Kerala High Court
K.P.Sulaiman vs State Of Kerala on 5 February, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE G.GIRISH
Wednesday, the 5th day of February 2025 / 16th Magha, 1946
CRA(V) NO.25 OF 2019
CC 74/2015 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS COURT, PIRAVOM
APPELLANT/COMPLAINANT:
K.P.SULAIMAN, AGED 60 YEARS,
S/O. PAREETH, PRESIDENT,
KANJIRAMATTOM MUSLIM JAMA'ATH,
REG. NO.416/1995, KANJIRAMATTOM P.O.,
ERNAKULAM, PIN - 683 215.
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
- 682 315.
3. M. M. SALIM, EXECUTIVE OFFICER, KANJIRAMATTOM MOSQUE, KANJIRAMATTOM,
ERNAKULAM - 682 315.
This Crl.A by defacto complainant/victim coming on for orders upon
perusing the appeal and upon hearing the arguments of M/S.AYSHA
YOUSEFF,SMT.MOLLY JACOB,SRI.JOBI.A.THAMPI, SRI.SHOUKATH HUSAIN, SMT.RABIA
BEEGAM T.K., SMT.ASHIFA YOUSEFF, SMT.M.KABANI
DINESH,SRI.C.M.EBRAHIM, Advocates for the appellant and
SHRI.T.K.SAIDALIKUTTY, Standing Counsel for the 2nd and 3rd
respondents,and the PUBLIC PROSECUTOR for the 1st respondent, the Court
passed the following:
P.T.O.
RAJA VIJAYARAGHAVAN V & G.GIRISH, JJ.
-------------------------------------------------
Cr.A(V) Nos.24 of 2019 & 25 of 2019
-------------------------------------------
Dated this the 5th day of February, 2025
ORDER
G.Girish,J.
The matter before us is a reference made by a learned Single Judge
who felt that the dictum laid down by a Division Bench of this Court in
Omana Jose and Another v. State of Kerala and Others1 required
some clarification on the point whether the right of the complainant to file
appeal against acquittal, under Section 378(4) of Code of Criminal Procedure,
in respect of offence under Section 138 of the Negotiable Instruments Act,
1881, equally applies to appeals against acquittals filed by complainants in
complaints relating to other offences as well.
2. The doubt in the above regard cropped up while two appeals
against the acquittal in private complaints relating to offences under Section
500 IPC, filed under the proviso to Section 372 Cr.PC, came up before the
learned Single Judge. The challenge raised by the respondents therein was
that the appeals ought to have been filed before the Sessions Court
concerned. The learned Single Judge, after analysing the proposition of law
[2014 (2) KHC 277]
Crl.A(V) Nos.24 of 2019 & 2
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in this regard on the precedents - particularly that of the decision of the Apex
Court in Mallikarjun Kodagali (Dead) through Legal Representatives
v. State of Karnataka And Others2 - observed in paragraph No.14 of the
Order dated 21-05-2024 as follows:
"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 for
consideration by a Division Bench."
Accordingly, the matter is placed before us under orders from the Hon'ble
The Chief Justice.
3. Before embarking upon a discussion on the scope and
applicability of Sections 372 & 378 Cr.PC in the context of cases instituted
otherwise than on Police report, it appears to be desirable to have a glance
at the reasons which compelled the legislature to make changes to the
aforesaid provisions. Prior to the amendment of Section 378 Cr.PC by Act 25
of 2005, all appeals against orders of acquittal passed by Magistrates were
being filed in High Court. With effect from 23.06.2006, appeals against
[(2019) 2 SCC 752]
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orders of acquittal passed by Magistrates in respect of cognizable and
non-bailable offences in cases filed on Police report are being filed in the
Sessions Court, vide clause (a) of Sub-section 1 of the said Section. But,
appeal against the order of acquittal passed in any case instituted upon a
complaint continued to be filed in the High Court, if Special Leave is granted
by it on an application made to it by the complainant, vide Sub-section 4 of
Section 378 Cr.PC. The Report of the Committee on Reforms of Criminal
Justice System, commonly known as the Report of Justice Malimath
Committee, in March, 2003 had strongly recommended that the victim or his
representative who is a party to the trial should have a right to prefer an
appeal against any adverse order passed by the Trial Court. It was further
recommended thereunder that in such appeal, the victim should be able to
challenge the acquittal or conviction for a lesser offence or inadequacy of
sentence, or in regard to compensation payable to the victim, and that the
Appellate Court should have the same powers as the Trial Court in regard to
assessment of evidence and awarding of sentence. It was also
recommended that such appeal shall lie to the court to which an appeal
ordinarily lies against the order of conviction of such court.
