Bombay High Court
Sopan Baburao Wakchaure And ... vs The State Of Maharashtra And ... on 18 October, 2016
Bench: V.K. Jadhav
1 Cri. Appln. 4718/2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 4718 OF 2015
1] Sopan Baburao Wakchaure,
Age 52 years, Occu.: Agri.,
R/o - Punatgaon, Tq.- Newasa,
District - Ahamadnagar
2] Dnyandeo Baburao Wakchaure,
Age : 51 years, Occu.: Agri.,
R/o - Punatgaon, Tq-Newasa,
District - Ahamadnagar
3] Machindra Sopan Wakchaure,
Age : 28 years, Occu.: Agri.,
R/o-Punatgaon, Tq.-Newasa,
District - Ahamadnagar
4] Ekbal Amin Shaikh,
Age : 26 years, Occu.: Agri.,
R/o-Punatgaon, Tq.-Newasa,
District - Ahamadnagar .. Applicants
(Orig. Accused)
Vs.
1] The State of Maharashtra
2] Bapusaheb Vitthal Wakchaure,
Age : Major, Occu.: Agri.,
R/o-Punatgaon, Tq-Newasa,
District - Ahmednagar .. Respondents
(Orig. Complainant)
AND
CRIMINAL APPLICATION NO. 5528 OF 2016
IN
CRIMINAL APPLICATION NO. 4718 OF 2015
(Sopan Baburao Wakchaure and ors.
Vs.
The State of Maharashtra and anr.)
::: Uploaded on - 21/10/2016 ::: Downloaded on - 22/10/2016 00:44:27 :::
2 Cri. Appln. 4718/2015
----
Mr. M.G. Kolse Patil, Advocate for the applicant in both
Applications
Mr. A.R. Kale, APP for the respondent/State
Mr. K.B. Jadhav, Advocate for respondent no.2 in both
Applications
----
CORAM : V.K. JADHAV, J.
DATE : 18/10/2016
ORAL ORDER :
Criminal Application No. 4718 of 2015 is
heard finally with consent of the parties at the
admission stage.
2. Being aggrieved by the judgment and order
dated 21/6/2014 passed by the Additional Sessions
Judge, Newasa in Criminal Appeal No. 29 of 2014, the
original accused have preferred this Criminal
Application.
3. Brief facts giving rise to the present
Criminal Application No.4718 of 2015, are as follows :-
. On the basis of the complaint lodged by the
respondent no.2, crime no. 209 of 2005 came to be
registered at Police Station, Newasa against the
present applicants for having committed offences
3 Cri. Appln. 4718/2015
punishable under section 325, 324, 323, 504, 506 r/w.
34 of the Indian Penal Code. After due investigation,
the concerned Police Station has submitted chargesheet
before the Court against the present applicants for
having committed offences punishable under section 325,
324, 323, 504, 506 r/w. 34 of the Indian Penal Code and
the case is registered as R.C.C. No. 13 of 2006. The
learned Judicial Magistrate First Class, Newasa by
order dated 16/10/2010, framed the charge against the
present applicants for the offences punishable under
section 325, 324, 323, 504, 506 r/w. 34 of the Indian
Penal Code. The applicants/accused pleaded not guilty
to the charge and claimed to be tried. The learned
Judicial Magistrate First Class Court No.2, Newasa by
judgment and order dated 18/3/2013 in the said R.C.C.
No. 13 of 2006 acquitted all the applicants for the
aforesaid offences.
. Being aggrieved by the same, the respondent
no.2 has preferred criminal appeal no. 29 of 2014
against the judgment and order of acquittal passed by
the learned Magistrate, as aforesaid. The learned
Additional Sessions Judge, Newasa by judgment and order
dated 21/6/2014, in the said Criminal Appeal No. 29 of
4 Cri. Appln. 4718/2015
2014 partly allowed the appeal and thereby quashed and
set aside the judgment and order passed by the learned
Magistrate dated 18/3/2013 in R.C.C. No. 13 of 2006 and
further directed the Magistrate, retrial of the case
against the applicants, to be disposed of within three
months and accordingly remanded the matter. Hence,
this Criminal Application No.4718 of 2015.
