T.A.Noushad vs State Of Kerala

Kerala High Court

T.A.Noushad vs State Of Kerala on 21 May, 2024

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
           Tuesday, the 21st day of May 2024 / 31st Vaisakha, 1946
                             CRA(V) NO.24 OF 2019
        CC 80/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PIRAVOM
APPELLANT/COMPLAINANT:

     T.A.NOUSHAD, S/O.ABDUL RAHMAN, GENERAL SECRETARY,
     KANJIRAMATTOM MUSLIM JAMA'ATH,
     REG.NO.416/1995, KANJIRAMATTOM.P.O,
     ERNAKULAM, PIN-683215.

RESPONDENTS/STATE & ACCUSED:

  1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
     KERALA, ERNAKULAM.
  2. B.M.JAMAL, MANAGER, KANJIRAMATTOM MOSQUE, KANJIRAMATTOM,
     ERNAKULAM-682315.
  3. M.M.SALIM, EXECUTIVE OFFICER, KANJIRAMATTOM MOSQUE, KANJIRAMATTOM
     P.O., ERNAKULAM-682315.


     This Crl.Appeal by defacto complainant/victim coming on for orders
upon perusing the appeal and upon hearing the arguments of SHRI JOBI
A.THAMPI, Advocate for the appellant, PUBLIC PROSECUTOR for the first
respondent, STANDING COUNSEL, WAQF BOARD for second and third respondents,
the court passed the following:




                                                                       P.T.O.
                    P.G. AJITHKUMAR, J.
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          Crl.Appeal(V) Nos.24 and 25 of 2019
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           Dated this the 21st day of May, 2024

                            ORDER

These appeals were filed under the proviso to Section 372 of the Code of Criminal Procedure, 1973. The appellants were the complainants, respectively, in C.C.No.80 of 2015 and 74 of 2015 on the files of the Judicial Magistrate of the First Class, Piravom. The complaints were filed alleging commission of an offence punishable under Section 500 of the Indian Penal Code, 1860. Respondents Nos.2 and 3 were the common accused. The trial court acquitted them by judgments dated 03.07.2019.

2. When these appeals came up for hearing, the learned counsel appearing for respondents No.2 and 3 raised a preliminary objection that the appeals ought to have been filed before the Sessions Court. It is submitted that what the proviso to Section 372 of the Code postulates is the filing of the appeal to the court to which an appeal ordinarily lies against the order of conviction of the trial court concerned. In 2 Crl.Appeal (V) Nos. 24 and 25 of 2019 view of that submission, the said question is considered as a preliminary point.

3. Heard the learned Senior Counsel appeared on instructions from the learned counsel for the appellants, the learned Public Prosecutor, and the learned counsel for respondents No.2 and 3.

4. The President of the Kanjiramattom Muslim Jama'ath filed C.C.No.74 of 2015. The General Secretary of the Kanjiramattom Muslim Jama'ath filed C.C.No.80 of 2015. In both, the allegations were similar. Respondent Nos.2 and 3 were the Manager of the Kanjiramattom Mosque appointed by Court and the Executive officer of the Mosque respectively. They in furtherance of their common intention submitted a report on 08.01.2015 before the Waqf Tribunal, Ernakulam. The report amounted to libel since it contained imputations injuring the reputation of the appellants. Respondents No.2 and 3 publicised the report as well. Thereby they committed the offence of defamation. The trial court after trial found respondents No.2 and 3 not guilty.

Crl.Appeal (V) Nos. 24 and 25 of 2019

5. The learned Senior Counsel appearing for the appellants would submit that the right of appeal against acquittal created by insertion of the proviso to Section 372 of the Code by Act 5 of 2009 is available to the victims in the cases arising on police reports alone. In the event of acquittal of the accused in a case arising on a complaint, although the complainant has the remedy of appeal it can be availed by obtaining special leave as provided in sub-section 4 of Section 378 of the Code. In the view of the learned Senior Counsel, the appeal lies only to the High Court. Among other decisions, the learned Senior Counsel highlighted the law laid down by this Court in Omana jose and another v. State of Kerala and others [2014 (2) KLT 504].