4. In the 221st Report of the Law Commission of India, April, 2009,
it was observed that as per the law which stands as of then, an aggrieved
person cannot file an appeal against an order of acquittal by the Magistrate
in a Police Report case, though he could file a revision petition against such
acquittal. However, the powers of a Revisional Court are limited and the
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process involved is cumbersome and involves wastage of money and time. It
was therefore recommended that against an order of acquittal passed by a
Magistrate, a victim should be entitled to file an appeal before the Revisional
Court. It was also recommended that in complaint cases also an appeal
should be provided in the Sessions Court instead of the High Court, and that
in all such cases the aggrieved person or complainant should have the right
to prefer appeal, though with the leave of the Appellate Court. As per the
Report of the Law Commission, it was pointed out that though the victim was
able to file a revision against the acquittal, the Revisional Court was not
empowered to convict the accused even if it finds that the accused had been
wrongly acquitted, in view of the embargo contained in Sub-section 3 of
Section 401 Cr.PC. The only option left with the Revisional Court in such
cases was to remand the case. As the above process involved wastage of
money and time, the Law Commission recommended a change in the
provision enabling the aggrieved person or the informant to prefer appeal,
though with the leave of the Appellate Court. Thus, it was stated that the
above course would give an opportunity to the aggrieved person or the
informant to challenge the findings of fact recorded by the Lower Court, and
it would also introduce more transparency and accountability in the Lower
Judiciary.
5. It is apparently on the basis of all the above recommendations
of the Law Commission of India that Section 372 Cr.PC was amended on
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30.12.2009 with effect from 31.12.2009 as it stands today. The aforesaid
Section is extracted hereunder for easy reference:
"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 by 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.]"
6. Though the dictum in Omana Jose (supra) had been rendered
in the context of section 138 of NI Act, the ratio decidendi contained in
paragraph Nos. 33 and 34 of the said Order, leaves no room for any doubt on
the applicability of the same to all cases instituted on complaints. For the
sake of convenience and easy reference, the aforesaid paragraphs are
extracted hereunder:
33. Before the amendment of the Code of Criminal
Procedure, the remedy of the complainant in a case instituted on
complaint against the order of acquittal of the accused was to file
an appeal before the High Court under S.378(4) provided special
leave to appeal was granted by the High Court. S.378(4) continues
in the Code even after the amendment brought out by Act 5 of
2009, by which the definition of 'victim' and a proviso to S.372 of
the Code were inserted. Drastic changes were made in S.378 by
Act 25 of 2005 and even at that time, S.378(4) was not amended.
It cannot be assumed that the Parliament was not aware of the
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remedy to file an appeal only to the High Court provided under
S.378(4) to challenge an order of acquittal passed in a case
instituted upon complaint. Before the amendment, in a case
instituted on police report, the victim could challenge the order of
acquittal only by filing a revision under S.397 of the Code of
Criminal Procedure. After the introduction of the definition of
Victim' in S.2(wa), the victim in a case instituted on police report
can prefer an appeal to the Sessions Court against any order
passed by the Court acquitting the accused or convicting the
accused for a lesser offence or imposing inadequate
compensation. No special leave to appeal is required in the case of
an appeal filed under the proviso to S.372. If it is to be construed
that a complainant in a complaint case can file an appeal to the
Sessions Court under the proviso to S.372 or to the High Court
under S.378(4) of the Code of Criminal Procedure, that would
mean that a complainant in a complaint case, who is the victim in
the case, would have two remedies. If he chooses the remedy
under the proviso to S.372, he can file an appeal, as of right, to
the Sessions Court and no special leave to appeal is required. If
the aforesaid interpretation is accepted and if the complainant files
appeal against acquittal before the High Court under S.378(4),
special leave to appeal is required. It cannot be said that the law
makers provided two remedies to the complainant in a complaint
case (who is also a victim) to file an appeal before the Sessions
Court or before the High Court. There is no provision either in
S.372 or in S.378 that when an appeal against an order of
acquittal is filed by the complainant before the Sessions Court, he
is precluded from filing an appeal before the High Court under
S.378(4) of the Code of Criminal Procedure. S.378(4) does not say
that an appeal lies to the High Court only against an original order
of acquittal passed by the Trial Court. If it is to be interpreted that
the proviso to S.372 covers also an appeal against acquittal in a
complaint case, what prevents the complainant from filing a
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further appeal to the High Court under S.378(4) if the Sessions
Court also acquits the accused confirming the order of acquittal
passed by the Trial Court? By the Amendment Act 5 of 2009, we
are sure that the law makers did not provide such a remedy to the
complainant in a complaint case, who is also a victim. It is not a
case where the law makers provided concurrent remedies to the
complainant in a complaint case to file appeal either before the
Sessions Court or before the High Court. If that is so, a provision
similar to sub-section (3) of S.397 of the Code of Criminal
Procedure would have been found a place either in S.372 or in
S.378. Sub-section (3) of S.397 bars further revision by the same
person who has already filed a revision either before the High
Court or before the Sessions Court. Absence of such a provision
like S.397(3) either in S.372 or in S.378 would also give an
indication that the law makers did not provide concurrent
jurisdiction on the Sessions Court and the High Court to entertain
an appeal against acquittal, by the victim in a complaint case.
