Jharkhand High Court
Madhuri Devi vs The State Of Jharkhand on 25 February, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 3042 of 2018
Madhuri Devi ..... ... Petitioner
Versus
1. The State of Jharkhand.
2. Urmila Devi
3. Archana Devi
4. Om Prakash Verma
5. Praveen Verma .... ... Opp. Parties
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CORAM : HON'BLE MR. JUSTICE H. C. MISHRA
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Petitioner : Mr. Yogesh Modi, Advocate
For the State : A.P.P.
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The matter was taken up through Video Conferencing. Learned counsels for
the parties had no objection with it and submitted that the audio and video
qualities are good.
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5/ 25.02.2021 Heard leaned counsel for the petitioner and learned counsel for
the State.
2. The office has retorted that this criminal miscellaneous petition
is not maintainable in view of the decision of the Full Bench in the case of
Tuklal Yadav Vs. State of Jharkhand, reported in 2018 (4) JLJR 245 (Jhr.).
3. The petitioner, who is the complainant and the victim, is
aggrieved by the Judgment of Acquittal dated 2.8.2018, passed by the learned
Judicial Magistrate, 1st Class, Dhanbad, in Tr. No. 674 of 2018, arising out of
Complaint Case No. 439 of 2006, whereby, the in-laws of the petitioner, who
were facing the trial for the alleged offences under Section 498-A of the
Indian Penal Code and Section 3 of the Dowry Prohibition Act, have been
acquitted by the Trial Court.
4. By a separate Judgment of the same date, the husband of the
complainant was also acquitted for the offence under Section 3 of the Dowry
Prohibition Act, though convicted for the offence under Section 498-A of the
Indian Penal Code. The petitioner, being aggrieved by the acquittal and lesser
punishment of her husband, filed Criminal Appeal (SJ) No. 1294 of 2018.
The said criminal appeal was disposed of by order dated 2.5.2019 passed by
the Hon'ble Single Judge, placing reliance upon the decision of the Hon'ble
Supreme Court of India in Mallikarjun Kondagali Vs. State of Karnataka,
reported in (2019) 2 SCC 752, finding that the appeal would lie before the
lower appellate Court and not in the High Court.
5. This criminal miscellaneous petition, has been filed seeking
special leave to appeal against the Judgment of acquittal of in-laws of the
petitioner.
6. The position has been made clear by the Hon'ble Apex Court in
Mallikarjun Kondgali's case (supra), as follows:-
"34. On the third question, the Full Bench noted that if the victim
restricts the appeal to the grievance to inadequacy of the
compensation or punishment for a lesser offence, it does not become
an appeal against acquittal but the appeal is really directed against
"any other sentence or order not being an order of acquittal" within
the meaning of Article 115(b) of the Limitation Act, 1963 and thus, no
question of taking special leave arises. The Full Bench took the view
that for the purposes of Section 378(4) CrPC a victim who is not a
complainant will not come within the purview of that section and
would not be required to take recourse to the provision of special
leave as provided therein. It was held: (Bhavuben Dineshbhai
case[Bhavuben Dineshbhai Makwana v. State of Gujarat, 2012 SCC
OnLine Guj 5764 : 2013 Cri LJ 4225] , SCC OnLine Guj para 33)
"33.. Therefore, in the case before us, the legislature while
conferring the right of appeal upon the victim, who is not a
complainant, not having imposed any condition of taking leave
or special leave, we cannot infer such condition and impose the
same upon the victim, although, the legislature was quite
conscious of existence of such provision in case of an appeal by a
complainant and has retained that provision without
consequential amendment thereby making its intention clear that
the provision of special leave is not applicable to an appeal
preferred by a victim against acquittal if he is not the
complainant." The third question was then answered in the
following words: (SCC OnLine Guj para 36).
"36. ... If the victim also happens to be the complainant and the
appeal is against acquittal, he is required to take leave as
provided in Section 378 of the Criminal Procedure Code but if he
is not the complainant, he is not required to apply for or obtain
any leave. For the appeal against inadequacy of compensation or
punishment on a lesser offence, no leave is necessary at the
instance of a victim, whether he is the complainant or not."
35. In our opinion, the Gujarat High Court made an artificial
and unnecessary distinction between a victim as a victim and a
victim as a complainant in respect of filing an appeal against an
order of acquittal. The proviso to Section 372 CrPC does not
introduce or incorporate any such distinction.
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76. As far as the question of the grant of special leave
is concerned, once again, we need not be overwhelmed by
submissions made at the Bar. The language of the proviso to
Section 372 CrPC is quite clear, particularly when it is
contrasted with the language of Section 378(4) CrPC. The text of
this provision is quite clear and it is confined to an order of
acquittal passed in a case instituted upon a complaint. The word
"complaint" has been defined in Section 2(d) CrPC and refers to
any allegation made orally or in writing to a Magistrate. This
has nothing to do with the lodging or the registration of an FIR,
and therefore it is not at all necessary to consider the effect of a
victim being the complainant as far as the proviso to Section 372
CrPC is concerned." (Emphasis supplied).
7. In view of the law laid down by the Hon'ble Apex Court, the
present appeal shall also lie to the Court, where the appeal lies against the
order of conviction, i.e., in the present case, the Court of Session.
8. In that view of the matter, this criminal miscellaneous petition is
not maintainable and is dismissed as such.
9. However, the petitioner is given the liberty to file the appeal
before the appropriate Court in view of the law laid down by the Hon'ble
Apex Court in Mallikarjun Kodagali's case (supra).
(H. C. Mishra, J.)
(Rajesh Kumar, J.)
R.Kr.
