Criminal Application No. 2651 of 2010

20th June, 2011

Petitioner Counsel: Shri.R.O. Awsarmol
Respondent Counsel: Shri M.M. Patil (Beedkar)

Cases Cited:
Ram Kaur alias Jaswinder Kaur Vs. Jabbir Singh alias Jabi and others, Criminal Appeal No.205DB of 2010 [Para 18]
Bhikhabhai Motibhai Chavda Vs. State of Gujarat & ors., 2010 CRI. L.J. 3325 [Para 21]

JUDGMENT

Shrihari P. Davare, J. :- Heard learned counsel for the respective parties.

2. The applicants in the aforesaid applications are the original complainants who had filed complaints against the respondents (original accused) under Section 138 of the Negotiable Instruments Act (hereinafter referred to as " NI Act" for brevity's sake) before the respective learned Judicial Magistrates. However, the said complaints were dismissed by the learned respective Magistrates for the reasons stated in the judgments and orders delivered in the respective cases, and thereby acquitted the respective accused for the offence punishable under Section 138 of the NI Act. Hence, being aggrieved and dissatisfied by the said respective judgments and orders of acquittals, original complainants have preferred present applications before this Court, seeking leave to file appeal under Section 378 (4) of the Code of Criminal Procedure, 1973. (hereinafter referred to as the 'Code' for the sake of brevity.)

3. At the outset, learned Counsel for the respective respondentsaccused raised objection regarding the maintainability of present applications, by contending that the present applications seeking leave to file appeals under subsection (4) of Section 378 of the Code, are not maintainable before this Court, in view of introduction of proviso to Section 372 of the Code, inserted by the Code of Criminal Procedure (Amendment) Act 2008 (5 of 2009), since the applicants herein (original complainants) are covered by the definition "victim" and a right to prefer an appeal against any order passed by the court acquitting the accused or convicting him for lesser offence or imposing inadequate compensation, has been conferred upon them by the said proviso to Section 372 of the Code, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court, and in the instant group of cases, before the respective Courts of Sessions, and therefore, they urged that the present applications cannot be entertained by this court.

4. In view of aforesaid objection raised by the learned counsel for the respective respondents, the question which arises for consideration in the present matters is that :

" Whether present applications preferred by the original complainants seeking leave to file appeals under Section 378 (4) of the Code against the dismissal of their complaints by the respective trial Courts for offence punishable under Section 138 of the Negotiable Instruments Act, are maintainable before this Court, in view of insertion of amended proviso to Section 372 of the Code.?"

5. In the said context, Mr. M.M.Patil Beedkar, learned counsel, representing the learned counsel for respective respondents, submitted that remedy under Section 378 (4) of the Code to file appeal against the order of acquittal, is a discretionary remedy and the applicant is required to make an application praying for special leave of the High Court and after grant of such special leave therein, the appeal against the acquittal can be presented before the High Court, by the complainant. However, learned counsel submitted that so is not the position under the amended proviso to Section 372 of the Code, whereunder a right to prefer appeal against any order passed by the court acquitting the accused or convicting him for lesser offence of imposing inadequate compensation, has been given to the victim, and it is canvassed that the applicants herein (original complainants) are covered by the definition "victim", which also has been introduced by the aforesaid amendment, under section 2(wa) of the Code, which is a inclusive definition, and also includes the complainant, who is also "victim" since he has suffered financial loss. It is also submitted by the learned counsel for the respondents that as per the said amended proviso to Section 372 of the Code, such appeals shall lie to the court to which appeal ordinarily lies against the order of conviction of such court, and therefore, it is consequently, submitted that since the appeal against the order of conviction rendered by the learned Magistrate ordinarily lies before the Court of Sessions, the appeals against the orders of acquittal for the offence punishable under Section 138 of the NI Act shall also lie before the Court of Sessions, and not before this Court.

6. According to learned counsel for the respondents, there is no distinction in respect of the private complaints and complaints based on the police reports i.e. police cases, under the amended proviso to Section 372 of the Code and it applies to both the classes of the cases, and therefore, right has been conferred upon the victims under both the types of the cases, to prefer appeal, in the events stated therein, and accordingly, it is submitted that the amended proviso to Section 372 of the Code, equally applies to the private cases, as well as police cases.

