Kerala High Court
T.A.Noushad vs State Of Kerala on 21 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Tuesday, the 21st day of May 2024 / 31st Vaisakha, 1946
CRA(V) NO.24 OF 2019
CC 80/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PIRAVOM
APPELLANT/COMPLAINANT:
T.A.NOUSHAD, S/O.ABDUL RAHMAN, GENERAL SECRETARY,
KANJIRAMATTOM MUSLIM JAMA'ATH,
REG.NO.416/1995, KANJIRAMATTOM.P.O,
ERNAKULAM, PIN-683215.
RESPONDENTS/STATE & ACCUSED:
1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
2. B.M.JAMAL, MANAGER, KANJIRAMATTOM MOSQUE, KANJIRAMATTOM,
ERNAKULAM-682315.
3. M.M.SALIM, EXECUTIVE OFFICER, KANJIRAMATTOM MOSQUE, KANJIRAMATTOM
P.O., ERNAKULAM-682315.
This Crl.Appeal by defacto complainant/victim coming on for orders
upon perusing the appeal and upon hearing the arguments of SHRI JOBI
A.THAMPI, Advocate for the appellant, PUBLIC PROSECUTOR for the first
respondent, STANDING COUNSEL, WAQF BOARD for second and third respondents,
the court passed the following:
P.T.O.
P.G. AJITHKUMAR, J.
-----------------------------------------------------------
Crl.Appeal(V) Nos.24 and 25 of 2019
-----------------------------------------------------------
Dated this the 21st day of May, 2024
ORDER
These appeals were filed under the proviso to Section
372 of the Code of Criminal Procedure, 1973. The appellants
were the complainants, respectively, in C.C.No.80 of 2015 and
74 of 2015 on the files of the Judicial Magistrate of the First
Class, Piravom. The complaints were filed alleging commission
of an offence punishable under Section 500 of the Indian
Penal Code, 1860. Respondents Nos.2 and 3 were the
common accused. The trial court acquitted them by
judgments dated 03.07.2019.
2. When these appeals came up for hearing, the
learned counsel appearing for respondents No.2 and 3 raised
a preliminary objection that the appeals ought to have been
filed before the Sessions Court. It is submitted that what the
proviso to Section 372 of the Code postulates is the filing of
the appeal to the court to which an appeal ordinarily lies
against the order of conviction of the trial court concerned. In
Crl.Appeal (V) Nos. 24 and 25 of 2019
view of that submission, the said question is considered as a
preliminary point.
3. Heard the learned Senior Counsel appeared on
instructions from the learned counsel for the appellants, the
learned Public Prosecutor, and the learned counsel for
respondents No.2 and 3.
4. The President of the Kanjiramattom Muslim
Jama'ath filed C.C.No.74 of 2015. The General Secretary of
the Kanjiramattom Muslim Jama'ath filed C.C.No.80 of 2015.
In both, the allegations were similar. Respondent Nos.2 and 3
were the Manager of the Kanjiramattom Mosque appointed by
Court and the Executive officer of the Mosque respectively.
They in furtherance of their common intention submitted a
report on 08.01.2015 before the Waqf Tribunal, Ernakulam.
The report amounted to libel since it contained imputations
injuring the reputation of the appellants. Respondents No.2
and 3 publicised the report as well. Thereby they committed
the offence of defamation. The trial court after trial found
respondents No.2 and 3 not guilty.
Crl.Appeal (V) Nos. 24 and 25 of 2019
5. The learned Senior Counsel appearing for the
appellants would submit that the right of appeal against
acquittal created by insertion of the proviso to Section 372 of
the Code by Act 5 of 2009 is available to the victims in the
cases arising on police reports alone. In the event of acquittal
of the accused in a case arising on a complaint, although the
complainant has the remedy of appeal it can be availed by
obtaining special leave as provided in sub-section 4 of Section
378 of the Code. In the view of the learned Senior Counsel,
the appeal lies only to the High Court. Among other decisions,
the learned Senior Counsel highlighted the law laid down by
this Court in Omana jose and another v. State of Kerala
and others [2014 (2) KLT 504].
