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Bombay High Court
Aziz S/O Hasambhai Barde vs State Of Mah. Thr. Pso Ps Ladkhed Tq. And ... on 5 December, 2025
2025:BHC-NAG:13573
Order 05-12-2025-IPC
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION [APPA] 966/2023 IN CRIMINAL APPEAL [ST] NO. 6307/2023
(Aziz S/o Hasambhai Barde VS State of Maharashtra and Others) ,
____________________________________________________________________________________________
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
Mr. A.R. Ingole, Advocate for the Petitioner.
Mr. Bhagwan M. Lonare, A.P.P. for the Respondent No.1/State.
Mr. S.R. Jaiswal, Advocate for the Respondent Nos.2 and 3.
Order.
CORAM : M.M. NERLIKAR, J.
DATE : DECEMBER 05, 2025.
The principal challenge in this matter pertains to acquittal
in case under the provisions of Indian Penal Code, 1860. This
Appeal is filed under Section 378 of the Code of Criminal Procedure,
1973.
2. Now so far as the issue in respect of preferring Appeal
under Section 372 of the Code by the complainant/victim is
concerned, the same was considered by the Hon'ble Supreme Court
in case of M/s. Celestium Financial .Vrs. A. Gnanasekaran Etc (2025
SCC Online SC 1320), wherein the Supreme Court has held as
under:
"6.4 On a reading of the definition of 'victim', it is
clear that the said expression is initially exhaustive and
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thereafter inclusive. The expression 'victim' means a person
who has suffered any loss or injury. The loss or injury could
be either physical, mental, a financial loss or injury. The
expression injury could also be construed as a legal injury in
a wider sense and not just a physical or a mental injury. The
loss or injury must be caused by reason of an act or
omission for which the accused person has been charged.
Thus, it can be both by a positive act or negatively by an
omission which is at the instance of the accused and for
which such accused has been charged. Further, the
expression 'victim' also includes his/her guardian or legal
heir in the case of demise of the victim.
6.5 Thus, the expression 'victim' has been couched
in a broad manner so as to include a person who has
suffered any loss or injury. The expressions 'loss' or 'injury'
themselves are of a very broad import which expressions
also enlarge the scope of the expression 'victim'. Further,
the expression 'victim' includes not only the person who has
suffered any loss or injury caused by reason of any act or
omission for which the accused person has been charged
but also includes his or her guardian or legal heir which
means that the definition of victim is inclusive in nature.
6.6 Having regard to the insertion of the proviso to
Section 372 of the CrPC, we find that in the case of a victim
who seeks to file an appeal, he or she could proceed under
the proviso to Section 372 of the CrPC in the circumstances
mentioned therein and need not prefer an appeal by
invoking Section 378(4) of the CrPC which is in respect of
appeals to be filed by a complainant. It may be that the
complainant is a victim in certain cases and therefore, the
victim has the right to file an appeal under the proviso to
Section 372 of the CrPC and need not proceed under
Section 378(4) of the CrPC. However, if the complainant is
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not a victim and intends to file an appeal, in such a case a
complainant would have to proceed under Section 378 of
the CrPC which circumscribes the right to file an appeal by
virtue of the conditions which are stipulated under the said
Section.
7.9 In this context, we wish to state that the proviso
to Section 372 does not make a distinction between an
accused who is charged of an offence under the penal law or
a person who is deemed to have committed an offence
under Section 138 of the Act. Symmetrical to a victim of an
offence, a victim of a deemed offence under Section 138 of
the Act also has the right to prefer an appeal against any
order passed by the court acquitting the accused or
convicting for a lesser offence or imposing an inadequate
compensation. When viewed from the perspective of an
offence under any penal law or a deemed offence under
Section 138 of the Act, the right to file an appeal is not
circumscribed by any condition as such, so long as the
appeal can be premised in accordance with proviso to
Section 372 which is the right to file an appeal by a victim,
provided the circumstances which enable such a victim to
file an appeal are met. The complainant under Section 138
is the victim who must also have the right to prefer an
appeal under the said provision. Merely because the
proceeding under Section 138 of the Act commences with
the filing of a complaint under Section 200 of the CrPC by
a complainant, he does not cease to be a victim inasmuch as
it is only a victim of a dishonour of cheque who can file a
complaint. Thus, under Section 138 of the Act both the
complainant as well as the victim are one and the same
person.
