Pankaj Behera vs State Of Odisha And Others ..... ...
2025 Latest Caselaw 5694 Ori

Orissa High Court

Pankaj Behera vs State Of Odisha And Others ..... ... on 21 August, 2025

Author: Aditya Kumar Mohapatra

Bench: Aditya Kumar Mohapatra

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                               CRLLP No.60 of 2025
            Pankaj Behera                  .....        Petitioner
                                                            Represented By Adv. -
                                                            Mr. Saroj Kumar Dash

                                           -versus-
            State of Odisha and others             .....          Opposite Parties
                                                            Represented By Adv. -

                                                            Mr. U.R. Jena, AGA

                                 CORAM:
            THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA

                                           ORDER

21.08.2025 Order No.

03. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

2. Heard the learned counsel for the Petitioner as well as learned counsel for the State. Perused the application as well as the prayer made therein.

3. By filing the present petition under Section 378(4) of the Cr.P.C. read with Section 419(4) of BNSS, 2023, the Petitioner, who happens to be the Informant in the F.I.R. initially lodged before Tamando Police Station and, accordingly, Tamando P.S. Case No.257 of 2024 came to existence, has approached this Court seeking leave to challenge the judgment of acquittal dated 30.07.2025 passed by the learned J.M.F.C. (L.R. & LTV), Bhubaneswar in C.T. Case No.596 of 2024/T.R. No.06 of 2025.

4. Learned counsel for the Petitioner, at the outset, contended

that in terms of provision contained in Section 378(4) of Cr.P.C., the Petitioner, who happens to be a complainant, has a right to approach this Court seeking leave to prefer an appeal before this Court. He further submitted that the judgment of acquittal at Annexure-1 is an erroneous judgment and the same has been passed without taking into consideration the material evidence on record. As such, the complainant in the C.T. Case has approached this Court by filing this petition under Section 378(4) of Cr.P.C. seeking leave to prefer an appeal before this Court.

5. Learned counsel for the State, on the other hand, contended that the Petitioner was the Informant at whose instance an F.I.R. was lodged and, accordingly, Tamando P.S. Case No.257 of 2024 was registered for commission of an offence under Sections 420/294/506/34 of the I.P.C. In the aforesaid factual backdrop, learned counsel for the State contended that the right to appeal of the Petitioner has been protected in the proviso to Section 372 of Cr.P.C., under Chapter-XXIX thereof. The proviso to Section 372 of Cr.P.C. provides a right to the victim to prefer an appeal against an order acquittal passed by the trial court and the appeal shall be presented before the court to which an appeal would have lied against the order of conviction. In such view of the matter, learned counsel for the State contended that the right of the Petitioner to prefer an appeal before the appellant court is preserved and protected by the proviso under Section 372 of Cr.P.C. In such view of the matter, learned counsel for the State submitted that the present application is misconceived and,

accordingly, the same should be dismissed as devoid of merit.

6. Heard the learned counsels appearing for the respective parties and on careful examination of the materials on record as well as the background facts, this Court observes that the question that is required to be determined in the present CRLLP is as to whether the Petitioner can file an appeal under the proviso to Section 372 of Cr.P.C. or under Section 378(4) of Cr.P.C. In the aforesaid context, it would be relevant to refer to both the provisions contained in Code of Criminal Procedure.

Section 372 of Cr.P.C. reads as thus :-

"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:

1[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.]."

Section 378 of Cr.P.C. read as thus :-

"378. Appeal in case of acquittal.--5[(1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5),--

(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.] (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, 1[the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal--

(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision].

(3) 2[No appeal to the High Court] under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date

of that order of acquittal.

(6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-

section (2)."

7. It is an admitted case of both the sides that the trial was conducted by following the procedure prescribed in the Code of Criminal Procedure, 1973. Thus, it is not disputed that the provisions contained in the Code of Criminal Procedure with regard to filing of the appeal shall apply to the case of the Petitioner. On perusal of the judgment dated 30.07.2025, it appears that the trial which was initiated on the basis of the F.I.R. lodged by the Petitioner initially before the Tamando Police Station, ended in acquittal against the accused persons. Although the factual background of the allegation made in the F.I.R. involves an allegation of cheque bounce, however, the said case was not registered under Section 138 of the N.I. Act. Therefore, the case was registered at the instance of the Petitioner treating the same as plain and simple C.T. Case which has arisen out of an F.I.R. lodged in the Tamando Police Station. In the aforesaid factual backdrop, the provision contained in Section 372 of Cr.P.C. as well as Section 378 of Cr.P.C. is required to be interpreted.

8. So far Section 372 of Cr.P.C. is concerned, the provision which has been extracted above reveals that although the main section bars an appeal from any judgment or order of the criminal court except as provided by the Code, however, in the proviso a

limited scope has been given to the victim to prefer an appeal against any order passed by the court acquitting the accused or convicting the accused for a lesser offence or ignoring inadequate compensation. In such eventuality, an appeal shall lie to the court to which an appeal is ordinarily preferred against the order of conviction of such court. In the instant case, the F.I.R. was registered at the instance of the Petitioner-Informant and the same has been registered as C.T. case. Accordingly, the trial went ahead. Therefore, the Petitioner can very well be construed as a victim in light of the facts narrated in the F.I.R. Thus, it appears that the Petitioner is indeed covered by the provision under Section 372 of Cr.P.C.

9. With regard to the provision contained in Section 378(4) of Cr.P.C., it appears that an appeal has been provided against an order of acquittal. Learned counsel for the Petitioner, at this juncture, referred to sub-section(4) of Section 378 of Cr.P.C. which provides that in the event an order of acquittal is passed in a case instituted upon a complaint, then, this Court on an application made by the complainant, shall grant special leave to appeal from the order of acquittal and, accordingly, the complainant may present an appeal before this Court. Although learned counsel for the Petitioner emphasized that the case of the Petitioner is covered by sub-section (4) of Section 378 of Cr.P.C., however, the same has been contested by the learned counsel for the State. In reply, the learned counsel for the State contended that neither the Petitioner is a complainant in the present case nor the case

involved in the present petition arises out of a compliant case. Therefore, the provision contained in sub-section (4) of Section 378 of Cr.P.C. is not applicable to the case of the Petitioner.

10. On careful analysis of the aforesaid factual backdrop and further keeping in view the provision contained in Section 372 of Cr.P.C. as well as the provision contained in sub-section (4) of Section 378 of Cr.P.C., this Court is of the view that the case of the Petitioner shall be covered by the provision under Section 378 of Cr.P.C. by taking into consideration the fact that the Petitioner can be termed as a victim in the C.T. Case which was registered on the basis of an F.I.R.. The provision contained in Section 378(4) of Cr.P.C. would not be applicable to the case of the Petitioner since the present case does not arise out of a complaint and the Petitioner cannot be termed as a complainant. In view of the aforesaid analysis, this Court is of the view that an appeal lies under the proviso to Section 372 of Cr.P.C. against the judgment of acquittal dated 30.07.2025 passed in C.T. Case No.596 of 2024, corresponding to T.R. Case No.6 of 2025 passed by the learned J.M.F.C. (L.R. & LTV), Bhubaneswar.

11. Accordingly, the present application is disposed by granting liberty to the Petitioner to file an appeal under the provision of Section 372 of the Cr.P.C. along with an application for condonation of delay. In such eventuality, the Appellate Court shall consider the application for condonation of delay by taking a lenient view.

12. The certified copy of the impugned judgment be returned to

the Petitioner on substitution of the authenticated photocopy thereof.

13. With the aforesaid observation and direction, the CRLLP stands disposed of.

( A.K. Mohapatra) Judge Debasis