ASHOK KUMAR SRIVASTAVA vs STATE OF U. P.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012 Supreme(All) 863

[2012(5) ADJ 421]
ALLAHABAD HIGH COURT
BEFORE : SURENDRA KUMAR, J.
ASHOK KUMAR SRIVASTAVA AND OTHERS ....Applicants
Versus
STATE OF U.P. AND ANOTHER ....Opposite Parties
(Criminal Misc. Application No. 5934 of 2012, decided on 30th March, 2012)

Advocates:
Counsel :
Jitendra Prasad Mishra for the Applicants; Sandeep Srivastava and A.G.A. for the Opposite Parties.

Headnote:(A) Criminal Procedure Code, 1973—Sections 482, 372 (As amended),378(4), 200, 202, 2(wa), 2(d) and 357-A—(Indian) Penal Code, 1860— Sections 498-A, 323, 504, 506 and 44—Dowry Prohibition Act, 1961—Section 3/4—Appeal—Maintainability—Criminal appeal against judgment and order of acquittal—Rejection of—Holding that victim lady (appellants) has a right to prefer an appeal—Preliminary objection raised before appellate Court i.e. Court of Sessions, that present appeal filed under Section 372 of Cr.P.C. was not maintainable—As appeal should have been filed under Section 378 (4) of Cr.P.C.—In present case initially complaint filed—After recording statement under Sections 200 and 202 of Cr.P.C.—Summoning order passed—Acquittal of charges—However, rejection of preliminary objection by appellate Court—While observing that since accused persons (present applicant) acquitted by trial Court—In view of provisions contained under Section 372 of Cr.P.C. as amended by Amendment Act, 2008 victim/appellant has right to prefer an appeal against judgment and order of acquittal—In present case appeal filed by victim/complainant—Absence of word ‘complaint’ or ‘complainant’ in proviso to Section 372 of Cr.P.C.—Does not affect victim’s statutory right to appeal before Sessions Judge—Appeal by victim maintainable.
        [Paras 2, 7, 13, 17, 18 and 32]
       (B) Criminal Procedure Code, 1973—Section 2(wa)—Expression “victim”—Meaning of—A person who has suffered any loss or injury caused by reason of act or omission—For which accused person charged. [Paras 10 and 28]
       (C) Criminal Procedure Code, 1973—Section 2(wa)—Expression “victim”—Scope of—It includes his/her guardian or legal heir. [Para 10]
       (D) Criminal Procedure Code, 1973—Section 372, Proviso (As inserted)—Victim—Right to appeal—Three circumstances—Right to prefer an appeal against any order—(a) Acquitting accused (b) convicting for lesser offence (c) imposing inadequate compensation. [Para 13]
       (E) Criminal Procedure Code, 1973—Section 2(d)—”Complaint”—Definition of—Any allegation made orally or in writing to a Magistrate—With a view to his taking action under this Code—But, does not include a police report. [Para 26]
       (F) (Indian) Penal Code, 1860—Section 44—Injury—Connotation of—Any harm whatever illegally caused to any person, in body, mind, reputation or property. [Para 27]

JUDGMENT

Hon’ble Surendra Kumar, J.—Heard Sri Jitendra Prasad Mishra, learned counsel for the applicants, Sri Sandeep Srivastava, learned counsel for the opposite party No. 2, learned AGA for the State and perused the material on record.

2. The applicants have filed the instant application under Section 482 Cr.P.C. impleading the State of U.P. and Smt. Asha Srivastava (complainant/victim) as opposite party Nos. 1 and 2, praying for quashing the order dated 9.2.2012 passed by the Additional Sessions Judge, Court No. 5, Allahabad, in Criminal Appeal No. 280 of 2010, Smt Asha Srivastava v. State of U.P and others, whereby the preliminary objection raised by the (accused persons) applicants herein regarding maintainability of the instant criminal appeal against the judgment and order of acquittal has been rejected and it has been held that the victim lady (appellant) has a right to prefer an appeal.

3. The relevant facts, briefly stated, for disposal of the application under Section 482 Cr.P.C. are that Smt. Asha Srivastava instituted a complaint against the applicants vide Complaint Case No. 1282 of 2010 Smt. Asha Srivastava v. Ashok Srivastava and others, under Sections 498-A, 323, 504, 506 IPC and 3/4 Dowry Prohibition Act, Police Station Mutthiganj, District Allahabad, in the Court of the Judicial Magistrate, Court No. 1, Allahabad, alleging therein that she was married to Ashok Srivastava on 16.5.2003 and thereafter both of them started to live as husband and wife jointly with the remaining applicants. The opposite party No. 2 is alleged to have been subjected to humiliation and beating for not bringing fridge, washing machine etc. in dowry. When she complained of this ill-treatment to her father, the applicants threatened to kill her asking to leave her matrimonial home. Ultimately, she was pulled out from her matrimonial home after beating by the applicants. It was after persuasion of the relatives of the lady, she was sent to her Sasural on 7.6.2003 but there was no change in the cruel behaviour of the applicants. She visited Police Station Civil Lines, Allahabad, apprising of the said incident but her complaint was not heard.

4. Subsequently, she filed the complainant. The trial Court, after recording the statement of the complainant under Section 200 Cr.P.C. and witnesses under Section 202 Cr.P.C. summoned the applicants under the aforesaid sections. Thereafter, the trial proceeded. The accused persons (applicants herein) have been acquitted of charge under Sections 498-A, 323, 504, 506 IPC and 3/4 Dowry Prohibition Act, by the trial Court vide judgment and order dated 5.10.2010, after recording the evidence of the parties and hearing their learned counsel.

5. The opposite party No. 2 Smt. Asha Srivastava feeling aggrieved by the judgment and order of the acquittal dated 5.10.2010 challenged the same by way of filing Criminal Appeal No. 280 of 2010 Smt. Asha Srivastava v. State of U.P. and others, before the Court of Session, Allahabad and the said appeal was admitted by the Court of Session vide order dated 24.11.2010.

6. Therefore, learned counsel for the applicants raised preliminary objection before the Court of Session that the present appeal filed under Section 372 of Code of Criminal Procedure 1973 (hereinafter referred to as Cr.P.C.) was not maintainable as the appeal should have been filed under Section 378 (4) of Cr.P.C.

7. The learned Additional Sessions Judge, vide impugned order dated 9.2.2012 rejected the preliminary objection of the applicants regarding maintainability of the criminal appeal finding the same as misconceived. The learned Additional Sessions Judge, has observed that since the accused persons (applicant herein) have been acquitted by the trial Court and in view of the provisions contained under Section 372 Cr.P.C. as amended by the Code of Criminal Procedure (Amendment) Act, 2008 (No. 5 of 2009) enforced w.e.f. 31.12.2009, the victim-appellant has right to prefer the said appeal against the j

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2012 Supreme(All) 863

[2012(5) ADJ 421]ALLAHABAD HIGH COURTBEFORE : SURENDRA KUMAR, J.ASHOK KUMAR SRIVASTAVA AND OTHERS ....ApplicantsVersusSTATE OF U.P. AND ANOTHER ....Opposite Parties(Criminal Misc. Application No. 5934 of 2012, decided on 30th March, 2012)

[2012(5) ADJ 421]
ALLAHABAD HIGH COURT
BEFORE : SURENDRA KUMAR, J.
ASHOK KUMAR SRIVASTAVA AND OTHERS ....Applicants
Versus
STATE OF U.P. AND ANOTHER ....Opposite Parties
(Criminal Misc. Application No. 5934 of 2012, decided on 30th March, 2012)