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2022 Supreme(Ker) 928
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, SOPHY THOMAS, JJ.
XXXXXXXXXX – Appellant
Versus
State Of Kerala – Respondent
CRA(V) No. 36 of 2022
Decided on : 13-12-2022
Advocate Appeared:
For the Appellant : M/S.P.RAMESH, FATHIMA NARGIS K.A., SANGEERTHANA M.
For the Respondent: SRI. ALEX M.THOMBRA, PUBLIC PROSECUTOR
Point of Law: Powers under Sec.482 is of wide plentitude and grievances of a defacto complainant, which are arising out of an interlocutory order passed by Sessions Court, could certainly be examined in a plea under Sec.482 of Cr.P.C.
Headnote:
Criminal Procedure Code, 1973 – Section 372, 394, 451, 459, 452, 453, 454, 452(1), 482 - Properties – Plea for Return Back of Material Objects - Prayer that directions may be issued by Sessions Court that MO1 to MO5 properties shall be given to defacto complainant – Since appeals are pending, it may not be proper to file an independent application - Para 12.
Finding of the Court :
Subsequent order was passed by Sessions Court concerned, holding that MO1 to MO5 need not now be returned to appellant herein, on account of pendency of Criminal Appeals filed by accused persons before this Court - Order is only an interlocutory order, pending consideration of appeals before this Court and said order cannot supersede or take place of directions passed of main judgment rendered by Sessions Court, whereby it has been directed that material objects MO1 to MO5 shall be returned back to defacto complainant - Therefore, as of now, Court is of view that an appeal, in terms of Sec.454, is not maintainable at instance of defacto complainant, as said party cannot be said to be aggrieved by order already passed by Sessions Court, in terms of Sec.452(1), which are the directions issued by Sessions Court, in para 103 of main judgment - However, Court is of view that proper remedy of appellant in present case may be to file a Criminal Miscellaneous Application under Sec.482 of Cr.P.C. in pending Criminal Appeals filed by accused persons before this Court, with present plea for return back of material objects concerned.
Result: Appeal dismissed.
JUDGMENT :
ALEXANDER THOMAS, J.
The prayer in the above Criminal Appeal (Victim) is as follows:
“.......allow this Criminal Appeal (Victim) and direct the Trial Court to release MO1 to MO5 to the Appellant/Victim/Defacto complainant, in the interest of justice.”
2. Heard Sri.P.Ramesh, learned counsel appearing for the appellant and Sri.Alex M. Thombra, learned Prosecutor appearing for the respondent State of Kerala.
3. The Sessions Court concerned has convicted the accused persons (A1 to A6) for various offences mentioned in the judgment and have also ordered sentences on them as mentioned in the judgment. Further, in para 103 of the said judgment dated 18.7.2016 rendered by the Sessions Court concerned in S.C.No.439/2015, it was specifically ordered that MO1 to MO5 properties would be given to PW1/lady defacto complainant/victim, etc. Further, we are told that the accused persons concerned have preferred Criminal Appeals as Criminal Appeal Nos.1069, 1101, 1072 of 2016, which are pending before this Court and further that, the defacto complainant has already got herself impleaded as additional respondent in these Criminal Appeals filed by the respective accused persons concerned, in the light of the dictum laid down by the Apex Court in Jagjeet Singh & Ors. v. Ashish Mishra alias Monu & anr. [(2022) 9 SCC 321, paras 22 & 23] regarding the participatory rights of victims in criminal trials, appeals, revisions, etc.
4. The counsel for the appellant submits that later, the appellant herein/defacto complainant has preferred Criminal Miscellaneous Petition No.979/2019 in the said Sessions Case, S.C.No.439/2015, before the Sessions Court concerned, with the prayer that directions may be issued by the Sessions Court that MO1 to MO5 properties shall be given to the defacto complainant, as ordered in para 103 of the judgment dated 18.7.2016, rendered by the Sessions Court concerned in S.C.No.439/2015. The Sessions Court concerned has passed the impugned order dated 5.12.2019 on Crl.M.P. No. 979/2019 in S.C.No.439/2015 dismissing the said Crl.M.P., on the ground that the plea for return of those material objects cannot now be acceded to, as Criminal Appeals filed by the accused persons are pending before this Court.
5. The appellant herein had earlier preferred a Criminal Appeal (Victim) as Crl. Appeal (V) No. 24/2020, challenging the order dated 5.12.2019 rendered by the Sessions Court, Ernakulam on Crl.M.P. No. 979/2019 in S.C.No.439/2015, rejecting the plea for return of the abovesaid material objects. The learned Single Judge has dismissed Crl. Appeal (V) No. 24/2020, filed by the appellant herein, as per judgment dated 10.3.2022, ordering that, since Criminal Appeals filed by the accused persons concerned are pending against the judgment in S.C.No.439/2015, the appellant herein will be at liberty to approach the Division Bench concerned, where the Appeals are pending. It is thereafter, that the appellant has preferred the instant Criminal Appeal, which has been placed before us by the Registry.
6. The learned Prosecutor submits that it is an elementary position of law that Appeals, in terms of the Cr.P.C., can be maintained only if it is explicitly provided for and envisaged as per the provisions of the Cr.P.C. or as per any special enactment concerned and that this legal position is adumbrated in the operative portion of Sec.372 of the Cr.P.C., which is with the caption “No appeal is to lie unless otherwise provided”, wherein it is stipulated that 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, etc. It is submitted by the Prosecutor that no provisions of the Cr.P.C. or any special law enables the victim to file an appeal before this Court to challenge an order in the nature of the impugned order rendered by the Sessions Court concerned on 5.12.2019 on Crl.M.P. No. 979/2019 in S.C.No.439/2015, rejecting the plea of the defacto complain
