TaxTMI 
TaxTMI 
2017 (12) TMI 776
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....er bailable or non-bailable is required to file an appeal against acquittal in a complaint case seeking special leave of the Court under Section 378 (4) of Cr. P.C. 2. Hence, the matter was placed before us. The factual matrix from which the aforestated questions arise is as under: The petitioner herein is the accused in C.C.No.87 of 2015 on the file of the learned XXIII Special Magistrate, Hyderabad, arising out of the private complaint filed by the first respondent herein under Section 200 of the Code of Criminal Procedure, 1973 (for brevity, the Code), in relation to an offence under Section 138 of the Negotiable Instruments Act, 1881 (for brevity, the Act of 1881). By judgment dated 12.02.2016 passed therein, the learned XXIII Special Magistrate, Hyderabad, acquitted her. Aggrieved thereby, the first respondent/complainant filed an appeal before the learned Metropolitan Sessions Judge, Hyderabad. The petitioner, being the respondent therein, raised an objection as to the maintainability of the appeal. However, overruling her objection, the learned Metropolitan Sessions Judge, Hyderabad, passed orders on 17.10.2016 in Crl.M.P.No.1233 of 2016 filed in the appeal, condoning the....
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....rosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision. (2) 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 sub-section (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 oth....
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....n 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. 7. Section 2(wa) was inserted in the Code by Act 5 of 2009, with effect from 31.12.2009, and defines a victim as under: 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. 8. The broad issue arising for consideration presently is whether an appeal would lie to the Sessions Court under the proviso to Section 372 of the Code against an order of acquittal in a case arising out of a private complaint, by treating the complainant therein as a victim within the meaning of Section 2(wa) of the Code. Reference may now be made to the surfeit of case law on the subject and the diverse views taken by Courts across the country on these issues. 9. The decisions of this Court in G. Basawaraj v. State of Andhra Pradesh 2011 (1) ALD (Crl.) 201 (AP.), Petta Satya Govinda Ramachandra Rao @ Babji v. Yarlagadda Vijaya Kumar 2014 (2) ALD (Crl.) 900 and Tamilnad Mercantile Ba....
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....anguage employed in Section 378(4) of the Code and the proviso to Section 372 thereof made it clear that there was no clash or conflict or inconsistency between the two and upon harmonious reading of both the provisions, it is evident that the pre-existing provision in Section 378(4) of the Code provided for filing of an appeal against acquittal, by the State or by the complainant to the High Court with special leave, whereas the amended Section 372 of the Code provided for an appeal against acquittal by the victim of the offence, to the Court to which an appeal would ordinarily lie, had an order of conviction been passed in the case. The learned Judge therefore held that where the victim is also a complainant in a case instituted by way of a private complaint, then such a person would have two options - to file an appeal against the order of acquittal to the High Court under Section 378(4) of the Code or to the Sessions Court/High Court under the proviso to Section 372 of the Code. The learned Judge opined that it would be open to the person who is a victim as well as a complainant to choose one of the two remedies available to him in law and approach the appellate Court of his ch....
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....lant to select one or the other Court of appeal, as observed in G.BASAWARAJ1. In this regard, the learned Judge stated thus: 15. It is to say instead of filing appeal under Section 372 Cr. P.C., if allowed to file under Section 378(4) Cr. P.C., with leave, it takes away the prospective likelihood of approaching by accused to avail right of appeal under Section 378(4) Cr. P.C., before High Court. It is because, the absolute statutory right without even leave of Court to file appeal before Court of Session which is available with effect from 31.12.2009, if availed by the complainant under Section 372 Cr.P.C and did so, in the event of that Court deciding the appeal against such acquittal by reversing and for any reason convicting, there is right of appeal under Section 378(4) Cr. P.C., to such accused to approach the High Court with leave. Without invoking such right before Court of Session by the complainant as appellant against acquittal by trial Court and allowed to proceed before High Court by granting leave, it is nothing but taking away said right of the accused in future of remedy to approach the High Court in such event and one way interfering with such right. It is ....
