1. A charge sheet was laid against first respondent herein for offences under Section 279 and 304 of IPC, on the allegation that he drove a vehicle in a rash and negligent manner and as a result of such driving, petitioner’s son sustained injuries and died. First respondent was tried before Additional Sessions Court and he was convicted and sentenced as follows:

“considering the facts and circumstances of the case and age of the accused the sentence is limited to 2 years and fine of Rs.10,000/- (Rupees ten thousand only) in default of fine sentence to simple imprisonment of 3 months u/s 304 IPC and sentence to 6 months and a fine of Rs.1,000/- (Rupees one thousand only) in default simple imprisonment of 1 month u/s 279 IPC. Both the sentences shall run concurrently.”

2. Petitioner, who is the father of the victim filed this petition, seeking special leave under Section 378(4) of the Code. Section 378 of the Code (excluding the portion which is not relevant for disposal of this petition) reads as follows:-

“S.378. Appeal in case of acquittal – (1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5), -

(a) x x x x

(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) x x x

(3) x x x

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(5) x x x x

(6) x x x x

3. A plain reading of Section 378 of the Code and its title reveal that Section 378 relate to appeal against order of acquittal. As per Section 378(4) of the Code, special leave can be granted by the High Court, for filing an appeal against an order of acquittal. But, when is sought to be challenged by petitioner is an order by which, first respondent-accused was convicted for offences under Sections 279 and 304 of Indian Penal Code. It is not an order of acquittal. Therefore, Section 378 does not apply and no leave can be granted by this court under Section 378(4) of the Code.

4. However, learned counsel for petitioner argued that a victim is entitled to file an appeal under the proviso to Section 372 of the Code. The proviso to Section 372 is introduced into the Code recently, by Act 5 of 2009 and it has come into force with effect from 2.11.2010. As per Section 2 (wa) of the Code “victim” includes legal heir of the victim also and hence petitioner can file an appeal under Section 372 of the Code, it is argued. He also requested to treat this petition, as an appeal under Section 372 of the Code.

5. To consider the merit of this argument, a reading of Section 372 and Section 2(wa) of the Code is necessary. The above provisions are extracted as follows:

“S.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”.

“S.2. Definitions. – In this Code, unless the context otherwise requires, --

x x x x x x x

x x x x x x x

(wa) “victim” means a person who has suffered any 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 legal heir;”

6. A reading of Sec