Judgment on Appeal against aquital

 

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. - 27 A.F.R.

Case :- APPLICATION U/S 482 No. - 5934 of 2012
Petitioner :- Ashok Kumar Srivastava And Others
Respondent :- State Of U.P. And Another
Petitioner Counsel :- Jitendra Prasad Mishra
Respondent Counsel :- Govt. Advocate

Hon'ble Surendra Kumar,J.
1. Heard Sri Jitendra Prasad Mishra, learned counsel for the applicants, Sri Sandeep Srivastava, learned counsel for the opposite party no.2, learned AGA for the State and perused the material on record.
2. The applicants have filed the instant application under Section 482 Cr.P.C. impleading the State of U.P. and Smt. Asha Srivastava (complainant/victim) as opposite party nos.1 and 2, praying for quashing the order dated 9.2.2012 passed by the Additional Sessions Judge, Court No.5, Allahabad, in Criminal Appeal No.280 of 2010, Smt Asha Srivastava Vs. State of U.P and others whereby the preliminary objection raised by the (accused persons) applicants herein regarding maintainability of the instant criminal appeal against the judgment and order of acquittal has been rejected and it has been held that the victim lady (appellant) has a right to prefer an appeal.
3. The relevant facts, briefly stated, for disposal of the application under Section 482 Cr.P.C. are that Smt. Asha Srivastava instituted a complaint against the applicants vide Complaint Case No.1282 of 2010 Smt. Asha Srivastava Vs. Ashok Srivastava and others, under Sections 498-A, 323, 504, 506 IPC and 3/4 Dowry Prohibition Act, Police Station Mutthiganj, District Allahabad, in the court of the Judicial Magistrate, Court No.1, Allahabad, alleging therein that she was married to Ashok Srivastava on 16.5.2003 and thereafter both of them started to live as husband and wife jointly with the remaining applicants. The opposite party no.2 is alleged to have been subjected to humiliation and beating for not bringing fridge, washing machine etc. in dowry. When she complained of this ill-treatment to her father, the applicants threatened to kill her asking to leave her matrimonial home. Ultimately, she was pulled out from her matrimonial home after beating by the applicants. It was after persuasion of the relatives of the lady, she was sent to her Sasural on 7.6.2003 but there was no change in the cruel behaviour of the applicants. She visited Police Station Civil Lines, Allahabad, apprising of the said incident but her complaint was not heard.
4. Subsequently, she filed the complainant. The trial Court, after recording the statement of the complainant under Section 200 Cr.P.C. and witnesses under Section 202 Cr.P.C. summoned the applicants under the aforesaid sections. Thereafter, the trial proceeded. The accused persons (applicants herein) have been acquitted of charge under Section 498-A, 323, 504, 506 IPC and 3/4 Dowry Prohibition Act, by the trial Court vide judgment and order dated 5.10.2010, after recording the evidence of the parties and hearing their learned counsel.
5. The opposite party no.2 Smt. Asha Srivastava feeling aggrieved by the judgment and order of the acquittal dated 5.10.2010 challenged the same by way of filing Criminal Appeal No. 280 of 2010 Smt. Asha Srivastava Vs. State of U.P. and others before the Court of Session, Allahabad and the said appeal was admitted by the Court of Session vide order dated 24.11.2010.
6. Therefore, learned counsel for the applicants raised preliminary objection before the Court of Session that the present appeal filed under Section 372 of Code of Criminal Procedure 1973 (hereinafter referred to as Cr.P.C.) was not maintainable as the appeal should have been filed under Section 378 (4) of Cr.P.C.
7. The learned Additional Sessions Judge, vide impugned order dated 9.2.2012 rejected the preliminary objection of the applicants regarding maintainability of the criminal appeal finding the same as misconceived. The learned Additional Sessions Judge, has observed that since the accused persons (applicant herein) have been acquitted by the trial Court and in view of the provisions contained under Section 372 Cr.P.C. as amended by the Code of Criminal Procedure (Amendment) Act, 2008 (No.5 of 2009) enforced w.e.f. 31.12.2009, the victim-appellant has right to prefer the said appeal against the judgment and order of acquittal.
8. The criminal appeal under Section 372 Cr.P.C. has been filed by Smt. Asha Srivastava, opposite party no.2 who is victim in this said case challenging the judgment and order dated 5.10.2010, by which the applicants have been acquitted.
9. Proviso to Section 372 Cr.P.C. inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009) which came into force w.e.f. 31.12.2009 reads as under:
"[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.]"

