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2019 Supreme(Mad) 2771
IN THE HIGH COURT OF MADRAS
P.N. PRAKASH, J.
M. Venkataraman - Appellant
Versus
D.G. Bhaskaran - Respondent
Crl. R.C. Nos. 494, 536 of 2019, Crl. A. Sr. Nos. 25084 and 25112 of 2019
Decided On : 27-06-2019
Advocate Appeared:
For the Appellant :Arun Anbumani, Advocate
Headnote:
Constitution of India,1950 - Article 32 - Criminal Procedure Code, - Section 401 – Indian Penal Code,1860 - Section 34 – FIR – Investigation - Judgment of Full Bench in thousands of Appeals against acquittals pending before this Court were remitted to jurisdictional Courts of Session. Court have also followed Full Bench Judgment (supra) in my earlier stint and remitted several cases jurisdictional Courts of Session - Court informed did not agree with law laid down by Full Bench and instead by placing reliance upon Statute they entertained Appeals against acquittals - While that being so two Complainants who have lost before Trial Court and Sessions Court Proviso to Section have filed Revisions against acquittals - When this Court pointed out to them that in a Revision against acquittal High Court does not have power to convert finding of acquittal into one of conviction in view of bar Section Counsel submitted that this Court can set aside orders and remit matter to lower Court for fresh adjudication –Held, Appeal expression "Special Leave to Appeal" has no different meaning than expression "Leave to Appeal" and it appears to me that word "special" has been added only to distinguish "Leave to Appeal" sought by Complainant from "Leave to Appeal" sought by State - Thus in a Complaint case where the Complainant has set wheels of the Court in motion even if the Complainant files Appeal he must obtain Special Leave to Appeal - This again gives rise to an interesting question - Can the victim be placed on a higher pedestal than the Complainant? More often than not victim and Complainant are likely to be one and same person case court accept proposition that the victim need not seek leave to Appeal in case Appeal is to be filed in High Court there shall be another anomalous situation. Supposing there are two victims in a case and one of victims files a Complaint and sets the wheels of justice moving and case is tried as a Complaint case, in case the Accused is acquitted and victim who is the Complainant wants to file an Appeal in High Court he will have to seek Special Leave to Appeal whereas victim who had not even approached Court at initial stage will be entitled to file an Appeal without seeking leave to Appeal - This could not have been intention legislature Court aforesaid Paragraphs (supra) appear to have substantially set at naught law laid down by the Full Bench of this Court in Judicial discipline would require that Court refrain from giving any such declaration sitting single - Therefore court deem fit that papers be placed before Honble Chief Justice decide whether decision of Full Bench (supra) requires reconsideration - Hence following questions are framed and Registry is directed to place this matter before Honble Chief Justice with a request to constitute Bench of appropriate strength to decide correctness of law laid down by Full Bench of this Court – Order accordingly
JUDGMENT :
P.N. PRAKASH, J.
1. For the sake of convenience, the Petitioner/Appellant and the Respondent in the cases at hand are referred to as the Complainant and the Accused respectively.
2. There are four cases at hand. The Petitioners in Crl.R.C. Nos. 494 & 536 of 2019 and the Appellant in Crl.A.S.R. Nos. 25084 & 25112 of 2019 are Complainants, who had launched prosecutions under Section 138 of the Negotiable Instruments Act, 1881 (for brevity "the NI Act") in various Courts and had lost in the Trial Court as well in the Court of Session (Appellate Court).
3. Crl.R.C. Nos. 494 of 2019 & 536 of 2019 have been preferred under Section 397, read with Section 401, Cr.P.C. against the acquittal of the Accused and Crl.A.S.R. Nos. 25084 & 25112 of 2019 have been preferred under Section 378(4), Cr.P.C. against the acquittal of the Accused, which were not numbered by the Registry, since the Registry felt that the Appeals were not maintainable.
4. Hence, on the directions of this Court, Crl.A.S.R. Nos. 25084 & 25112 of 2019 were also listed along with Crl.R.C. Nos. 494 & 536 of 2019 and all the four cases were heard together.
5. The following seminal question arises for determination in these four cases:
"Where does the remedy lie for a Complainant in whose Complaint before the Magistrate under Section 138 of the NI Act, the Accused has been acquitted - Is it before the Court of Session under the Proviso to Section 372, Cr.P.C. or before the High Court under Section 378(4), Cr.P.C.?"
6. In Selvaraj v. Venkatachalapathy, 2015 (1) MWN (Cr.) DCC 26 (Mad.), P.R. Shivakumar, J. was of the view that the Complainant's remedy was before the High Court under Section 378(4), Cr.P.C., whereas, in S. Ganapathy v. N. Senthilvel, 2015 (5) CTC 91 : 2015 (2) MWN (Cr.) 8, S. Nagamuthu, J. was of the view that the Complainant's remedy was before the Court of Session under the Proviso to Section 372, Cr.P.C.
7. Since S. Nagamuthu, J. differed with P.R. Shivakumar, J., the former referred the matter to the Chief Justice for an authoritative pronouncement. Accordingly, a 3-Judge Bench comprising V. Ramasubramanian, N. Kirubakaran & S. Vaidyanathan, JJ., in S. Ganapathy v. N. Senthilvel, 2016 (4) CTC 119 (FB) : 2016 (2) MWN (Cr.) 321 : 2016 SCC Online Mad 16417, went into the matter and concurred with S. Nagamuthu, J. by holding that the Appeal by the Complainant would lie before the Court of Session under the Proviso to Section 372, Cr.P.C.
8. Following the said Judgment of the Full Bench in S. Ganapathy (supra), thousands of Appeals against acquittals pending before this Court were remitted to the jurisdictional Courts of Session. In fact, I have also followed the Full Bench Judgment in S. Ganapathy (supra) in my earlier stint and remitted several cases to the jurisdictional Courts of Session. I am informed that M. Venugopal, J. and N. Authinathan, J. did not agree with the law laid down by the Full Bench and instead, by placing reliance upon the Statute, they entertained Appeals against acquittals under Section 378(4), Cr.P.C.
9. While that being so, two Complainants, who have lost before the Trial Court and the Sessions Court under the Proviso to Section 372, Cr.P.C., have filed Revisions against acquittals. When this Court pointed out to them that in a Revision against acquittal, the High Court does not have the power to convert the finding of acquittal into one of conviction in view of the bar under Section 401(3), Cr.P.C., the learned Counsel submitted that this Court can set aside the orders and remit the matter to the lower Court for fresh adjudication.
10. When this Court explained to them that the power under Section 397, Cr.P.C. can be invoked only for satisfying itself as to the correctness, legality or propriety of any finding and that there cannot be re-appreciation of evidence unless it is shown that the Trial Court and the Court of Session had gr