8. The right to prefer an appeal is no doubt a
statutory right and the right to prefer an appeal by an
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accused against a conviction is not merely a statutory right
but can also be construed to be a fundamental right under
Articles 14 and 21 of the Constitution. If that is so, then the
right of a victim of an offence to prefer an appeal cannot be
equated with the right of the State or the complainant to
prefer an appeal. Hence, the statutory rigours for filing of
an appeal by the State or by a complainant against an order
of acquittal cannot be read into the proviso to Section 372
of the CrPC so as to restrict the right of a victim to file an
appeal on the grounds mentioned therein, when none
exists.
9. In the circumstances, we find that Section 138
of the Act being in the nature of a penal provision by a
deeming fiction against an accused who is said to have
committed an offence under the said provision, if acquitted,
can be proceeded against by a victim of the said offence,
namely, the person who is entitled to the proceeds of a
cheque which has been dishonoured, in terms of the proviso
to Section 372 of the CrPC, as a victim. As already noted, a
victim of an offence could also be a complainant. In such a
case, an appeal can be preferred either under the proviso to
Section 372 or under Section 378 by such a victim. In the
absence of the proviso to Section 372, a victim of an offence
could not have filed an appeal as such, unless he was also a
complainant, in which event he could maintain an appeal if
special leave to appeal had been granted by the High Court
and if no such special leave was granted then his appeal
would not be maintainable at all. On the other hand, if the
victim of an offence, who may or may not be the
complainant, proceeds under the proviso to Section 372 of
the CrPC, then in our view, such a victim need not seek
special leave to appeal from the High Court. In other words,
the victim of an offence would have the right to prefer an
appeal, inter alia, against an order of acquittal in terms of
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the proviso to Section 372 without seeking any special leave
to appeal from the High Court only on the grounds
mentioned therein. A person who is a complainant under
Section 200 of the CrPC who complains about the offence
committed by a person who is charged as an accused under
Section 138 of the Act, thus has the right to prefer an
appeal as a victim under the proviso to Section 372 of the
CrPC.
10. As already noted, the proviso to Section 372 of
the CrPC was inserted in the statute book only with effect
from 31.12.2009. The object and reason for such insertion
must be realised and must be given its full effect to by a
court. In view of the aforesaid discussion, we hold that the
victim of an offence has the right to prefer an appeal under
the proviso to Section 372 of the CrPC, irrespective of
whether he is a complainant or not. Even if the victim of an
offence is a complainant, he can still proceed under the
proviso to Section 372 and need not advert to sub-section
(4) of Section 378 of the CrPC. "
Further, in the latest judgment of the Supreme Court in
the case of Khem Singh (D) Through Lrs. Vrs. State of Uttaranchal
(Now State of Uttarakhand) & Another Etc., 2025 SCC OnLine SC
1778, the Supreme Court has held as under :
"7.4 On a reading of the definition of 'victim', it is
clear that the said expression is initially exhaustive and
thereafter inclusive. The expression 'victim' means a person
who has suffered any loss or injury. The loss or injury could
be either physical, mental, a financial loss or injury. The
expression 'injury' could also be construed as a legal injury
in a wider sense and not just a physical or a mental injury.
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The loss or injury must be caused by reason of an act or
omission for which the accused person has been charged.
Thus, it can be both by a positive act or negatively by an
omission which is at the instance of the accused and for
which such accused has been charged. Further, the
expression 'victim' also includes his/her guardian or legal
heir in the case of demise of the victim.
7.5 Thus, the expression 'victim' has been couched
in a broad manner so as to include a person who has
suffered any loss or injury. The expressions 'loss' or 'injury'
themselves are of a very broad import which expressions
also enlarge the scope of the expression 'victim'. Further,
the expression 'victim' includes not only the person who has
suffered any loss or injury caused by reason of any act or
omission for which the accused person has been charged
but also includes his or her guardian or legal heir which
means that the definition of victim is inclusive in nature.
