to which an appeal ordinarily lies against the order of
conviction of such court.
(8)
14. At this stage, it would also be appropriate to refer to the
statements and reasons to achieve the objectives for which the
amendment of Code of Criminal Procedure by Act No.5 of 2009 was
enforced. It reads as follows:
"(1) The Law Commission has undertaken a comprehensive
review of the Code of Criminal Procedure in its 154th report
and its recommendations have been found very appropriate,
particularly those relating to provisions concerning arrest,
custody, and remand, procedure for summons and warrant
cases, compounding of offences, victimology, special
protection in respect of women and injury and trial of
persons of unsound mind. Also, as per the Law Commission's
177th report relating to arrest, it has been found necessary
to revise the law to maintain a balance between the liberty
of the citizens and the society's interest in maintenance of
peace as well as law and order.
(2) The need has also been felt to include measures for
preventing the growing tendency of witnesses being induced
or threatened to turn hostile by the accused parties who are
influential, rich and powerful. At present, the victims are
the worst sufferers in a crime and they don't have much role
in the Court proceedings. They need to be given certain
rights and compensation, so that there is no distortion of
the criminal justice system. The application of technology in
investigation, inquiry and trial is expected to reduce delays,
help in gathering credible evidences, minimize the risk of
escape of the remand prisoners during transit and also
facilitate utilization of police personnel for other duties.
There is an urgent need to provide relief to women,
particularly victims of sexual offences, and provide fairtrial
to persons of unsound mind who are not able to defend
themselves. To expedite the trial of minor offences,
definition of warrantcase and summonscase are to be
changed so that more cases can be disposed of in a summary
manner."
15. While creating a substantive right to the victim to prefer an
appeal against an order passed by the Court acquitting the accused
or convicting for a lessor offence or imposing inadequate
compensation, no limitation was provided under Section 372 CrPC.
(9)
16. Full Bench of this court in the case of Mast Ram Tiwari Vs.
State of U.P. and others passed in Criminal Misc. Application
u/s 372 Cr.P.C. (Leave to Appeal) No. 351 of 2017 decided on
19.1.2018 held that the limitation for preferring an appeal against
the order of acquittal by the victim would be 90 days in all cases
other than the cases instituted upon complaint, and six months
where the complainant is Public Servant and 60 days in every other
case instituted upon complaint against the order of acquittal after
the High Court grants special leave to appeal. Meaning thereby the
aforesaid Full Bench of this Court in Mast Ram Tiwari (supra)
acknowledged the fact that an appeal filed against the order of
acquittal by the victim instituted upon complaint would be
maintainable before the high court subject to limitation as provided
under the said section 378(5) Cr.P.C.
17. The word 'victim' as defined under Section 2(wa) does not make
any distinction between the victim in a complaint case and the
victim in a police case ( State prosecution) and if, for taking
recourse to proviso to Section 372, the victim in a complaint case
opts to file appeal against the order of acquittal, he would be
governed by subsection (5) of Section 378 CrPC. Section 378, does
not use the word 'victim'. Subsections (4) and (5) of Section 378
thereof, deal with a right of appeal against the order of acquittal in
any case instituted upon complaint on behalf of the complainant
and, that too, on an application made to the High Court seeking
special leave to appeal and once the leave is granted, the
complainant can present the appeal to the High Court.
18. It may be noted that the Code of Criminal Procedure when
originally enacted in the year 1861 did not provide for any right to
(10)
appeal against acquittal to anyone including the State. It was in the
Code of Criminal Procedure of 1898 that Section 417 was inserted
enabling the Government to 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. The Code of
Criminal Procedure, 1973 came into being on January 25, 1974
repealing the Code of Criminal Procedure, 1898. The
recommendations made by the Law Commission of India, referred
to above, was more or less adopted by the Parliament when it
imposed a restriction in subSection (3) to Section 378 against
entertainment of an appeal against acquittal "except with the leave
of the High Court". Sub section (4) of Section 378 retained the
condition of maintainability of an appeal at the instance of a
complainant against an order of acquittal passed in a complaint
case only if special leave to appeal was granted by the High Court.
19. The only significant amendment brought into force was in
Section 378 whereby the appeals against acquittal in certain cases
are now maintainable in the Court of Session without any leave to
appeal to check arbitrary exercise of power and to curb reckless
acquittal. Amending Act 5 of 2009 came into force conferring the
'right to a victim and further adding a new Section 2(wa) which
defines "victim". The concept of 'Victim Compensation Scheme' has
also been brought on the Statute Book by the same Amendment Act
through a newlyadded Section 357A which inter alia provides that
"every State Government in coordination with the Central
Government shall prepare a scheme for providing funds for the
purpose of compensation to them victim or his dependents who
have suffered loss or injury as a result of the crime and who, require
rehabilitation".