6. The learned counsel for respondents No.2 and 3 submits that the right to appeal against an order of acquittal under the proviso to Section 372 of the Code is afforded to the victim and in the light of the definition of 'victim' contained in Section 2(wa) of the Code, the present appeals would lie to the Court of Session. It is submitted that the law 4 Crl.Appeal (V) Nos. 24 and 25 of 2019 laid down in Omana Jose (supra) pertains to the right of appeal in cases involving offences punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) and in all other cases, appeals at the instance of the victim: be it a case arose on a complaint or a police report, shall lie only to the court to which an appeal ordinarily lies against the order of conviction of the trial court. It is accordingly submitted that these appeals being against orders of acquittal of a Judicial Magistrate of the First Class, should have been filed before the Court of Sessions and not before this Court.

7. A learned Single Judge of this Court referred Omana Jose (supra) to a Division Bench in the light of the conflicting decisions in Sree Gokulam Chit and Finance Co. Pvt.Ltd, Kasaragod v. Damodaran N and another [2013 (4) KHC 395 and Shibu Joseph and Others v. Tomy K. J and others [2013 (4) KHC 629]. In Sree Gokulam Chit, the learned Single Judge held that an appeal against acquittal in a case instituted on a complaint alleging offence under Section 138 of the NI Act would lie only before the High Court 5 Crl.Appeal (V) Nos. 24 and 25 of 2019 with special leave under Section 378(4) of the Code. In Shibu Joseph another learned Single judge took the view that the complainant in a complaint alleging commission of an offence punishable under Section 138 of the NI act is also a victim having the right of appeal under the proviso to Section 372 of the Code. The Division Bench resolved that conflict and held in Omana Jose (supra) as follows:

"the complainant in a case under Section 138 of the Negotiable Instruments Act cannot challenge the order of acquittal before the Sessions Court under the proviso to Section 372 of the Code of Criminal Procedure and his remedy is only to file an appeal to the High Court with special leave under Section 378(4) of the Code of Criminal Procedure."

8. The Division Bench in Omana Jose (supra) observed that the expression 'victim' used in the proviso to Section 372 of the Code needs to be interpreted in the context of the provisions of Sections 372 and 378. The view taken is that the definition of 'victim' in Section 2(wa) of the Code does not take in its fold complainants in complaint cases, even though they are the victims of the offence. Despite that 6 Crl.Appeal (V) Nos. 24 and 25 of 2019 observation, the principle laid down by the Division Bench confined to the appeals in cases involving offence punishable under Section 138 of the NI Act alone.

9. A similar question confronted a Full Bench of the High Court of Madras in A. Rajalingam v. R. Suganthalakshmi [2020 Crl.L.J 2593]. The question involved in that case was concerning the right of a complainant to appeal against an order of acquittal in a prosecution initiated on a complaint. The moot question formulated was with reference to a complaint involving an offence under Section 138 of the NI Act. The Full Bench after referring to the law laid down by various High Courts on the point arrived at the conclusion that when a Magistrate acquits an accused in a case instituted on a private complaint, the complainant can file an appeal against the acquittal before the High Court under sub-section 4 of Section 378 of the Code alone. Rather, no appeal can be filed under the proviso to Section 372 of the Code in such a matter. For holding so the Full Bench placed reliance on the decisions of the Apex Court 7 Crl.Appeal (V) Nos. 24 and 25 of 2019 in Mallikarjun Kodagali(Dead) represented through Legal Representatives v. State of Karnataka and others [(2019) 2 SCC 752] and Naval Kishore Mishra v. State of Uttar Pradesh and others [AIR 2019 SC 3352].

