Criminal Application (APPA) No.473 of 2013

15th October, 2013

Petitioner Counsel: Mr. D.V. CHAUHAN
Respondent Counsel: Mr. NAYAK

Cases Cited:
Balram Khade Vs. State of Mah., Criminal Appeal No.991/2001 and Criminal Appeal No.854/2011 [Para 1,7]
M/s. Tata Steel Ltd Vs. M/s. Atma Tube Products Ltd. And others, CRM-790 MA 2010 [Para 3,12]
Bhavuben Dineshbhai Makwana Vs. State of Gujarat and others, Criminal Appeal No.238/2012 [Para 4]
Dharmveer Sigh Tomar Vs. Ramraj Singh Tomar, RCR Cri. 2011 (3) 607 [Para 5]
Joginder Singh Vs. State of Himachal Pradesh and others, 2013 (3) Crimes 160 (P&H) [Para 6]

JUDGMENT

JUDGMENT :- This is an appeal filed by Shri Sudhir son of deceased Niranjan Chakre, under Section 372 of the Code of Criminal Procedure, challenging the judgment passed by the learned Sessions Judge, Amravati acquitting the respondent-accused of the offence punishable under Section 302 of the Indian Penal Code. While considering the appeal for admission, an issue is cropped up whether parameters which are required to be taken into consideration while considering an application for leave to file appeal against the acquittal, will have to be applied to an appeal filed under Section 372 of the Code of Criminal Procedure. In the case of Balram Khade Vs. State of Mah. In Criminal Appeal No. 991 of 2001 and Criminal Appeal No. 854 of 2011, there was difference of opinion between the learned Judges (V.M. Kanade & A.M. Thipsay, JJ) of the Division Bench of this Court. Therefore, the matter was referred to the learned third Judge (Roshan Dalvi,J). The learned third Judge i.e. Roshan Dalvi, J concurred with the view taken by Justice Kanade holding that the appeal under Section 372 of the Code of Criminal Procedure as of right and there is no requirement of seeking leave of the Court.

2. Looking to the importance of the matter, this Court had requested Advocate D.V. Chauhan to assist us as Amicus Curiae, in the matter.

3. Advocate D. V. Chauhan has rendered his valuable assistance for considering the issue. Mr. Chauhan, learned Advocate, has pointed out that apart from the judgment of this Court, there is a judgment of the Full Bench of the High Court of Punjab & Haryana in case of M/s. Tata Steel Ltd Vs. M/s. Atma Tube Products Ltd. And others (unreported CRM-790 MA 2010) which holds that by adding proviso to Section 372 of the Code of Criminal Procedure, the Legislature has granted an unconditional right of appeal to the "victim" as compared to the conditional right given to the State under Section 378(3) of the Code of Criminal Procedure.

4. Mr. Chauhan, learned counsel has pointed out the judgment of the Full Bench of the High Court of Gujarat in the case of Bhavuben Dineshbhai Makwana vs. State of Gujarat and others in Criminal Appeal No. 238/2012 in which it is held that an appeal by the "Victim", who is not the complainant, against the order of acquittal can be filed without following the procedure contemplated by Section 378 of the Code of Criminal Procedure.

5. Mr. Chauhan, learned counsel, has also pointed out the judgment of the High Court of M.P. in the case of Dharmveer Sigh Tomar Vs. Ramraj Singh Tomar (RCR Cri. 2011 (3)607) by the learned Single Judge, in which it is held that an appeal under Section 372 of the Code of Criminal Procedure, which lays down that the Section 372 of the Code of Criminal Procedure gives an absolute right to the victim to prefer an appeal against the judgment of acquittal.

6. Mr. Nayak, learned Additional Public Prosecutor, has pointed out the judgment given by the Division Bench of Himachal Pradesh High Court in the case of Joginder Singh Vs State of Himachal Pradesh and others [2013 (3) Crimes 160 (P&H)] which lays down that the proviso to Section 372 of the Code of Criminal Procedure, gives a right to the victim to file an appeal. However, it does not lay down the procedure as to how, what manner, and within what time the appeal has to be filed. It lays down that it is necessary to provide procedure and limitation for filing the appeal as it is creature of statute. In this judgment, it is held that when a victim files an appeal against acquittal of the accused in the High Court, he is required to obtain leave to appeal before the appeal is entertained.

7. We have considered the judgments referred above. We agree with the view taken by the Division Bench of this Court in the case of Balram Khade Vs. State of Mah (supra). It is not necessary to obtain leave from the High Court in case the victim files an appeal in three types of cases, as provided in proviso to Section 372 of the Code of Criminal Procedure.