7.6 Having regard to the insertion of the proviso to
Section 372 CrPC, we find that in the case of a victim who
seeks to file an appeal, he or she could proceed under the
proviso to Section 372 CrPC in the circumstances
mentioned therein and need not prefer an appeal by
invoking Section 378(4) CrPC which is in respect of
appeals to be filed by a complainant. It may be that the
complainant is a victim in certain cases and therefore, the
victim has the right to file an appeal under the proviso to
Section 372 CrPC and need not proceed under Section
378(4) CrPC. However, if the complainant is not a victim
and intends to file an appeal, in such a case a complainant
would have to proceed under Section 378 CrPC which
circumscribes the right to file an appeal by virtue of the
conditions which are stipulated under the said Section."
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Further in the case of Asian Paints Limited Vrs. Ram Babu
& Another, 2025 SCC OnLine SC 1427, the Supreme Court while
interpreting Sections 372 and 378 of Cr.P.C. has observed as under:-
"43. We are constrained to observe that the finding
of the High Court that the Appellant could not have
maintained the appeal before it would amount to
completely negating the proviso to Section 372 of the
CrPC. In our considered opinion, Section 372 of the CrPC
is a self-contained and independent Section; in other words,
it is a stand-alone Section. Section 372 of the CrPC is not
regulated by other provisions of Chapter XXIX of the
CrPC. The proviso to Section 372 of the CrPC operates
independently of and shall not be read conjointly with any
other provision in the CrPC, much less Section 378 of the
CrPC.
47. From the aforesaid elucidation, it is clear that
the right to appeal accrues on the 'victim' from the instance
of a Court acquitting the accused. The proviso to Section
372 of the CrPC is agnostic to the factum of such acquittal
being by the Trial Court or the First Appellate Court. We
can see the situation through another lens also. In the facts
at hand, acquittal was by the First Appellate Court and not
by the Trial Court. Therefore, since, in the present case, for
the first time, the acquittal comes in at the stage of the First
Appellate Court (being a Sessions Court), in law, the right
of appeal by the victim would be to the next higher level in
the judicial hierarchy, which would be the High Court.
However, for that purpose, the High Court could also have
been the First Appellate Court, if the Trial Court, being a
Court of Sessions, had acquitted the accused. Thus, the
reasoning of the High Court that if the Appellant was
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allowed to maintain the appeal, it would amount to an
appeal as envisaged under Section 378 of the CrPC, is
factually and legally erroneous, which proposition we
negate."
However it would also be useful to refer to the judgment
delivered by Punjab and Haryana High Court at Chandigarh in the
case of Satish Kumar Vrs. Jugal Kishor (CRM-A-2700-MA-2018),
decided on 02/07/2025, wherein it is observed thus:-
"21. A perusal of Section 2(wa) of the Cr.P.C. would
indicate that no distinction has been drawn between victims of
a crime in a State case and a private complaint case. Therefore,
the right to appeal vested in the victim under Section 372 of
the Cr.P.C. is available to all victims alike as it too does not
discriminate between the victim of a crime in a privately
instituted complaint and the victim in a case emanating from
an FIR registered by the jurisdictional police. Since Section
138 of the NI Act has been given a penal nature by the
Legislature, the victim of such misdemeanor would be entitled
to the same right, in spite of the fact that a private complaint is
filed in this regard. Thus, the right of the victim under Section
372 Cr.P.C. cannot be limited to cases where criminal law
machinery was set into motion by registration of an FIR only.
22. In a case instituted on a police report under Section
173 of the Cr.P.C, the victim has a right to challenge the
acquittal of the accused before the Court of Sessions. On the
other hand, the victims are compelled to travel long distances
to the High Court and seek leave of the Court under Section
378(4) Cr.P.C. to pursue an appeal against acquittal in a
private complaint case. It stands against reason to put the
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victim to such disadvantage. The inadvertent gap left by the
legislature has caused hardship and inconvenience to the
victim and creates an anomaly. Further, another incongruent
situation arises when some of the accused are acquitted while
some stand convicted in a privately instituted complaint case.