(11)
20. The principal controversy before us is whether against acquittal
order in a criminal complaint case under Section 138 Negotiable
Instruments Act, the victim, who is a complainant also, may prefer
appeal against the order passed by the Magistrate before the
Sessions Judge taking recourse to the proviso to Section 372 Cr.P.C.
or the said appeal shall lie before the High Court under the said
provisions and secondly whether against the same judgment and
order of acquittal in a complaint case, in a situation when victim
and complainant both are different persons, victim may file appeal
under the proviso to Section 372 CrPC before the Sessions Judge or
such appeal shall lie before the High Court ?
21. The Full Bench of this Court in the case of Manoj Kumar Singh
Vs. State of U.P. & 3 Others in Criminal Misc. Application Defective
U/s 372 CrPC (Leave to Appeal) No. 67 of 2013 while referring to
the definition of Section 2 (wa) of Cr.P.C has held that the victim
means the actual sufferer of offence (receiver of harm caused by the
alleged offence) and no person other than actual receiver of harm
can be treated as victim of offence, so as to provide him /her right
to prefer appeal under the proviso of section 372, though, in his or
her absence or disability, his "legal heir" or "guardian" would qualify
as victim and have a right to appeal. A person who claims himself to
be 'guardian' or 'legal heir' of actual victim (direct sufferer), would
be able to maintain appeal provided he establishes his claim as such
before the court in his application by disclosing his particulars;
relationship with the direct sufferer; and the grounds on which such
claim of being "legal heir" or "guardian" is based. It was further held
that the expression "Legal Heir" has to be understood in its ordinary
or natural sense. That is if any person is able to establish his status
as "heir" recognized by law, he can be termed as "Legal Heir" and
(12)
the preferences/restrictions / categories provided under any
statute / personal law governing succession/ inheritance will have
no consequence. It was further held that the word "Guardian"
includes a Judicial Guardian (appointed by law), a legal Guardian,
a Natural Guardian.
22. It may be noted that the Legislature has prescribed different
conditions for the maintainability of appeal against order of
acquittal passed in a 'policecase' vis
àvis a 'complaintcase' i.e. a
case instituted upon a private complaint. No appeal against
acquittal in a complaintcase is maintainable to the Court of Session
and for an appeal to High Court, the State or Central Government
are required to obtain 'leave' of the High Court as mandated by
Section 378(3) and if such an appeal is presented by the
complainant, he/she is required to seek 'special leave' of the High
Court under Section 378(4) of the Code.
23. In this context, it is notable to refer to the decision of the Apex
Court in the case of Subhash Chand Vs. State (Delhi
Administration) (2013) 2 SCC 17 wherein it has been held that
SubSection (4) of Section 378 makes provision for appeal against an
order of acquittal passed in case instituted upon complaint. It states
that in such case if the complainant makes an application to the
High Court and the High Court grants special leave to appeal, the
complainant may present such an appeal to the High Court. This
subsection speaks of ‘special leave’ as against subsection (3)
relating to other appeals which speaks of ‘leave’. Thus,
complainant’s appeal against an order of acquittal is a category
by itself. The complainant could be a private person or a public
servant. This is evident from subsection (5) which refers to
(13)
application filed for ‘special leave’ by the complainant. It grants six
months period of limitation to a complainant who is a public
servant and sixty days in every other case for filing application. Sub
Section (6) is important. It states that if in any case complainant’s
application for ‘special leave’ under subSection (4) is refused no
appeal from order of acquittal shall lie under subsection (1) or
under sub section (2). Thus, if ‘special leave’ is not granted to the
complainant to appeal against an order of acquittal the matter must
end there. Neither the District Magistrate not the State Government
can appeal against that order of acquittal.
24. The question arose before the Full Bench of High Court of
Punjab and Haryana in the case of M/s Tata Steel Ltd Vs. M/S
Atma Tube Products Ltd (Supra) that What will happen if the
'victim' in a complaintcase is different from the 'complainant' or
where such 'victim' cannot otherwise be a 'complainant' due to
statutory embargo against the filing of the complaint by some one
other than the designated authority of State? Would he/she be
entitled to file an appeal under proviso to Section 372 Cr.P.C and it
was held by the Full Bench of the said Court interalia as follows:
(i) the 'complainant' in a complaintcase who is a 'victim'
also, shall continue to avail the remedy of appeal against
acquittal under Section 378(4) only except where he/she
succeeds in establishing the guilt of an accused but is
aggrieved at the conviction for a lesser offence or imposition
of an inadequate compensation, for which he/she shall be
entitled to avail the remedy of appeal under proviso to
Section 372;
(ii) the 'victim', who is not the complainant in a private
complaintcase, is not entitled to prefer appeal against
acquittal under proviso to Section 372 and his/her right to
appeal, if any, continues to be governed by the un amended
provisions read with Section 378 (4) of the Code;
(14)
(iii) the Legislature has given no separate entity to a 'victim'
in the complaintcase filed by a public servant under a
special Statute and the appeal against acquittal in such a
case can also be availed by the 'complainant' of that case
under Section 378(4) of the Code only.
