A victim of a crime has the right to prefer an appeal against an order of acquittal or conviction for lesser offenses even in a complaint case under proviso under Section 372 of Cr.P.C. notwithstanding the pre-existing right of a complainant to prefer an appeal against acquittal under Section 378(4) of Cr.P.C.

SIDDHARTHA CHATTOPADHYAY, J.

The instant criminal appeal emanates from the judgment and order of acquittal dated 16.04.2013 passed by the Judicial Magistrate 9th Court Alipore, in complaint case No. 11113 of 2007 whereby and where under the learned Magistrate has passed an order of acquittal in favour of the accused opposite party.

2. According to the appellant, the learned trial court failed to appreciate the evidence and position of law in its proper perspectives. The learned trial court has mainly relied on the version of the accused and ignored the complaint case and the judgment is written without any application of mind.

3. The learned Counsel appearing on behalf of the opposite party accused contended that the learned trial court has considered all the material aspects and it does not call for any interference.

4. At the time of hearing, at the very outset learned Counsel appearing on behalf of the accused/opposite party submitted that the instant appeal is not maintainable. He contended that in view of the present position of law the appellant ought to have filed the appeal under Section 372 of Cr.P.C. and not under Section 378(4) of Cr.P.C. He further submitted if the appeal itself is not maintainable in that case argument in regard to other matters is inconsequential.

5. Learned Counsel appearing on behalf of the petitioner submits that the appeal is very much maintainable in view of plethora of decision. He relied on the decisions reported in (1) Subhas Chand v. State (Delhi Administration) reported in (2013) 2 C.Cr.L.R. (SC) 151, (2) Sri. Chandan Mukherjee v. Pankaj Kumar Behera reported in (2017) 2 C.Cr.L.R. (Cal) 406, (3) M.K. Products v. BLUE OCEN RXPORTS (P) Ltd. reported in (2017) 2 C.Cr.L.R. (Cal) 202, (4) Roopendra Singh v. State of Tripura reported in JT 2017 (4) SC 1, (5) Ram Phal v. State (Server copy from official web of Delhi High Court), (6) Satya Pal Singh v. State of M.P. reported in (2016) 3 C.Cr.L.R. (SC) 291, (7) Kaushalya Rani v. Gopal Singh reported in AIR 1964 SC 260, (8) Nirmal Kumar Batabyal v. The State of West Bengal reported in (2016) 2 C.Cr.L.R. (Cal) 534.

6. Learned Counsel appearing on behalf of the accused opposite party relied on the unreported decision passed by a co-ordinate bench in connection with C.R.R. 3048 of 2016, C.R.R. 3049 of 2016, C.R.R. 3433 of 2016, C.R.R. 3108 of 2016. He contended that after analysing the relevant legal positions, the said co-ordinate bench had sent the matter to the larger bench because there are some divergent views passed by the other coordinate benches. So he has submitted that this court should also wait till the referred matter is disposed of by the larger bench.

7. Learned Counsel Mr. Sekhar Basu argued that the judgment on which the respondent relied, does not hold water. He argued that the decision of Subhas Chand v. State (Delhi Administration) still holds the field and the interpretation of that co-ordinate bench in regard to the decision of Subhas Chand is not the correct position of law.

8. In such circumstances, it appears to me that this court is called upon to answer if a complainant wants to file an appeal against order of acquittal or lesser sentence whether he would come under the provision of Section 378(4) of Cr.P.C., or if a person being a victim of the crime wants to prefer an appeal against acquittal, whether he would prefer an appeal only under Section 372 of Cr.P.C.? Whether a complainant who is also a victim can file an appeal under Section 378(4) of Cr.P.C. or Under Section 372 of Cr.P.C.

9. In the decision reported in (2017) 2 C.Cr.L.R. Calcutta 406 in connection with Chandan Mukherjee v. Pankaj Kumar Behera a coordinate bench (Tapash Mookherjee, J.) relied on the decision of Subhas Chand case and clearly held that an appeal against an order of acquittal in a case instituted upon complaint can be filed only in the High Court, if special leave for such appeal is granted under Sub-Section 4 of Section 378 of Cr.P.C., another