2013 Supreme(Raj) 975
RAJASTHAN HIGH COURT
Atul Kumar Jain, J.
Nirmal Jeet Rana - Appellant
Versus
Amar Singh - Respondent
S.B. Criminal Leave to Appeal No. 115 of 2011.
Decided On : 22-03-2013
Advocates:
For the Appellant:Farzand Ali, Advocate.
For the State: Ashok Prajapat, Public Prosecutor.
For the Respondent:B.S. Rathore, Advocate.
The amended proviso to Section 372 of the Cr.P.C. confers jurisdiction on the Sessions Court to hear appeals against acquittal orders passed by magistrate courts in cases involving offences under Section 138 of the Negotiable Instruments Act, 1881.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 372, 378(4) - INTERPRETATION - APPEAL AGAINST ACQUITTAL - JURISDICTION - SESSIONS COURT OR HIGH COURT - AMENDED PROVISO TO SECTION 372, CR.P.C. - APPLICABILITY - RETROSPECTIVE EFFECT - PROCEDURE - VICTIM'S REMEDY - APPEAL TO SESSIONS JUDGE - HIGH COURT'S JURISDICTION - EXCEPTIONAL GROUNDS - FILING OF APPEAL DIRECTLY BEFORE HIGH COURT - DISCOURAGED - SESSIONS COURT'S JURISDICTION - PRIMARY - HIGH COURT'S JURISDICTION - SECONDARY - LIMITATION - DELAY CAUSED BY HIGH COURT - IGNORANCE BY LOWER COURT.
Fact of the Case:
The appellant-complainant challenged the acquittal order in a criminal case under Section 138 of the Negotiable Instruments Act, 1881, passed by the lower court. The appellant directly filed an appeal before the High Court, bypassing the Sessions Court.
Finding of the Court:
The High Court held that the amended proviso to Section 372 of the Code of Criminal Procedure (Cr.P.C.) confers jurisdiction on the Sessions Court to hear appeals against acquittal orders passed by magistrate courts in cases involving offences under Section 138 of the Negotiable Instruments Act, 1881. The High Court further held that the victim has a remedy of appeal against every acquittal order passed by the magistrate court and that such appeal can be heard by the concerned Sessions Judge.
Issues: 1. Whether the amended proviso to Section 372 of the Cr.P.C. confers jurisdiction on the Sessions Court to hear appeals against acquittal orders passed by magistrate courts in cases involving offences under Section 138 of the Negotiable Instruments Act, 1881? 2. Whether the victim has a remedy of appeal against every acquittal order passed by the magistrate court and whether such appeal can be heard by the concerned Sessions Judge?
Ratio Decidendi: 1. The amended proviso to Section 372 of the Cr.P.C. clearly states that the victim has a remedy of appeal against every acquittal order passed by the magistrate court and that such appeal can be heard by the concerned Sessions Judge. 2. The law of procedure may be applicable retrospectively, as held in various Supreme Court rulings. 3. The jurisdiction to hear appeals against acquittal orders passed by magistrate courts in cases involving offences under Section 138 of the Negotiable Instruments Act, 1881, is conferred on the Sessions Court by the amended proviso to Section 372 of the Cr.P.C. 4. The High Court should not encourage the trend of filing appeals directly before it when the matter could have been heard and disposed of by the Sessions Court under the proviso to Section 372 of the Cr.P.C.
Final Decision: The High Court returned the petition for leave to appeal to the petitioner for presentation before the Sessions Court, Jodhpur Metropolitan. The High Court directed the petitioner to appear before the Sessions Judge on 18.4.2013 at 10.00 a.m. for this purpose.
JUDGMENT
1. - In this matter, I have heard the parties on the interpretation of proviso to Section 372, Cr.P.C. in relation to Section 378(4), Cr.P.C.
2. It is agreed position that as per the amended proviso to Section 372, Cr.P.C., the victim has been given a remedy of appeal against every acquittal order passed by the magistrate court and his appeal in such type of matters can be heard by the concerned Sessions Judge.
3. Section 372, Cr.P.C. was amended on 31.12.2009 by adding a proviso to it by Amendment Act 5 of 2009 (Section 29). Law of procedure may be applicable retrospectively as was held in the following rulings:
(1) Union of India v. Sukumar- AIR 1966 SC 1206,
(2) Nayyar G.P. v. Delhi Administration- AIR 1979 SC 602
(3) Rao Shiv Bahadur Singh v. State of U.P., AIR 1953 SC 394.
4. The appellant-complainant has challenged in this appeal the acquittal order in Criminal Case of Section 138 of N.I. Act, 1881 which was passed by the learned Addl. Civil Judge (J.D.) and Metropolitan Magistrate (N.I. Act Cases) No. 1, Jodhpur in Criminal Regular Case No. 712/2010,whereby the learned lower court acquitted the accused-respondent Amar Singh from the charge under Section 138 of N.I. Act, 1881.
5. Such type of appeal could have been and should have been filed in the Sessions Court, Jodhpur Metropolitan first and only then after the aggrieved party could have challenged the order of Sessions Judge, Jodhpur Metropolitan in this Court. So after hearing both the parties, I am of the opinion that while Section 378(4) of Cr.P.C. confers jurisdiction of hearing appeal against acquittal on the High Court, the amended proviso to Section 372 Cr.P.C. does so on the Sessions Court. But it is equally true that where the jurisdiction is conferred on two courts, the aggrieved party should ordinarily first approach the inferior of the two courts unless exceptional grounds for taking the matter directly before the superior court are made out.
6. In the present matter, the propriety requires that the appellant-complainant should have gone to the Sessions Court first and only thenafter, if aggrieved, he should have approached this Court. This Court does not encourage the trend of filing of appeals directly before this Court when the matter could have been heard and disposed of by the Sessions Court under proviso to Section 372, Cr.P.C.
7. It is pertinent to note here that amended proviso to Section 372 of Cr.P.C. was not brought to the notice of the Hon'ble Supreme Court when 2013 Cr.L.R.(S.C.) Page 1, Subhash Chand v. State was decided by their Lordships of Hon'ble Supreme Court. Same is the case with the order dated 19.1.2011 passed by this High Court in S.B.Cr. Revision Petition No. 875/2010 Manju Kawadiya v. Ghanshyam Sahu where also provisions of amended proviso of Section 372 of Cr.P.C. were not brought to the notice of the High Court. The judgment of Hon'ble Mr. Justice Sandeep Mehta of the Rajasthan High Court, Jodhpur in S.B. Criminal Leave to Appeal No. 74/2012, Nathu Ram Bansal v. State of Rajasthan dated 28.2.2013 is also of no help here because unfortunately that judgment has also not considered the impact of the amended proviso to Section 372, Cr.P.C. in proper perspective. So the aforesaid rulings also do not come in the way of process of filing of appeal by victim against acquittal order passed by Magistrate before the concerned Sessions Judge. On the other hand, I get support from 2012(4) Cr.L.R.(Raj.) 2015) Laxmi Lal Menaria v. Rajendra Kumar (Judgment dated 1.5.2012) wherein Hon'ble Mr. Justice Dalip Singh of the Rajasthan High Court has held that once the Section 372, Cr.P.C. has been amended, the appeal against acquittal by the Magistrate would lie to the court of Sessions and leave to appeal in such matters should not be granted by the High Court ordinarily.
8. Resultantly, the petition for leave to appeal of the complainant- Nirmal Jeet Rana is hereby returned to the petitioner for presentation before the court of Sessions Judge
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