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....nd not to the High Court with a petition seeking leave to file an appeal under Section 378(4) of the Code. The learned Judge categorically held that the victims right of appeal under the proviso to Section 372 of the Code was in no way controlled by Section 378(3) of the Code and there was nothing to infer any requirement of leave as in Section 378(4) of the Code so as to present an appeal under Section 372 proviso against an order of acquittal or conviction of a lesser offence or for inadequate compensation. The learned Judge further observed that in matters where leave was already granted under Section 378(4) of the Code and appeals were admitted against acquittals in cheque-dishonour cases, this Court can, for sub-serving the ends of justice, direct the Sessions Court to hear and dispose of the said appeals on merits by making them over. Exercising such power under Section 381(2) read with Section 482 of the Code, the learned Judge made over the appeal preferred to this Court under Section 378(4) of the Code to the Sessions Court. 13. It is pertinent to note that the view expressed by the learned Judge to the effect that no leave under Section 378(3) of the Code is necessary ....
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....essions Court under the proviso to Section 372 of the Code against the acquittal of the accused in a case under Section 138 of the Act of 1881. Earlier, one learned Judge of the Kerala High Court had held that such an appeal would not lie to the Sessions Court but only to the High Court under Section 378(4) of the Code, while another learned Judge held to the contrary in a subsequent case. The issue was therefore referred to a Division Bench. The Division Bench held that a complainant in a case under Section 138 of the Act of 1881 could not challenge the order of acquittal before the Sessions Court under the proviso to Section 372 of the Code and his only remedy is to file an appeal to the High Court with special leave under Section 378(4) of the Code. The Division Bench stated that before amendment of the Code in 2009, the remedy available to a complainant against an order of acquittal in a case instituted on a complaint was to file an appeal under Section 378(4) of the Code before the High Court with special leave. This provision remained intact even after the amendment. Though drastic changes were made to the said provision in the year 2005, Section 378(4) was not amended. The D....
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....ainant against acquittal in a complaint case. The Division Bench observed that the expression unless the context otherwise requires occurring in Section 2 is a helpful tool for interpreting the proviso to Section 372 to resolve the question as to whether the term victim would take within its purview a complainant in a complaint case and concluded that the expression victim would exclude the complainant in a complaint-case from the purview of Section 2(wa) of the Code. 16. In KAILASH MURARKA, a Division Bench of the Chhattisgarh High Court held that a complainant is not entitled to prefer an appeal under the proviso to Section 372 of the Code before the Sessions Court against an order of acquittal passed by a subordinate Criminal Court arising out of a criminal complaint filed by the complainant and that such a complainant is required to prefer an appeal under Section 378(4) of the Code before the High Court after obtaining special leave. It was observed that in a case instituted upon a complaint, the complainant has much of a role to play in the Court proceedings whereas, as is apparent from the Statement of Objects and Reasons of Act No.5 of 2009, changes were brought in with a....
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....in such a case, would have the remedy of an appeal against acquittal only under Section 378(4) of the Code, except where the complainant succeeds in establishing the guilt of the accused but is aggrieved by his conviction of a lesser offence or award of inadequate compensation and in such cases, the complainant shall be entitled to avail the remedy of appeal under Section 372 proviso. The Division Bench further held that a victim who is not the complainant in a private complaint case is not entitled to prefer an appeal against acquittal under Section 372 proviso and his right, if any, continues to be governed by Section 378(4) of the Code. The Division Bench also observed that no leave or special leave was required to file an appeal under Section 372 proviso and that the right conferred thereunder is a substantive and independent right. 19. Pertinent to note, the Supreme Court, in Damodar S. Prabhu v. Syed Babalal H. [2010] 5 SCC 663, opined as under: 20. It may be noted here that Section 143 of the Act makes an offence under Section 138 triable by a Judicial Magistrate, First Class (JMFC). After trial, the progression of further legal proceedings would depend on whethe....
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....t made provision for appeals against orders of acquittal in cases instituted upon complaints and in such cases, after the complainant makes an application to the High Court and the High Court grants special leave to appeal, the complainant may present his appeal to the High Court. The Supreme Court observed that as the said sub-section speaks of special leave, as opposed to leave in sub-section (3) of Section 378 of the Code, the complainants appeal against an order of acquittal is a category by itself. The Supreme Court further observed that a complainant could be a private person or a public servant, as is evident from Section 378(5) which speaks of six months time to file the application for special leave where the complainant is a public servant and sixty days in every other case. The Supreme Court pointed out that Section 378(6) of the Code was important and that it stated to the effect that if in any case, the complainants application for special leave is refused, no appeal from the order of acquittal would lie at the behest of the State Government thereafter, under sub-sections (1) or (2) of Section 378 of the Code. In effect, if special leave is not granted to the complaina....
