The main legal point established in the judgment is the right of a victim to prefer an appeal against an order of acquittal recorded by a Court of Magistrate and the power of the Court to convert a revision into an appeal.

JUDGMENT :

(Ravindra Maithani, J.) :

The instant revision has been preferred against the judgment and order dated 18.12.2010 passed in Criminal Case No.3126 of 2007, State vs. Dhanesh Bijalwan, by the Court of Chief Judicial Magistrate, Haridwar (“the case”). By the impugned judgment and order, the private respondent has been acquitted of the charge under Sections 323, 504 of IPC.

2. Heard learned counsel for the parties and perused the record.

3. The instant revision was admitted on 13.05.2011. During the course of hearing on 15.07.2022, a question of law was raised on behalf of the respondent that the revision may not be converted as an appeal in view of Section 401(5) of the Code of Criminal Procedure, 1973 (“the Code”). It was then argued that there is no Leave to Appeal. This Court had requested Mr. Harshit Sanwal, Advocate to assist the Court in this matter on 15.07.2022 as an Amicus Curiae. He had agreed to it.

4. Today, Mr. Sanwal, Advocate would submit that the case arises from an FIR lodged by the revisionist on 29.06.2001 under Sections 323, 504 and 506 IPC at Kotwali Dehradun, in which, after investigation, the charge-sheet was submitted and proceeding of the case was instituted. He would submit that against order of acquittal in such cases, the revisionist as a victim can file an appeal in view of the proviso of Section 372 read with Section 374 (3) of the Code. He would also submit that in view of the provisions as contained under Section 401(5) of the Code, a revision may, though be converted as an appeal, but again he apprehends that the appeal is not maintainable in this Court against the judgment of acquittal recorded by the Court of Magistrate.

5. Learned counsel for the private respondent supports the contention as made by the learned Amicus Curiae.

6. Learned State Counsel would submit that the revision is not maintainable in this Court.

7. It is a pure question of law which may be decided in the instant revision. Section 372 of the Code makes provision with regard to appeal, which reads hereunder:-

“372. No appeal to lie unless otherwise provided:- No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:

Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”

8. A bare reading of the proviso to Section 372 of the Code makes it abundantly clear that an order of acquittal recorded by a Court of Magistrate may be challenged in appeal by the victim, in a court, where an appeal against conviction may be preferred.

9. Section 374 of the Code makes provision with regard to appeal against conviction. It reads as hereunder:-

“374. Appeals from convictions- (1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial, may appeal to the High Court.

(3) Save as otherwise provided in sub-section (2), any person,-

(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, or

(b) sentenced under section 325, or

(c) in respect of whom an order has been made or a sentence has been passed under section 360 by any Magistrate, may appeal to the Court of Session.”

10. A conjoint reading of proviso to Section 372 and Section 374 (3) of the Code makes it clear that a victim may file an appeal against the order of acquittal recorded by a Court o