(iv) those 'victims' of complaintcases whose right to appeal
have been recognized under proviso to Section 372, are not
required to seek 'leave' or 'special leave' to appeal from the
High Court in the manner contemplated under Section
378(3) & (4), for the Legislature while enacting proviso to
Section 372 has prescribed no such fetter nor has it applied
the same language used for appeals against acquittals while
enacting subSection (3) & (4) of Section 378 of the Code.
25. Thus, the Full Bench of the Punjab and Haryana High Court in
the case M/S Tata Steels Ltd. (Supra) has categorically held that
the complaint in a complaint case who is a victim shall continue to
avail the remedy of appeal against acquittal order under Section
378 (4) and when the 'victim' who is not the complainant in a
private complaintcase, is not entitled to prefer appeal against
acquittal under proviso to Section 372 and his/her right to appeal,
if any, continues to be governed by the un amended provisions
read with Section 378 (4) of the Code. However, if the appeal is
being filed by the victim in his own right or where the complainant
is also a victim, he or she is not required to take leave to appeal or
special leave to appeal under Section 378(3)(4) of the Code. The
decision of Full Bench of Punjab and Haryana High Court in Tata
Steel Ltd. (supra) with regard to taking special leave to appeal or
leave to appeal under Section 378(3)(4) of the Code has been
affirmed by the Apex Court in the case of Malikarjun Kodagali
(Supra) wherein it has been held in paragraph 93 of the judgment
that the right(s) of a ‘victim’ under the amended Code are
substantive and not mere brutam fulmen hence these are not
accessory or auxiliary to those of the State and are totally
incomparable as both the sets of rights or duties operate in different
(15)
and their respective fields. It was further held that a ‘victim’ is not
obligated to seek ‘leave’ or ‘special leave’ of the High Court for
presentation of appeal under proviso to Section 372 of the Code.”
26. It may be worthwhile to note that the Full Bench of the Punjab
and Haryana High Court in the case of M/S Tata Steel Ltd. (Supra)
has further held that where a 'victim' is competent to institute a
private complaint but permits or consents expressly or implicitly to
the filing of such complaint by his familymembers, near and dears
or an acquaintance, the 'victim' and 'complainant' in such a case
cannot be seen differently and would be inseparable, hence the
'victim' will also fall back on Section 378(4) only which specifically
refers to filing of appeals against acquittal at the instance of
complainant and not under proviso to Section 372 of the Code
which has been predominantly incorporated to provide right to
appeal to the 'victims' in policecase who are not permitted to
participate or have any say during trial. For ready reference Para
81 of the judgment rendered in the Tata Steel Ltd.'s case (supra)
is quoted hereinbelow :
“What will happen if the 'victim' in a complaintcase is
different from the 'complainant' or where such 'victim'
cannot otherwise be a 'complainant' due to statutory
embargo against the filing of the complaint by some one
other than the designated authority of State? Would
he/she be entitled to file an appeal under proviso to
Section 372 or should he/she be clubbed together with the
complainant under Section 378(4) of the Code? We are of
the view that the 'victim' in complaintcases cannot have a
remedy superior to that of the complainant of such case
and since the Apex Court in the latest decision in Subhash
Chand's case (supra) has held that the complainant's
remedy, whether he is a private person or a public
servant, to question the acquittal lies only in Section
378(4) of the Code, hence the 'victim' will also have to be
relegated to that conditional remedy only. Similarly,
where a 'victim' is competent to institute a private
complaint but permits or consents expressly or implicitly
to the filing of such complaint by his familymembers,
(16)
near and dears or an acquaintance, the 'victim' and
'complainant' in such a case cannot be seen differently
and would be inseparable, hence the 'victim' will also fall
back on Section 378(4) only which specifically refers to
filing of appeals against acquittal at the instance of
complainant and not under proviso to Section 372 of the
Code which has been predominantly incorporated to
provide right to appeal to the 'victims' in policecase who
are not permitted to participate or have any say during
trial.”
27. At this stage, it would also be apposite to refer to the decision of
the three Judges Bench of the Apex Court in the case of Mallikarjun
Kodagali (Supra). In the aforesaid case, the basic question arose
before the Apex Court that whether the appeal filed by the
appellant before the High Court under the proviso to Section 372
CrPC was maintainable or not against the order dated 28.10.2013
passed by the District and Sessions Judge, Bagalkot (Karnataka)
acquitting the accused by a judgment wherein the alleged offence
was committed prior to 31.12.2009 i.e. 06.02.2009 although the
judgment was passed after 31.12.2009 i.e. on 28.10.2013. The
Apex Court held that right to appeal is available even if alleged
offence took place prior to 31.12.2009 (Act 5 of 2009 was enacted)
but the order of acquittal was passed by Trial Court after
31.12.2009. The Apex Court for the reasons mentioned in the
judgment allowed the appeals setting aside the judgment passed by
the High Court holding that the 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, as
such, the appeal filed by Kodagali was found maintainable. Facts of
the aforementioned case (Mallikarjun) clearly indicates that
judgment was passed therein by the Sessions Judge in a case
instituted upon a Police Report and not upon complaint. Thus,
the Apex Court was dealing with a situation as to whether right of
(17)
appeal is available if the alleged offence was committed prior to
31.12.2009 (before enactment of Act 5 of 2019) but the judgement
was passed by the Sessions Judge after 31.12.2009.