34. The expression "unless the context otherwise requires"
occurring in S.2 would be a helpful tool for the interpretation of
the proviso to S.372 to resolve the question whether the context
requires an interpretation to the term 'victim' taking out of its
purview, a complainant in a complaint case. On a consideration of
the aforesaid provisions of law, we are of the view that the
expression 'victim' requires an interpretation in the context of the
provisions in S.372 and S.378 to exclude the complainant in a
complaint case, who is also the victim, from the purview of the
definition of victim under S.2(wa). The principles of harmonious
construction and the principle that one Section in a Statute cannot
be used to defeat the provision in another Section would enable
the Court to come to such a conclusion alone. Such an
interpretation would make the textual interpretation to match with
the contextual. Comprehending the various principles referred to
above in their context and without construing a particular word in
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isolation and taking the Statute as a whole, we differ from the
view taken in Shibu Joseph and others v. Tomy K. J. and Others,
2013 (4) KHC 629 : 2013 (2) KLD 938 : ILR 2013 (4) Ker. 866 and
accept the view taken in Sree Gokulam Chit and Finance Co. (P)
Ltd., Kasaragod v. Damodaran N. and Another, 2013 (4) KHC 395 :
2013 (2) KLD 803 : 2013 (4) KLT 547 : 2013 (4) KLJ 648.
7. It could be seen from the above discussions in Omana Jose
that the learned Judges concluded that the remedy of appeal available for a
complainant in a complaint case against the order of acquittal, is under
Section 378(4) CrPC. The following are the reasonings adopted for arriving at
the said conclusion:
(i) Even after the Legislature brought out amendments by Act 5
of 2009 inserting definition of 'victim' under Section 2(wa),
and proviso to Section 372 conferring right of appeal to
victims before the Court to which an appeal ordinarily lies
against the order of conviction, Section 378(4) was left
untouched. So also, even when drastic changes were made
to Section 378 by Act 25 of 2005, Section 378(4) was not
amended. Thus it cannot be expected that the Parliament
was not aware of the remedy of a complainant in a complaint
case to file appeal only to the High Court as provided under
Section 378(4), to challenge an order of acquittal.
(ii) If it is to be construed that a complainant in a complaint case
can file appeal to the Sessions Court under the proviso to
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S.372, or to the High Court under S.378(4), that would mean
that a complainant in a complaint case, who is the victim in
the case, would have two remedies. It cannot be said that
the lawmakers provided two remedies to a victim in a
complaint case, which was not available to a victim in a Police
Report case.
(iii) There is no provision either in S.372 or in S.378 that when an
appeal against an order of acquittal is filed by the
complainant before the Sessions Court, he is precluded from
filing appeal before the High Court under S.378(4) Cr.PC. So
also, S.378(4) does not say that an appeal lies to the High
Court only against an order of acquittal passed by the Trial
Court. Thus, if the victim complainant in a complaint case is
conferred with the right of appeal under the proviso to
Section 372, he will have an opportunity to prefer the appeal
first before the Sessions Court and thereafter to the High
Court if the decision of Sessions Court is against him.
Lawmakers cannot be expected to have provided such an
unusual course of appellate remedies to a victim complainant
in a complaint case.
(iv) The expression 'unless the context otherwise requires'
contained in Section 2 Cr.PC has to be taken as a helpful tool
to interpret the term 'victim' in the proviso to Section 372 as
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one excluding the victim complainant in a complaint case.
The context in which Section 378(4) Cr.PC has been retained
by Legislature even after the incorporation of the proviso to
Section 372, makes it imperative to restrict the term 'victim'
contained thereunder to those cases other than cases
instituted on complaint by complainants.
