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2023 Supreme(Online)(KAR) 6582
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CRL.A No. 945 of 2023
NC: 2023:KHC:21041
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO. 945 OF 2023
BETWEEN:
MANJULA BAI
AGED ABOUT 60 YEARS,
W/O LATE MOHAN LAL JAIN
R/AT 950 SHERKHANGALLI,
NAGARATHPET CROSS,
BENGALURU - 560 002
…APPELLANT
(BY SRI PREETHAM JUDE CORREA, ADVOCATE FOR
SRI SANDEEP HULIGAL, ADVOCATE)
AND:
1.
M SRINIVAS
S/O LATE DODDAMUNIYAPPA
AGED ABOUT 52 YEARS,
2.
SMT. LAKSHMIDEVI
AGED ABOUT 43 YEARS
W/O M SRINIVASA
BOTH RESPONDENT NO.1 AND 2 ARE
R/AT NO.58, 6TH CROSS, 24TH MAIN
AGARA, 1ST SECTOR, HSR LAYOUT,
BENGALURU - 560 102.
3.
THE STATE OF KARNATAKA
THROUGH: KORAMANGALA P.S.,
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
Digitally signed
by REKHA R
Location: High
Court of
Karnataka
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CRL.A No. 945 of 2023
NC: 2023:KHC:21041
4.
THE SUB REGISTRAR
BOMMANAHALLI,
FIRST FLOOR, BDA COMPLEX,
3RD BLOCK, KORAMANGALA
BENGALURU – 560034.
…RESPONDENTS
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.PC, PRAYING TO a) ALLOW THIS CRIMINAL
APPEAL BY SETTING ASIDE THE JUDGMENT OF ACQUITTAL IN
FAVOUR
OF
THE
1ST
AND
2ND
RESPONDENTS
DATED
16.01.2023 PASSED IN C.C.NO.27265/2017 BY THE XLI ADDL.
METROPOLITAN MAGISTRATE, BENGALURU VIDE ANNEUXRE-A
AND
CONSEQUENTLY
CONVICT
THE
1ST
AND
2ND
RESPONDENTS FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 120B, 419, 420, 468, 471 READ WITH SECTION 34
OF THE INDIAN PENAL CODE, 1860 AND ACCORDINGLY, PASS
SENTENCE OF IMPRISONMENT AND FINE ACCORDING TO LAW;
OR IN THE ALTERNATIVE b) REVERSE THE AFORE STATED
ORDER OF ACQUITTAL, VIDE ANNEXURE-A, DIRECT FURTHER
ENQUIRY AND THAT THE 1ST AND 2ND RESPONDENTS BE
RETIRED BY THE COURT OF COMPETENT JURISDICTION; c)
PASS ANY SUCH OTHER ORDER/S AS THIS HON'BLE COURT
DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE,
IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
The
Office
has
raised
objections
regarding
maintainability of the appeal before this Court on the
ground that the offences alleged against accused Nos.1
and 2 are punishable under Sections 468, 419 and 420 of
IPC and the impugned judgment and order is passed by
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XLI Additional Metropolitan Magistrate, Bangalore and
therefore, the appeal ought to have been filed before the
Sessions Court under Section 372 Cr.P.C, instead of filing
it under Section 378(4) Cr.P.C. before this Court.
Heard learned counsel for the appellant/Legal
representative of the aggrieved person and perused the
record.
A First Information Report was given against
the respondent Nos.1 and 2/accused. Based on the same, a
criminal case came to be registered and after conducting
detailed investigation, respondent No.3 - Police filed charge
sheet against respondent Nos.1 and 2/accused for the
offences punishable under Sections 468, 471, 419, 420 and
120(B) r/w Section 34 of IPC before the XLI Additional
Metropolitan Magistrate, Bangalore.
Vide impugned judgment and order dated
16.01.2023, respondent Nos.1 and 2/accused came to be
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acquitted. During the pendency of the case, the aggrieved
person died and his wife has chosen to file this appeal.
5.
Chapter 29 of the Code of Criminal Proceedure
deals with appeals. Section 372 of Cr.P.C. states that no
appeal shall lie from any judgment or order of the Criminal
Court except as provided by this Code or by any other law
for the time being in force. Through proviso to Section 372
Cr.P.C. (w.e.f. 31.12.2009), a right is created in favour of
the victim to file 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 the appeal ordinarily
lies against the order of conviction of such Court.
6.
Relying upon the decision of the Hon’ble
Supreme Court reported in in the matter of Mallikarjun
Kodagali (dead) represented through legal representatives
Vs. State of Karnataka and Ors, (Mallikarjun Kodagali)1,
1 (2019) 2 SCC 752
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learned counsel for the appellant submits that the appeal is
maintainable before this Court as per Section 378 (4) and
(5) of Cr.P.C.
6.1 The facts in Mallikarjun Kodagali are that
appellant
Mallikarjun
Kodagali
was
assaulted
on
06.02.2009. He filed complaint i.e., gave first information
and
after
investigation
charge
sheet
was
filed
in
S.C.No.49/2010. After trial the Sessions Court acquitted
the accused vide order dated 28.10.2013. Mallikarjun
Kodagali challenged the same before this Court in
Crl.A.No.100016/2014. It came to be dismissed on the
ground that the appeal is not maintainable as the incident
took place on 06.02.2009, but the right to the victim to file
appeal
under
Section
372
Cr.P.C
was
given
w.e.f
31.12.2009.
6.2 It was challenged before the Hon'ble Supreme
Court. The Hon'ble Supreme Court held that the appeal by
the victim is maintainable irrespective of the date of
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incident, as the impugned judgment is subsequent to
31.12.2009. The decision in Mallikarjun Kodagali has no
bearing to the present issue regarding maintainability of
the appeal.
7.
So far as the submissions of the learned
counsel for appellant that under Section 378 (4) and (5) of
Cr.P.C the appeal is maintainable is concerned, the said
provision relates to an appeal filed against acquittal in any
case instituted upon a complaint which means a complaint
under Section 200 Cr.P.C. However, in the present case,
the law was set into motion on the First Information Report
given to the Police and on investigation conducted by them,
charge sheet was filed. Therefore, this provision is not
attracted to the present case. Having regard to the fact
that the impugned judgment and order is of Addl.Chief
Metropolitan Magistrate, the appeal is required to be filed
before the Sessions Court under Section 372 Cr.P.C.
Consequently, the appeal before this Court is not
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