6. The learned counsel for respondents No.2 and 3
submits that the right to appeal against an order of acquittal
under the proviso to Section 372 of the Code is afforded to
the victim and in the light of the definition of 'victim'
contained in Section 2(wa) of the Code, the present appeals
would lie to the Court of Session. It is submitted that the law
Crl.Appeal (V) Nos. 24 and 25 of 2019
laid down in Omana Jose (supra) pertains to the right of
appeal in cases involving offences punishable under Section
138 of the Negotiable Instruments Act, 1881 (NI Act) and in
all other cases, appeals at the instance of the victim: be it a
case arose on a complaint or a police report, shall lie only to
the court to which an appeal ordinarily lies against the order
of conviction of the trial court. It is accordingly submitted that
these appeals being against orders of acquittal of a Judicial
Magistrate of the First Class, should have been filed before the
Court of Sessions and not before this Court.
7. A learned Single Judge of this Court referred
Omana Jose (supra) to a Division Bench in the light of the
conflicting decisions in Sree Gokulam Chit and Finance Co.
Pvt.Ltd, Kasaragod v. Damodaran N and another [2013
(4) KHC 395 and Shibu Joseph and Others v. Tomy K. J
and others [2013 (4) KHC 629]. In Sree Gokulam Chit,
the learned Single Judge held that an appeal against acquittal
in a case instituted on a complaint alleging offence under
Section 138 of the NI Act would lie only before the High Court
Crl.Appeal (V) Nos. 24 and 25 of 2019
with special leave under Section 378(4) of the Code. In
Shibu Joseph another learned Single judge took the view
that the complainant in a complaint alleging commission of an
offence punishable under Section 138 of the NI act is also a
victim having the right of appeal under the proviso to Section
372 of the Code. The Division Bench resolved that conflict and
held in Omana Jose (supra) as follows:
"the complainant in a case under Section 138 of the
Negotiable Instruments Act cannot challenge the order
of acquittal before the Sessions Court under the
proviso to Section 372 of the Code of Criminal
Procedure and his remedy is only to file an appeal to
the High Court with special leave under Section
378(4) of the Code of Criminal Procedure."
8. The Division Bench in Omana Jose (supra)
observed that the expression 'victim' used in the proviso to
Section 372 of the Code needs to be interpreted in the context
of the provisions of Sections 372 and 378. The view taken is
that the definition of 'victim' in Section 2(wa) of the Code
does not take in its fold complainants in complaint cases, even
though they are the victims of the offence. Despite that
Crl.Appeal (V) Nos. 24 and 25 of 2019
observation, the principle laid down by the Division Bench
confined to the appeals in cases involving offence punishable
under Section 138 of the NI Act alone.
9. A similar question confronted a Full Bench of the
High Court of Madras in A. Rajalingam v. R.
Suganthalakshmi [2020 Crl.L.J 2593]. The question
involved in that case was concerning the right of a
complainant to appeal against an order of acquittal in a
prosecution initiated on a complaint. The moot question
formulated was with reference to a complaint involving an
offence under Section 138 of the NI Act. The Full Bench after
referring to the law laid down by various High Courts on the
point arrived at the conclusion that when a Magistrate acquits
an accused in a case instituted on a private complaint, the
complainant can file an appeal against the acquittal before the
High Court under sub-section 4 of Section 378 of the Code
alone. Rather, no appeal can be filed under the proviso to
Section 372 of the Code in such a matter. For holding so the
Full Bench placed reliance on the decisions of the Apex Court
Crl.Appeal (V) Nos. 24 and 25 of 2019
in Mallikarjun Kodagali(Dead) represented through
Legal Representatives v. State of Karnataka and others
[(2019) 2 SCC 752] and Naval Kishore Mishra v. State of
Uttar Pradesh and others [AIR 2019 SC 3352].
