Jai Lal vs Rajender And Ors
2022 Latest Caselaw 15080 P&H

CRA-S-1654-SB-2007 (O&M)                                                - 1-


             IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH

                                        CRA-S-1654-SB-2007(O&M)
                                        Reserved on: 15.11.2022
                                        Date of Decision: 24.11.2022


Jai Lal                                                             ...Appellant

                                        vs.

Rajender and others                                              ...Respondents

Coram        : Hon'ble Mr. Justice N.S.Shekhawat

Argued by :Mr. N.R.Dahiya, Advocate and
          Mr. Ramesh Kumar, Advocate
          for the appellant.

             Mr. Rahul Vats, Advocate
             for respondent No.1.

             Respondents No.2 and 4 stated to be dead.

             Mr. A.S.Virk, Advocate
             for respondent No.3.

                   ***

N.S.Shekhawat J.

The present appeal has been preferred by the complainant against

the judgment and order of acquittal dated 27.11.2006, passed by the learned

Additional Sessions Judge (Fast Track Court), Bhiwani, whereby respondents

No.1 to 4 were ordered to be acquitted of the charge under Section 306 /34 of

Indian Penal Code (hereinafter referred to as 'IPC' for brevity).

The FIR in the instant case was got registered by the complainant,

namely, Jai Lal S/o Dhanu Ram, resident of village Kolhawas by stating that he

was resident of the above mentioned address and was an agriculturist. He had

three sons. Ram Kumar was the eldest son, whereas, Dalip Singh and Krishan

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Chand were younger to him. All three sons were living separately. A legal

notice was received by his son Dalip Singh in October, 2002 by dak, which was

sent by Mir Singh S/o Maha Singh, resident of Patharwa, District

Mahendergarh, through his counsel Fateh Singh Sangwan, Advocate, Civil

Court, Dadri for recovery of a sum of Rs.2,60,000/-. The said notice was duly

replied by Dalip Singh through his counsel Sh. Nathu Ram Dahiya, Advocate

on 14.10.2002. Thereafter, a complaint was filed on 05.11.2002 in this regard

to the Station House Officer, City Dadri and a request was made to register a

criminal case against Mir Singh S/o Maha Singh, Mahender Singh, Advocate,

Satender Singh S/o Sheo Nath Singh, Rajender Singh S/o Ram Saran Singh and

Fateh Singh Sangwan, Advocate under Sections 420, 468, 467, 469,471, 384,

120-B and 34 of IPC. Due to this fact, Dalip Singh son of the complainant used

to remain in a sad mood and used to roam here and there. On the last day i.e.

on 17.11.2022, his son had taken his dinner and slept with his children and the

complainant also slept in the drawing room. The complainant was informed by

Ajay S/o Dalip Singh in the morning that Dalip Singh was missing from home

since last night. He sent Ajay to search for Dalip Singh in the village and the

complainant also searched for him. The complainant reached near a pond in the

village, where several persons were present and were talking about a thick cloth

sheet and a pair of slippers near a well. He identified those articles as

belonging to his son. Ultimately, the dead body of his son Dalip Singh was

taken out from the well and he left the villagers near the dead body of his son

and went to the police station to report the matter to the police. On the basis of

the said complaint, Ex.PC, the FIR under Sections 306, 34 and 109 of IPC was

registered against the respondents/accused.

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After completion of the investigation, the final report under Section

173 Cr.P.C. was submitted against the accused in the Court of learned Area

Magistrate and since the case was triable by the Court of sessions, the same was

ordered to be committed by the learned Area Magistrate. The accused were

charge-sheeted under Sections 306 and 34 IPC.

Vide the impugned judgment, the learned Additional Sessions

Judge (Fast Tract Court), Bhiwani held that the prosecution had miserably

failed to prove its case beyond the shadow of reasonable doubt against the

accused and all the accused were ordered to be acquitted by the trial Court.

Learned trial Court held that the amount of Rs.2,60,000/- was being claimed

from the deceased allegedly by the accused by fabricating certain documents

and he had received a notice for making the payment thereof. It was also

alleged that the deceased had suffered depression as he was called upon to make

the payment by way of a legal notice and he shared his woes with his family

members and also with his counsel at the time of drafting the reply to the legal

notice. It was held that the deceased had already taken recourse to the legal

procedure against the accused regarding the demand of payment made from him

and had also made a police complaint against the accused. The legal notice was

received by the deceased in the first week of October 2002, but he committed

suicide on the night intervening 17/18.11.2022 that is after about one and a half

month on the receipt of the notice. Learned trial Court further held that there

was no nexus between the act of the accused Mir Singh in sending the legal

notice to the deceased and that of the deceased committing suicide and it cannot

be said that the accused Mir Singh and his accomplices instigated the

commission of suicide by the deceased in any manner. The accused never

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urged, goaded or provoked the deceased to take the extreme step of ending his

life and did not provide any aid to the deceased to commit suicide. The accused

Mir Singh intended to receipt of the payment of his alleged loan extended to the

deceased and for that he would have been the last person to think of the death of

the deceased. The learned trial Court further held that there was no evidence on

the file to show that the deceased was left with no other option but to commit

suicide. Even the deceased committed suicide after one and a half month of the

receipt of the legal notice and immediately prior to that, there was no evidence

that he was under such depression to end his life. Even the writing Mark PC,

stated to have recovered from the pocket of the shirt of the deceased, which was

found hanging at the house, had not been proved. Even the prosecution could

not prove that the writing Mark PC was recovered from the pocket of the shirt

of the deceased and the said writing was in fact written by the deceased himself.

