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IN THE HIGH COURT OF ALLAHABAD
SHASHI KANT GUPTA, SAURABH SHYAM SHAMSHERY, JJ.
Anil Kumar Agarwal - Appellant
Versus
State of U.P. and Another - Respondent
Application U/s 482 No. 3171 of 2016, 7790, 7792, 7793, 7795 of 2017
Decided On : 25-02-2020
Code of Criminal Procedure, 1973 – Sections 372, 378(4) and (5) – Negotiable Instruments Act, 1881 – Section 138 – Complainant and other filed application under section 138 of Negotiable Instruments Act before court of Chief Judicial Magistrate – Accused were acquitted by concerned Magistrate after dismissal of the complaint – Against order of acquittal complainant preferred an appeal, before Sessions Court – Said appeal was dismissed by sessions court, as not maintainable – Hence, application under section 482 Cr.P.C. was filed with prayer to quash order passed by Additional District and Sessions Judge – Held, It is to be determined that, whether victim has a right to file appeal to court to which an appeal ordinarily lies against order of conviction of such Court as provided under proviso to section 372 CrPC or before High Court as provided under section 378 (4) CrPC – Section 378 (4) and (5) CrPC, provides procedure to file appeal by complainant against acquittal in a case instituted upon complaint – Upon conjoint reading, sole interpretation is that, appeal in both situations have to be filed before one forum only as any other interpretation will lead into situation of uncertainty and anomalies –Considering principles of statutory interpretation even victim has to file appeal against acquittal in case constituted upon complaint, before High Court only – This will not only avoid uncertainty but will also serve purpose of enactment – Registrar General of this Court is directed to ensure the circulation of this order amongst all the judicial officers in the State for their guidance – Order Accordingly (Paras 51, 52)
Facts of Case
Complainant and other filed application under section 138 of Negotiable Instruments Act before court of Chief Judicial Magistrate – Accused were acquitted by concerned Magistrate after dismissal of the complaint – Against order of acquittal complainant preferred an appeal, before Sessions Court – Said appeal was dismissed by sessions court, as not maintainable – Hence, application under section 482 Cr.P.C. was filed with prayer to quash order passed by Additional District and Sessions Judge.
Findings of Court
It is to be determined that, whether victim has a right to file appeal to court to which an appeal ordinarily lies against order of conviction of such Court as provided under proviso to section 372 CrPC or before High Court as provided under section 378 (4) CrPC – Section 378 (4) and (5) CrPC, provides procedure to file appeal by complainant against acquittal in a case instituted upon complaint – Upon conjoint reading, sole interpretation is that, appeal in both situations have to be filed before one forum only as any other interpretation will lead into situation of uncertainty and anomalies –Considering principles of statutory interpretation even victim has to file appeal against acquittal in case constituted upon complaint, before High Court only – This will not only avoid uncertainty but will also serve purpose of enactment – Registrar General of this Court is directed to ensure the circulation of this order amongst all the judicial officers in the State for their guidance.
Result: Order Accordingly
JUDGMENT :
SHASHI KANT GUPTA, J.
1. The questions referred to this Bench for opinion are as follows:
(ii) Whether against the same judgment and order of acquittal in a complaint case, in a situation when victim and complainant both are different persons, victim may file appeal under the proviso to Section 372 CrPC before the Sessions Judge or such appeal shall lie before the High Court ?
2. Since the learned Single Judge could not subscribe to the views expressed by the learned Single Judges of this Court in Criminal Misc. Application (Under Section 482 Cr.P.C) No. 5934 of 2012, Ashok Kumar Srivastava and others vs. State of UP and another, (decided on 30.03.2012) and Criminal Revision No. 3539 of 2015, Ved Prakash Yadav and 2 others Vs. State of UP and 2 others, (decided on 24.09.2015), referred the matter to a larger bench for resolving the conflict, the Chief Justice thereupon has referred the matter to us for our opinion.
3. Since the legal controversy raised in all the criminal Misc. Applications are similar, they are decided by a common order by treating the Criminal Misc. Application No. 3171 of 2016 (U/S 482 CrPC) Anil Kumar Agrawal Vs. State of UP as a leading case. For the purpose of deciding the matter, it would be appropriate to have a quick glance to the fact of the Criminal Misc. Application No. 3171 of 2016 (U/s 482 Cr.P.C) Anil Kumar Agarwal Vs. State of U. P. and another. The complainant therein had filed an application under section 138 of Negotiable Instruments Act before the court of Chief Judicial Magistrate Jhansi. The accused were acquitted by the concerned Magistrate after dismissal of the complaint.
4. Against the order of acquittal the complainant preferred an appeal, being appeal no. 145 of 2013, Anil Kumar Agrawal Vs. Braj Bhushan Lahariya and another before the Sessions Court , Jhansi under section 372 Cr.P.C. The said appeal was dismissed by the sessions court, Jhansi as not maintainable under section 372 Cr.P.C. Hence, the application under section 482 Cr.P.C. was filed with a prayer to quash the order dated 16.11.2015 passed by the Additional District and Sessions Judge, Fast Track Court, Jhansi in Criminal Appeal No. 145 of 2013 (Anil Kumar Agarwal vs. Braj Bhushan Lahariya and another) .
5. Learned counsel for the applicant Sri Sushil Shukla has submitted that the victim or the complainant has been given unfettered right of appeal in terms of proviso to Section 372 Cr.P.C to challenge the acquittal of an accused by preferring an appeal before the Court of Session if the order of acquittal is passed by the Court of Magistrate or before the High Court if order of acquittal is passed by the Court of Session and for preferring such appeal there is no need to obtain leave/special leave from such Courts after insertion of the proviso to Section 372 Cr.P.C by Act 5 of 2009 w.e.f. 31.12.2009. He further submitted that appeal against the order of acquittal would lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court irrespective of the fact whether the acquittal order is passed in a case instituted upon a complaint case or police report. While placing reliance upon the decision Malikarjun Kodagali (Dead) Represented through Legal Representatives Vs. State of Karnataka and others(2019) 2 SCC 752, he has submitted that the victim for challenging the order of acquittal in an appeal need not to obtain leave of the Court and that his appeal has to be dealt as a regular appeal.
6. Per contra, learned Standing Counsel Mr. Syed Ali Murtaza appearing on behalf of the State has submitted that the complainant in a compliant case, who is a victim also is entitle
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