4. Learned counsel for the applicants submits
that the said appeal was preferred before the Sessions
Court without obtaining leave of High Court, as
required under sub-section 3 of section 378 of the Code
of Criminal Procedure. Learned counsel submits that
the right to prefer an appeal is conferred upon the
victim including the heirs and others under the proviso
to section 372 of the Code of Criminal Procedure but
the said right is conferred only after obtaining leave
of the High Court, as required under section 378(3) of
the Code of Criminal Procedure. Learned counsel
submits that proviso to section 372 of the Cr.P.C. must
be read alongwith the main enactment i.e. together with
sub-section (3) of section 378 of the Cr.P.C. Learned
counsel submits that thus the appeal before the
Sessions Judge was not maintainable and the judgment
5 Cri. Appln. 4718/2015
and order passed by the learned Additional Sessions
Judge in Criminal Appeal No. 29 of 2014 is liable to be
quashed and set aside on this ground alone. Learned
counsel also submits that even though the summons were
issued to the respondent no.2-original complainant and
the witness many times, however, only one witness has
attended the Court date and he has also not supported
the prosecution case. Even though, the respondent
no.2/original complainant has engaged a private
counsel, respondent no.2 or his counsel failed to
attend the said case. Learned Magistrate has therefore
rightly acquitted the applicants/accused persons in the
said case. Thus, the judgment and order passed by the
learned Additional Sessions Judge, directing retrial of
the present applicants, is not proper, correct and
legal.
5. Learned counsel for the applicants, in order
to substantiate his contentions, places his reliance on
the following cases :-
i) Satya Pal Singh V. State of Madhya Pradesh
and others 2015 AIR SCW 6251
ii) Subhash Chand Vs. State (Delhi
Administration) 2013 AIR SCW 356
6 Cri. Appln. 4718/2015
iii) Mohd. Azim Sheikh Iibrahim Vs. Mehamuda Anjum
Mohd. Azim LAWS (BOM)-2013-8-231
iv) Balasaheb Rangnath Khade Vs. State of
Maharashtra and Ors. 2013 ALL MR (Cri) 1153
v) Balasaheb Rangnath Khade Vs. State of
Maharashtra and Ors. 2012 (3) Bom.C.R.(Cri.) 632
6. Learned counsel for respondent no.2-original
complainant submits that so far as case of "Subhash
Chand Vs. State (Delhi Administration)" (cited supra),
relied on by learned counsel for the applicants,
is concerned, in the said case, the appeal filed by the
complainant was considered with the observation that
the complainant's appeal against the order of acquittal
is a category by itself and it is finally observed by
the Supreme Court that the complainant can file an
application for special leave to appeal against the
order of acquittal of any kind only to the High Court
and he cannot file such appeal in the Sessions Court.
Learned counsel submits that the provisions of section
378(4) of the Cr.P.C. are considered by the Supreme
Court with the observation that the complainant's
appeal against the order of acquittal is a category by
itself. Learned counsel submits that ratio in the case
7 Cri. Appln. 4718/2015
of "Subhash Chand Vs. State (Delhi Administration)"
(cited supra) cannot be made applicable in the facts
and circumstances of the present case.
7. Learned counsel for the respondent no.2
submits that in Satya Pal Singh's case (cited supra),
the Sessions Court has passed order of acquittal and
the victim has preferred the appeal under the
provisions of section 372 of Cr.P.C. The High Court,
however, has disposed of the appeal by passing order
without examining, as to whether leave to file appeal
filed by the appellant, as provided under sub-section 3
of Section 378 of the Cr.P.C. can be granted or not.