28. A close look to para 76 of the judgment in the case of
Mallikarjun Kodagali (supra) would reveal that the apex court in
the said para was engaged in a controversy as to whether the
'victim' as defined in Section 2 (wa) CrPC was required leave to
appeal for preferring appeal against the order of acquittal. It was
further observed by the Apex Court in paragraph 76 of
aforementioned case Mallikarjun Kodagali (supra) that the
language of the proviso to Section 372 CrPC is quite clear
particularly when it is contrasted with the language of Section
378(4) CrPC, which confines to an order of acquittal passed in a
case instituted upon a complaint, and 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 and this has nothing to do
with the lodging or the registration of an FIR, and therefore,
according to the Apex Court, 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. Thus, the Apex Court was
also of the opinion that Section 378(4) CrPC deals with the appeal
arising against the acquittal in any case instituted upon the
complaint. It has nothing to do with the case arising out of the
police report. For ready reference para 76 of Mallikarjun Kodagali
(Supra) is quoted here under:
“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 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
(18)
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.”
29. Section 378(4) & 378(5) specifically provides remedy to the
complainant to file an appeal against the acquittal in any case
instituted upon complaint. Section 378(4)(5) Cr.PC provides the
forum to file an appeal, period of limitation and leave to appeal.
30. Before amendment in 372 CrPC there was no provision for the
victim to file an appeal against acquittal either in a police case, or
complaint case. However, proviso to 372 Cr.P.C gives substantive
right to the victim to file appeal without leave to appeal. Section
378(1) (2) & (3) CrPC has been predominantly incorporated to deal
with the appeal against acquittal arising out of police case.
31. The Full Bench of this Court in the case of Mast Ram Tiwari
Vs. State of UP (Supra) has held that the word 'victim' as defined
under Section 2(wa) does not make any distinction between the
victim in a complaint case and the victim in a police case ( State
prosecution) and if, for taking recourse to proviso to Section 372, if
the victim in a complaint case opts to file appeal against the order
of acquittal, he would be governed by subsection (5) insofar as the
limitation is concerned. In other words, a limitation for filing an
appeal by the victim in a complaint case against the order of
acquittal would be 60 days as provided for under subsection (5) by
seeking leave to appeal from the High Court.
32. The apex court in Subhash Chand Vs. State (Delhi Admn.)
(supra) has held that once it is a case instituted on a complaint and
(19)
an order of acquittal is passed, whether the offence is bailable or
nonbailable, cognizable or noncognizable, the complainant can
file an application under Section 378 (4) for special leave to appeal
against it in the High Court. So far as the State is concerned, as per
Section 378 (1) (b), it can in any case, that is even in a case
instituted on a complaint, direct the Public Prosecutor to file an
appeal to the High Court from an original or appellate order of
acquittal passed by any court other than High Court. The apex court
in the aforesaid case Subhash Chand finally concluded at
paragraph 23 of the judgment 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. For ready reference para 20 of the judgment in
Subhash Chand (supra) is quoted hereinbelow :
“Since the words ‘police report’ are dropped from Section 378(1)
(a) despite the Law Commission’s recommendation, it is not
necessary to dwell on it. A police report is defined under Section
2(r) of the Code to mean a report forwarded by a police officer
to a Magistrate under sub-section (2) of Section 173 of the Code.
It is a culmination of investigation by the police into an offence
after receiving information of a cognizable or a non- cognizable
offence. Section 2(d) defines a complaint to mean any allegation
made orally or in writing to a Magistrate with a view to his
taking action under the Code, that some person, whether known
or unknown has committed an offence, but does not include a
police report. Explanation to Section 2(d) states that a report
made by a police officer in a case which discloses after
investigation, the commission of a non- cognizable offence shall
be deemed to be a complaint, and the police officer by whom
such report is made shall be deemed to be the complainant.
Sometimes investigation into cognizable offence conducted
under Section 154 of the Code may culminate into a complaint
case (cases under the Drugs & Cosmetics Act, 1940). Under the
PFA Act, cases are instituted on filing of a complaint before the
Court of Metropolitan Magistrate as specified in Section 20 of
the PFA Act and offences under the PFA Act are both cognizable
and non-cognizable. Thus, whether a case is a case instituted on
a complaint depends on the legal provisions relating to the
offence involved therein. But once it is a case instituted on a
complaint and an order of acquittal is passed, whether the
offence be bailable or non- bailable, cognizable or non-
(20)
cognizable, the complainant can file an application under
Section 378(4) for special leave to appeal against it in the High
Court. Section 378(4) places no restriction on the complainant.