8. There is no distinction whatsoever in the above discussion as
between complaints under Section 138 NI Act, and complaints relating to
other offences. The aforesaid ratiocination of law in Omana Jose (supra)
makes it abundantly clear that the remedy under Section 378(4) Cr.PC to
prefer appeal against acquittals is not confined to cases under Section 138 of
the NI Act alone. Irrespective of the nature of the offence involved, the
complainants in all cases instituted on the complaint are entitled to take
recourse to Section 378(4) CrPC to prefer appeal against acquittal before the
High Court, of course subject to the requirement to get special leave as
provided thereunder.
9. In Mallikarjun Kodagali (Supra), the appeal filed under the
proviso to Section 372 Cr.PC by the victim in a Police Report case was
dismissed by the High Court for the reason that the incident involved in the
said case took place prior to 31-12-2009, the date when the proviso to
Section 372 came into force. However, the order of acquittal in that case was
passed after the amended provision came into force. Apart from the above
aspect relating to the applicability of the amended section 372 Cr.PC to a
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case where the incident took place prior to 31-12-2009, and order of
acquittal passed after the said date, the Apex Court also considered the
question whether the victim in the said case had to seek special leave for
filing appeal under section 372 Cr.PC. Answering the above questions, the
Apex Court held that appeal filed by the victim under the proviso to Section
372 Cr.PC is maintainable, and that there was no requirement to seek special
leave as in the case of appeal filed under Section 378(4) Cr.PC by
complainants. While analysing the scope of appeal under the proviso to
Section 372 Cr.PC, the Apex Court observed that the language used in the
proviso to S.372 Cr.PC is quite clear, particularly in contrast with the language
in Section 378(4) Cr.PC, that there was no requirement to seek special leave
as in the case of a prosecution initiated upon a complaint. It is in the above
context that the Apex Court observed in the said Judgment that it is not at all
necessary to consider the effect of a victim being a complainant as far as the
proviso to S.372 Cr.PC is concerned.
10. In Mallikarjun Kodagali (supra), the Apex Court had also
discussed the decision rendered by the Full Court of the Gujarat High Court
in Bhavuben Dineshbhai Makwana v. State of Gujarat & Ors.3 where
the issues arose were in connection with the appeals filed by the State as
well as the victim under Sections 378 and 372 respectively against the
acquittal in a Police Report case. Questions posed before the Full Bench of
Gujarat High Court in that case were about the maintainability of State
MANU/GJ/1137/2012
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Appeal when the victim's appeal under proviso to Section 372 Cr.PC is
entertained, and vice versa. The requirement to seek leave of the Court, as
in the case of State Appeal, when the victim prefers appeal under Section
372 Cr.PC. was also considered by the Gujarat High Court. After analysing the
relevant provisions, the Full Bench held that the right of the victim to prefer
appeal under the proviso to Section 372 Cr.PC. is a separate independent
right which is neither dependent nor subservient to the right of Appeal of the
State. It was thus clarified that both the victim and the State can file appeals
independently without being dependent on the exercise of right by the other.
11. As regards the question of the requirement of leave in the
appeal preferred by the victim under Section 372 Cr.PC., the Full Bench held
that 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
Cr.PC., but if he is not the Complainant, he is not required to apply for or
obtain any leave. While commenting on the above observation of the Full
Bench of the Gujarat High Court, the Apex Court opined that 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 and that the proviso to Section 372 Cr.PC. does not
introduce or incorporate any such distinction. The observation of the Apex
Court up on the above lines does not mean that the right of appeal provided
under the proviso to Section 372 Cr.PC. encompasses appeal by victim
complainants in cases instituted on complaints. On the other hand, it is
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crystal clear, especially from the conclusions in Paragraph No.78 of the
Judgment of the Apex Court in Mallikarjun Kodagali (supra), that there is
absolutely no need to embark on the effect of a victim being the
complainant, as far as the proviso to Section 372 Cr.PC. is concerned. For the
sake of convenience and easy reference, the relevant paragraph in
Mallikarjun Kodagali is extracted hereunder:
78. 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 S.372
of the Cr.P.C. is quite clear, particularly when it is contrasted with
the language of S.378(4) of the Cr.P.C. 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 S.2(d) of the Cr.P.C. 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 S.372 of the Cr.P.C. is concerned.
12. The doubt entertained by the learned single judge in this
reference about the applicability of section 378(4) Cr.PC to complaint cases
other than those under section 138 NI Act has got answer, to a certain
extent, in the decision rendered by the Apex Court in Subhash Chand v.
