The proviso to section 372 of the Code of Criminal Procedure gives an unfettered right to the victim to challenge any order passed by the court acquitting the accused or imposing lesser sentence or inadequate compensation.

JUDGMENT

N.B. Suryawanshi, J. - Heard.

2. The learned advocate representing the Respondent Nos. 2 to 6/ Original accused questions the maintainability of this Appeal filed by the victim against the order of acquittal passed by Appellate Court.

3. Brief facts are as follows.

The respondent Nos. 2 to 6/original accused were charged for the offences punishable under sections 326, 325, 147, 148, 149, 323, 504, 506 r/w 34 of the Indian Penal Code in R.C.C. No.26 of 2003. The learned trial court, after full-fledged trial, convicted the accused for the offences under section 324 r/w 149 of the I.P.C. and sentenced them to suffer Simple Imprisonment for two years each and to pay a fine of Rs.1,000/- each, under sections 323, 147, 148, 504, 506 r/w 149 of the IPC and further sentenced them to suffer Simple Imprisonment for one year each, for each offence and to pay a fine of Rs.1,000/- each for each offence.

4. Being aggrieved by the conviction, the accused persons preferred Criminal Appeal No.53 of 2012 and the learned Appellate Court was pleased to allow the appeal, quashed and set aside the conviction and acquitted the accused persons. Hence, the victim has preferred the present appeal under section 372 of the Code of Criminal Procedure (for short ''Cr.P.C.'') questioning the legality and propriety of the order of acquittal by Appellate Court.

5. Mr. Joshi, learned counsel representing the respondent Nos.2 to 6, viz., original accused, has raised preliminary objection as to the maintainability of the present appeal contending that proviso to section 372 of the Cr.P.C. carves out an exception thereby providing a right to the victim to prefer an appeal against any order 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. The learned counsel, therefore, contends that the wordings ''an appeal ordinarily lies against the order of conviction of such court'' would necessarily mean that the right of appeal to the victim coexists with the right of the accused to prefer an appeal. The provision has to be read strictly and if section 372 being the substantive provision and the proviso is read harmoniously, then the appeal does not lie unless provided otherwise. The learned counsel further contends that since in the present case the respondent Nos. 2 to 6/original accused were convicted for a lesser offence by the learned Trial Court, they challenged the conviction by filing criminal appeal before the Court of Session, Pune and the learned Appellate Court acquitted the respondent Nos. 2 to 6/ original accused. He emphasized the aspect that the victim/ appellant did not challenge the conviction of the accused persons for a lesser offence by preferring an appeal to the Sessions Court. In this view of the matter, he contends that the remedy of appeal under section 372 of the Cr.P.C. would not be available to the appellant and his only remedy is to challenge the order of acquittal by filing Criminal Revision under 401 of the Cr.P.C. He would urge that if in the present case, the conviction of the accused would have been confirmed by the learned appellate Court, in that case they only had the remedy of filing Revision challenging the orders of the Trial Court as well as the appellate court and since the right of victim coexists with the right of accused, the only remedy for the appellant was to file Criminal Revision under section 401 of the Cr.P.C. to challenge the acquittal. In that view of the matter also the appeal filed by the appellant is not maintainable and the appellant ought to have filed Criminal Revision.

6. In reply, the learned counsel for the appellant, by pointing out proviso to section 372 of the Cr.P.C., would urge that the wording used in the proviso is ''any order'' passed by the court. In that view the appeal filed by the appellant is a proper remedy. He further submits that by way o