IMPORTANT POINT
Appeal against acquittal – After filing appeal under Section 413 of BNSS (or under corresponding proviso of Cr.P.C.) before Sessions Court, another appeal cannot be preferred by same appellant under Section 419(4) of BNSS, against order confirming acquittal.

JUDGMENT (ORDER)

A defacto complainant is before this Court, seeking leave to prefer another appeal against the judgment of a Sessions Court rendered in an appeal filed by him, challenging the acquittal of accused by the trial court. The Registry of this Court noted a defect that the petitioner had already preferred an appeal before the Sessions Court against the judgment of acquittal of the trial court and hence a second criminal appeal by the same appellant is not maintainable. Petitioner questioned the correctness of the said defect, and hence the matter was placed before this Court, for consideration.

2. This criminal leave petition has been filed by the defacto complainant in C.C. No.678 of 2017 on the files of the Judicial First Class Magistrates Court, Sulthan Bathery under section 419(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘the BNSS’), seeking leave to prefer an appeal against the concurrent findings of acquittal of the accused for the offences alleged under sections 420 and 415 r/w section 34 of IPC, sections 17 and 18 of the Kerala Money Lenders Act, 1958 and section 4 r/w section 76(1) of the Chit Funds Act, 1982. The appeal filed by the petitioner herein, as Crl. Appeal No.78 of 2022 on the files of the Sessions Court, Kalpetta, was dismissed thereby affirming the judgment of acquittal of the trial court. Thus, after the trial court acquitted the accused, the defacto complainant preferred an appeal which ended in dismissal and through this leave petition he seeks permission to prefer yet another appeal. Since the learned counsel for the petitioner insisted that his contentions be heard and considering the importance of the issue, this Court appointed Adv. Krishnapriya Sreekumar, as Amicus Curiae to assist the court in this matter.

3. I have heard Sri. T. P. Pradeep, the learned counsel for the petitioner as well as Adv. Krishnapriya Sreekumar, the learned Amicus Curiae, the latter of whom filed a detailed note as well, in support of her submissions.

4. Sri. T P. Pradeep the learned counsel for the petitioner on the other hand, submitted that section 413 of the BNSS enables a complainant as a victim to prefer an appeal against any order passed by the court acquitting an accused and is not confined only to an appeal against the order of acquittal passed by the court of first instance. The learned Counsel relied upon section 419(4) of the BNSS and submitted that the terms ‘if such an order of acquittal’ employed in the said provision when read along with section 413 of the BNSS, it will be evident that the right of appeal for a victim will accrue against any order of acquittal. The learned counsel also relied upon the decision in Ganesh Rao K.H. v. Gopal H (2010 Crl.LJ 2687).

5. Adv. Krishnapriya Sreekumar, the learned Amicus Curiae submitted that the appeal is a substantive right borne out from the principle that a person aggrieved by a judicial determination must have an avenue to seek reconsideration by a superior forum and that there is no inherent right to appeal, as it is one conferred by a statute which cannot be expanded through creative interpretations. Inviting the attention of this Court to the provisions of sections 413, 415, 419 and section 434 of the BNSS, it was submitted that, once an appeal is preferred against a judgment of acquittal, another appeal cannot be entertained, at the instance of the same person. The learned Amicus Curiae referred to the decision of the Supreme Court in Asian Paints Limited v. Ram Babu and Another (AIR 2025 SC 3322) and submitted that the right of appeal accrues to a victim from the moment the court acquits an accused and the right of the victim can only be for preferring an appeal to the court that ordinarily entertains an appeal under the proviso to section 413 of the BNSS. The learned Amicus Curiae, further relied upon the decision in Mallikarjun Kodagali (dead) represented through legal representatives v. State of Karnataka and Others [(2019) 2 S