Karnataka High Court
Smt V N Subavathi vs Shivarama P on 29 March, 2022
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.315/2011
BETWEEN:
SMT.V.N.SHUBHAVATHI,
W/O NITYANANDA,
AGED ABOUT 60 YEARS,
(NOT CLAIMING ANY SENIOR BENEFITS)
MADAPADI, SULLIA, D.K.
...APPELLANT
(BY SMT.P.V.KALPANA, AMICUS CURIE)
AND:
1. SHIVARAMA P.,
S/O LATE PONNAPPA GOWDA,
AGED ABOUT 44 YEARS,
2. SMT.AKKAMMA,
W/O LATE PONNAPPA GOWDA,
AGED ABOUT 69 YEARS,
BOTH R/O PALLADKA HOUSE,
ALETTY VILLAGE,
SULLIA TALUK, D.K.
3. THE STATE,
REPRESENTED BY
SUB INSPECTOR OF POLICE,
SULLIA.
...RESPONDENTS
(BY SRI.P.P.HEGDE, SENIOR ADVOCATE FOR
SRI.VENKATESH SOMAREDDY, ADVOCATE FOR R1 AND R2;
SRI.MAHESH SHETTY, HCGP FOR R3)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 397
READ WITH SECTION 401 OF CR.P.C. PRAYING TO SET ASIDE
THE ORDER OF ACQULITTAL OF RESPONDENTS DATED
16.10.2009 IN S.C.NO.38/2006 PASSED BY THE P.O., FTC.,
PUTTUR, D.K. DISTRICT, AND CONVICT THE RESPONDENTS AS
PROVIDED BY LAW.
THIS CRIMINAL APPEAL COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the defacto
complainant/victim under Section 372 read with
Section 482 of Cr.P.C. challenging the order of acquittal
passed by the Fast Track Court, Dakshina Kannada, in
S.C. No.38/2006, dated 16.10.2009.
2. The learned Senior Counsel appearing for
the respondents raised an objection regarding
maintainability of this appeal. He contended that this
appeal is filed by the victim under proviso to Section
372 of Cr.P.C., which was amended only with effect
from 31.12.2009 after the judgment was delivered by
the Trial Court. Such being the case, the appeal is not
maintainable before this Court and as per the previous
provisions, criminal revision petition is maintainable.
Hence, prayed for dismissal.
3. Learned Senior Counsel for the respondents
also relied upon the judgment of the Hon'ble Supreme
Court in the case of Mallikarjuna Kadagali Vs. State
of Karnataka and Others. (2019)2 SCC 752 in
reported.
4. At this stage, learned Amicus Curiae
appearing for the appellant filed a memo seeking
conversion of the criminal appeal into criminal revision
petition.
5. Having heard the arguments of the learned
counsel for the appellant and the respondents and
perused the records.
6. It is pertinent to note that proviso to Section
372 of Cr.P.C was brought into force from 31.12.2009.
Admittedly, the impugned judgment passed by the Trial
Court was on 16.10.2009, which is prior to the
amendment. Though the appellant has filed a criminal
revision petition before this Court in the earlier
occasion, this Court by order dated 14.02.2011, had
allowed the appellant's counsel to file memo and
permitted to convert the criminal revision petition into
criminal appeal holding that in view of the amendment
brought to the Cr.P.C., the victim has right to file an
appeal under Section 372 of Cr.P.C. as a specific
provision is provided in the Cr.P.C. and the question of
filing criminal revision petition does not arise.
Accordingly, the criminal revision petition was
converted into criminal appeal and the
victim/complainant was forced to convert the criminal
revision petition into criminal appeal.
7. Of course the judgment of the Hon'ble
Supreme Court was delivered on 12.10.2018 and as on
the date of disposal, the criminal revision petition was
converted into the criminal appeal and on 14.02.2011
the judgment was not delivered. However, the
previous Bench has not discussed about the
amendment brought into the Cr.P.C., whether it is
prospective effect or retrospective effect. In this
regard, the Hon'ble Supreme Court in detail dealt with
the matter and has held the proviso to Section 372 of
Cr.P.C. is prospective in nature and not retrospective in
nature. Therefore, the right of appeal under Section
372 of Cr.P.C. accrues only after the amendment
brought to the Cr.P.C. and also at para 45 of the
judgment, the Hon'ble Apex Court has also held the
criminal revision petition cannot be permitted to
convert into criminal appeal. By relying upon the
judgment of Hon'ble Supreme Court in the case of Tata
Steel Ltd., Vs. M/s. Atma Tube Products Ltd. &
Others reported in SCC Online Punjab and Haryana,
para 126 which is as under:
"(126) Since right to appeal is a
substantive right and it cannot be
inferred by implication unless the
Statute expressly provides so, the only
inescapable conclusion would be to hold
that the right to appeal given to a
'victim' under proviso to Section 372 of
the Code is prospective and has become
enforceable w.e.f December 31, 2009
only. A 'victim' is entitled to prefer
appeal in respect of any type of order
referred to in the proviso to Section 372
if such order has been passed on or after
December 31, 2009 irrespective of the
date of registration of FIR or the date of
occurrence etc. To be more specific it is
clarified that it is the date of passing of
the order to be appealed from and not
any other fact situation, which shall
determine the right to appeal of a
'victim'. As a corollary thereto, it is held
that the remedy availed by a 'victim'
including revision petition against
acquittal of the accused by an order
passed before December 31, 2009,
cannot be converted into an appeal
under proviso to Section 372 and it shall
have to be dealt with in accordance with
the parameters settled for exercising
revisional jurisdiction by a superior
Court."
8. In view of the above judgment, the Hon'ble
Supreme Court the right of filing appeal accrues to the
victim only if the judgment is delivered prior to
31.12.2009. Therefore, the respondent's counsel
rightly contended that the appeal is not maintainable.
Therefore, the memo filed by the learned counsel for
the appellant for converting the criminal appeal into
criminal revision petition requires to be allowed as the
petitioner has rightly filed the criminal revision petition
in the first instance. Hence, this Court pass the
following:
ORDER
In view of the memo filed by the
appellant's counsel, the appellant is permitted
to convert the criminal appeal into criminal
revision petition under Section 397 of Cr.P.C.
For the statistical purpose, the criminal
appeal is disposed of.
Learned counsel for the appellant is
permitted to file memo of facts for the purpose of
condoning the delay which was consumed in
approaching this Court in wrong forum and the
matter shall be placed before the appropriate
Bench.
Learned counsel for the appellant is not
pressing the memo dated 26.03.2022.
Accordingly, it is disposed of.
Sd/-
JUDGE
GJM
