2018 Supreme(Jhk) 953

IN THE HIGH COURT OF JHARKHAND AT RANCHI
H.C. Mishra, B.B. Mangalmurti, Anil Kumar Choudhary, JJ.
Tuklal Yadav - Appellant
Versus
The State of Jharkhand & Ors. – Respondents
Cr. Appeal (S.J) No. 1281 of 2016, 2066, 2229 of 2017, 825 of 2014, Cr. M. P No.3260 of 2017
Decided On : 19-09-2018

Headnote:

Code of Criminal Procedure, 1973 – Section 372, 378 – High Court of Jharkhand Rules, 2001 – Rules 152, 84, 35, 36 – Order of Acquittal – Whether the acquittal appeals arising out of the appellate judgments/orders passed by the Courts of Session should be heard by a Division Bench, or it should be heard by the Single Judge in view of Proviso to Section 372, r/w 378 (3) of the Cr.P.C., as was being done earlier. – Whether the orders passed by the Honble Single Judge, referring the acquittal appeals filed against the appellate judgments/orders passed by the Courts of Session, in view of Rule 152 of the High Court of Jharkhand Rules, is in consonance with Proviso to Section 372 of the Cr.P.C., or whether such appeals shall lie to the Court to which the appeals ordinarily lie against the orders of conviction, i.e., Single Judge, in view of Proviso to Section 372 of the Cr.P.C. – Whether Rule 152 of the High Court of Jharkhand Rules, 2001, needs to be amended in view of subsequent amendment of Section 372 of the Cr.P.C., w.e.f. 31.12.2009. – Whether the acquittal appeals arising out of acquittal orders/judgments passed by the Magistrates in complaint cases, can be entertained by the Courts of Session under the Proviso to Section 372 of the Cr.P.C., or the complainant has to prefer an application for special leave to appeal before the High Court, and if special leave is granted to him, to file the appeal in the High Court itself, as required under Section 378 (4) of the Cr.P.C. – Whether such applications for leave/special leave to appeal, even in the acquittal appeals arising out of the appellate judgments/orders passed by the Courts of Session, are to be heard and decided by the Division Bench, as is being presently done, or they can be heard and decided by a Single Judge, which is the Court of appeal in such cases under Proviso to Section 372 of the Cr.P.C., on the analogy that the Court which can decide the main appeal, can also decide the question whether the leave/special leave to appeal in a particular case be granted or not. – Whether the applications for leave/special leave to appeal under Section 378 (3) Cr.P.C., and Section 378 (4) Cr.P.C., have to be filed separately as independent applications in the form of Cr.M.P., or the same can be filed by way of interlocutory applications (I.A.), in the same appeal, in which case the multiplicity of cases may also be avoided, thus, reducing the pendency of the cases. – Whether the acquittal appeals should necessarily be registered as Acquittal Appeals, and not as Criminal Appeals – The nomenclature Cr. Appeals should only be for the appeals arising out of the Judgments/Orders of conviction. – Any other questions, which may arise, for consideration before the larger Bench. – Held, In cases of the appellate judgments/orders of acquittal passed by the Courts of Session, the informant, whether he is a victim or not, shall have no right to challenge the same under the Proviso to Section 372 of the Cr.P.C., in view of the expression in the Proviso “such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court”, there being no provision for any appeal to the High Court against the orders/judgments of conviction passed by the Magistrates. – As such, no question survives to decide whether such appeals shall be heard by a Single Judge, or by a Division Bench. – Appeals arising out of original judgments/orders of acquittal, or of conviction for lesser offence, or imposing inadequate compensation, passed by the Courts of Session, shall lie to the High Court, in view of the Proviso to Section 372 of the Cr.P.C, but only after obtaining the leave under Section 378 (3) of the Cr.P.C. And in view of Proviso to Section 372 of the Cr.P.C, read with Rule 36 (ii) of the High Court of Jharkhand Rules, 2001, the appeals shall lie before the Division Bench of the High Court. – Appeals arising out of judgments/orders passed by the Court of Magistrates, whether against acquittal, or convicting for a lesser offence, or imposing inadequate compensation, filed by the victims as defined under Section 2 (wa) of the Cr.P.C., shall lie before the Courts of Session, in which case, leave to appeal is not required. – If