The correctness of the said order passed by the High
Court was questioned before the Supreme Court urging
various grounds. The Supreme Court, while concluding
the said issue, has observed that the appellant in that
case being the father of the deceased, has statutory
right to prefer an appeal against the order of
acquittal under the provisions of section 372 of the
Cr.P.C. but only after obtaining the leave of the High
Court, as required under sub-section (3) of section 378
of the Cr.P.C.
8 Cri. Appln. 4718/2015
. Learned counsel for respondent no.2 submits
that the provisions of sub-section (3) of section 378
of the Cr.P.C. applies if the appeal is preferred to
the High Court under sub-section (1) of section 378 of
the Cr.P.C. and the same shall not be entertained
except with the leave of the High Court. Learned
counsel submits that in the instant case, the judgment
and order of acquittal came to be passed by the
Magistrate and, therefore, in terms of the proviso to
section 372 of the Cr.P.C., such appeal shall lie to
the Court to which an appeal ordinarily lies against
the order of conviction of such Court. Learned counsel
submits that the provisions of sub-section (3) of
section 378 of the Cr.P.C. does not apply to such
category of appeal. The learned Sessions Judge has
therefore rightly entertained the appeal and there is
no substance in the submissions made on behalf of the
applicants in that regard. Learned counsel submits
that in the case of "Balasaheb Khade Vs. State of
Maharashtra" (cited supra at Paragraph No. 5(iv)), the
Division Bench of this Court, while dealing with the
same issue, took a different view. Justice Kanade held
that the proviso makes an exception and makes exception
to the general rule provided under section 372 of the
9 Cri. Appln. 4718/2015
Cr.P.C. It is therefore not necessary to obtain leave
from the High Court in three types of cases as provided
in proviso to section 372 of the Cr.P.C., however,
dis-agreeing with the view, Justice Thipsay held that
the requirement of leave as envisaged under section
378(3) of the Cr.P.C. cannot be dispensed with merely
because such appeal has been filed by victim as defined
in section (2) (wa) of the Cr.P.C.. Thus, the matter
was referred to the third Judge and accordingly, it is
held that the victim is not required to apply for
obtaining leave of the High Court to file any of the
appeals under the proviso to section 372 of the Cr.P.C.
Learned counsel submits that this view was taken prior
to Satya Pal Singh's case as decided by the Supreme
Court referred supra. Furthermore, the Bombay High
Court has taken the said view in terms of the
provisions of section 372 proviso read with section
378(3) of the Cr.P.C.
8. Learned counsel for respondent no.2/original
complainant submits that the Magistrate has observed in
paragraph no.10 of the judgment of RCC No.13 of 2006
that even though 13 times, the witness summonses were
issued, no report of the service of the said summons
10 Cri. Appln. 4718/2015
was placed before the Court nor the witnesses remained
present before the Court. Even though the Court has
passed various orders below Exhibit 1 directing the
prosecution to keep the witnesses present, however, the
prosecution has not brought the witnesses before the
Court. It has also observed by the Court that the
complainant has also remained absent before the Court
and there is no report of service of summons on him,
placed before the Court. Learned counsel submits that
the prosecution could examine only one prosecution
witness, who has also turned hostile and the Magistrate
has therefore acquitted all the applicants. Learned
counsel submits that respondent no.2/complainant was
not at fault. There is no service report placed before
the Court and it is clear that the complainant and the
prosecution witnesses never served with the witness
summons. Under these circumstances, the learned
Additional Sessions Judge has rightly directed the
Magistrate retrial of the applicants/accused. Thus, no
interference is required. There is no substance in the
Criminal Application No.4718 of 2015 and the same is
liable to be dismissed.
11 Cri. Appln. 4718/2015
9. I have also heard learned A.P.P. for the
State.
10. In the instant case, the learned Magistrate
has acquitted all the applicants for having committed
offences punishable under section 325, 324, 323, 504,
506 r/w. 34 of the Indian Penal Code. Being aggrieved
by the same, respondent no.2-the victim has preferred
appeal before the Sessions Court. On the basis of his
complaint, the police machinery was set in motion and
after due investigation, the chargesheet came to be
submitted before the Court and the applicants/accused
came to be tried by the Magistrate.
