Jharkhand High Court
Bimla Devi vs State Of Jharkhand And Ors on 30 June, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 863 of 2002
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Bimla Devi ... Petitioner
Versus
State of Jharkhand and Ors. ... Respondents
With
Cr. Rev. 312 of 2002
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Bimla Charan Jha @ Bila Charan Jha and Ors. ... Petitioners
Versus
State of Jharkhand and Anr. ... Respondents
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mr. A.K. Choudhary, Advocate
: Mr. Jayant Kr. Pandey, Advocate
[in Cr. Rev. 312 of 2002]
For the Respondent : Mr. Santosh Kr. Shukla, Advocate
: Mr. M.K. Habib, Advocate
: Mr. Rajendra Prasad, Advocate
[in Cr. Rev. 312 of 2002]
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13/Dated: 30th June, 2025
1. Both the aforementioned petitions have been preferred against the
impugned order dated 19.06.2002 passed in Cr. Appeal No. 84 of
2001 by the Judicial Magistrate, 1ST Class, Deoghar. The petition
being Cr.M.P. No. 863 of 2002 has been preferred under Section
378(4) of the Cr.P.C., and the criminal revision being Cr. Rev. No. 312
of 2002 has been preferred under Section 397 and 401 Cr.P.C. against
the judgment of conviction.
2. It needs to refer herein that the opposite party no.2, 3 and 4 of
Cr.M.P. No. 863 of 2002 are the petitioners of Cr. Rev. 312 of 2002,
are aggrieved by the same impugned judgment where by their
conviction under Section 498 A of the I.P.C has been affirmed by the
Appellate Court Cr.M.P. No. 863 of 2002,
3. It appears that Cr. Rev. 312 of 2002 has been preferred against the
judgment of conviction, as such it is to be heard by the learned Single
Bench of this Court. Further, Cr.M.P. No. 863 of 2002, has been filed
for seeking leave of this Court to prefer an appeal against the
judgment of acquittal.
4. So far as the issue of seeking leave as required under Section 378(4)
is concerned, there is no dispute that the day when the special leave
application has been filed for seeking leave by way of Cr.MP No. 863
of 2002, since was filed on 27.08.2002 and as such on that date, as
per the applicable provision of law, the leave application has been
filed under Section 378(4) Cr.P.C for seeking leave to prefer an
appeal against the judgment of acquittal. However after amendment
incorporated in Section 372 Cr.P.C by insertion of the proviso by way
of Act 5 of 2009, Section 29, with effect from 31.12.2009, whereby it
has been stipulated 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.
In the view of aforesaid the question arises herein as to whether, the
special leave to appeal is required to be granted or the leave of
appeal is given to petitioner to file the appeal directly under Section
372 of Cr.P.C.
5. We have gone through the proviso to Section 372, which according
to our considered view the same is in the nature of procedure, and
the law is well-settled that the amendment incorporated, so far as
the procedure is concerned, will be applicable with retrospective
effect. It is settled position of law that a statute which affects
substantive rights is presumed to be prospective in operation unless
made retrospective, either expressly or by necessary intendment,
whereas a statute which merely affects procedure, unless such a
construction is textually impossible, is presumed to
be retrospective in its application, should not be given an extended
meaning and should be strictly confined to its clearly defined limits,
reference in this regard be made to the Judgment rendered by the
Hon'ble Apex Court in the case of Hitendra Vishnu Thakur And
Others Etc. Vs. State of Maharashtra and Others AIR1994 SC 2623.
6. This Court, therefore, is of the view that after insertion of the proviso
in Section 372 with effect from 31.12.2009, there is no requirement
as of now to seek leave, since admittedly herein, the petitioner is a
victim, and such preferred an appeal against the order of acquittal of
one of the accused persons.
7. Learned counsel appearing for the petitioner, in such circumstances,
has sought for leave for allowing to convert this petition into an
acquittal appeal filed under Section 372 Cr.P.C.
8. Such liberty is being granted.
9. Let necessary correction be made in the memo of appeal.
10. The Office is directed to proceed further.
(Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.)
Samarth