It requires mention that State of Haryana had not filed any appeal

before this Court, challenging the judgment of acquittal passed by the learned

trial Court and the complainant had preferred the instant appeal challenging the

judgment of acquittal arising out of a police case. The complainant preferred

the instant appeal before this Court under Section 378 (4) of Cr.P.C. and even an

application was filed by the complainant under Section 378(4) Cr.P.C. with a

prayer to grant special leave to appeal as well.

During the pendency of the appeal, Jai Lal, the complainant

expired and vide order dated 27.10.2009, his legal representative was ordered to

be impleaded as the appellant in the instant appeal. It also requires mention that

the accused Mir Singh, respondent No.2 and Satinder, respondent No.4 also

expired during the pendency of the appeal before this Court.

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I have heard learned counsel for the parties and with their able

assistance; I have gone through the entire record of the case.

At the very outset, learned counsel appearing for respondents No.1

and 3 have raised a preliminary objection before this Court that the FIR, in the

instant case, was registered on 18.11.2002 and the impugned judgment of

acquittal has been passed by the learned trial Court on 27.11.2006;

consequently, the complainant had no right to file an appeal against the

judgment of acquittal passed by the learned Additional Sessions Judge (Fast

Tract Court), Bhiwani under Section 378(4) Cr.P.C. Learned counsel for the

respondents also submitted that the proviso to Section 372 Cr.P.C., whereby the

victim has been granted the right to file an appeal against the acquittal was

inserted w.e.f. 31.12.2009 and the same is prospective in nature. The legislative

intent was very clear that the Amendment Act, 2008 shall come into operation/

force from a date, as the Central Government made by a notification in the

official Gazette appoints and such date was fixed to be 31.12.2009 through a

Gazette Notification. Consequently, the appeal is not maintainable before this

Court. Learned counsel for the respondents also placed reliance on the law laid

down by full Bench of this Court in CRM No.790-MA of 2010 "M/s Tata Steel

Ltd. Vs. M/s Atma Tube Products Ltd. and others" and the judgment of

Hon'ble the Supreme Court in "Mallikarjun Kodagali (Dead) represented

through Legal Representatives Vs. State of Karnataka and other", 2018 (4)

R.C.R. (Criminal) 781.

The submissions made by learned counsel for the respondents have

been opposed by learned counsel for the appellant and he contended that in

view of the provisions contained in Section 378(4) Cr.P.C., the appeal was

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maintainable before this Court. Chapter XXIX of Code of Criminal Procedure

1973, deals with the appeals. Section 372, as it stood prior to 31.12.2009 as

follows:-

"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."

Still further, Section 378 Cr.P.C. has been reproduced below:-

"378. Appeal in case of acquittal.

[(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, [the Central Government may, subject to the provisions of sub- section (3), also direct the Public Prosecutor to present an appeal-

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(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) 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)."

Prior to the Amendment of Section 372 Cr.P.C., 1973, it is apparent

that the victim did not have the right to file an appeal in Indian Judicial System.

There has always been a consistent view that the State represents the victims of

the crime. Every criminal offence was treated to be an offence against the State

and the State alone had the power to investigate and prosecute such case. In

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case, the State machinery decided not to take action on the complaint of the

victim, the victim had a right to approach the Court either under Section 156 of

Cr.P.C., 1973 or to file a complaint under Section 200 of Cr.P.C. As per the

mandate of Section 156 Cr.P.C., the Magistrate could order an investigation to

be done by the police.

Chapter XXIX of Code of Criminal Procedure, 1973 deals with the

appeals. The appeal against judgments of acquittal are governed by the

provisions of Section 378 of Cr.P.C. As per subsection (1) of 378 Cr.P.C., only

the District Magistrate or the State as the case may be is entitled to direct the

Public Prosecutor to file an appeal. Subsection (2) of Section 378 of Cr.P.C.

deals with the cases investigated under the Delhi Special Police Establishment

Act, 1946 and in those cases, the Central Government may also direct the public

prosecutor to file an appeal. As per Subsection (3) of Section 378 Cr.P.C., no

appeal to the High Court either under Subsection (1) or Subsection (2) shall be

entertained except with the leave of the Court. Subsection (4) deals with the

appeals filed by the complainant in case the order of acquittal is passed in any

case instituted upon a 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. Still further, Subsection (5) provides for the limitation for

filing the petition for grant of special leave to appeal in terms of Subsection (4).