such orders/judgments are also affirmed by the Courts of Session, there shall be no further appeal to the High Court under the Proviso to Section 372 of the Cr.P.C., in view of the expression in the Proviso “such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court”, there being no provision for any appeal to the High Court against the orders/judgments of conviction passed by the Magistrates. – Court also find that in view of the Rules 35 (1) (f) and 36 (ii) brought by amendment in the year 2005, in the High Court of Jharkhand Rules 2001, Rule 152 of the High Court Rules, which had originally been framed in the year 2001 itself, needs to be declared redundant, as the new Rules 35 (1) (f) and 36 (ii) take care of the situation. –In cases the victims are not the complainant, their cases cannot come under Section 378 (4) of the Cr.P.C., as Section 378 (4) clearly speaks about the right of complainant only. – Such victims as defined under Section 2 (wa) of the Cr.P.C., can avail the remedy of appeal under the Proviso to Section 372 of the Cr.P.C. – In such cases, if the order/judgment of acquittal is passed by the Court of Magistrate, the appeal shall lie to the Court of Session, in which case there shall be no requirement to seek any leave to appeal. – If the order/judgment of acquittal is passed by the Court of Session, the appeal shall lie to the High Court, subject to leave to be taken under Section 378 (3) of the Cr.P.C. – Court cannot ignore the right of the victim complainant, if such victim complainant is aggrieved by the conviction of the accused for lesser offence, or imposing inadequate compensation. Such appeals shall not be against the judgment/order of acquittal and shall not come within the purview of Section 378 (4) of the Cr.P.C., and are also not covered by the decision of the Apex Court in Subhash Chandra’s case (supra). – In such cases, Court is of the considered view that the victims as defined under Section 2 (wa) of the Cr.P.C., whether they are complainant or not, shall have the right to appeal under the Proviso to Section 372 of the Cr.P.C. against the judgment/order of convicting the accused for lesser offence, or imposing inadequate compensation. – In such cases also, if the order/judgment is passed by the Court of Magistrate, the appeal shall lie to the Court of Session, in which case there shall be no requirement to seek any leave to appeal, and if the order/judgment is passed by the Court of Session, the appeal shall lie to the High Court, subject to leave to be taken under Section 378 (3) of the Cr.P.C. – Court is of the considered view that the Stamp Reporter must report about the maintainability, locus of the applicant and nature of the matters in its report. Such reports, if adverse, may be listed for Orders before the Court, where the objection to such reports may be taken by the aggrieved party and matter may be decided by the concerned Bench about the correctness or otherwise of the report. – This shall also save the High Court from an embarrassment of adjudicating a non-maintainable matter. – Court accordingly, hold that the view taken by the Hon’ble Single Judge in the aforesaid two writ applications are not the correct view, and we hereby, direct the Registry/Stamp Reporter, to resume to make reporting about the maintainability, locus and nature of the matters filed in the High Court. – Appeals arising out of judgments/orders passed by the Court of Magistrates, whether against acquittal, or convicting for a lesser offence, or imposing inadequate compensation, filed by the victims as defined under Section 2 (wa) of the Cr.P.C., shall lie before the Courts of Session, in which case, leave to appeal is not required. – If such orders/judgments are also affirmed by the Courts of Session, there shall be no further appeal to the High Court, under the Proviso to Section 372 of the Cr.P.C. – Rule 35 (1) (f) of the High Court of Jharkhand Rules as already referred to in Para-13 of the Judgment of my learned Brother, provides that the appeal against the Judgment of acquittal, in which, the substantive sentence of less than ten years of imprisonment could have been passed, such appeals shall be heard and disposed of by the Single Judge and as per Rule 36(ii) of the High Court of Jharkhand Rules, 2001, the appeal against the Judgment of acquittal, in which, the substantive sentence of ten years of imprisonment or more could have been passed, shall be heard and disposed of by the Division Bench. – Appeal Disposed of