10. While inserting the aforesaid proviso to Section 372 Cr.P.C. the definition of the word 'victim' has also been incorporated as Section 2 (wa) which reads as under:
"2. Amendment of Section 2.- In section 2 of Code of the Criminal Procedure, 1973 (hereinafter referred to as the principal Act), after clause (w), the following clause shall be inserted, namely:-
'(wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir.'"

11. Thus proviso to Section 372 Cr.P.C. and definition of the word 'victim' as Section 2 (wa) to the Cr.P.C. have been incorporated and enforced w.e.f. 31.12.2009. These additions/insertions have been made applicable by the Code of Criminal Procedure (Amendment)) Act, 2008 (5 of 2009) w.e.f. 31.12.2009.
12. Section 372 Cr.P.C. specifically provides that 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. These appeals shall lie only as provided for by this Code or by any other law for the time being in force.
13. From the proviso inserted under Section 372 Cr.P.C. there are following three circumstances in which the victim shall have right to prefer an appeal against any order:
(a) acquitting the accused;
(b) convicting for lesser offence;
(c) imposing inadequate compensation.
14. The relevant provisions on the point in hand are provided under Section 378 Cr.P.C. as substituted by the Cr.P.C. (Amendment) Act, (25 of 2005) enforced w.e.f. 23.6.2006 which are as under:
Appeals in case of Acquittal.
"S. 378 (1) Save as otherwise provided in sub-section (2) and subject to the provisions of subsections (3) and (5),-
(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.

(2) If such an order of' acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act, other than this Code, the Central Government may, subject to the Provisions subsection (3), also direct the Public Prosecutor to present an appeal-

(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.

(3) No appeal to the High Court] under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.

(4) If such an order of' acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants, special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.

(6) If in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2)"

15. Section 378 Cr.P.C. was lastly amended by Cr.P.C. Amendment Act, 2005 (25 of 2005) which has been enforced w.e.f. 23.6.2006 and till date it continues as such.
16. It is clearly evident that no changes have been made by Cr.P.C. (Amendment) Act, No.5 of 2009 in the provision of Section 378 Cr.P.C. These provisions of Section 378 Cr.P.C. have not been at all touched by subsequent (Amendment) Act No.5 of 2009 which was enforced w.e.f. 31.12.2009.
17. The sole point for consideration before this Court in the instant application is that what will be the impact or consequence of the insertion of the aforesaid proviso to Section 372 Cr.P.C. and addition of definition of the word 'victim' as Section 2 (wa) of Cr.P.C.
18. In Section 372 Cr.P.C. a new proviso has been inserted by the Cr.P.C. (Amendment) Act, 2008 (5 of 2009). Section 372 of the Code relates to appeal from judgment or order of the Criminal Court. It gives victim the right to prefer an appeal against any adverse order passed by the trial Court. The Amendment introduced the definition of the word "victim" to confer certain right on the guardian and legal heirs of the victim, for example the right to file an appeal against the adverse order under Section 372 Cr.P.C. and claim compensation under new Section 357 -A Cr.P.C.
19. The statements and reasons to achieve the objectives for which the Code of Criminal Procedure (Act No.5 of 2009) has been enforced, are as follows:
"(1) The Law Commission has undertaken a comprehensive review of the Code of Criminal Procedure in its 154th report and its recommendations have been found very appropriate, particularly those relating to provisions concerning arrest, custody, and remand, procedure for summons and warrant-cases, compounding of offences, victimology, special protection in respect of women and injury and trial of persons of unsound mind. Also, as per the Law Commission's 177th report relating to arrest, it has been found necessary to revise the law to maintain a balance between the liberty of the citizens and the society's interest in maintenance of peace as well as law and order.
(2) The need has also been felt to include measures for preventing the growing tendency of witnesses being induced or threatened to turn hostile by the accused parties who are influential, rich and powerful. At present, the victims are the worst sufferers in a crime and they don't have much role in the Court proceedings. They need to be given certain rights and compensation, so that there is no distortion of the criminal justice system. The application of technology in investigation, inquiry and trial is expected to reduce delays, help in gathering credible evidences, minimize the risk of escape of the remand prisoners during transit and also facilitate utilization of police personnel for other duties. There is an urgent need to provide relief to women, particularly victims of sexual offences, and provide fair-trial to persons of unsound mind who are not able to defend themselves. To expedite the trial of minor offences, definition of warrant-case and summons-case are to be changed so that more cases can be disposed of in a summary manner."

