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2012 (2) GCD 1711 (Guj) (DB)
Hon’ble Mr. Justice Jayant Patel &
Hon’ble Mr. Justice Paresh Upadhyay
Mahendrabhai Bhanjibhai
Versus
State of Gujarat & Ors.
Criminal Appeal No. 228 of 2012—Decided on 09/04/2012
[Indian] Penal Code, 1860 (Central Act 45 of 1860) — Sections 325, 326, 302, 504, 506(2) read with 34 and 114 — Bombay Police Act, 1951 (Bom. Act No. 22 of 1951) — Section 135 — Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Sections 24(8), 372 read with proviso and 378 — Appeal against acquittal by original complainant — When appeal filed by State with grant of leave to prefer appeal admitted and pending — Scope of — Finding as to — According to proviso added to Section 372 of Criminal Procedure Code victim is enabled to prefer appeal against the order passed by Court acquitting accused — But proviso does not give a better right the compensation to the right of State to prefer appeal being dominion of a prosecution case — It is the Primary responsibility of the State to ensure that offender are booked — If the State is not pursuing the matter with proper spirit and zeal the victim may validly raise grievances but such right is not available when appeal by State is already admitted — In that case victim will have right only to assist prosecution as per provision of Section 24(8) of Criminal Procedure Code — In view of this application for leave to prefer appeal by victim against acquittal is not granted.
Held :
If the State is to prefer appeal against the order of acquittal it has to follow the procedure as laid down under Section 378 of Cr. P.C., namely, that unless the leave is granted by the High Court, such appeal would not be entertained. It is only after the application for leave is made and such leave is granted by the High Court, the appeal shall be entertained by the High Court against the order of acquittal. If the right of the State to prefer appeal against the order of acquittal is controlled by provision of Section 378 Cr. P.C., the victim who otherwise can not claim higher pedestal in the criminal prosecution, cannot be heard to say that merely because the proviso is amended in Section 372, such right of preferring appeal with the victim is in-absolute and not controlled by any provision of Section 378. If such a contention is accepted, the consequence could arise of treating the status of victim in any criminal prosecution higher than that of the State which can never be the intention of the legislative body nor can be allowed to be maintained in a welfare State where the right of the victim as well as of the accused are required to be balanced and the State is dominion of the criminal prosecution. [Para 3(12)]
It can be concluded that if the State has not preferred appeal against the order of acquittal or if the leave is not granted and the appeal of the State is not entertained, the victim may claim right of preferring the appeal in-absolute, but such right of preferring the appeal may not be available if the appeal of the State is already admitted and the leave has been granted against the order of acquittal of the State. In any case, even if it is read for the sake of consideration that the victim has absolute right to prefer appeal then also the judicial discretion would demand that when the State has already preferred appeal against the order of acquittal and the leave has been granted by this Court and the appeal has been admitted against the order of acquittal, preferred by the State, it would not be a case to entertain the another appeal of the victim by this Court and the only observation deserves to be made is to enable the victim to assist the Public prosecutor as per the provision of Section 24(8) Cr. P.C., at the time of final hearing of the appeal and/or by making the submission before the Court with the P.P. against the order of acquittal. [Para 3(14)]
Law Laid Down :
It is only after application for leave is granted by High Court the appeal shall be entertained by Court against order of acquittal.
Jayant Patel, J.—Present Appeal has been preferred by the original complainant against the judgment and order passed by the learned Sessions Judge in Sessions Case No. 14/2007, whereby the accused have been acquitted for the offences under Sections 325, 326, 302, 504, 506(2), 34 read with Section 114 of the Indian Penal Code read with Section 135 of the Bombay Police Act.
2. We have heard Mr. Shah for the appellant.
3. As such in a case where Appeal is already preferred by the State against the judgment and order of acquittal and the said Appeal of the State has been admitted and the leave has been granted, whether separate appeal of the original complainant should be entertained or not is an aspect already considered by this Court in Misc. Criminal Application No. 5522/2009 with Criminal Appeal No. 783/2010 decided on 10.05.2010 and in the said decision, it was observed by this Court as under :—
“4. The aforesaid aspect makes it clear that the State has vigilantly pursued the matter so as to see that the offenders are booked and the victim may not suffer. The said aspect is coupled with the circumstance that this Court has granted leave to prefer appeal against the order of acquittal and the appeal against the order of acquittal has been admitted by this Court. It appears that thereafter the present proceedings, viz. leave to prefer appeal and the appeal against the order of acquittal have been preferred by the original complainant/victim.
5. We have heard Mr. Raval, learned Counsel, appearing for the original complainant – applicant herein and Mr. Kamal B. Trivedi, learned Advocate General with Mr. P.K. Jani, learned Public Prosecutor for the State.
6. In order to consider the aforesaid question, reference to certain provisions of the Code of Criminal Procedure would be relevant.
7. Section 372 Cr.P.C., which provides for appeal under Chapter – XXIX, reads as under :
“372. No appeal to lie unless otherwise provided – No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.
[Provided that the victim shall have a right to prefer an appeal against any order passed by the Court 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 of such Court]”.
8. Section 378 Cr. P.C. provides for appeal in case of acquittal, which reads as under:
“378. Appeal in case of acquittal.—(1) Save as otherwise provided in Sub-section (2), and subject to the provisions of Sub-section (3) and (5)—
(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Sessions from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.]
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, [the Central Government may, subject to the provisions of Sub-section (3), also direct the Police Prosecutor to present an appeal -
(a) to the Court of Sessions, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
(b) to the High Court from an original or appellate order of an acquittal passed by any court other than a High Court (not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.]
(3) [No appeal to the High Court] under
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