State (Delhi Admn.) (2013) 2 SCC 17 wherein it has been held that
appeals against order of acquittals by Magistrates in complaints preferred by
the Local Health Authority under the provisions of Prevention of Food
Adulteration Act shall also be filed under section 378(4) Cr.PC before the
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High Courts concerned, and not before the Sessions Courts. Of course, in the
said case the Apex Court was dealing with the question of whether it is
Section 378(1)(a) Cr.PC or Section 378(4) Cr.PC applicable in such appeals,
and there was no occasion for the Apex Court to delve into the applicability
of proviso to Section372 Cr.P.C. The relevant paragraph of the said decision is
extracted hereunder for easy reference:
"In view of the above, we conclude that a complainant can file an
application for special leave to appeal against an order of acquittal
of any kind only to the High Court. He cannot file such appeal in
the Sessions Court. In the instant case the complaint alleging
offences punishable under Sections 16(1) & (1-A) read with
Section 7 of the PFA Act and the Rules is filed by complainant Shri
Jaiswal, Local Health Authority through Delhi Administration. The
appellant was acquitted by the Metropolitan Magistrate, Patiala
House Courts, New Delhi. The complainant can challenge the
order of acquittal by filing an application for special leave to
appeal in the Delhi High Court and not in the Sessions Court.
Therefore, the impugned order [Criminal Misc. Case No. 427 of
2009, decided on 7-1-2011 (Del)] holding that this case is not
governed by Section 378(4) of the Code is quashed and set aside.
In the circumstances the appeal is allowed."
The ratio laid down by the Apex Court in the said case leaves no room for
any doubt on the applicability of Section 378(4) Cr.PC to appeals, at the
instance of complainants, against acquittals in complaint cases of any nature.
13. Though it may appear to be obiter dictum, in Damodar S.
Prabhu V. Sayed Babalal (2010) 5 SCC 663), the Apex Court had held
that in the case of acquittal by Magistrate in the cases under Section 138 NI
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Act, the remedy available to the complainant is to prefer appeal to the High
Court under Section 378(4) Cr.PC. The relevant paragraph is extracted
hereunder for easy reference:
"20. It may be noted here that Section 143 of the Act makes an
offence under Section 138 triable by a Judicial Magistrate, First
Class (JMFC). After trial, the progression of further legal
proceedings would depend on whether there has been a
conviction or an acquittal.
• In the case of conviction, an appeal would lie to the Court of
Sessions under Section 374(3)(a) CrPC; thereafter a revision to
the High Court under Sections 397/401 CrPC and finally a petition
before the Supreme Court, seeking special leave to appeal under
Article 136 of the Constitution of India. Thus, in case of conviction
there will be four levels of litigation.
• In the case of acquittal by JMFC, the complainant could appeal
to the High Court under Section 378(4) CrPC, and thereafter for
special leave to appeal to the Supreme Court under Article 136. In
such an instance, therefore, there will be three levels of
proceedings."
14. A Full Bench of the Madras High Court, without taking note of
the above observation of the Apex Court in Damodar S.Prabhu (supra),
held in Ganapathy v. Senthilvel [2017 CRL.J 602] that a victim of the
crime, who has prosecuted an accused by way of a private complaint, has a
statutory right of appeal within the limits prescribed under Section 372 of
Cr.P.C. Though the dictum laid down by the Apex Court in Subhash Chand
(supra) was referred in the above decision of the Madras High Court, the Full
Bench took the stand that their view in the above regard was in consonance
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with the decision of Apex Court in Satyapal Singh v. State of M.P [2015
(4) MLJ (Crl.) 219 (SC).
15. The correctness of the law laid down by the Full Bench of the
Madras High Court in Ganapathy (supra) was doubted by a Single Judge
when appeals came up before the learned Judge under Section 378(4) of
Cr.P.C against the orders of acquittal confirmed by Sessions Court in the
appeals filed under the proviso to Section 372 Cr.P.C against the acquittals
from the Court of Judicial Magistrate. One of the issues which the Single
Judge had raised for consideration was as follows:
"When a Magistrate acquits an accused in a case instituted upon a
private complaint, like a prosecution under Section 138 of the NI
Act, where does the remedy lie for the unsuccessful complainant -
Whether to the Court of Session under the proviso to Section 372
Cr.P.C. or before the High Court under Section 378(4) and (5)
Cr.P.C. or are there concurrent remedies available, with the right to
the complainant to elect the forum of choice?"