7. In substance, the learned Counsel for the respondents submitted that the amended proviso to Section 372 of the Code gives to the victim, a right to prefer an appeal against any adverse order passed by the trial court, which lies before the Court to which an appeal ordinarily lies against the order of conviction of such Court. In the circumstances, learned counsel for the respondents urged that applying the said parameters, and more particularly amended proviso to Section 372 of the Code, present set of applications preferred by the original complainants, seeking leave to file appeals challenging the judgments and orders of acquittals of the respondentsaccused rendered by the learned respective Magistrates, would not be maintainable before this Court.

8. Mr. A.D.Kasliwal, learned counsel representing the learned counsel for the applicants in the present applications, countered the said arguments advanced on behalf of the respondents, vehemently, and submitted that the provision of Section 378 of the Code is a exclusive provision for appeals in cases of acquittal, and it is further submitted that the provision of subsection (3) to Section 378 of the Code, which was incorporated by amendment in the year 2005, w.e.f. 23.6.2006, prescribes that no appeal shall lie to the High Court under subsection (1) or subsection (2) except with the leave of the High Court, whereas subsection (4) of Section 378 of the Code relates to the appeals to the High Court against the order of acquittal in cases instituted upon the complaint and on an application made to it by the complainant, if the High Court grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

9. Keeping in mind the said provisions of Section 378 of the Code and turning to the amended proviso to Section 372 of Code, Mr. A.D.Kasliwal, learned counsel for the applicants, submitted that appropriate and adequate provision has been made under Section 378 of the Code in respect of police cases, as well as cases instituted upon complaints to prefer appeals against the orders of acquittals, but there remains one gray area, namely, those police cases wherein, if the State does not file appeal against the judgment of the order of acquittal, what would be the remedy to the original complainant i.e. first informant to whom earlier no remedy of appeal was available and he was entitled only to file revision against such judgment and order of acquittal, and therefore, looking to the said position, the legislature thought it fit to provide a right to such victims to prefer an appeal against the judgments and orders of acquittal, by introduction of proviso to Section 372 of the Code and the said amended proviso to Section 372 of the Code has no application in respect of the appeals preferred against the judgments and orders in private cases, and more particularly to the appeals preferred against the judgments and orders of acquittal for the offence punishable under Section 138 of NI Act.

10. Shri Kasliwal, learned counsel for the applicants, also canvassed that the definition of victim under Section 2(wa) of the Code contemplates to mean 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 heirs, and that the complainant in the complaint under Section 138 of the NI Act does not come under the purview of the said definition, since simply because it uses the words "suffering any loss" and the said suffering of loss cannot be construed as financial loss, as allegedly claimed by the respondents.

11. Moreover, Shri Kasliwal, learned counsel for the applicantscomplainants also argued that after insertion of proviso to Section 372 of the Code by way of amendment, the legislature has not removed the provision of subsection (4) of Section 378 of the Code, and therefore, it is submitted that both the said provisions operate in altogether different areas, and consequently, learned counsel urged that there is no impediment of the proviso inserted by amendment to Section 372 of the Code, in entertaining the present applications, seeking leave to file appeals, challenging the judgments and orders of acquittals of the accused for the offence punishable under Section 138 of the NI Act, in accordance with Section 378 (4) of the Code.

12. I have heard Mr. M.M.Patil Beedkar, learned counsel representing the respondentsaccused, and also Mr. A.D. Kasliwal, learned counsel representing the applicantscomplainants in the present matters, and in order to consider the aforesaid question for determination, reference to certain provisions of Code of Criminal Procedure would be relevant.

13. Section 372 of th Code of Criminal Procedure, which provides for appeals under Chapter 29, reads as under;

"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]"

14. Section 378 of Code of Criminal Procedure provides for an appeal in case of acquittal, which reads as under;

"378. Appeal in case of acquittal.- (1) Save as otherwise provided in subsection (2), and subject to the provisions of subsections (3) and (5),

(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Sessions 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 Sessions 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 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 nonbailable 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 subsection (1) or under subsection (2)."

15. Reference to Section 24(8) of Code of Criminal Procedure would also be relevant, which is also inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), and it reads thus:

"24.Public Prosecutors. (1) xxxxxxxxxxxxxxxxxxxxxxx

(2) xxxxxxxxxxxxxxxxxxxxxxx

(3) xxxxxxxxxxxxxxxxxxxxxxx

(4) xxxxxxxxxxxxxxxxxxxxxxx

(5) xxxxxxxxxxxxxxxxxxxxxxx

(6) xxxxxxxxxxxxxxxxxxxxxxx

(7) xxxxxxxxxxxxxxxxxxxxxxx

(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.

[Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this subsection..

16. Moreover, the definition of victim under Section 2(wa), which is also inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), reads as follows;

"2.(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."

17. It will be useful to assess the need to amend the Code of Criminal Procedure, more particularly in respect of the aforesaid provisions i.e. proviso to Section 372 of the Code of Criminal Procedure and Section 2(wa) relating to definition of victim, by way of amendment in 2009 and in the said context, in 154th report of the Law Commission (Chapter XV), it is observed that crimes often entail substantive harm to people and not mere symbolic harm to the social order, and consequently, the needs and rights of victims of crime should receive priority attention in the total response to crime. Initially in the Code, the right to prosecute the offender was given to the State, but later on the right was also conferred on the aggrieved person to file private complaint for the alleged offence, if the State does not prosecute the offender. It was felt that at present, victims are the worst sufferers in the crime and they do not have much role to play in the court proceedings, and hence, they need to be given certain right and compensation so that there is no distortion of the criminal justice system.

18. In the said context, a useful reference can be made to the judicial pronouncement of the Division Bench of the Punjab and Haryana High Court, at Chandigarh in Criminal Appeal No.205DB of 2010 in the case of Ram Kaur alias Jaswinder Kaur Vs. Jabbir Singh alias Jabi and others, wherein it has been observed that;

" Against the order/judgment of acquittal of offender, the right of appeal was given to the State. Sub Section (3) of Section 378 of the Code further provides that no appeal to the High Court by the State against acquittal shall be entertained except with the leave of the High Court. Similarly, in a complaint case, the right of appeal against the order/judgment of acquittal was also given to the complainant under subsection (4) of Section 378 of the Code and the complainant is further required to make an application to the High Court for grant of special leave to appeal from the order of acquittal. But, in the police case, the right of appeal was only given to the State and not to the complainant or the victim. However, in case the State chooses not to file an appeal, the complainant or the victim has been provided the remedy of revision before the High Court for permitting the complainant or the victim for grant of leave to appeal against the order of acquittal. Keeping in view the difficulties and injustice in certain cases to the victim, Law Commission in its 154th Report suggested for the amendment in the Code for providing judicial and administrative mechanisms to enable victims to obtain redress through formal or informal procedure that are expeditious, fair, inexpensive and accessible. On the basis of the aforesaid recommendations, vide Code of Criminal Procedure (Amendment) Act, 2008, proviso to Section 372 of the Code was inserted and the definition of "victim" was also added under clause (wa) of Section 2 of the Code."

19. Turning to Section 372 of the Code, pertaining to appeal under Chapter XXIX thereof, it commences with non obstante clause and reads that 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. Hence, there is general bar to the appeal against the judgment and order of the Criminal Court, unless expressly provided by this Court, or any other law for the time being in force. Admittedly, there is no amendment to the said first part of Section 372. The legislature has only added proviso thereto, and in this context, a reference to the scope and ambit of proviso to Section 372 of the Code inserted by way of Act No. 5 of 2009 with effect from 31.12.2009, is vital and important, and the said proviso enables the victim to prefer an appeal against the judgment or order passed by the court acquitting the accused, or convicting him for lesser offence or imposing inadequate punishment, and accordingly, a right has been conferred upon such victim by virtue of the said proviso to prefer an appeal, as stated therein.