11. In Subhash Chand's case (cited supra), relied
on by learned counsel for the applicants, a Food
Inspector purchased a sample of sweetened carbonated
water for analysis and after following the necessary
procedure, sent the said sample to the Public Analyst
for analysis. Public Analyst opined that the sample
does not conform to the prescribed standard. After
conclusion of the investigation, the respondent State
through its Local Health Authority filed a complaint
before the Magistrate against the applicant/accused in
that case for violating the provisions of Food
12 Cri. Appln. 4718/2015
Adulteration Act, 1954. Thus, the short point which
arose for consideration before the Supreme Court was as
to whether in a complaint case, an appeal from order of
acquittal of the Magistrate would lie to the Sessions
Court under section 378(1)(a) of the Cr.P.C. or to the
High Court under section 378(4) of the Cr.P.C. The
Supreme Court, by referring the provisions of sub-
section (4) of section 378 of the Cr.P.C., observed
that for an appeal against an order of acquittal passed
in case instituted upon a complaint, and in such case,
if the complainant makes an application to the High
Court and the High Court grants special leave to
appeal, the complainant may present such an appeal to
the High Court. The Supreme Court further held that
the complainant's appeal against an order of acquittal
is a category by itself and, therefore, the complainant
can file application for special leave to the appeal
against order of acquittal of any kind only to the High
Court and, he cannot file such an appeal to the
Sessions Court.
12. In the instant case, the appeal has been
preferred by the victim before the Sessions Court
against the judgment and order of acquittal passed by
13 Cri. Appln. 4718/2015
the Magistrate and, therefore, the provisions of
section 378 sub-section (4) of the Cr.P.C. does not
attract. There is no question of obtaining any special
leave by the victim in terms of the provisions of
section 378(4) of the Cr.P.C. Thus, the ratio of
Subhash Chand's case (cited supra) cannot be made
applicable to the instant case.
13. In order to appreciate the legal position, it
would be appropriate if the provisions of section 372
and section 378 of the Code of Criminal Procedure are
reproduced hereinbelow :-
"372. 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."
...
14 Cri. Appln. 4718/2015
378. Appeal in case of acquittal.
(1) Save as otherwise provided in sub-section
(2) and subject to the provisions of
sub-sections (3) and (5) -
(a) the District Magistrate may, in any case,
direct the Public Prosecutor 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 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 --
15 Cri. Appln. 4718/2015
(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 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.
(3) No appeal under sub-section (1) or sub-
section (2) shall be entertained except with
the leave of the High Court.
(4) If such an order of acquittal is passed
in any case instituted upon complaint and the
High Court, on an application made to it by
the complainant in this behalf, grants special
leave to appeal from the order of acquittal,
the complainant may present such an appeal to
the High Court.
(5) No application under sub-section (4) for
the grant of special leave to appeal from an
order of acquittal shall be entertained by the
High Court after the expiry of six months,
where the complainant is a public servant, and
sixty days in every other case, computed from
the date of that order of acquittal.
16 Cri. Appln. 4718/2015
(6) If in any case, the application under
sub-section (4) for the grant of special leave
to appeal from an order of acquittal is
refused, no appeal from that order of
acquittal shall lie under sub-section (1) or
under sub-section (2)."