8. We do not agree with the conclusions of the Full Bench of Punjab-Haryana High Court insofar as it lays down that when an appeal is filed by the victim, as provided by proviso to Section 372 of the Code of Criminal Procedure against the order of acquittal passed by the Magistrate in respect of cognizable offence whether bailable or non-bailable, to the Sessions Court, then the appeal filed by the State under Section 378(1) (a) of the Code of Criminal Procedure against the same order shall also be entertained and/or transferred to the same Sessions Court.

9. Section 372 of the Code of Criminal Procedure lays down that no appeal shall lie from any judgment or order of a Criminal Procedure Code except as provided for by the Code.

10. Proviso to Section 372 of the Code of Criminal Procedure lays down that the victim shall have 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 an appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction.

11. Section 374(3) of the Code of Criminal Procedure lays down that any person convicted on a trial held by the Metropolitan Magistrate or the Assistant Sessions Judge or the Magistrate of First Class, or the Second class or sentenced under Section 325 or in respect of whom an order has been made or sentence has been passed under Section 360 by the Magistrate, may appeal to the Court of Sessions.

12. Therefore, if the victim prefers an appeal in any of the cases, as referred in Section 374 (3) of the Code of Criminal Procedure, then the appeal filed by the victim will be before the Court of Sessions. If in such case, an appeal is filed by the State under Section 378 of the Code of Criminal Procedure against an order of acquittal then the State will have to file an appeal before the High Court and seek leave of the Court, as contemplated by Section 378(4) of the Code of Criminal Procedure. The appeal filed by the State in a State case cannot be entertained and/or transferred to the Court of Sessions, as held by the Full Bench of the High Court of Punjab and Haryana in M/s. Tata Steel Ltd Vs. M/s. Atma Tube Products Ltd and others (supra) as it will be contrary to the mandate of the provisions of Section 378(4) of the Code of Criminal Procedure.

13. Chapter III of the Code of Criminal Procedure deals with the transfer of cases and appeals. Section 407 of the Code of Criminal Procedure, provides the Power of of High Court to transfer cases and appeals.

14. Section 407 (1) (c) (iv) of the Code of Criminal Procedure lays down that whenever it is made to appear to the High Court that an order under this Section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, the High Court may order that any particular case or appeal be transferred to and tried before itself. In view of these provisions, the appeal filed by the victim before the Court of Sessions, can be transferred to the High Court, if it is brought to the notice of the High Court that it is expedient for ends of justice.

15. Section 393 of the Code of Criminal Procedure lays down that the judgments and orders passed by an Appellate Court upon an appeal shall be final, except in cases provided for in Sections 377, 378, 384(4) or Chapter XXX of the Code of Criminal Procedure.

16. It is thus clear that the judgment and order passed by the Appellate Court in an appeal filed by the victim as per the right conferred by the proviso to Section 372 of the Code of Criminal Procedure, is final. So whether the appeal filed by the victim as per the right conferred by the proviso to Section 372 of the Code of Criminal Procedure is entertained by the Sessions Court or by the High Court does not make any difference inasmuch as the judgment and order passed in such appeal is made final. If the appeal filed by the victim exercising his right conferred by proviso to Section 372 of the Code of Criminal Procedure is entertained and decided by the Sessions Court then there cannot be further appeal to the High Court. Therefore, considering the provisions of Section 378(4) of the Code of Criminal Procedure, Section 407 (1)(c) (iv) of the Code of Criminal Procedure and Section 393 of the Code of Criminal Procedure harmoniously, it has to be held that if the victim files an appeal in exercise of right conferred by the proviso to Section 372 of the Code of Criminal Procedure before the Sessions Court and if the same judgment is challenged by the State in an appeal under Section 378(4) of the Code of Criminal Procedure, then the provisions of Section 407 (1)(c)(iv) of the Code of Criminal Procedure can be invoked by the parties and appropriate orders can be passed by the High Court considering the expediency for the ends of justice.

17. The present appeal is filed by the son of deceased Niranjan. The prosecution before the Sessions Court was for the murder of deceased Niranjan alleged to have been committed by respondent no.1. The appellant is covered by the definition of "victim" under Section 2(wa) of the Code of Criminal Procedure.

18. We are of the considered view that the appeal filed by the appellant challenging the judgment passed by the learned Sessions Judge, Amravati acquitting respondent no.1 for the offence punishable under Section 302 of the Indian Penal Code, is maintainable without the appellant being required to seek leave of this Court as contemplated by Section 378 (4) of the Code of Criminal Procedure.

19. We place on record our appreciation for Mr. D.V. Chauhan, Advocate for the assistance given by him in examining the issue. .

20. Place the matter for further orders for admission.

Ordered accordingly.