So far as the State is concerned, as per Section 378(1)(b), it can
in any case, that is even in a case instituted on a complaint,
direct the Public Prosecutor to file an appeal to the High Court
from an original or appellate order of acquittal passed by any
court other than High Court. But there is, as stated by us
hereinabove, an important inbuilt and categorical restriction on
the State’s power. It cannot direct the Public Prosecutor to
present an appeal from an order of acquittal passed by a
Magistrate in respect of a cognizable and non-cognizable
offence. In such a case the District Magistrate may under
Section 378(1)(a) direct the Public Prosecutor to file an appeal
to the Session Court. This appears to be the right approach and
correct interpretation of Section 378 of the Code.”
33. Section 378 (4) (5) CrPC specifically provides for an appeal
against the acquittal in any case instituted upon complaint.
Therefore, as corollary thereto, it can be safely inferred that
dichotomy has been created by the legislature with respect to
appeals against acquittal in any case instituted on police report/case
and appeals against acquittal in any case instituted upon complaint.
Section 372 does not provide mode or procedure or limitation. It is
merely an enabling provision conferring right to the victim to file an
appeal against the orders detailed in the proviso to Section 372
CrPC. If the appeal is filed against acquittal in a case instituted
upon 'police case/report', the victim for lesser offence or imposing
adequate compensation, then such appeal shall lie to the Court to
which an appeal ordinarily lies against the order of conviction of
such count. Meaning thereby that in a police case if the acquittal
order is passed by the Magistrate then the appeal would lie before
the Sessions Judge and in case order of acquittal is passed by the
Sessions Judge in its original jurisdiction or as a appellate court,
then the appeal would lie before the High Court but if the order of
acquittal is passed in any case instituted upon complainant then the
appeal on behalf of the victim as well as the complainant of the case
(21)
would lie only and only before the High Court under Section 378
(4)(5) CrPC. Proviso to Section 372 is only a enabling provision
conferring right on the victim to file an appeal but if the appeal is
filed against the acquittal in a complaint case then the procedure
and conditions as provided under Section 378 (4)(5) CrPC would
be applicable. Meaning thereby that the appeal would be only in
High Court against the order of Magistrate as well as Sessions
Court acquitting the accused in a complaint case. However, in view
of the decision in the case of Tata Steel Ltd. (supra) and
Mallikarjun Kodagali (supra) victim or when victim is a
complainant also would not require to seek special leave or leave to
appeal from an order of acquittal in a complaint case
34. The interpretation of the Proviso to Section 372 CrPC was also
considered by the Full Bench of the Gujarat High Court in the case
of Bhavuben Dineshbhai Makwana Vs. State of Gujarat, 2013
Cri LJ 4225 where one of the questions framed for consideration in
the case was as follows :
“(iii) If the victim prefers an appeal before this Court,
challenging the acquittal, invoking his right under
proviso to Sec. 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?”
35. The aforesaid question was answered in the following words by
the Full Bench of Gujarat High Court in the case of Bhavuben
Dineshbhai Makwana (supra):
“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 Sec. 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
(22)
offence, no leave is necessary at the instance of a victim,
whether he is the complainant or not.”
36. The decision in the case of Bhavuben Dineshbhai Makwana
came into consideration before the Apex Court in the case of
Mallikarjun Kodagali (supra). The apex court in paragraph 35 of
the judgment while referring to the aforesaid decision of the Full
Bench of the High Court of Gujarat has held as follows :
“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.”
37. Thus, the apex court was of the opinion that the Full Bench of
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 the order of
acquittal under Section 372 CrPC.
38. The learned Single Judge while referring the matter to the
larger Bench has very rightly observed that in Ashok Kumar
Srivastava's case (supra), the learned Single Judge has not dealt
with the Situation/contingency which may arise if the victim and
complainant both are different persons and the victim prefers to file
an appeal against the acquittal before the Sessions Judge taking
recourse to the proviso to Section 372 CrPC and the complainant
being different person files an application for leave before the High
Court for filing appeal under Section 378 (4) CrPC against the same
judgment and order. In other words, if the leave is granted to the
complainant by the High Court to file an appeal under Section 378
(4) CrPC and the appeal is admitted and the criminal appeal
(23)
preferred by the victim before the Sessions Judge against the order
of acquittal in a case instituted on a complaint is also admitted,
there is further chance of conflict of opinion against the same
judgment and order of acquittal. If the law laid down by the Single
Judge of this Court in Ashok Kumar Srivastava's case (supra) and
Ved Prakash Yadav (supra) is sustained, it would lead to
absurdity and inconsistency. It will be seen that neither this aspect
has been considered in the said judgment nor any solution in this
regard has been given.
