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2023 Supreme(Online)(Bom) 26369
HIGH COURT OF BOMBAY
S. M. MODAK, J
Asha Shivaji More – Appellant
Versus
The State of Maharashtra – Respondent
CRIMINAL APPEAL NO. 63 OF 2022 | CRIMINAL APPEAL NO. 1299 OF 2022
For the Appellants/Petitioners: Ms.Jaimala Ostwal, Ms.Seema Chopda, Mr.Karan Kadam
For the Respondents: Mr.Amol Patankar, Mr.Kuldeep Patil, Mr.H.J.Dedhia
Victims' appeals against acquittals by appellate courts are not maintainable without specific statutory provision.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 372 - Maintainability of Appeal by victims against acquittal by Appellate Court - Victims cannot challenge acquittals in Appeals unless specific provision is made - Court holds need for Larger Bench to decide related questions. (Paras 4, 20, 24)
(B) Appeal - Maintainability - Issues concerning victim’s right to appeal versus provisions for acquitted accused needing clarification through a Larger Bench - Confusion noted with conflicting judgments from various High Courts. (Paras 23, 24)
| Table of Content |
|---|
| 1. maintainability of appeals discussed. (Para 2 , 8 , 10) |
| 2. background facts of appeals against acquittal. (Para 4 , 5) |
| 3. court observations and need for clarity on appeal provisions. (Para 9 , 12 , 19 , 20) |
| 4. decisions pending based on larger bench review. (Para 24) |
1. I have heard learned Advocate Mr.Karan Kadam for the Appellant, Mr.Kuldeep Patil – learned Advocate for Respondent Nos.1 to 4 and learned APP Shri.H.J.Dedhia for Respondent – State.
2. In this Appeal, an objection is taken about maintainability of the present appeal by the Respondents who are original Accused. They were acquitted by the Court of JMFC – Alibag for the offences punishable under Sections 379, 323, 427 read with Section 34 of the Indian Penal Code, 1860 [“IPC”]. It is not the victim / First-Informant who has challenged the correctness, but it is the State who has preferred an Appeal to the Court of Session - Alibag by way of Regular Criminal Appeal No.139 of 2011. It was filed as per the provisions of Section 378 (1)(a) of the Code of Criminal Procedure, 1973 [“ Cr.P.C .”]. The said Appeal was dismissed on 21st January 2019.
3. Now, the State has kept quiet and it is the turn of First Informant / victim to challenge the correctness of the judgment of acquittal. The Respondents’ contention is that forum for an Appeal by the victim is correlated to the forum provided for an Appeal by the Accused against the order of conviction. He mean to say that if there is no remedy of an Appeal provided for (when Appellate Court alters the acquittal into conviction, but a remedy of Revision is provided), how can the victim may challenge the judgment of acquittal passed by the Appellate Court? Whereas, the Appellant’s contention is the provisions of proviso to Section 372 of the Code provides such remedy.
4. The facts of the case are as follows :-
(a) F.I.R. lodged at Alibag Police Station, Raigad on 25th May 2004 by Sumera Abdul Ali.
(b) It is registered under Sections 379, 323, 427 read with 34 of the IPC.
(c) After investigation, charge-sheet was filed against Respondent/accused and case is registered as S.C.C. 229 of 2004 (Page No. 35).
(d) After evidence the Court of JMFC – Alibag delivered the judgment on 28th March, 2011 and acquitted the Accused.
(e) State preferred an Appeal for setting aside order by wasy of Criminal Appeal No. 139 of 2011.
(f) The Court of Additional Sessions Judge as per the judgment dated 21st January, 2019 has confirmed the acquittal.
Criminal Appeal No.63 of 2022
5. I have heard learned Advocate Ms.Seema Chopda for the Appellant, Mr.Amol Patankar for Respondent No.2 and learned APP Shri.H.J.Dedhia for the Respondent – State.
The facts in this Appeal are as follows :-
a) F.I.R. lodged at Kapurbawdi Police Station, Thane on 01st April, 2011 by the Appellant Asha Shivaji More.
b) It is registered under Sections 354, 509 of IPC.
c) After investigation, charge-sheet was filed against Respondent/Accused and case is registered as S.C.C. No.16641 of 2012. (page no. 24).
d) After evidence, the Court of J.MF.C., Thane delivered the judgment on 25th February, 2019. It is in two parts :-
| Respondent was convicted for an offence punishable under Section 509 of the Indian Penal Code. | Whereas he was acquitted for an offence punishable under Section 354 of the Indian Penal Code. |
e) Respondent Accused preferred an Appeal for his conviction under Section 509 of IPC [being Criminal Appeal No. 38 of 2019 (page no.16)].
f) The Court of Additional Sessions Judge as per the judgment dated 03rd December, 2021 has set aside the conviction and acquitted Respondent for the offence under Section 509 of IPC.
g) Whereas still, there are two Criminal Appeal Nos. 51 of 2019 and 69 of 2019 which are still pending in Court of Session.
h) Appeal No.69 of 2019 by the State is against the judgment of acquittal for the offence punishable under Section 354 of IPC. Whereas, another Appeal No.51 of 2019 is preferred by the victim/ First- Informant for enhancement of the sentenc
