Deputy Engineer vs Luhar Salim Ahmed Abdul Gakur
2023 Latest Caselaw 5489 Guj

                                                                                    NEUTRAL CITATION




     R/CR.MA/5667/2023                                ORDER DATED: 01/08/2023

                                                                                    undefined




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 5667 of 2023

                    In R/CRIMINAL APPEAL NO. 791 of 2023

                                       With
                         R/CRIMINAL APPEAL NO. 791 of 2023
==========================================================
                                DEPUTY ENGINEER
                                      Versus
                         LUHAR SALIM AHMED ABDUL GAKUR
==========================================================
Appearance:
MR SP HASURKAR(345) for the Applicant(s) No. 1
MR RC KODEKAR ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 2
RULE SERVED for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                                  Date : 01/08/2023

                                   ORAL ORDER

1. The applicant - original complainant was called upon to address on the aspect of maintainability of the leave to appeal under Section 378(4) of the Code of Criminal Procedure (hereinafter referred to as "Code"), seeking leave to appeal against the impugned judgment and order arising out of the offence punishable under Section 135(1)(b) of the Indian Electricity Act, 2003.

2. Learned advocate Mr. S.P. Hasurkar for the applicant - original complainant has invited attention of this Court to Section 156 of the Indian Electricity Act, which reads as under:

Section 156

"The High Court may exercise, so far as may be applicable, all the powers conferred by Chapters XXIX and XXX of the

NEUTRAL CITATION

R/CR.MA/5667/2023 ORDER DATED: 01/08/2023

undefined

Code of Criminal Procedure, 1973, as if the Special Court within the local limits of the jurisdiction of the High Court is a District Court, or as the case may be , the Court of Session , trying cases within the local limits of jurisdiction of the High Court."

3. He has further submitted that Section 372 of the Code confers right of appeal to the victim against any order passed by any Court acquitting the accused. At this stage, Mr. Hasurkar, learned advocate has invited attention of this Court to the term "victim" as defined under Section 2(w)(1) of the Code, which reads as under:

Section 2(w)(1)

"victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir."

4. Reference was also made to the term "person" as defined under Section 2(49) of the Indian Electricity Act, which reads as under:

Section 2(49).

"(49) "person" shall include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person."

5. He, therefore, submitted that present appeal may be treated under Section 156 of the Indian Electricity Act read with Section

NEUTRAL CITATION

R/CR.MA/5667/2023 ORDER DATED: 01/08/2023

undefined

372 of the Code and urged this Court to pass an appropriate order. He has relied upon the recent decision of the Hon'ble Supreme Court in the case of Joseph Stephen Vs. Santhansamy reported in AIR 2022 SCC 70 and has submitted that the victim may not apply for special leave to appeal under Section 378(4) of the Code, where statutory right of appeal is conferred under the proviso to Section 372 of the Code.

6. Having heard the learned advocate for the applicant and having perused the impugned order as well as provisions referred to and relied upon by the learned advocate for the applicant, this Court is convinced that the appeal against the impugned judgment and order would lie under Section 156 of the Indian Electricity Act. The proviso to Section 372 of the Code confers unqualified right to prefer an appeal upon the victim against the impugned order of acquittal. The plain reading of the proviso to the aforesaid section goes to indicate that no special leave to appeal is required as provided under Section 378(4) of the Code.

7. Considering the judgment of the Hon'ble Supreme Court in the case of Joseph Stephen (Supra), this Court is of the view that no special leave to appeal is required. Hence, present application for leave to appeal stands disposed of as not maintainable. Rule is discharged.

CRIMINAL APPEAL No. 791 of 2003:

Leave to amend the cause title is granted. Amendment to be carried out forthwith.

NEUTRAL CITATION

R/CR.MA/5667/2023 ORDER DATED: 01/08/2023

undefined

ADMIT. Learned APP waives service of Notice of admission on behalf of the respondent No.2 - State.

Issue bailable warrant of in the sum of Rs. 10,000/- against private respondent No.2.

R & P be called for.

(NISHA M. THAKORE,J) Y.N. VYAS