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....ant under Section 138 of the Act of 1881, an appeal would only lie to the High Court under Section 378(4). 25. Similar was the view taken by another learned Judge of the Bombay High Court at Aurangabad in Sow. Kalpana v. State of Maharashtra [Crl. Revision Application No. 158 of 2012, dated 9-1-2013]. The learned Judge categorically held that such an appeal would not come within the purview and ambit of the amended provisions of Section 372 of the Code and the remedy provided to the person aggrieved by an acquittal in a cheque-bounce case under Section 138 of the Act of 1881 was only before the High Court in terms of Section 378(4) of the Code, upon seeking leave. 26. In M.K. Products v. Blue Ocean Exports (P.) Ltd. [Crr No. 3793 of 2014, dated 1-9-2016], a learned Judge of the Calcutta High Court agreed with the view taken in OMANA JOSE4 and held that that a complainant in a case under Section 138 of the Act of 1881 could not challenge the order of acquittal before the Sessions Court under the proviso to Section 372 of the Code and that his remedy is to file an appeal to the High Court with special leave under Section 378 of the Code. 27. In S. Ganapathy v. N. Senthilvel ....
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....ant (in a private complaint), who is not a victim, has a remedy and can file an appeal in the event of acquittal of the accused after obtaining leave to appeal under Section 378(4) of Cr. P.C. (3) In a private complaint, even if the victim is not a complainant, he has a right to appeal under the proviso to Section 372 of Cr. P.C., but he has to seek leave as held by the Supreme Court in Satyapal Singh. (4) The term victim has been correctly interpreted by the Full Bench of the Delhi High Court in Ramphal and we are in agreement with the same. (5) A victim (as defined under Section 2(wa) of the Cr. P.C. does not cease to be a victim merely because he also happens to be a complainant and he can avail all the rights and privileges of a victim also and (6) The decision of the Single Judge in Selvaraj holding that the term victim found in Section 372 excludes a complainant, is not legally correct and in a given case, a complainant, who is also a victim, can avail right granted under Section 372 of Cr. P.C. 29. On a more general note, in Sumitomo Corpn v. CDC Financial Services (Mauritius) Ltd. [2008] 4 SCC 91, the Supreme Court observed that an app....
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....ent would be a nullity as the accused was entitled to have his case heard and claim a verdict as regards his guilt or innocence at the hands of two learned Judges and such right could not be taken away except by amending the rules and so long as the rules remained in operation, it would be arbitrary and discriminatory to deny him this right. 32. On similar lines, in CIT v. Dhadi Sahu 1994 Supp (1) SCC 257, the Supreme Court observed that no litigant had a vested right in a matter of procedural law but where the question is of change of forum, it ceases to be procedure only as the forum of appeal is a vested right as opposed to pure procedure to be followed before a particular forum. It was further observed that the right becomes vested when the proceedings are initiated in the tribunal or the Court of first instance and unless the legislature has, by express words or by necessary implication, clearly so indicated, that vested right would continue in spite of the change of jurisdiction of the different tribunals or fora. 33. In Himachal Pradesh State Electricity Regulatory Commission v. Himachal Pradesh State Electricity Board [2014] 5 SCC 219, the Supreme Court culled out thr....
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....le nor warranted. 36. Again, in Perumal v. Janaki [2014] 5 SCC 377, the Supreme Court observed that the language of Section 195(4) of the Code creates a legal fiction whereby it is declared that the original Court is subordinate to that Court to which appeals ordinarily lie from the judgments or orders of the original Court and such a fiction must be understood in the context of Article 227 of the Constitution and Sections 10(1) and 15(1) of the Code. The Supreme Court further observed that each one of the streams of the Courts under Sections 10(1) and 15(1) of the Code have their administrative hierarchy depending upon the law by which they were brought into existence and certain Courts have appellate jurisdiction while certain Courts have original jurisdiction. As appellate jurisdiction is a creature of the statute and dependent upon the scheme of a particular statute, the Supreme Court held that the forum of appeal would vary and generally, such appellate fora are created on the basis of either subject-matter of the dispute or economic implications or nature of crime, etc. 37. In Rakesh Kumar Paul v. State of Assam 2017 SCC Online SC 924, the Supreme Court observed as unde....