39. It is significant to note that proviso to 372 CrPC, inter alia,
provides that appeal filed by the victim shall lie to the Court to
which an appeal ordinarily lies against the order of conviction of
such Court, however, under Section 378 (4) & (5), the legislature
confers right to the complainant to file an appeal against the order
of acquittal in a case instituted upon complaint before the High
Court. Thus, anomaly has been apparently created with respect to
forum to which appeal on behalf of the victim and complainant
would lie against the order of acquittal in a case instituted upon
complaint. In cases, where the language used in a statue is capable
of bearing more than one construction, the court in its attempt to
find out the true meaning shall have due regard to the
consequences of alternative constructions so as to avoid the
resultant hardship, serious inconvenience, injustice, absurdity,
inconsistency or straight clash between two sections of the same
act. In that situation, rule of harmonious construction may be
applied so that aim and object of the legislature inserting new
provisions can be achieved harmonizing both the provisions in
order to avoid any absurdity and inconsistency. In this context it
would be useful to refer to the observation by the Full Bench of the
(24)
Calcutta High Court in the case of Tata Steel Ltd. (supra) that the
proviso to Section 378 of the Code has been predominantly
incorporated to provide right to appeal to the victim in a 'police
case' who are not permitted to participate or have any say during
trial. Proviso to Section 372 CrPC does not speak about the
'complaint case' or 'police case'/report. In case, proviso to Section
372 and Section 378 (4) & (5) are harmonized in order to give true
meaning and intention of the legislature, it can be safely be held
that under the proviso to Section 372 appeal against acquittal in a
case instituted on police report/state prosecution shall lie to the
Court to which an appeal ordinarily lies against the order of
conviction of such Court. The aforesaid interpretation is
consonance with the scheme of the Chapter XXIX of CrPC dealing
with the Criminal Appeal and would give effect to both the
provision i.e. Section 372 and Section 378 (4) (5) CrPC. It will
result in harmonizing the two provisions.
40. The appeal by the victim against the order of acquittal in any
case instituted on the complaint requires to be dealt with in the
same manner as appeal filed by the complainant. Section 378 (4) &
(5) CrPC is required to be read with the Section 372 CrPC when the
appeal is filed by the victim. However, the victim or when the
victim is a complainant also, would not require to seek leave or
special leave to appeal. Chapter XXIX of the CrPC deals with
appeals. Proviso to Section 372 CrPC cannot be read into isolation.
It does not lay down the procedure as to how and in what manner
and within what time, the appeal has to be filed. The appeal being
the creation of statute, it is also necessary to prescribe the limitation
and procedure for filing an appeal, therefore, when the victim or
when the victim is also a complainant chose to file an appeal
(25)
against acquittal in a case instituted upon complaint, it would be
under proviso to Section 372 CrPC read with 378 (4) & 378 (5)
CrPC. Proviso to 372 CrPC gives right to the victim to file an appeal
and Section 378 (4) & (5) provides procedure, limitation and forum
to file an appeal in a case instituted upon complaint.
41. Thus, in view of the aforesaid discussion, our answers to the
questions referred to us are as follows :
(a). We are of the firm opinion that the appeal by a
'victim' who is a complainant also against the order of
acquittal in a criminal complaint case under 138 of
Negotiable Instrument Act would lie to the High Court
under proviso to Section 372 read with Subsection (4)
& (5) of Section 378 CrPC.
(b). Against the same judgment and order of acquittal in
a complaint case, in a situation where victim and
complainant both are different persons, appeal by a
victim would lie under the proviso to 372 CrPC read
with Section 378 (4) (5) CrPC only before the High
Court.
42. The reference is answered accordingly.
Per– Hon'ble Saurabh Shyam Shamshery, J. : (concurring)
43. I have privilege of going through wellreasoned and eloquently
written judgment by my brother Justice Shashi Kant Gupta. I am in
agreement with reasoning and conclusion arrived at by my Learned
(26)
brother. In my supplementary judgment, I am dealing with the issue
of statutory interpretation only.
44. In the present reference, submissions on behalf of applicants is
that the proviso to section 372 CrPC shall also give right to a ‘victim’
irrespective of the fact that whether he is a complainant or not, to
prefer an appeal against acquittal of the accused, even in a case
arising out of a complaint also. Such appeal shall lie to the court
before which an appeal ordinarily lies against the order of
conviction of such Court. Further submission is that, such appeal
shall lie without special leave to appeal.
45. Countering the submissions, counsel for the State has submitted
that any interpretation which may lead to provide two different
forum of appeal on the basis of appellant being ‘victim’ (whether
complainant or not) or being complainant (who is not a victim),
before the court to which an appeal ordinarily lies against the order
of conviction of such Court under the proviso to section 372 CrPC
as well as before the High Court with special leave to appeal under
section 378 (4) and (5) CrPC respectively in case of filling appeal
against the order of acquittal in any case instituted upon complaint,
will only lead to a situation of uncertainty, anomalies, injustice and
absurdities. Further submission is that this Court has to give such
interpretation to proviso of section 372 and section 378 (4) and (5)
CrPC, which is not only harmonious and purposive but also
advances the purpose and object of the enactment.