The above situation compelled the Hon'ble Chief Justice of Madras High
Court to constitute another Full Bench in, K.Rajalingam In Both Appeals
v. R.Suganthalakshmi In Both Appeals (2020 SCC ONLINE MAD
1052) to resolve the issue. The Full Bench so constituted, after a scholastic
evaluation of the case laws laid down by the Apex Court and various High
Courts on this point, held that the decision rendered by the Full Bench in
S.Ganapathy (supra) is per-incuriam, since it has been decided without
reference to the binding authority in Damodar S. Prabhu and Subhash
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Chand, and that it is no longer good law by virtue of the judgment of the
Hon'ble Supreme Court in Mallikarjun Kodagali. Accordingly, the reference
was answered laying down the law that, as against an order of acquittal
passed by a Magistrate on a complaint, an appeal at the instance of the
complainant will lie only before the High Court, under Section 378(4) of
Cr.P.C., and that in such cases, the complainant has to seek for Special leave
under Section 378(5) of Cr.PC.
16. The dictum so rendered by the Full Bench of Madras High Court in
K.Rajalingam is in consonance with the decision of Division Bench of this
Court in Omana Jose (supra). It is pertinent to note that the prevailing Full
Bench decision of the Madras High Court in K.Rajalingam, also makes no
distinction between the cases under Section 138 of the Negotiable
Instruments Act and the cases that arose on complaints dealing with other
offences.
17. Now, a pertinent question would arise about the remedy of a
victim of a crime who is not the complainant, when the complaint instituted
by another person aggrieved by the same offence results in acquittal by the
Magistrate, and the complainant does not prefer to file an appeal under
Section 378(4) Cr.P.C. If it is the law that proviso to Section 372 Cr.P.C. has
got applicability only to cases instituted on final reports filed by Police, then
the only remedy of such victim would be to prefer a revision before the High
Court, wherein the scope of interference is limited when compared to an
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appeal, and there could never be a conviction in view of the embargo
contained in Section 401(3) Cr.P.C. The victim who is not a complainant, will
also be not able to take recourse to Section 378(2) Cr.P.C. against such
acquittal, since the said section is meant exclusively for appeal by the
complainant. Such situations may arise in complaints instituted by the
Authorized Officers under the Special Enactments like Drugs and Cosmetics
Act, where the real victims would be the persons who suffered health issues
due to the consumption of such drugs of inferior quality, or other
objectionable activities of law-violators, and the Officer who instituted the
complaint may not be interested, at least in some cases, in preferring an
appeal. Thus, it is pertinent to look into the question of whether the victim of
a crime could be left in such a precarious predicament due to the absence of
farsight of the lawmakers in perceiving remote procedural complexities which
may arise in future.
18. The question is whether the right of appeal vested in the 'victim'
under the proviso to Section 372 Cr.P.C. could be restricted to police cases
alone in view of the pre-existing right of appeal in the complainant under
Section 378 Cr.P.C. To do so, one must hold that 'victim' is synonymous with
'complainant' which is impermissible in view of the clear and distinct
definitions of the two entities under the Code and the absence of any
restriction as to locus standi in the institution of criminal proceeding under
ordinary law except in rare cases. Hence, such a restrictive interpretation
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would run contrary to the clear and unambiguous words in the proviso and
would amount to rewriting the proviso itself. When the words of the statute
are clear and unambiguous such words are to be given its fullest expression.