Subsection (6) provides that in case the application for special leave to appeal

filed by a complainant under subsection (4) is refused then no appeal from that

order of acquittal shall lie under Subsection (1) or under Subsection (2). It

clearly shows that the Cr.P.C. envisaged and granted a predominant role to the

State, so far as the appeals against acquittal are concerned and the State alone

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was entitled to file an appeal in cases, which were launched on the basis of a

FIR. The only exception to this rule was in a complaint case, where the

complainant could file an appeal under Section 378(4) of Cr.P.C. after seeking

special leave to appeal, in case the appeal lay to the High Court.

As observed above, the victim/complainant in a State case had no

right to file appeal against the judgment of acquittal. The right to appeal was

vested for the first time in a 'victim' under the proviso to Section 372 of the

Code inserted by the Code of Criminal Procedure (Amendment Act) 2008.

Section 1(ii) of the Amendment Act clearly stated that "it shall come into force

on such date as the Central Government may, by notification in the official

Gazette, appoint; and different dates may be appointed for different provisions

of this Act". Still further Section 29 of the Amendment Act, 2008 pertaining to

amendment of Section 372 of the Code states that "in Section 372 of the

Principal Act, the following proviso shall be inserted, namely:- 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".

The Central Government, by Notification No.S.O.3313(E), dated

30.12.2009, appointed 31.12.2009, as the date for the Act No.5 of 2009 to come

into force, which was published in the Gazette of India, extraordinary, Part 2(ii)

Section 3(ii), dated 30.12.2009. Hence, in absence of any express intention

notified by the legislature to the contrary, it has to be concluded that the right of

the victim, to prefer an appeal in terms of the said proviso to Section 372

Cr.P.C., became available to the victim(s) of all cases in which orders were

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passed by any criminal Court acquitting the accused or convicting him for a

lesser offence or imposing inadequate compensation, on or after 31.12.2009.

The amended provision of Section 372 Cr.P.C. has been reproduced

below for ready 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 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.]

Thus, it is observed that right to appeal is a substantive right and it

cannot be inferred by implication unless the statute expressly provides so. It

can be safely laid down that the right to appeal given to a victim under the

proviso to Section 372 of the Code is prospective in nature and has been made

enforceable w.e.f. 31.12.2009. A victim has a right to prefer appeal in respect

of three types of the orders referred to in the proviso 2 Section 372 Cr.P.C., if

such order has been passed on or after 31.12.2009 and no such right was

available to the complainant/victim prior to 31.12.2009. Consequently, the

complainant in the instant case was not entitled to file the instant appeal under

the provisions of Section 378 (4) Cr.P.C. The Hon'ble Supreme Court of India

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has held in the matter of "Mallikarjun KKodagali (Dead) represented through

Legal Representatives Vs. State of Karnataka and other" 2018 (4) R.C.R.

(Criminal) 781 as follows:-

"74. What is significant is that several High Courts have taken a consistent view to the effect that the victim of an offence has a right of appeal under the proviso to section 372 of the Cr.P.C., 1973. This view is in consonance with the plain language of the proviso. But what is more important is that several High Courts have also taken the view that the date of the alleged offence has no relevance to the right of appeal. It has been held, and we have referred to those decisions above, that the significant date is the date of the order of acquittal passed by the Trial Court. In a sense, the cause of action arises in favour of the victim of an offence only when an order of acquittal is passed and if that happens after 31st December, 2009 the victim has a right to challenge the acquittal, through an appeal. Indeed, the right not only extends to challenging the order of acquittal but also challenging the conviction of the accused for a lesser offence or imposing inadequate compensation. The language of the proviso is quite explicit, and we should not read nuances that do not exist in the proviso."

In view of the above observations, this Court is of the considered

view that the instant appeal under Section 378(4) Cr.P.C. filed by the

complainant against judgment and order of acquittal passed by the learned

Additional Sessions Judge (Fast Track Court), Bhiwanit in case FIR No. 105

dated 18.11.2022, under Sections 306, 109 and 34 of IPC, is not maintainable

before this Court and the present appeal is accordingly, dismissed.

The appellant/complainant has also filed an application i.e. CRM

No.29863 of 2022 in the main criminal appeal under Section 391 Cr.P.C. read

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with Section 482 of the Code of Criminal Procedure with a prayer to place on

record certain additional document. Since the main appeal itself has been held

to be not maintainable, the said application is also liable to be dismissed.

Pending application, if any, is also disposed off, accordingly.

Case property, if any, be dealt with, and destroyed after the expiry

of period of limitation. The trial court record be sent back.

                                                      (N.S.SHEKHAWAT)
24.11.2022                                                 JUDGE
hemlata

                   Whether speaking/reasoned         :      Yes
                   Whether reportable                :      Yes




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