The appeal against conviction, per Section 374 of the Cr.P.C..
lies before the Court of Sessions while the victim would have
to travel to the High Court to pursue an appeal against
acquittal under Section 378(4) Cr.P.C. The situation would
also lead to conflicting views as the same case is dealt with by
two different appellate forums.
23. In Celestium Financial (supra), the Hon'ble
Supreme Court has held that the right of the victim to prefer
an appeal against acquittal is at par with the right of the
accused to prefer one against his conviction under Section 374
Cr.P.C. In fact, the same has been construed as a fundamental
right within the scope of Article 14 and 21 of the Constitution
of India. Moreover, taking this approach would assist in the
cases being decided expeditiously which is imperative to
further the cause of justice. Further still, swift resolution not
only bolsters public confidence in the justice administration
mechanism but also reduces burden on Courts."
3. Considering the above position of law as laid down by the
Supreme Court in the cases referred supra, the learned Counsel
appearing on behalf of parties submit that Section 372 of Cr.P.C.
cannot be limited to the private cases filed by the victim, but is also
available to those victims wherein Police case was instituted / FIR was
registered, irrelevant of the fact that the FIR was registered at the
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behest of victim or not, therefore, under proviso to Section 372 of the
Code of Criminal Procedure, since the victim has a right to prefer an
appeal against the order passed by the Court acquitting the accused or
convicting the accused for lesser offence or imposing inadequate
compensation, such appeal shall lie to the Court to which the appeal
ordinarily lies against the order of conviction. In view of said proviso,
the learned Counsel prays that the matter be transferred to the
concerned District and Sessions Court for its disposal in accordance
with law.
4. In this view of the matter and considering the observations
of the Supreme Court referred above, the appeal is required to be
transferred for its disposal to the concerned District and Sessions
Court. Hence, the following order:-
ORDER
(1) The Appeal is transferred to the concerned District and
Sessions Court, who shall after registering the matter, deal
with the matter in accordance with law;
(2) Parties shall appear before the concerned District and
Sessions Court, on 13/01/2026;
(3) If the non-applicant/respondent in this matter is not
served or they are to be served, in that case the concerned
District and Sessions Court shall issue notice to them and
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thereafter proceed further with the matter;
(4) The concerned District and Sessions Court is also
directed to take into consideration the matter wherein
this Court has appointed Advocate from Legal Aid Panel,
and if the said Advocate from the Legal Aid Panel is
unable to attend or appear before the Court where the
matter is transferred, in that eventuality, the District
Court shall take necessary steps for appointing another
Advocate from the Legal Aid panel for defending the
non-applicant/ respondent;
(5) In case either of the parties remains absent after transfer
of the matter to the District and Sessions Court, the
concerned Court / Judge shall issue notice to the
concerned party before proceeding with the matter;
(6) The concerned District and Sessions Court shall treat this
matter as appeal under proviso to Section 372 of the
Code as per the observations of the Supreme Court in
case of M/s. Celestium Financial .Vrs. A. Gnanasekaran
Etc (2025 SCC Online SC 1320), Khem Singh (D)
Through Lrs. Vrs. State of Uttaranchal (Now State of
Uttarakhand) & Another Etc., 2025 SCC OnLine SC
1778, Asian Paints Limited Vrs. Ram Babu & Another,
2025 SCC OnLine SC 1427, and Satish Kumar Vrs.
Jugal Kishor (CRM-A-2700-MA-2018);
(7) Considering the fact that the appeal is preferred long
back, therefore, in the interest of justice, it is desirable
that the District and Sessions Court shall make an
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endeavor to dispose of those cases as expeditiously as
possible;
(8) Registrar (Judicial) of this Court to take further necessary
action for transferring the matter to the concerned
District and Sessions Court immediately.
JUDGE
PIYUSH MAHAJAN