20. That takes me to Section 378 of the Code, which is reproduced hereinabove which deals with the appeals in cases of acquittals, which begins with savings clause, as amended and substituted by Act 25 of 2005 ( w.e.f. 23.6.2006) and reads that (1) Save as otherwise provided in sub section (2), and subject to the provisions of subsections (3) and (5)( a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Sessions from an order of acquittal passed by a Magistrate in respect of a cognizable and nonbailable offence, whereas Clause (b) to subsection (1) provides that 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.] Clauses (a) and (b) of Subsection (2) read "..............................". Subsection (3) provides that no appeal to the High court under subsection (1) or subsection (2) shall be entertained except with the leave of the High court, and in such police cases right of appeal was given only to the State and not to the complainant or the victim. Hence, in the cases where the State does not opt to file appeal against the judgment and order of acquittal, there was no remedy of appeal available to the original complainants i.e. the first informants and the only remedy of revision before the High Court was provided to them, wherein only law point is being looked into but the facts would not be assessed. Therefore, by way of introduction of proviso to Section 372 and definition of "victim" under clause (wa) to Section 2 of the Code, by way of amendment, a right has been conferred upon the victim, which includes a person who has suffered any loss or injury caused by reason of the act or omission for which accused person has been charged, to file appeal against the judgments and orders of acquittal in such cases. Accordingly, in the cases in which the State is showing any lethargy or not pursuing the matter for ensuring that the offenders are booked, the victim may legitimately make a grievance and may also step into litigation by ensuring that the culprits are prosecuted and the suffering of the victim is sufficiently given solace and compensation, by right conferred upon him, by introduction of proviso to Section 372 of the Code.

21. In the said context, a useful reference can also be made to the judicial pronouncement in the case of Bhikhabhai Motibhai Chavda Vs. State of Gujarat & ors. 2010 CRI. L.J. 3325, wherein, in paragraph 14, it has been held as under:

"14. Under these circumstances, it can be concluded that if the State has not preferred appeal against the order of acquittal or if the leave is not granted and the appeal of the State is not entertained, the victim may claim right of preferring the appeal in absolute but such right of preferring the appeal may not be available if the appeal of the State is already admitted and the leave has been granted against the order of acquittal of the State. In any case, even if it is read for the sake of consideration that the victim has absolute right to prefer appeal then also the judicial discretion would demand that when the State has already preferred appeal against the order of acquittal and the leave has been granted by this Court and the appeal has been admitted against the order of acquittal, preferred by the State, it would not be a case to entertain another appeal of the victim by this Court and the only observation deserves to be made is to enable the victim to assist the Public Prosecutor as per the provision of Section 24(8) Cr.P.C., at the time of final hearing of the appeal and/or by making the submission before the Court with the P.P. against the order of acquittal."

22. There is no quarrel in the legal position that SubSection (4) of Section 378 of the Code deals with such orders of acquittal passed in any cases instituted upon complaint and contemplates making an application to the High Court by the complainant in this behalf, seeking special leave to file an appeal from the order of acquittal, and upon grant of such special leave, the complainant may present such an appeal to the High Court, and it is apparently clear that this provision of Section 378, sub section (4) of the Code is the exclusive provision which deals with the orders of acquittal passed in any cases instituted upon complaint. Hence, the present provision of Section 378, sub section (4) of the Code and amended proviso to Section 372 of the Code operate in two different areas, separately.

23. Having the comprehensive view of the matter, and considering the above referred provisions of the Code and also considering rival submissions advanced by the learned Counsel for the parties, anxiously, and further considering the aforesaid judicial pronouncements and observations made therein, and more particularly considering the aims and objects of the legislature in introducing the proviso to Section 372 of the Code, by way of amendment of 2009, I am of the view that insertion of the said proviso to Section 372 of the Code, was focussed with the view to ensure that if the State does not prefer appeal against the order of acquittal, or if the leave is not granted and the appeal of the State is not entertained, a right has been conferred upon the victim, of preferring appeal against the order of acquittal since the victim should not be left to helpless condition, which impliedly infers that there is no application of said amended proviso to Section 372 of the Code to the cases instituted upon complaint as contemplated by subsection (4) of Section 378 of the Code, and more particularly, to the applications seeking leave to file appeals challenging the judgments and orders of acquittals for the offence punishable under Section 138 of the NI Act and same do not come under the ambit and purview of the said amended proviso to Section 372 of the Code.

24. Accordingly, the arguments advanced by the learned counsel for the respondentsaccused, are not acceptable on the touchstone of the above enunciated legal position, and therefore, I am not inclined to accept the same, and hence, the question for determination in respect of maintainability of the present applications before this Court is answered in the affirmative, and resultantly, present applications under Section 378(4) of the Code, seeking leave to file appeals challenging the respective judgments and orders of acquittals for the offence punishable under Section 138 of the Negotiable Instruments Act, are maintainable before this Court, since there is no application of the amended proviso of Section 372 of the Code thereto, and hence, same be decided on their own merits.

Stand over to 20.06.2011.

Application allowed.