JUDGMENT :

1. Matter is already heard on 30.04.2019 and today fixed for delivery of order.

2. Applicant herein as an informant lodged an FIR on 02.09.2011 before the O/C, Dhubri PS raising allegation of kidnapping of his daughter by the accused persons (respondent Nos. 2 to 4) forcefully while she was returning from college. She was kept confined by the accused persons but on the massage sent by his daughter on mobile, she was recovered from the clutches of the accused persons.

3. Pursuant to the FIR, Dhubri PS Case No. 484/11 was registered u/s 366/34 of IPC. The case was charge-sheeted against the accused person/respondent No. 2 u/s 366 but the learned trial Court in course of trial impleaded the other accused persons by invoking section 319 of CrPC. All the accused persons faced the trial and denied the charge framed u/s 366/34 of IPC. At the conclusion of the trial, the learned trial Court has acquitted all the accused persons by its order dated 29.08.2018 by learned Assistant Sessions Judge, Dhubri in Sessions Case No. 230/14.

4. Feeling aggrieved with the aforesaid order, the present applicant being the informant in the said case is desirous to file an appeal against the order of acquittal and the present application has been filed u/s 378(3) of CrPC for granting leave to prefer the appeal against the order of acquittal.

5. I have heard Mr. A T Sarkar, learned counsel for the petitioner as well as Ms. A Begum, learned Addl. PP, Assam.

6. The learned counsel for the petitioner has submitted that in terms of the decision rendered in Satyapal Singh Vs. State of Madhya Pradesh and Ors. (2015) 15 SCC 613 even though the victim has a right to prefer an appeal against the order of acquittal u/s 372 CrPC but same can be filed only after obtaining leave of the Court as required under Sub-section 3 of 378 CrPC. Accordingly, the present petition has been preferred under the said provision of law.

7. I have heard the submission of the learned counsel for the petitioner who has also referred to recent decision of Hon’ble Supreme Court in Mallikarjun Kodagali Vs. State of Karnataka & Ors. decided on 12.10.2018 reported in 2019 (2) SCC 752 to submit that the Hon’ble Apex Court has finally decided the said issue that the victim has a unfettered right to prefer an appeal under the provision of Section 372 CrPC and no leave is required to prefer such appeal.

8. I have also heard the learned counsel for the state/respondent and gone through the relevant citation that has been referred and relied.

9. On perusal of the impugned judgment and order it reveals that the aforesaid order was passed by learned Assistant Sessions Judge and the Section 374 (3)(a) of the Code provides that the appeal from convictions given by the learned Assistant Sessions Judge will lie to the Court of Sessions. Although, the present appeal is not intended against the order of conviction but the same provision have to follow as regards the forum to whom the appeal lies. Obviously, against the order of the learned Assistant Sessions Judge appeal will not lie to the High Court by skipping the forum.

10. It is to be noted that the applicant here is the informant and he can be termed as a victim within a meaning of Section 2 (wa) which provides victim means a person who has suffered a loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression victim includes his or her guardian or the legal heir. In view of the provision the petitioner can very well challenged the order of acquittal only u/s 372 of the Code.

11. Although the present application has been preferred u/s 378(3) of the Code which provides that no appeal (to the High Court) under Sub-section 1 or Sub-section 2 shall be entertained except with the leave of the High Court, but it is to be appreciated that such appeal indicated in Section 378 of the Code is different than that of the appeal sought to be preferred by the victim.

12. On the pretext of the prayer made