District
: South 24 Parganas.
In
the Court of the Learned 17th Additional District Session Judge, at
Alipore, South 24 Parganas.
Criminal
Appeal no. 22 of 2013.
In
the matter of :
Shri
Nikhil Ghosh ________Appellant.
-
Versus –
Shri Pradip Kumar Mondal____Respondent.
The
humble petition of the above named Respondent Shri Pradip Kumar Mondal, most
respectfully;
Petition
on Non - Maintainability of Present
Appeal Under Section 372 of the Code of
Criminal Procedure’ 1973.
Sheweth
as under :
1.
That the present Appeal has been preferred
under Section 372 of Cr.P.C., by the Appellant, against an Order and Judgment
dated 31st day of December’ 2012, in C – 904 of 2007, { Nikhil Ghosh
– Versus – Pradip Mondal @ Bappa }, passed by the Learned 4th Court
of the Judicial Magistrate, at Alipore, South 24 Parganas, and whereas the said
Order and Judgment is result of an acquittal of the accused person, under
Section 255 (1) of Cr.P.C.
2.
That your petitioner being the
respondent no.1, herein, raised the preliminary issues, as whether the present
appeal should entertain under the provisions of Section 372 of Cr.P.C. or not,
and if the answer is not, in that event the appeal should be dismissed with
costs, effected to the appellant solely.
3.
That your petitioner states and
submits that the present appeal as made out by the appellant is an appeal
against the order and Judgment of acquittal of the accused person. The present
appeal has been made under the provisions of Section 372 of the Code of Criminal
Procedure’ 1973, without any leave petition.
4.
That your petitioner states and
submits that your petitioner urged that
the provisions of Section 372 has been inserted by Code of Criminal Procedure (
Amendment ) Act’ 2008, which was introduced with effect from 31-12-2009, which
confers a right on the victim of the crime to prefer an appeal against the
order passed by the trial court acquitting the accused, and thus the Learned
Counsel of the Appellant placed the present Appeal under Section 372 of the
Code of Criminal Procedure, the victim can directly file an appeal against the
Order and Judgment of acquittal without seeking leave to appeal from the Court
as the provision of Section (3) of Section 378 of the Code of Criminal
Procedure, will not apply to an appeal filed by the present appellant /
Complainant, under Section 372 of the Code of Criminal Procedure’ 1973, though
this is not the correct proposition of Law.
5.
That your petitioner states and submits that your petitioner, think it proper to quote the
proviso which has been added to Section 372 of the Code: "Provided that a
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 of imposing
inadequate compensation, and as such appeal shall lie to the court to which an
appeal ordinarily lies against the order of conviction of such court."
Prior to introduction of the said
proviso to Section 372 of the Code, the victim as such did not have any
statutory right of appeal. Section 374 of the Code has provided for a
convictional right of appeal against conviction. Section 377 of the Code
enables the State Government or the Central Government to file an appeal with
regard to inadequacy of sentence. This appeal provision was, however,
conditional upon the fact that there could be no enhancement without an
opportunity to the accused and that in case such an appeal was preferred, the
accused had a right to plead for acquittal and/or for reduction of sentence in
that very appeal. Apart from this, under Section 378 two streams of appeals
against acquittal were provided. The first stream was of appeal against the
acquittal by the State Government/Central Government and the same would fall
under sub- section (1) and (2) of section 378. However, before such an appeal
is entertained, leave of the High Court has to be taken by virtue of provision
of section 378(3). The other stream is in the case of complaint wherein, by
virtue of section 378 (4), the complainant has to seek special leave to appeal
from the High Court. Here, your petitioner may point out that in case special leave
application filed by the complainant is rejected, then this also precludes the
State Government/ Central Government from filing an appeal against acquittal
under Section 378 (1) & (2). This clearly stipulates in section 378 (6) of
the Code. By proviso to section 372 of the Code, a right has been conferred to
the victim to prefer an appeal against the order of acquittal being sufferer
from the act or commission of the offender. The main provision of section 372
provides that no appeal shall lie from the order of acquittal as provided for
by this Court or by any other law for the time being in force. So, by the
proviso, a right to file an appeal has been conferred upon the victim against
the order of acquittal, but the procedure for filing such appeal will be the
same as provided under Section 378 of the Code. Therefore, even if the victim
has a right to prefer an appeal against the order of acquittal, he has to seek
leave of the High Court to prefer such
an appeal. The Honâ€.ble Supreme Court in case of State of Rajasthan Vs. Ramdeen
reported in A.I.R. 1977 SC 1328, has
held that in filing an appeal against acquittal the prayer for leave may be
included in the memo of appeal. Here, the appellant has not prayed for leave
even in memo of appeal. And thus, the appeal is not maintainable without any
application for grant of leave.
