The victim of a crime has an absolute right to appeal against acquittal without seeking special leave as per the Proviso to Section 372 of the Criminal Procedure Code.

JUDGMENT :

JITENDRA KUMAR, J.

The present criminal revision petition has been preferred against the impugned judgment dated 07.12.2016 passed by learned Additional District and Sessions Judge-I, Naugachia in Criminal Appeal No. 77 of 2014, whereby the appeal was allowed, setting aside the judgment of conviction and order of sentence dated 06.06.2014, passed by learned S.D.J.M., Naugachia whereby O.P. No.2/Mahendra Jha and O.P. No.3/Nandan Kishore Jha were convicted under Sections 3 23 , 498A and 406 read with Section 3 4 of the INDIAN PENAL CODE and Sections 3 and 4 of Dowry Prohibition Act and sentenced accordingly.

Factual Background

2. The factual background of this case is that the victim, Suman Devi W/o Nandan Kishore Jha had filed one Criminal Complaint Case No. 85 of 2006 against four accused persons including the O.P. Nos. 2 and 3 herein. In the criminal complaint, after cognizance charge was framed under Sections 3 23 , 498A and 406 read with Section 3 4 of the INDIAN PENAL CODE and Section ¾ of Dowry Prohibition Act against four accused persons including the O.P. No.2/Mahendra Jha and O.P. No.3/Nandan Kishore Jha herein.

3. After the trial, O.P. Nos. 2 and 3 were found guilty under Sections 3 23 , 498A and 406 read with Section 3 4 of the INDIAN PENAL CODE and Sections 3 and 4 of Dowry Prohibition Act and sentenced accordingly, by learned S.D.J.M., though rest two accused persons were acquitted of all charges.

4. Being aggrieved by the judgment of conviction and order of sentence, Mahendra Jha/ O.P. No.2 and Nandan Kishore Jha/ O.P. No.3 preferred Criminal Appeal bearing No. 77 of 2014 before the Sessions Court, Bhagalpur and the criminal appeal was allowed, setting aside their conviction.

5. Being aggrieved by this judgment of acquittal by learned Appellate Court below, the complainant/Suman Devi initially preferred S.L.A. No. 11 of 2017 on 09.02.2017 before this Court and the same was allowed vide order dated 02.11.2017 granting Special Leave to the appellant to file criminal appeal against acquittal. Subsequently, Criminal Appeal (U/S) No. 01 of 2018 was filed. However, during pendency of this Criminal Appeal, the appellant prayed for conversion of the said criminal appeal into criminal revision. The said prayer was allowed vide order dated 20.02.2019 and accordingly, the Criminal Appeal (U/S) No. 1 of 2018 was converted into present Criminal Revision bearing No. 383 of 2019.

Submissions of the parties

6. However, during hearing of the revision petition, preliminary objection has been raised by learned APP for the State and learned counsel for the O.P. Nos. 2 and 3 that present criminal revision petition is not maintainable.

7. They submit that in view of Proviso to Section 372 and Section 378 (4) Cr.PC, the victim/petitioner herein had rightly filed SLA No. 11 of 2017 on 09.02.2017 before this Court and the same was rightly allowed by the order dated

02.11.2017, granting Special Leave to the petitioner herein to file Criminal Appeal and consequently, Cr. Appeal (U/S) No.1 of 2018 was filed. However, the said Criminal Appeal has been wrongly converted into the present Criminal Revision. Section 401 Cr.PC provides that when an appeal lies and no appeal is brought, criminal revision filed by the party who could have appealed, is not maintainable.

8. Per contra, learned counsel for the petitioner submits that in view of the acquittal of O.P. No.2/Mahendra Jha and O.P. No.3/Nandan Kishore Jha by lower Appellate Court in Criminal Appeal No. 77 of 2014, the petitioner/complainant/victim has rightly got her previously filed Criminal Appea