10. The questions involved in Mallikarjun Kodagali (supra) were, whether the victim of an offence committed prior to 31.12.2009, on which date Act 5 of 2009 came into effect, has the right of appeal against the acquittal under the proviso to Section 372 of the Code, and also whether special leave was required to prefer such an appeal. That was a case that arose on the basis of a police report. The challenge was against orders of the High Court of Karnataka dismissing two appeals filed in the same case by the victim; the first one filed under the proviso to Section 372 and the second one filed under Section 378(4)of the Code. The Apex Court considered the correctness of the views taken by various High Courts on identical questions, including the Full Bench decision of the Gujarat High Court in Bhavuben Dineshbhai Makwana v. State of Gujarat and others [2013 CriLJ 4225]. True, 8 Crl.Appeal (V) Nos. 24 and 25 of 2019 whether a complainant in a complaint case who is also the victim of the offence has the right to appeal against acquittal under the proviso to Section 372 was not a question germane in that case. However, the three-Judge Bench of the Apex Court held in paragraph No.37 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 Code of Criminal Procedure does not introduce or incorporate any such distinction"

11. It was after taking into account the propositions of law laid down in Mallikarjun Kodagali and also Naval Kishore Mishra (supra) the Full Bench of the High Court of Madras held in A. Rajalingam [2020 Crl.L.J 2593] that a complaint in a case instituted on a private complaint before a Magistrate can file an appeal against acquittal before the High Court under sub-section 4 of Section 378 of the Code alone. But when the question in that regard was considered by the Full Bench with reference to the acquittal in a complaint case 9 Crl.Appeal (V) Nos. 24 and 25 of 2019 alleging offence punishable under Section 138 of the NI Act, the question as to the right of the complainants to appeal in complaint cases involving other offences still remains res integra.

12. Insofar as the remedy of appeal against acquittal in cases arising on complaints alleging offence punishable under Section 138 of the NI Act is concerned the view taken by this Court in Omana Jose (supra) is consistent with the views taken by various other High Courts. A few of such decisions are Tata Steel Ltd and others v. Atma Tube Products Ltd. and others[MANU/PH/0175/2013]; P. Vijaya Laxmi v. S.P.Sravana and others [2018 Crl.L.J 1338]; and Kushal Kawaduji Singanjude v. Ramnarayan Durgaprasad Agrawal [2019 Crl.L.J 4796].

13. That view was followed by this Court in the subsequent decisions namely; Lakshmi v. State of Kerala and another [2017 (1) KHC 244(DB); Abdulla C.M v. Ibrahim [2017 (4) KHC 34]; Ansamma Daniel v. State of Kerala [2017 (4) KLT SN 55 C.No.64 333]; and 10 Crl.Appeal (V) Nos. 24 and 25 of 2019 Poulose v. Baiju [2023 (6) KHC 173]. In Ponnappan P. V. v. Balachandran and another [2017 (5) KHC 519] a learned Single Judge of this Court explained the decision in Omana Jose (supra) and held that the view taken therein has to be read in the context of an acquittal in a case arose on a complaint and so far as inadequacy of compensation is concerned in a complaint case an appeal would lie in terms of the proviso to Section 372 of the Code.

14. Right of a complainant, who is also a victim within the meaning of Section 2(wa) of the Code, to appeal against acquittal in a case instituted on a complaint alleging offences other than the one punishable under Section 138 of the NI Act, did not crop up for consideration directly in any of those cases. There is no consistency on that aspect; both in law and practice. Can the view taken in Omana Jose [2014 (2) KLT 504] apply equally to an appeal by the complainant against acquittal in a case instituted upon a complaint involving offence other than the one punishable under Section 138 of the NI Act needs clarification. Hence, the matter is referred 11 Crl.Appeal (V) Nos. 24 and 25 of 2019 for consideration by a Division Bench.

Place the matter before the Hon'ble the Chief Justice for appropriate orders.

Sd/-

P.G. AJITHKUMAR, JUDGE PV 21-05-2024 /True Copy/ Assistant Registrar