6.
That your petitioner states and
submits that apart from such technicalities, as stated in preceding paragraph,
your petitioner would like to draw the kind attention of the Learned Court to
the provisions of Section 378 of the Code of Criminal Procedure’ 1973, to
submit that the said provision provide for an appeal before the High Court against
an order of acquittal passed in a case instituted upon a complaint. Therefore
it is submitted before the Learned Court that in the facts of the present case,
the Complaint has been lodged under the provisions of Negotiable Instrument
Act, hence, against the order of acquittal passed by the Learned Magistrate,
the appeal would lie before the Hon’ble High Court, under the Provisions of
Section 378 (4) of the Code of Criminal Procedure, along with the prayer of
Leave and / or on the Leave petition as enumerated under the provisions of
Section 378 of the Code of Criminal Procedure’ 1973, and that the provisions of
Section 372 of the Code of Criminal Procedure’ 1973, would not be attracted in
the present case.
7.
That your petitioner states and
submits that your Petitioner relied upon a decision of the Hon’ble Gujarat High
Court Judgments in State of Gujarat – Versus – Shri Krushnakant Shantilal
Pandya and Other, reported in 1997 (I) G.L.H. 534, for the proposition that
where a Court has taken cognizance on the basis of a police report or a charge
sheet, even if the proceedings have been initiated on the basis of a complaint,
no appeal can be preferred under Sub-Section (4) of Section 378 of the Code of
Criminal Procedure’ 1973. It is submitted therefore, Section 378 (4)
specifically confers on the complainant, a right to appeal against an order of
acquittal in a case instituted on a complaint. Thus, the proviso to section 372
of the Code relates only to those cases which had been instituted on the basis
of police report or charge sheet and not upon a complaint lodged by a
complainant.
8.
That your petitioner states and submits
that on a plain reading of section 378 of the Code, it is apparent that
under clause (a) of sub-section (1) thereof, a District Magistrate is empowered
to direct the Public Prosecutor to present an appeal to the Court of Sessions
from an order of acquittal passed by a Magistrate in respect of a cognizable
and non-bailable offence. Sub-clause (b) thereof empowers the State Government
to direct the Public Prosecutor to present an appeal before the High Court from
an original or appellate order of acquittal passed by any court other than the
High Court not being an order under clause (a) or an order of acquittal passed
by a Court of Sessions in revision. Sub-section (2) thereof empowers the
Central Government to direct the Public Prosecutor to present an appeal to the Court
of Sessions from an order of acquittal passed by a Magistrate and to the High
Court from an original or appellate order passed by any court other than a High
Court. Thus, prior to the amendment of
Section 372 whereby the proviso came to be inserted, a victim did not
have any right to prefer an appeal against an order of acquittal in respect of
cases instituted pursuant to a police report or a charge-sheet. However, in
respect of cases instituted on a complaint, sub-section (4) of section 378 of
the Code made provision for appeal by the complainant from an order of
acquittal on a case instituted on a complaint, after obtaining special leave to
appeal against such order by presenting such appeal to the High court. Thus,
even prior to the insertion of the proviso to section 372, it was always
permissible for a complainant to institute an appeal before the High Court
against an order of acquittal passed in any case instituted upon a complaint.
Under the circumstances, a complainant in respect of a complaint lodged under
the Negotiable Instruments Act, always had a right to prefer an appeal under
sub-section (4) of section 378 even prior to the insertion of the proviso to
section 372. Thus the proviso to section 372 has to be viewed in the light of
the aforesaid statutory scheme.