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....f the Code and not to the Sessions Court under Section 378(1)(a) of the Code. 40. The learned Public Prosecutor for the State of Andhra Pradesh supported Sri Anand Kumar Kapoor, learned counsel. He would submit that Section 372 proviso of the Code provides a victim the right of preferring an appeal only in cases arising out of a police report as earlier, the limited remedy available to such a victim when the trial Court acquitted the accused was to prefer a revision under Section 397 of the Code which, at best, could only result in the setting aside of the acquittal and a consequential remand but not a conviction. The legislature, in its wisdom, therefore wished to provide a separate recourse to such an aggrieved victim by allowing an appeal at his behest. Therefore, a complainant in a case arising out of a private complaint, who was already provided the right of appeal under Section 378(4) of the Code, cannot be permitted to take recourse to Section 372 proviso of the Code. Learned Public Prosecutor would point out that a Division Bench of the Gauhati High Court in Paye Mosing v. Naba Bora @ Jalia dealt with the question of limitation in relation to an appeal filed by a victim ....
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....y provided to a complainant against the acquittal of an accused in a case arising out of a private complaint. 42. At the outset, it would be necessary to understand and delineate the contours of a complainant in the scheme of the Code. Though the term complainant has not been defined thereunder, sufficient guidance is available to understand its content and import from the definition of a complaint under Section 2(d) of the Code. This definition makes it clear that a police report is not included in the ambit of a complaint, as defined, but the explanation appended thereto indicates that such a police report shall be deemed to be a complaint and the police officer making such police report shall be deemed to be the complainant therein. The distinction between a private complainant and the police officer submitting a police report, who is deemed to be a complainant in that case, is therefore clear. The victim or his near relation, in the case of homicide, who gives information to the police as to the commission of a non-cognizable offence, though they are the actual affected parties, do not assume the status of a complainant in that case and it is only the police officer who fina....
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....gnizable and non-bailable offence in any case. Under Section 378(1)(b) thereof, the State Government was empowered in any case 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 the High Court not being an order falling within the ambit of Clause (a) of that sub-section or an order of acquittal passed by a Court of Session in revision. Section 378(2) provided for filing of appeals to the Court of Session or to the High Court in cases investigated by the Delhi Special Police Establishment or by any other agency under a Central Act other than the Code. Section 378(3) made it clear that no appeal would lie to the High Court under Sections 378(1) or (2) except with the leave of the High Court. Section 378(4) provided for an appeal by the complainant against an order of acquittal passed in any case instituted upon a complaint and the forum created for such an appeal was the High Court which had to grant special leave to appeal to the complainant for presenting such an appeal. Section 378(5) made it clear that grant of special leave to appeal under sub-section (4) had to be within six mont....
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....as to be given full effect. Charge is defined rather vaguely under Section 2(b) of the Code to include any head of charge when the charge contains more heads than one. However, framing of a charge in the context of the statutory scheme of the Code cannot be belittled, as an entire chapter, viz., Chapter XVII of the Code, is devoted to the charge. Section 211 thereunder defines contents of a charge. Every charge under the Code shall state the offence with which the accused is charged and the law and the section of law against which the offence is said to have been committed is also to be mentioned therein. 46. Section 321 of the Code makes it clear that framing of a charge is crucial in matters where such a procedure is prescribed, as an accused is liable to be discharged in respect of an offence where the prosecution is withdrawn before a charge has been framed against him whereas, if the withdrawal from the prosecution takes place after the charge is framed or when, under the Code no charge is required, he is acquitted in respect of such offence or offences. 47. The use of the word charged in Section 2(wa) of the Code therefore assumes great significance and it is only in ca....
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....ection 378(4) of the Code. Trite to state, the general provision cannot override the special provision unless specifically provided so or by necessary implication (See R.S. Raghunath v. State of Karnataka [1992] 1 SCC 335, Waverly Jute Mills Co. Ltd. v. Raymon & Co. (India) (P.) Ltd. AIR 1963 SC 90 and Motiram Ghelabhai v. Jagan Nagar AIR 1985 SC 709). Further, by virtue of such extension, consequent to the interpretation sought to be given to Section 2(wa) of the Code so as to include within its ambit complainants who are already provided the remedy of appeal under Section 378(4) of the Code, the three levels of remedies provided to such complainant are being converted into four levels, though the law makers never expressed any intention to do so. Once the statute provided the general and special remedies of appeal and prescribed the fora therefor, it is not open to the Courts to interpret the statute otherwise and blur the lines between the two strata, so as to multiply the appeal remedies and the fora therefor. The judgments of the Supreme Court in DAMODAR S. PRABHU9 and SUBHASH CHAND10, decisions rendered after insertion of Section 2(wa) and the proviso to Section 372 in the Co....