Smt. Lalmati Devi vs State Of U.P. & 10 Others
2014 Latest Caselaw 7464 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 25
 

 
Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 127 of 2013
 
Applicant :- Smt. Lalmati Devi
 
Opposite Party :- State Of U.P. & 10 Others
 
Counsel for Applicant :- S.K. Dwivedi
 
Counsel for Opposite Party :- Govt. Advocate
 
Hon'ble Anil Kumar Sharma,J.

Case has been taken up in the revised list. Counsel for the appellant is not present.

2. Stamp reporter has reported that no State appeal has been filed against the impugned judgment in the sessions trial in question.

3. Heard learned AGA and perused the impugned order.

4. This appeal has been filed along with an application for leave to appeal, by one of the victims of a police case arising out of crime no. 1817 of 2007, under sections 147, 148, 323/149, 325/149, 504, 506 IPC and 3 (i) (x) SC/ST Act, P.S. Kotwali Sadar, District Deoria challenging the judgment dated 06.03.2013 passed by Special Judge, SC/ST Act, Court No.3, Deoria in S.S.T. No. 02/2009 whereby all the 10 respondent nos. 2 to 11 have been acquitted.

5. On a query of the Court, the Stamp Reporter (Criminal) has submitted a photo-copy of an administrative order dated 2.12.2011 addressed to Registrar General passed by Hon'ble Ravindra Singh, J, which reads as under:

"It is noticed that the Criminal Appeals under section 372 Cr. P.C. are being filed without leave to appeal, whereas against the same judgment of acquittal, the Government Appeals, under section 378 Cr.P.C. are being filed with leave to appeal.

Therefore, the Stamp Reporting Section (Criminal) may be directed that the criminal appeals under section 372 Cr. P. C. may be accepted with leave to appeal along with affidavit.

Dated: 2.12.2011 Justice Ravindra Singh, J"

6. This order does not indicate that any judicial findings were recorded by His Lordship before giving directions to the Registrar General.

7. The Code of Criminal Procedure was further amended by Code of Criminal Procedure Amendment Act 2008 (Act 5 of 2009) which came into force on 31.12.2009. The relevant provisions of the Amendment Act 5 of 2009 for the purpose of deciding the question involved in these cases are: (1) Introduction of the definition of 'victim' under Section 2(wa); (2) Insertion of the proviso to Section 372; and (3) Insertion of Section 357A; and (4) Insertion of proviso to sub-section (8) of Section 24. The proviso to Section 372 Cr.P.C. reads, as under:-

"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"

8. The purpose and object of amendment appears to be to provide relief to the victims of the offence who had earlier no role to play in criminal proceedings and were merely a silent spectator, though their interest was seriously involved in the lis as they were the really affected parties. The amendments in question gave a remedy to the victims to challenge the acquittal in appeal u/s 372 Cr. P.C. It is a right conferred upon the victim to prefer an appeal on the limited grounds mentioned in the proviso to Section 372 of the Code. It is a separate, distinct and independent statutory right and is not dependent or is subservient to the right of appeal of the State. Both the State and the victim can file appeals independently without being dependent on the exercise of right by the other. Under the proviso to Section 372, the victim was given statutory right to file an appeal not only against acquittal but also if the conviction was for a lesser offence or he was aggrieved with the quantum of compensation. State does not have any right to appeal in case of inadequate compensation had been awarded to the victim.

9. In the case of M/s. Tata Steel Ltd. Vs. M/s. Atma Tube Products Ltd. & Ors. CRM-790-MA-2010 (O&M) decided on 18th March, 2013, a Full Bench of the Punjab & Haryana High Court has inter alia held as under, as under:

"The right conferred on a 'victim' to present (C) & (D) appeal under proviso to Section 372 is a substantive and independent right which is neither inferior to nor contingent upon the filing of appeal by the State in that case.

Resultantly, the condition of seeking 'leave to appeal' or 'special leave to appeal' as contained in Section 378(3) & (4) cannot be imposed for the maintainability of appeal by a 'victim' under proviso to Section 372 of the Code."

10. In a recent case 'Bhavuben Dineshbhai Makwana vs. State of Gujarat & ors.', 2013 Crl.L.J. 4225, Full Bench of Gujarat High Court answering the reference on question number (3) 'If the victim prefers an appeal before this Court, challenging the acquittal, invoking his right under proviso to section 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?', held :-

'If the victim also happens to be the complainant and the appeal is against acquittal, he is required to take leave as provided in Section 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 offence, no leave is necessary at the instance of a victim, whether he is the complainant or not.'

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11. In these circumstances, it is held that no leave to appeal is required for the victim to prefer an appeal on the grounds mentioned in proviso to Section 372 Cr. P. C. and he has a indefeasible statutory right to file the appeal.

12. Lower court record has already been received. On perusal of the impugned judgment it is found that there are four injured in the case and their medical reports were duly proved by the doctor before the trial court. The learned trial Judge has taken into consideration that the report is delayed; the witnesses are related and no independent witness had been examined; no injury of sharp edged weapon was found. Out of the four injured, the prosecution has examined two lady injured. After investigation charge sheet was submitted by the investigating officer (C.O.) against respondents no. 2 to 11. The appellant belongs to 'Gond' caste and that's why section 3 (i) (x) S.C. & S. T. Act was added in the investigation. The ground on which acquittal of respondents no. 2 to 11 has been recorded require consideration. The appeal is admitted.

13. Issue bailable warrants against respondent nos. 2 to 11 for execution through Chief Judicial Magistrate, Deoria. In the event the respondents are arrested or they appear in the Court of the Chief Judicial Magistrate, they should be released on bail pending appeal on each of them executing a personal bond of Rs. 25,000/- with two sureties each in the like amount to the satisfaction of the Court concerned. After acceptance of bail bonds, photo-copies thereof be sent to the Court for record. Compliance report be submitted within eight weeks.

14. List thereafter.

15. The Registrar General is directed to immediately place the copy of this order before Hon'ble the Chief Justice for issuing such administrative directions to the Stamp Reporter (Criminal), as His Lordship may deem fit.

(Anil Kumar Sharma, J)

Order Date :- 13.10.2014

Imroz