14. As per the provisions of section 372 of the
Cr.P.C., no appeal shall lie from any judgment or order
of a criminal court except as provided by the Code or
by any other law for the time being in force. Proviso
to section 372 of the Cr.P.C. reads that the victim
shall have right to prefer appeal against any order
passed by the Court : (i) acquitting the accused,
(ii) convicting for a lesser offence and (iii) 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. Section 378
sub-section 1(a) speaks that the District Magistrate
may, in any case, direct the Public Prosecutor to
present an appeal to the Court of Session from an order
of acquittal passed by a Magistrate in respect of
cognizable and non-bailable offence and clause (b) of
sub-section (1) of section 378 of the Cr.P.C. empowers
the State Government to direct the Public Prosecutor to
17 Cri. Appln. 4718/2015
present an appeal to the High Court from an original or
appellate order of 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. Sub-section (3) of section 378
contemplates leave of the High Court in case appeal is
preferred under sub-section (1) or sub-section (2) of
Section 378 of the Cr.P.C. Sub-section (3) of section
378 speaks that no appeal to the High Court would be
entertained except with the leave of the High Court.
Sub-section (3) of section 378 came to be amended by
the Act No. 25 of 2005 and the words "No appeal" is
substituted by the words "No appeal to the High Court"
with effect from 26/3/2006. In view of this
substitution, if the appeal is to be preferred to the
High Court as provided under sub-section (1) or sub-
section (2) of section 378 of the Cr.P.C., the same
shall not be entertained except with the leave of the
High Court. In the instant case, the appeal is not
required to be filed before the High Court and,
therefore, the provisions of sub-section (3) of section
378 of the Cr.P.C. does not apply.
18 Cri. Appln. 4718/2015
15. Thus, the Supreme Court has concluded the
issue in Satya Pal Singh's case (cited supra) in
different context. The Hon'ble Supreme Court has
concluded that the legal heirs of the victim has
statutory right to prefer an appeal to the High Court
against the order of acquittal under proviso to section
372 of the Cr.P.C. but only after obtaining leave of
the High Court, as required under sub-section (3) of
section 378 of the Cr.P.C. It is thus clear that in
case if the appeal is to be preferred by taking
recourse to the provisions of section 378(1)(a) of the
Cr.P.C., the question of obtaining leave of the High
Court, as required under sub-section (3) of section 378
of the Cr.P.C. does not arise.
16. Division Bench of the Bombay High Court in
the case of Balasaheb Khade Vs. State of Maharashtra
(cited supra at paragraph no.5(iv)), has taken a
different view, however, in the light of the
observations made by the Supreme Court in Satya Pal
Singh's case (cited supra), the issue is now finally
dealt with and the Supreme Court has held, as
aforesaid.
19 Cri. Appln. 4718/2015
17. In view of the above discussion, the learned
Additional Sessions Judge has rightly entertained the
appeal. There is no question of filing the application
for obtaining leave of the High Court in such type of
cases and, thereafter, to prefer an appeal before the
Sessions Court. The submissios made on behalf of the
applicants are thus devoid of any merit.
18. On perusal of the judgment and order passed
by the learned Additional Sessions Judge, I find that
the learned Additional Sessions Judge has rightly
directed the Magistrate retrial of the
applicants/accused in the said case. The learned
Additional Sessions Judge has observed that the
respondent no.2/original complainant was not at fault.
The respondent no.2/original complainant has lodged
complaint in the Police Station against the applicants
for having committed the offences punishable under
section 325, 324, 323, 504, 506 r/w. 34 of the Indian
Penal Code. The prosecution has not examined any
witness except one witness before the Magistrate. Even
though the service report of the witness summons was
never produced before the Court, the Magistrate has
closed the prosecution evidence and acquitted the
20 Cri. Appln. 4718/2015
applicants/accused for want of evidence. I do not find
any fault in the judgment and order passed by the
learned Additional Sessions Judge, directing retrial of
the case. In view of above, there is no substance in
the Criminal Application No.4718 of 2015. Criminal
Application No.4718 of 2015 is thus liable to be
dismissed. Hence, the following order :-
ORDER
I)
Criminal Application No. 4718 of 2015 is
hereby dismissed.
19. In view of dismissal of Criminal Application
no. 4718 of 2015, Criminal Application No. 5528 of
2016, filed in the above Criminal Application, seeking
restoration of the interim relief granted earlier, does
not require any consideration and the same stands
disposed of.
[V.K. JADHAV]
JUDGE
arp/
