ORDER :

I.A.1/17

The instant application is filed under section 378(4) Cr.P.C. seeking leave to appeal.

2. Learned counsel for the appellant has relied on the proviso to section 372 of the Code to contend that the appellant being a victim has a right to file an appeal without leave. In support of his argument, learned counsel has referred to the decision in MALLIKARJUN KODAGALI(DEAD) REPRESENTED THROUGH LEGAL REPRESENTATIVES vs. STATE OF KARNATAKA AND OTHERS, reported in (2019) 2 SCC 752 and later decision of the Hon’ble Supreme Court in NAVAL KISHORE MISHRA vs. STATE OF U.P. AND ORS. in Crl.A.No.979/2019 dated 05.07.2019.

3. Law is now well settled that in terms of amendment carried on by insertion of proviso to section 372 of Cr.P.C. and the law laid down by the Hon’ble Supreme Court in Mallikarjun’s case referred above, there is no need for a victim to apply leave to appeal against an order of acquittal while preferring an appeal under the proviso to section 372 of the Code.

4. The contention of the learned counsel for respondent is that the applicant is not a ‘victim’ as defined under section 2(wa) of the code, rather he is an informant at whose instance, law was set in motion and charge sheet was filed by the police. The instant appeal is arising out of police case and therefore the proviso to Section 372 of the Code is not applicable to the appellant.

5. Learned counsel has made a distinction between a police case arising out of an FIR under section 154 Cr.P.C. and a complaint case filed before the Magistrate under section 200 Cr.P.C. Referring to para 76 of the decision in Mallikarjun’s case referred above, he emphasized that proviso to section 372 of Cr.P.C. is confined only to an order of acquittal passed in a case instituted upon a complaint and therefore the complainant or the informant does not fall within the meaning of the expression “victim” under section 372 of Cr.P.C.

6. In the light of the above contention, the point that arises for consideration is:-

“Whether leave of the Court is necessary in an appeal filed against an order of acquittal arising out of a police case.?’

7. It cannot be denied that in a police case arising out of a FIR, the informant can also be as much a victim as a complainant as defined under section 2(d) of the Code. In this context, it may be noticed that section 2(wa) of Cr.P.C. defines the term ‘victim’ as under:-

2(wa). “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir.

This definition does not make any distinction between a victim who approaches the court by making an application under section 200 Cr.P.C., and a complainant or informant who lodges the FIR alleging that he has suffered loss or injury on account of act or omission of the accused person charged for the said offence. Therefore, it would be travesty of justice to say that it is only a victim who knocks the door of the criminal court by making a complaint under section 200 of Cr.P.C. could only be termed as a ‘victim’. The proviso to section 372 Cr.P.C. does not envisage any such distinction either.

8. In this context, it may be apposite to refer to the constitutional Bench decision in LALITA KUMARI vs. GOVERNMENT OF UTTAR PRADESH AND OTHERS, reported in (2014) 2 SCC 1. In para 97 of the said judgment, the Hon’ble Supreme Court has held as under:-

(97). The Code contemplates two kinds of FIRs. The duly signed FIR under Section 154(1) is by the informant to the concerned officer at the police station. The second kind of FIR could be which is registered by the police itself on any information received or other than by way of an informant [Section 157(1)] and even this information has to be duly recorded and the copy should be sent to the Magistrate forthwith. The registration of FIR either on the basis of the information furnished by the informant under Section 154(1) of th