That apart, a restrictive interpretation of the right of appeal of the 'victim' as
envisaged in the aforesaid proviso would run contrary to the intention of the
legislature. The legislative enlargement of the scope and ambit of the right to
appeal against acquittal down the ages must be borne in mind while inferring
the intention of the legislature in incorporating the proviso to Section 372
Cr.P.C. and vesting a right to appeal to the 'victim'. In this perspective, it is
clear that the purpose of such amendment was to ensure access to justice to
victims in the event of an unmerited acquittal passed by a Criminal Court,
whether it be a case instituted on Police report or otherwise. Such access to
justice in the form of appeal is the right of every 'victim' of crime and cannot
be restricted only to victims in police cases in view of a pre-existing right of
appeal vesting in the complainant in a complaint case. Neither the clear
words of the proviso nor the intention of the legislature in incorporating the
aforesaid amendment would give rise to an inference that such right of
appeal to a 'victim' is to be restricted only to police cases and not to
complaint cases. Any such restrictive interpretation would give rise to an
unjust discrimination of a homogenous class, namely, 'victim' with reference
to the nature of the proceeding, that is, a police case and a complaint case,
and would result in an arbitrary and unreasonable classification without any
rational nexus to the object of the legislature. Even if the right of the 'victim'
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to appeal against an order of acquittal in a complaint case is read in the
background of the pre-existing right of the complainant to prefer an appeal
under sub-section (4) of Section 378 Cr.P.C., it is apposite to note that both
the rights may overlap but they operate in different planes in view of the
clear distinction between a 'complainant' and 'victim' in legal parlance. There
are innumerable instances where the complainant may not be the 'victim' of
the case, whereas there may be other cases where there are more than one
'victim' in a case of which one of whom may be the complainant. For
example, in a complaint instituted by a Drug Inspector under the Drugs and
Cosmetics Act for the prosecution of sale of spurious drugs to various
consumers, the Inspector who is the complainant may not be a 'victim'
whereas the persons who had purchased such spurious drugs are the victims
of the crime. Similarly, in a case where a private complaint is lodged by an
individual for commission of the offence of outraging the modesty of a lady,
the latter though not a complainant is a 'victim' of the crime. In these cases,
the 'victim' cannot be denied of his/her right to prefer an appeal against an
order of acquittal under the proviso to Section 372 Cr.P.C. stating the reason
that such right is vested only in the complainant under Section 378(4) Cr.P.C.
The right of the complainant, in such cases, to prefer an appeal against
acquittal under Section 378(4) Cr.P.C. cannot be a substitute for access to
justice vested in the 'victim' by way of appeal under the proviso to Section
372 Cr.P.C. That apart, the forum to prefer appeal under the proviso to
Section 372 Cr.P.C. and that under Section 378(4)/(5) Cr.P.C. are not
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identical. While the complainant may prefer appeal against acquittal only
before the High Court upon obtaining special leave from such Court, the
appeal by the 'victim' may be preferred in the Court before which the appeal
against conviction shall ordinarily lie, that is, the Court of Sessions in cases
triable by Magistrates. Moreover, proviso to Section 372 Cr.P.C. confers a
wider right of appeal against conviction for lesser offences or inadequate
compensation to the 'victim', apart from the right of appeal against acquittal
only, as provided under Section 378 Cr.P.C. Thus the appeals envisaged
under the aforesaid proviso to Section 372 Cr.P.C. and Section 378(4)/(5)
Cr.P.C., though falling under the same genus of 'Appeals against acquittal',
belong to different species as they are distinct from one another not only
with regard to the status of the appellant, but also vis-à-vis the forum where
such appeals are to be preferred. Hence, the pre-existence of a right of
appeal of a complainant under Section 378 Cr.P.C. cannot obliterate the right
of appeal vested in a 'victim' under the proviso to Section 372 Cr.P.C. in a
complaint case. However, the matter has to be analyzed in a different
perspective in a given case where the complainant himself is the victim of
the offence.
19. As already stated above, prior to the amendment of the Code by
the amending Act of 2008, the right of the 'victim' to prefer an appeal was
not recognized. In complaint cases the appeal against acquittal could be
preferred by the complainant alone. However, by the amendment to Section
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372, the proviso was introduced and a substantive right to appeal was
conferred on the 'victim'. The said proviso not only conferred a right of
appeal to the 'victim' against an order of acquittal but also extended such
right of appeal against conviction for lesser offences or grant of inadequate
compensation. The proviso also indicated the forum where such appeal is to
be preferred, namely, the Court before which an appeal from an order of
conviction shall ordinarily lie. For example, in a case tried before a Judicial
Magistrate, such appeal by the 'victim' under the proviso to Section 372
Cr.P.C. shall lie before the Court of Sessions and not the High Court. However,
in cases of acquittal in a complaint case tried by a Magistrate, a question
may arise as to whether a complainant, if he happens to be the victim also,
has to take recourse to Section 378(4)/(5) Cr.P.C. and prefer appeal directly
before the High Court after seeking special leave, or whether he could prefer
appeal before the Court of Sessions in terms of proviso to Section 372 Cr.P.C.