9.
That
your Petitioner states and submits that your Petitioner further relied upon a
recent decision of the Hon’ble Supreme Court’s Judgments in Subhash Chand –
Versus – State ( Delhi Administration ), reported in (2013 ) I SCC ( Cri ) 802,
for the clear proposition that Complainant might be a private person or public
servant or state / state authority, in view of provision of section 2(d) and 2(r
) of Cr.P.C., whether a case is a case
instituted on a complaint depends on legal provisions relating to offence
involved therein, but once it is a case instituted on a complaint and an order
of acquittal is passed, whether offence be bailable or non bailable, cognizable
or non – cognizable, complainant can only file application under Section 378(4)
of Cr.P.C. for special leave to appeal against it in High Court, Section 378(4)
places no restriction on complainant, but Complainant cannot file such appeal
in Session Court. It is submitted therefore, Section
378 (4) specifically confers on the complainant, a right to appeal against an
order of acquittal in a case instituted on a complaint. Thus, the proviso to
section 372 of the Code relates only to those cases which had been instituted
on the basis of police report or charge sheet and not upon a complaint lodged
by a complainant.
10.
That
your Petitioner states and submits that From the principles enunciated in the
above decisions, it is apparent that prior to the insertion of proviso to
section 372 of the Code, a victim in a case which was not instituted upon a
complaint had no right to appeal against the order passed by the lower court
under section 378 of the Code. With effect from 31st December, 2009, the
proviso to section 372 came to be brought on the statute book so as to enable
victims to prefer appeals against orders of acquittals. Thus, in view of the
introduction of the proviso to section 372 of the Code, with effect from 31st
December, 2009 a right to appeal against an acquittal in a case instituted on a
police report or charge-sheet has also been conferred upon the victim. However,
as noticed earlier insofar as the complainant in a case instituted on a
complaint is concerned, even prior to the insertion of the proviso to section
372 of the Code he had a right to prefer an appeal before the High Court under
the provisions of section 378(4) of the Code. Since the question as to whether
against an order of acquittal in a case instituted on a complaint an appeal is
maintainable under the proviso to section 372 of the Code is in issue in the present
case, it is necessary to delve into that aspect of the matter, insofar as the
right to appeal to the High Court under section 378(4) of the Code subject to
the grant of leave to appeal is concerned, there is nothing in the proviso to
section 372 of the Code which can be read to mean that such right has been
taken away by insertion thereof. Therefore, the contention that the present
appeal under section 372 of the code, is not maintainable, as the appellant
complainant is required to prefer an appeal before the High Court under the
proviso of Section 378 (4) of the Code of Criminal Procedure’ 1973, the present
appeal which has been preferred by the appellant complainant under the proviso
of Section 372 of the Code, should be dismissed at once, with exemplary cost.
11.
That
in view of such Circumstances of Law, your petitioner seeks to get dismissal of
the present appeal which has been preferred by the appellant complainant under
the proviso of Section 372 of the Code of Criminal Procedure’ 1973.
12.
That your Petitioner crave leave to
produce the copy of judicial references at the time of hearing of this
petition, before the Learned Court.
13.
That
this application is made bona fide in the interest of administration of
justice.
It
is therefore prayed that your Honour would be graciously pleased to allow this
application and to dismissed the present appeal which has been preferred by the appellant complainant under the
proviso of Section 372 of the Code, with an exemplary costs upon the appellant
complainant and or to pass such other necessary order or orders or further
order or orders as your Honour may deem, fit, and proper for the end of
justice.
And
for this act of kindness, the Petitioner, as in duty bound shall ever pray.
Verification
I,
Shri Pradip Kumar Mondal, being the Respondent / Opposite Party no.1, herein,
made this application, and duly verified this application / petitioner, as on
15th day of July’ 2013, at Alipore Police Court, Alipore, Kolkata –
700 027.
Pradip
Kumar Mondal
Identified
by me,
Advocate.
Prepared
in my Chamber,
Advocate.
Dated
: 15th day of July’ 2013.
Place
“ Alipore Police Court.
