Jharkhand High Court
Ram Jee Prasad vs The State Of Jharkhand on 16 August, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Acquittal Appeal No.144 of 2019
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Ram Jee Prasad .... .... Appellant
Versus
1. The State of Jharkhand
2. Deepak Kumar .... .... Respondents
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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mr. Ajit Prasad, Adv.
Mr. Indrajit Sinha, Adv.
For the State : Ms. Nehala Sharmin, A.P.P.
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th
05/Dated: 16 August, 2022
1. Heard learned counsel for the appellant and learned counsel for the
State.
2. The present acquittal appeal has been filed for setting aside the
judgment of acquittal dated 04.10.2019 passed by the learned Additional
Judicial Commissioner-XIV-cum-Special Judge SC/ST, Ranchi passed in
Criminal Appeal No.303 of 2018, whereby and whereunder the judgment of
conviction and the order of sentence dated 14.09.2018 passed by the learned
J.M.F.C., Ranchi, in G.R. Case No.4415 of 2012, has been set aside.
3. The office has raised objection that the present acquittal appeal is not
maintainable as because it has been filed against the appellate order of
acquittal.
4. The law on the point is now no more Res-Integra. Section 372 of the
Cr.P.C. is clear which is quoted hereinbelow:-
"372. No appeal to lie, unless otherwise provided. No appeal shall lie
from any judgment or order of a Criminal Court except as provided for
by this Code or 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.]
5. Thus, a right has been created in the favour of a victim and this right
is substantive. So far as, right to prefer an appeal is concerned, no leave is
required. This appellate right has been given against____
(i) The order of acquittal.
(ii) Convicting for lesser offence.
(iii) Imposing inadequate compensation.
Wording suggests that this right is available against the order of
acquittal i.e. by the trial court as well as against the appellate court.
6. The last line of the proviso suggests that an appeal shall lie to the
court to which an appeal ordinarily lies against the order of conviction of
such court. Thus, it has been made clear that so far as procedural law is
concerned, the procedural law available to the accused/convict has been
made available to the victim also. Forum and procedure will be the same
which is available to the accused/victim.
7. Above legal position has been expressed in majority view by the
Hon'ble Apex Court in the judgment of Mallikarjun Kodagali (Dead)
Represented through Legal Representatives Versus State of Karnatka and
Others reported in (2019) 2 Supreme Court Cases 752. Some paragraphs of
the said judgment are extracted hereinbelow:-
"Para-9:- With this background, we need to consider the questions that
arise before us consequent to the introduction of the proviso to Section
372 CrPC with effect from 31-12-2009. The questions are somewhat
limited: Whether a "victim" as defined in CrPC has a right of appeal in
view of the proviso to Section 372 CrPC against an order of acquittal in a
case where the alleged offence took place prior to 31-12-2009 but the
order of acquittal was passed by the trial court after 31-12-2009? Our
answer to this question is in the affirmative. The next question is:
Whether the "victim" must apply for leave to appeal against the order of
acquittal? Our answer to this question is in the negative.
Para-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.
Para-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."
8. The above position has been again reiterated by the Hon'ble Apex
Court in the judgment of Joseph Stephen and others Versus Santhanasamy
and others reported in (2022) SCC OnLine SC 90. The Paragraphs Nos.22,
23 and 25 are extracted hereinbelow:-
"22. It cannot be disputed that now after the amendment in Section 372
Cr.P.C. after 2009 and insertion of proviso to Section 372 Cr.P.C., a
victim has a statutory right of appeal against the order of acquittal.
Therefore, no revision shall be entertained at the instance of the victim
against the order of acquittal in a case where no appeal is preferred and
the victim is to be relegated to file an appeal. Even the same would be in
the interest of the victim himself/herself as while exercising the
revisional jurisdiction, the scope would be very limited, however, while
exercising the appellate jurisdiction, the appellate Court would have a
wider jurisdiction than the revisional jurisdiction. Similarly, in a case
where an order of acquittal is passed in any case instituted upon
complaint, the complainant (other than victim) can prefer an appeal
against the order of acquittal as provided under sub-section (4) of Section
378 Cr.P.C., subject to the grant of special leave to appeal by the High
Court.
23. As observed by this Court in the case of Mallikarjun Kodagali
(supra), so far as the victim is concerned, the victim has not to pray for
grant of special leave to appeal, as the victim has a statutory right of
appeal under Section 372 proviso and the proviso to Section 372 does not
stipulate any condition of obtaining special leave to appeal like
subsection (4) of Section 378 Cr.P.C. in the case of a complainant and in
a case where an order of acquittal is passed in any case instituted upon
complaint. The right provided to the victim to prefer an appeal against
the order of acquittal is an absolute right. Therefore, so far as issue no. 2
is concerned, namely, in a case where the victim and/or the complainant,
as the case may be, has not preferred and/or availed the remedy of appeal
against the order of acquittal as provided under Section 372 Cr.P.C. or
Section 378(4), as the case may be, the revision application against the
order of acquittal at the instance of the victim or the complainant, as the
case may be, shall not be entertained and the victim or the complainant,
as the case may be, shall be relegated to prefer the appeal as provided
under Section 372 or Section 378(4), as the case may be. Issue no. 2 is
therefore answered accordingly.
25. Now the next question is what order should be passed in a case like
the present. This Court may either set aside the impugned judgment and
order passed by the High Court setting aside the acquittal and convicting
the accused so as to enable the High Court to remit the matter to the first
appellate Court to rehear the appeal after considering the findings
recorded by it or to remit the matter to the High Court to treat the
revision application as a petition of appeal against the order of acquittal,
which otherwise is permissible under sub-section (5) to Section 401
Cr.P.C. As observed hereinabove, as such, while exercising the powers
under sub-section (5) to Section 401 Cr.P.C. to treat the revision
application as a petition of appeal, the High Court is required to pass a
judicial order. However, considering the fact that even otherwise being
victims they are having the statutory right of appeal as per proviso to
Section 372 Cr.P.C., we deem it fit and proper to remit the matter to the
High Court to treat the revision applications as petition of appeals under
Section 372 Cr.P.C. and to decide the same in accordance with law and
on their own merits. The same would be in the interests of all, namely,
the victims as well as the accused, as the appellate Court would have a
wider scope and jurisdiction as an appellate Court, rather than the
revisional court."
9. From the above discussion, the legal position which emerges are as
follows:-
(a) The victim has right to prefer an appeal without seeking
leave of the court under following circumstances:-
(i) Against the order of acquittal.
(ii) Convicting for lesser offence.
(iii) Imposing inadequate compensation.
(b) The Appellate forum will be same available as to the
convict.
(c) The procedure for such appeal will be the same as is
available to the convict/accused.
(d) If the complainant is the victim, proviso of 372 of the
Cr.P.C. will be applicable, not the 378 (4) of the Cr.P.C. The
Section 378(4) of the Cr.P.C. is applicable only in the case
where the complainant is not the victim.
10. The victim does not lose the colour of the victim even if he/she is a
complainant and this fact has also been clarified by the Hon'ble Apex Court
in the above quoted judgment. The victim will be a victim even if he is a
complainant.
11. Office is directed to act accordingly henceforth.
12. In view of above discussion, the present acquittal appeal is, hereby,
held maintainable.
13. Issue Notice.
14. Call for the scanned copy of the L.C.R.
15. The Registrar General is directed to circulate this order in the Registry
as well as in the entire Judgeship of the State.
I.A. No. 5455 of 2022
1. In view of above discussion, the present Interlocutory Application
stands disposed of.
(Rajesh Kumar, J.)
Amar/-
