Allahabad High Court
Aadesh Jain vs State Of U.P. And Others on 16 August, 2022
Bench: Vivek Kumar Birla, Shiv Shanker Prasad
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 42
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 5936 of 2011
Appellant :- Aadesh Jain
Respondent :- State of U.P. and Others
Counsel for Appellant :- Vivek Kumar Singh,Ajay Kumar Singh
Counsel for Respondent :- Govt. Advocate
Hon'ble Vivek Kumar Birla,J.
Hon'ble Shiv Shanker Prasad,J.
List revised. None is present to present this appeal on behalf of the applicant. However, learned A.G.A. is present.
On 12.05.2022, following order was passed in the matter:-
"Case is taken up.
None is present for the appellant.
Learned AGA is present.
Appeal is yet to be admitted.
List this case in the week commencing 16.8.2022 for hearing on admission.
It is made clear that if on the next date learned counsel for the appellant will not remain present, the Court will proceed to decide the case appointing Amicus Curiae or with the help of learned AGA. "
The appeal is of the year 2011 and is pending for admission. Lower court record has already been received.
Present criminal appeal has been filed to set aside the impugned judgment and order dated 19.09.2011 passed by Additional Sessions Judge, Court No.4, Baghpat in Session Trial No. 247 of 2009 (State Vs. Raja Jain and another), under Section 307 I.P.C., Police Station Kotwali Baghpat, District Baghpat so far as it relates to inadequate sentence of 10 days only given to opposite party no.2 and 3 and the accused persons/ opposite party no.2 and 3 may kindly be convicted adequately for a period of at least more than 10 years as the appellant sustained fracture in legs and hand and/ or to pass such other and further order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
By placing reliance on the judgment of Hon'ble Apex Court in the case of Parvinder Kansal Vs. The State of NCT of Delhi and Anr. reported in 2020 (113) ACC 676, Sri Kailash P. Pathak, learned A.G.A. submitted that the appeal for enhancement of punishment u/s 372, Cr.P.C. is not maintainable, paragraph no. 9 which is quoted as under:-
"9. Chapter XXIX of the Code of Criminal Procedure, 1973 deals with ''Appeals' and Section 372 makes it clear that no appeal to lie unless otherwise provided by the Code or any other law for the time being in force. It is not in dispute that in the instant case appellant has preferred appeal only under Section 372, Cr.P.C. The proviso is inserted to Section 372, Cr.P.C. by Act 5 of 2009. Section 372 and the proviso which is subsequently inserted read 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." A reading of the proviso makes it clear that so far as victim's right of appeal is concerned, same is restricted to three eventualities, namely, acquittal of the accused; conviction of the accused for lesser offence; or for imposing inadequate [email protected](Crl.)No.3928 of 2020 compensation. While the victim is given opportunity to prefer appeal in the event of imposing inadequate compensation, but at the same time there is no provision for appeal by the victim for questioning the order of sentence as inadequate, whereas Section 377, Cr.P.C. gives the power to the State Government to prefer appeal for enhancement of sentence. While it is open for the State Government to prefer appeal for inadequate sentence under Section 377, Cr.P.C. but similarly no appeal can be maintained by victim under Section 372, Cr.P.C. on the ground of inadequate sentence. It is fairly well settled that the remedy of appeal is creature of the Statute. Unless same is provided either under Code of Criminal Procedure or by any other law for the time being in force no appeal, seeking enhancement of sentence at the instance of the victim, is maintainable. Further we are of the view that the High Court while referring to the judgment of this Court in the case of National Commission for Women v. State of Delhi & Anr. (2010) 12 SCC 599 has rightly relied on the same and dismissed the appeal, as not maintainable."
The appeal stands dismissed as not maintainable in the light of the judgment of Hon'ble Apex Court in the case of Parvinder Kansal Vs. The State of NCT of Delhi and Anr. reported in 2020 (113) ACC 676.
Order Date :- 16.8.2022
Abhishek Singh
