When the victim and the complainant are the same person, the complainant must exhaust the remedy of statutory appeal under Section 372 of the Code of Criminal Procedure before seeking Special Leave to Appeal under Section 378(4).

Per D.N. Patel, J

1. The present application has been preferred under 378 of the Code of Criminal Procedure for getting Special Leave to Appeal against the judgment and order dated 17th July 2012 passed by the learned Chief Judicial Magistrate, Latehar in Complaint Case No.212 of 2008/Trial No. 222 of 2012 whereby the complaint case filed by the petitioner has been dismissed.

2. The complaint case was filed by the complainant-petitioner before the Chief Judicial Magistrate, Latehar for allegedly committing an offence under Section 420 of the Indian Penal Code against the Opposite Party No. 2. The case of the complainant-petitioner, as per the complaint petition, is that opposite party No. 2 requested the complainant-petitioner to offer himself as a guarantor for the loan for which he had applied to the Jharkhand State Adivasi Co-Operative Development Corporation Ltd., Daltonganj to the tune of Rs. 2,96,548/- and the complainant-petitioner in good faith signed the agreement paper as the guarantor for the loan amount. Subsequently, the corporation issued a notice to the complainant-petitioner shifting the liability of payment of loan amount of the opposite party no. 2 upon him. Further case of the complainant-petitioner is that opposite party no. 2 has committed breach of trust of agreement.

3. Counsel for the petitioner has submitted that though there is provision for statutory appeal under the newly inserted proviso to Section 372 of the Code of Criminal Procedure, as the petitioner is the complainant, he has preferred this appeal for grant of Special Leave to Appeal under Section 378(4) of the Code of Criminal Procedure. Counsel for the petitioner has pointed out several aspects of the matter based upon the evidence recorded by the trial Court and has submitted that Special Leave to Appeal may kindly be granted because there are several errors on the facts and law, committed by the trial Court.

4. Counsel for the State-A.P.P. has taken a preliminary objection as to statutory provision is provided under Section 372 Code of Criminal Procedure, but Special Leave to Appeal may not be granted to the petitioner and let the right of statutory appeal be exhausted and thereafter they may come to this Court. The learned A.P.P. also submitted that the provision of Code of Criminal Procedure has been amended with effect from 31st December, 2009 based upon 154th report of the Law Commission of India. It is submitted by the A.P.P. that whenever statutory provision of preferring an appeal is given by law, the remedy must be exhausted first and, thereafter, they can approach this Court. The learned A.P.P. has also taken analogy from writ petition preferred under Article 32 of the Constitution of India for violation of fundamental rights and in those cases, normally the Hon'ble Supreme Court is sending the petitioner to the concerned High Courts under Article 226 of the Constitution of India. Similarly, against the judgment and order of learned Single Judge of the High Court, whenever Letters Patent Appeal is tenable, normally Special Leave to Appeal under Article 136 of the Constitution of India is not granted. Similarly, counsel for the State has relied upon decisions rendered by the Full Bench of Hon'ble Patna High Court in Syed Zafrul Hassan Vs. State (F.B.) reported in 1986 PLJR, 274 that whenever there is a concurrent jurisdiction for grant of anticipatory bail i.e. both by the Sessions Court as well as by the High Court, normally the anticipatory bail applications should be preferred before the Sessions Court. In view of this analogy, it is submitted by the counsel for the State that in the facts of the present case, the parties are not remedyless. They have a right to prefer a statutory appeal against the very judgment of the Chief Judicial Magistrate, Latehar before the Sessions Court, Latehar. Thus, the Special Leave to Appeal may not be granted to the petitioner. Counsel for the State has also pointed out that whenever victim is