In SatyaPal Singh (supra), it has been held that the right of the 'victim' is
not an independent one, and has to be read harmoniously with the
pre-existing right under Section 378 Cr.P.C. In the present situation, the
appeal by the 'victim' in terms of proviso to Section 372 Cr.P.C. lies before the
Court of Sessions and not the High Court. Hence, in a case triable by
Magistrate, instituted on a complaint, a 'victim' who happens to be a
complainant is vested with twin remedies, - (a) against an order of acquittal
before the Court of Sessions in terms of proviso to Section 372 Cr.P.C in his
capacity as a 'victim', or (b) to seek leave of the High Court under Section
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378(4) Cr.P.C and prefer appeal in terms of Sub-section (5) thereof before
the said Court in his capacity as a complainant. It must be understood that in
a case where the complainant is also a 'victim' of crime, he wears two hats -
one as a complainant and the other as a 'victim' and his remedies against an
order of acquittal emanating from the aforesaid identities are distinct from
one another as to the forum as well as the manner in which they are to be
exercised. Can a victim-complainant be said to be conferred with such a
superior privilege to elect the option of approaching the High Court directly
under Section 378 Cr.P.C., or to opt for routing his way to the High Court by
approaching the Sessions Court first, and thereafter, in the event of an
adverse verdict, to the High Court, making use of the same proviso to
Section 372 Cr.P.C.? In our view, a victim who has piloted prosecution by
occupying the seat of complainant, has to take the trajectory set apart by
law for complainants, and he cannot opt for the way meant for those victims
who travelled with the complainants who took up their case initially but later
on abandoned them midway at a critical time when the adverse verdict
against them ought to have been challenged before the appellate forum. The
proviso to section 372 Cr.P.C. is intended for those persons affected by crime
who happen to be left in the lurch remediless due to the reluctance of the
prosecuting persons, whether it be the State and its officers or private
individuals, who initially espoused the cause of those victims, but later on
neglected to protect their interest at the stage when the adverse decision
rendered against them ought to have been challenged before the appellate
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forum. Therefore, the victim of a crime who occupies the seat of the
complainant, cannot invoke the said provision by ignoring the specific course
provided by law for the complainants to challenge the adverse verdict against
them. According to us, the background of the amendment brought out to
section 372 Cr.P.C. in 2008, as well as the law laid down by the Apex Court in
Subhash Chand, Mallikarjun Kodagali and Damodar S. Prabhu
(supra), are in accordance with the same line of thought which restricts the
victim who wears the cloak of the complainant from taking recourse to the
proviso to section 372 Cr.P.C., and instead, requires such victim-complainant
to avail the remedy of appeal under Section 378(4) Cr.P.C. The Full Bench
decision of Madras High Court in K.Ramalingam, and the Division Bench
decision of this Court in Omana Jose could also be seen to have adopted
the same view. Thus, the position which follows is that a victim who stands
in the shoes of the complainant cannot seek the aid of proviso to section 372
Cr.P.C., but a victim who has been left out by the complainant at the stage
when the adverse decision against him ought to have been challenged before
the appellate forum, is entitled to its protection.
20. Now a question may arise as to the course to be adopted in a
case where there are several victims, out of whom the one who is the
victim-complainant prefers an appeal under Section 378(4) Cr.P.C. to the
High Court, and the other one who is not having the veil of complainant,
prefers an appeal to the Sessions Court under the proviso to Section 372
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Cr.P.C. In the event of such a contingency, the High Court has to exercise the
powers under Section 407(1)(c)(iv) Cr.P.C., and call for the appeal to itself,
and decide it along with the other appeal instituted at the instance of
victim-complainant.
21. While summarising the aforesaid discussion, the logical
conclusions which could be drawn from the case laws evolved out of the
dictums of the Apex Court in Damodar S. Prabhu, Mallikarjun Kodagali
and Subhash Chand, the Full Bench decision of Madras High Court in K.
Ramalingam, and the Division Bench decision of this Court in Omana
Jose, referred in the foregoing paragraphs, are as follows:-
(i) The relevant provision of law applicable for preferring
appeal by complainants against acquittal in cases instituted upon
complaints, is Section 378(4) Cr.PC., irrespective of the nature of
the offences involved.
(ii) In a case instituted on complaint, where the victim is
different from the complainant, or where there are more than
one victim, the victim who does not figure as complainant, could
prefer appeal against acquittal under the proviso to Section 372
Cr.P.C.
(iii) If it is found that appeals against the same acquittal
order are pending before the Sessions Court at the instance of
victim, and before the High Court at the instance of complainant,
the High Court has to call for the appeal pending before the
Sessions Court by invoking the powers under Section 407 Cr.P.C.
and decide both the appeals by itself.
The reference is accordingly answered. The appeals are sent back to
the Court having jurisdiction as per roster, for consideration on merits.
(sd/-)
RAJA VIJAYARAGHAVAN V,
JUDGE
(sd/-)
G.GIRISH,
JUDGE
jsr
05-02-2025 /True Copy/ Assistant Registrar
