The appeal rights of victims and complainants are distinct; complainants must seek special leave under Section 378(4) while victims can appeal under Section 372 under specified conditions.

1. This reference has been made by the learned single Judge (Hon' ble Mr. Justice Sanjay K. Agrawal) under R.32 (2) (ii) of the High Court of Chhattisgarh Rules, 2007 for placing it before Hon' ble the Chief Justice with a recommendation to place the same before larger Bench. Vide order dated 14-11-2013, Hon' ble the Chief Justice has directed to place the reference before this Bench to answer the following stated question of law: -
"Whether complainant is entitled to prefer an appeal under proviso to S.372 of Cr.P.C. before the Court of Session against the judgment of acquittal passed by subordinate Criminal Court arising out of criminal complaint filed by complainant, or he is required to prefer an appeal under sub-section (4) of S.378 of the Cr.P.C. before this Court after obtaining leave?"

2. Scope of appeal against the judgment of acquittal at the instance of the complainant under the proviso to S.372 of the Code of Criminal Procedure, 1973 (for short ' the Code' ) was earlier considered by the learned single Judge of this Court (Hon' ble Mr. Justice G. Minhajuddin) in the case of Sunder Das Rohra v. Anil Mishra , Cr. Rev. No. 779/2012 (decided on 15-4-2013), wherein it was held that appeal against acquittal at the instance of the complainant ina complaint trial could be maintained under the proviso to S.372 of the Code. Disagreeing with the view taken by the learned single Judge (Hon' ble Mr. Justice G. Minhajuddin), the learned single Judge making the reference (Hon' ble Mr. Justice Sanjay K. Agrawal) has made the instant reference.

3. The learned Advocate General and counsel for the parties are heard. Records of both cases in which the matter has been referred perused.

4. The learned Advocate General while addressing the issue has submitted that remedy of special leave to appeal to the complainant in case the order of acquittal is passed in a case instituted upon the complaint, has been provided under sub-section (4) of S.378 of the Code. Subsequently, vide Amending Act No.5 of 2009, proviso to S.372 of the Code has been added with effect from 31-12-2009 whereby right to appeal against the judgment of acquittal has been provided to the victim of the offence. The word ' victim' has been defined under clause (wa) of S.2 of the Code. The learned Advocate General further submitted that previously, remedy of appeal against the judgment of acquittal was not available to the victim. Remedy of appeal against the order of acquittal was available to the complainant, the contesting party of the case. Such remedy is still available to the complainant, but remedy of appeal has been provided to the victim of the offence by adding proviso to S.372 of the Code. Both the provisions are not one and same. Remedy to file appeal under the proviso to S.372 of the Code is not available to the complainant, inter alia, the complainant, who is also a victim, has only right to avail the remedy of special leave to appeal against the judgment of acquittal under sub-section (4) of S.378 of the Code and victim of the offence, who has not filed complaint, has no right to file appeal after grant of leave under sub-section (4) of S.378 of the Code, but he may file appeal under the proviso to S.372 of the Code.

5. The learned Advocate General placed reliance in the matter of Subhash Chand v. State (Delhi Administration), 2013 (2) SCC 17 : AIR 2013 SC 395 in which the Suprerne Court has held that complainant, who might be a private person or public servant or State / State authority, has only right to file application under S.378 (4) of th