Gujarat High Court
Krunalbhai Prakashbhai Patel vs State Of Gujarat on 8 April, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
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R/CR.MA/5235/2025 ORDER DATED: 08/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 5235 of
2025
In
R/CRIMINAL APPEAL NO. 991 of 2025
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KRUNALBHAI PRAKASHBHAI PATEL
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR NK MAJMUDAR(430) for the Applicant(s) No. 1
MR HARSHADRAY A DAVE(3461) for the Respondent(s) No. 2,3,7
MR. CR BUDDHADEV(6707) for the Respondent(s) No. 4,5
MR. RAAJEN D JADHAV(10026) for the Respondent(s) No. 6,8
MR LB DABHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 08/04/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. This application is filed under section 419 (4) of the
Bharatiya Nagrik Suraksha Sanhita, 2023 praying for grant of leave
to prefer appeal against the judgment and order dated 27.09.2024
passed by the Sessions Court, Surat in Sessions Case No.154 of
2012 and Sessions Case No.155 of 2012.
2. By the impugned judgment and order, Sessions Court
had recorded acquittal of the respondents accused for offences
punishable under Sections 143, 147, 148, 149, 302 and 120B of the
Indian Penal Code.
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3. The applicant is the original complainant and first
informant of the FIR being I-CR No.226 of 2010, registered with
Athwalines Police Station Surat on 20.12.2010. The applicant is
also the nephew of the deceased.
4. At the outside, the learned Advocate for the applicant
was called upon to argue on the maintainability of an application
under section 419 (4) of BNSS.
4.1 Learned Advocate has submitted that leave to appeal is
maintainable as the applicant being the nephew of the deceased
does not fall within the definition of a victim as contemplated under
Section 2(wa) of the Criminal Procedure Code (Section 2 (y) of
BNSS) and therefore, the appeal could not be filed as provided for
under Section 372 of CrPC or Section 413 of the BNSS.
4.2 Learned Advocate has argued that as the applicant
cannot prefer an appeal as a victim under section 413 of BNSS, the
only option available to the applicant is to prefer and seek leave to
file an appeal against the impugned judgment and order. In this
connection, learned, Advocate has relied upon the decision of this
Court, in case of Vijaysinh Pramubha Rathod Vs. State of
Gujarat, in Criminal Misc.Application No.10452 of 2013 in
Criminal Appeal No.910 of 2013 dated 01.10.2013 and
submitted that as as long as legal heir of class one is available,
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such legal, heir can prefer an appeal and wherever class one heir is
not available then class two heir can prefer an appeal and therefore
lie to appeal is filed.
5. As against this, learned Advocate for the respondent
accused, who has appeared in response to the notice issued by this
court under order dated 17.03.2025, submitted that not only the
applicant would fall in the definition of a victim as he is related to
the deceased but also he himself is the first informant and
therefore also, ought to have preferred an appeal under Section
413 and an appeal under section 419(4) would not be maintainable
at the hands of the applicant.
6. Having heard, learned advocate for the parties and
having perused documents annexed along with the application,
particularly judgement impugned, the question that arises is
whether the application filed by the present applicant seeking leave
to appeal against the common impugned judgment and order can
be maintained under section 419(4) of BNSS?
7. Section 419(4) provides for an appeal against the order
of acquittal which 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
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the High Court.
8. Admittedly, the present Session Case has been
instituted on the basis of the FIR registered as I-CR No.226 of 2010
with Athwalines Police Station and the applicant himself is the
informant as well as one of the witnesses in the trial. Over And
above, the applicant is also related to the deceased as he is the
nephew of the deceased. In the opinion of the Court, the applicant
would therefore, fall within the definition of a "victim" as section
2Y of the BNSS defines "victim" to be a person who has suffered
any loss or injury caused by reason of the act or mission of the
accused person. In the instant case, where the applicant is the
nephew of the deceased and has also been the first informant,
would clearly be a person who has suffered a loss and injury on
account of the act of the accused person.
9. In the Criminal Procedure Code, for the first time by
the Amendment Act, the expression "victim" was introduced under
the Amendment Act 2008, which conferred rights on the guardians
and legal heirs of the victims. This was done to give a broad right
to the victim to prefer the appeal. It may be observed that there
was a corresponding amendment in Section 372 of the Criminal
Procedure Code and also under the very Amendment Act of 2008, a
specific proviso was introduced, giving right to the victim to prefer
appeal. Both the amendments had come into effect from
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31.12.2009. Obviously, the effort of the legislature is to give a
broad-base to the expression "victim".
10. In the opinion of the Court and in the spirit of the
amendment made by the legislature in the Criminal Procedure
Code, which has been continued in the BNSS, the applicant who is
the nephew of the deceased, also the first informant and a witness
in the trial, would fall in the definition of "victim" and therefore,
has a right under Section 372 the Criminal Procedure Code and
Section 413 of the Bharatiya Nagrik Suraksha Sanhita, 2023 to
maintain an appeal without seeking any leave to appeal.
11. According to the Court, the present application under
the title of Section 419(4) is also not maintainable as this is not the
proceedings which are initiated on the basis of a private complaint.
Hence, also the present application, as it stands, cannot be held to
be entertainable.
12. The judgment relied upon by the applicant in case of
Vijaysinh Pramuba Rathod (supra) was rendered in the facts of the
case where the appeal was preferred under Section 372 the
Criminal Procedure Code, where the legal heir was falling in class
two category of as per the Hindu Succession Act and factually, a
legal heir of class one was available and on that factual matrix, the
Court came to the conclusion that and appeal under section 372
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cannot be maintained by a legal legal heir of class two. Such a
question decided by this court in the above judgement was on a
completely different factual background, unlike the present case
where the applicant is not only a nephew, but is also the first
informant.
13. The Court is therefore of the view that the present
application under section 419(4) of the Bharatiya Nagrik Suraksha
Sanhita, 2023 challenging the impugned judgment and order of the
Cessions Court acquitting the respondents of the charges under
section 143, 147, 148, 149, 302 and 120B of the Indian Penal Code
cannot be maintained.
14. Having said so and considering the facts of the case,
the Court is of the view that on merits, a case is made out for
entertaining the appeal and therefore, would pass a separate order
of admission on the appeal preferred by the applicant permitting
the applicant to amend the cause title by mentioning the correct
provision of law under the Bharatiya Nagrik Suraksha Sanhita,
2023 for the purpose of maintaining of an appeal by the victim.
15. The Court may also observe that against the very
judgment and order, the State has already preferred an appeal
being Criminal Appeal No.234 of 2025, which by order dated
30.01.2025 stands admitted.
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16. The present application stands disposed of accordingly.
17. The present appeal be heard along with the Criminal
Appeal No.Criminal Appeal No.234 of 2025 filed by the State.
(A.Y. KOGJE, J)
(SAMIR J. DAVE,J)
SHITOLE