10. The questions involved in Mallikarjun Kodagali
(supra) were, whether the victim of an offence committed
prior to 31.12.2009, on which date Act 5 of 2009 came into
effect, has the right of appeal against the acquittal under the
proviso to Section 372 of the Code, and also whether special
leave was required to prefer such an appeal. That was a case
that arose on the basis of a police report. The challenge was
against orders of the High Court of Karnataka dismissing two
appeals filed in the same case by the victim; the first one filed
under the proviso to Section 372 and the second one filed
under Section 378(4)of the Code. The Apex Court considered
the correctness of the views taken by various High Courts on
identical questions, including the Full Bench decision of the
Gujarat High Court in Bhavuben Dineshbhai Makwana v.
State of Gujarat and others [2013 CriLJ 4225]. True,
Crl.Appeal (V) Nos. 24 and 25 of 2019
whether a complainant in a complaint case who is also the
victim of the offence has the right to appeal against acquittal
under the proviso to Section 372 was not a question germane
in that case. However, the three-Judge Bench of the Apex
Court held in paragraph No.37 as follows:
"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 of the Code of Criminal Procedure does not
introduce or incorporate any such distinction"
11. It was after taking into account the propositions of
law laid down in Mallikarjun Kodagali and also Naval
Kishore Mishra (supra) the Full Bench of the High Court of
Madras held in A. Rajalingam [2020 Crl.L.J 2593] that a
complaint in a case instituted on a private complaint before a
Magistrate can file an appeal against acquittal before the High
Court under sub-section 4 of Section 378 of the Code alone.
But when the question in that regard was considered by the
Full Bench with reference to the acquittal in a complaint case
Crl.Appeal (V) Nos. 24 and 25 of 2019
alleging offence punishable under Section 138 of the NI Act,
the question as to the right of the complainants to appeal in
complaint cases involving other offences still remains res
integra.
12. Insofar as the remedy of appeal against acquittal in
cases arising on complaints alleging offence punishable under
Section 138 of the NI Act is concerned the view taken by this
Court in Omana Jose (supra) is consistent with the views
taken by various other High Courts. A few of such decisions
are Tata Steel Ltd and others v. Atma Tube Products
Ltd. and others[MANU/PH/0175/2013]; P. Vijaya
Laxmi v. S.P.Sravana and others [2018 Crl.L.J 1338];
and Kushal Kawaduji Singanjude v. Ramnarayan
Durgaprasad Agrawal [2019 Crl.L.J 4796].
13. That view was followed by this Court in the
subsequent decisions namely; Lakshmi v. State of Kerala
and another [2017 (1) KHC 244(DB); Abdulla C.M v.
Ibrahim [2017 (4) KHC 34]; Ansamma Daniel v. State
of Kerala [2017 (4) KLT SN 55 C.No.64 333]; and
Crl.Appeal (V) Nos. 24 and 25 of 2019
Poulose v. Baiju [2023 (6) KHC 173]. In Ponnappan P.
V. v. Balachandran and another [2017 (5) KHC 519] a
learned Single Judge of this Court explained the decision in
Omana Jose (supra) and held that the view taken therein has
to be read in the context of an acquittal in a case arose on a
complaint and so far as inadequacy of compensation is
concerned in a complaint case an appeal would lie in terms of
the proviso to Section 372 of the Code.
14. Right of a complainant, who is also a victim within
the meaning of Section 2(wa) of the Code, to appeal against
acquittal in a case instituted on a complaint alleging offences
other than the one punishable under Section 138 of the NI
Act, did not crop up for consideration directly in any of those
cases. There is no consistency on that aspect; both in law and
practice. Can the view taken in Omana Jose [2014 (2) KLT
504] apply equally to an appeal by the complainant against
acquittal in a case instituted upon a complaint involving
offence other than the one punishable under Section 138 of
the NI Act needs clarification. Hence, the matter is referred
Crl.Appeal (V) Nos. 24 and 25 of 2019
for consideration by a Division Bench.
Place the matter before the Hon'ble the Chief Justice for
appropriate orders.
Sd/-
P.G. AJITHKUMAR, JUDGE
PV
21-05-2024 /True Copy/ Assistant Registrar