46. Jurisprudence of statutory interpretation has moved from literal
interpretation to purposive interpretation, which advances the
purpose and object of a legislation. The Supreme Court in catena of
judgments has dealt with the issue of literal interpretation visavis
(27)
purposive interpretation. Following references to this respect from
the Supreme Court are some of them. :
(I) The Apex Court in The Central India Spinning and Weaving
Manufacturing Comp. versus The Municipal Committee,
Wardha); AIR 1958 SC 341 has held that :
“It is also a recognised principle of construction that
general words and phrases however wide and
comprehensive they may be in their literal sense must
usually be construed as being limited to the actual
objects of the Act.”
(II) The Apex Court in Girdhari Lal & Sons versus Balbir Nath
Mathur); 1986(2) SCC 237 has held that :
“9. So we see that the primary and foremost task of
a Court in interpreting a statute is to ascertain the
intention of the legislature, actual or imputed.
Having ascertained the intention, the Court must
then strive to so interpret the statute as to promote
and advance the object and purpose of the
enactment. For this purpose, where necessary the
Court may even depart from the rule that plain
words should be interpreted according to their plain
meaning. There need no meek and mute submission
to the plainness of the language. To avoid patent
injustice, anomly or absurdity or to avoid
invalidation of a law, the court would be well
justified in departing from the socalled golden rule
of construction so as to give effect to the object and
purpose of the enactment by supplementing the
written word if necessary”.
“16. Our own court has generally taken the view
that ascertainment of legislative intent is a basic rule
of statutory construction and that a rule of
construction should be preferred which advances the
purpose and object of a legislation and that though a
construction, according to plain language, should
ordinarily be adopted, such a construction should
not be adopted where it leads to anomalies,
injustices, or absurdities, vide K.P. Varghese V. ITO
(1981) 4 SCC 173 , State Bank of Travancore v.
Mohd. M. Khan, (1981) 4 SCC 82, Som Prakash
Rekhi V. Unioin of India, (1981) 1 SCC 449, Ravula
(28)
Subba Rao V. CIT, AIR 1956 SC 604, Govindlal v.
Agricultural Produce Market Committee, (1975) 2
SCC 482 and Babaji Kondaji v. Nasik Merchants Co
op Bank Ltd. (1984) 2 SCC 50.”
(III) The Supreme Court in Utkal Contractors & Joinery Pvt. Ltd.
versus State of Orissa; 1987 (3) SCC 279 has held that :
“….A statute is best understood if we know the
reason for it. The reason for a statute is the safest
guide to its interpretation. The words of a statute
take their colour from the reason for it. How do we
discover the reason for a statute? There are external
and internal aids. The external aids are Statement of
Objects and Reasons when the Bill is presented to
Parliament, the reports of Committees which
preceded the Bill and the reports of Parliamentary
Committees. Occasional excursions into the debates
of Parliament are permitted. Internal aids are the
Preamble, the scheme and the provisions of the Act.
Having discovered the reason for the statute and so
having set the sail to the wind, the interpreter may
proceed ahead. No provision in the statute and no
word of the statute may be construed in isolation.
Every provision and every word must be looked at
generally before any provision or word is attempted
to be construed. The setting and the pattern are
important. It is again important to remember that
Parliament does not waste its breath unnecessarily.
Just as Parliament is not expected to use unnecessary
expressions, Parliament is also not expected to
express itself unnecessarily. Even as Parliament does
not use any word without meaning something,
Parliament does not legislate where no legislation is
called for. Parliament cannot be assumed to legislate
for the sake of legislation; nor can it be assumed to
make pointless legislation. Parliament does not
indulge in legislation merely to state what is already
validly done. Parliament may not be assumed to
legislate unnecessarily. Again while the Words of an
enactment are important, the context is no less
important. For instance, “the fact that general words
are used in a statute is not in itself a conclusive
reason why every case falling literally within them
should be governed by that statute, and the context
of any act may well indicate that wide or general
words should be given a restrictive meaning.” (See
Halsbury, 4th Edn. Vol. 44 Para 874).”
(29)
(IV) The Supreme Court in Eera (through Dr. Manjula
Krippendorf) v. State (NCT of Delhi) and Anr.; 2017(15) SCC
133 has held that :
“I have referred to the aforesaid authorities to
highlight that legislative intention and the purpose
of the legislation regard being had to the fact that
context has to be appositely appreciated. It is the
foremost duty of the Court while construing a
provision to ascertain the intention of the legislature,
for it is an accepted principle that the legislature
expresses itself with use of correct words and in the
absence of any ambiguity or the resultant
consequence does not lead to any absurdity, there is
no room to look for any other aid in the name of
creativity. There is no quarrel over the proposition
that the method of purposive construction has been
adopted keeping in view the text and the context of
the legislation, the mischief it intends to obliterate
and the fundamental intention of the legislature
when it comes to social welfare legislations. If the
purpose is defeated, absurd result is arrived at. The
Court need not be miserly and should have the broad
attitude to take recourse to in supplying a word
wherever necessary. Authorities referred to
hereinabove encompass various legislations wherein
the legislature intended to cover various fields and
address the issues. While interpreting a social
welfare or beneficent legislation one has to be guided
by the “colour”, ”content” and the context of
“statutes” and if it involves human rights, the
conceptions of Procrustean justice and Lilliputtian
hollowness approach should be abandoned. The
Judge has to release himself from the chains of strict
linguistic interpretation and pave the path that
serves the soul of the legislative intention and in that
event, he becomes a real creative constructionist
Judge.”
47. Upon conscientious analysis of the abovementioned judgments,
following are the points which a court should consider while
interpreting any enactment :
(I) ascertain legislative intent ( actual or imputed) of the enactment
(30)
(II) interpret the enactment as to promote and advance its object
and purpose.
(III)to avoid patent injustice, the court may depart even from
golden rule of interpretation.
(IV) for purposive interpretation, the court must give complete
interpretation to the purpose, object, text and context of the
enactment.
(V) any construction which leads to anomalies, injustice or
absurdities should not be adopted.
(VI) court should move towards such interpretation which serves
the soul of the legislative intent.
48. On the basis of arguments advanced and judgments cited before
this bench, following position of law on the issue emerges :
(a) Statements and reasons of the Act No. 5 of 2009 wherein by
proviso to section 372 of CrPC was inserted, mainly states that the
'victims' are the worst sufferers in a crime, they don’t have much
role in court proceedings. Therefore they need to be armoured with
special rights. Rights of a 'victim' as defined under section 2 (wa)
CrPC are kept on a higher pedestal and that must be given its full
meaning.
(b) Supreme Court in Mallikarjun Kodagali (Dead) Represented
through Legal Representative Vs State of Karnataka and Others :
(2019) 2 SCC 752, has held that : “the proviso to Section 372 of
the Cr.P.C. must also be given a meaning that is realistic, liberal,
progressive and beneficial to the victim of an offence”. The Court
further held that it is not mandatory for victim to obtain special
leave to appeal from High Court to file appeal under the said
proviso.
(31)
(c) Section 378 (4) and (5) CrPC provides that an order of acquittal
passed in a case instituted upon complaint can be challenged before
High Court on grant of an application for special leave to appeal
and no such application 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.
49. Applying the points emerged from the judgment cited for
interpretation of the enactment, first point to be ascertained is the
legislative intent of insertion of proviso to section 372 CrPC. As
mentioned earlier, the object of amendment is to give a 'victim'
certain privileges during the court proceedings. Therefore victim,
whether complainant or not, has right to file appeal against the
acquittal in a case constituted upon complaint also.
50. Second point is to give such interpretation which promotes and
advances the object and purpose of the enactment. The object and
purpose of insertion of proviso is to strengthen the give rights to
victim. In Mallikarjun Kodagali (supra) the Court held that :
“Putting the Declaration to practice, it is quite obvious that the
victim of an offence is entitled to a variety of rights. Access to
mechanisms of justice and redress through formal procedures as
provided for in national legislation, must include the right to file an
appeal against an order of acquittal in a case such as the one that
we are presently concerned with. Considered in this light, there is
no doubt that the proviso to Section 372 of the Cr.P.C. must be
given life, to benefit the victim of an offence”. Therefore even filling
appeal against acquittal in a case instituted upon a complaint, the
victim does not require leave to appeal.
(32)
51. Next point is to give purposive interpretation to the enactment
which may not result in anomalies, injustices or absurdities. It is to
be determined that, whether a victim has a right to file appeal to
the court to which an appeal ordinarily lies against the order of
conviction of such Court as provided under proviso to section 372
CrPC or before High Court as provided under section 378 (4) CrPC.
Section 378 (4) and (5) CrPC, provides procedure to file appeal by
complainant against acquittal in a case instituted upon the
complaint. Upon conjoint reading, the sole interpretation is that, an
appeal in both the situations have to be filed before one forum only
as any other interpretation will lead into a situation of uncertainty
and anomalies. The forum that is prescribed under section 378(4)
CrPC is High Court to file appeal by the complainant, therefore
considering the principles of statutory interpretation even victim
has to file appeal against acquittal in a case constituted upon
complaint, before High Court only. This will not only avoid
uncertainty but will also serve the purpose of the enactment.
52. Registrar General of this Court is directed to ensure the
circulation of this order amongst all the judicial officers in the State
for their guidance.
53. Let a copy of this order be also sent to the Chief Secretary,
Principal Secretary (Law) & Legal Remembrancer, Government of
U.P. Lucknow and Stamp Reporter of this Court for taking necessary
follow up action.
54. Let the records of these cases be accordingly placed before the
respective Single Judge as per roster for final disposal.
Order Dated: 25.2.2020
MLK/vinay/arun/SB
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