20. Learned counsel for the applicants has cited the decisions namely Dharmveer Singh Tomar Vs. Ramraj Singh Tomar, 2011-MPWN-1-118-2011-MPJR-1-276, decided on 17.1.2011, by the Single Bench of Madhya Pradesh High Court, Top Notch Infotronix(I) Pvt Ltd Vs. Infosoft Systems 2011-AIIMR (Cri)-0-2312 decided on 16.6.2011 by the Single Bench of Bombay High Court. Both these decisions cited before me relate to the case under Section 138 of Negotiable Instruments Act, 1881.
21. In the case of Dharmveer Singh Tomar (supra), the case under under Section 138 of Negotiable Instruments Act, was decided by the Magistrate, acquitting the accused person and the appeal against the judgment of acquittal was preferred by the complainant before the Court of Session/first appellate Court, which was dismissed on the ground that the appeal was time barred and also was not maintainable. Thereafter, the complainant preferred the revision before the High Court of Madhya Pradesh. The revision being without merits was dismissed by the High Court of Madhya Pradesh after perusing the provisions given under Section 372 Cr.P.C. and definition of the word "victim" added by Section 2 (wa) in the Cr.P.C. The High Court of Madhya Pradesh has observed that Section 372 Cr.P.C nowhere specifies that the victim also includes the complainant of the complaint case and word used under Section 372 Cr.P.C. is victim. In Section 378 (4) Cr.P.C., the word used is complainant, hence Section 378 Cr.P.C. applies to the complaint case.
22. In the case of Top Notch Infotronix (supra), the decision also relates to the case under Section 138 of Negotiable Instruments Act, in which cheque was dishonoured for insufficiency of funds. In the said judgment, the word "victim" as incorporated as Section 2 (wa) and proviso to Section 372 Cr.P.C. have been considered. In the said judgment, the amendment made under Section 378 Cr.P.C. which came into force w.e.f. 23.6.2006, was also considered. Both these judgments are on the point that since word "complaint and complainant" are mentioned under Section 378(4) Cr.P.C., the complainant in the case of acquittal cannot challenge the judgment of acquittal before the Sessions Judge. The complainant may make an application to the High Court seeking grant of the leave to appeal from the order of acquittal and if the High Court grants the leave to appeal, the complainant may present such an appeal to the High Court.
23. Third decision relied upon by the learned counsel for the applicants is the case of Damodar S. Prabhu Vs. Sayed Babalal H. 2010-CurCriR-2-286, 2010-AIR BomR-4-58. It also relates to the case under Section 138 of Negotiable Instruments Act in which matter was compromised and at the stage of compromise, Hon'ble Supreme Court in paragraph no.14 of the said judgment has observed as follows:
"14. It may be noted here that Section 143 of the Act makes an offence under Section 138 triable by a Judicial Magistrate First Class (JMFC). After trial, the progression of further legal proceedings would depend on whether there has been a conviction or an acquittal. In the case of conviction, an appeal would lie to the Court of Sessions under Section 374(3)(a) of the CrPC; thereafter a Revision to the High Court under Section 397/401 of the CrPC and finally a petition before the Supreme Court, seeking special leave to appeal under 136 of the Constitution of India. Thus, in case of conviction there will be four levels of litigation. In the case of acquittal by the JMFC, the complainant could appeal to the High Court under Section 378(4) of the CrPC, and thereafter for special leave to appeal to the Supreme Court under Article 136. In such an instance, therefore, there will be three levels of proceedings."

24. Learned AGA taking me through the cited judgments has vehemently submitted that in the judgment of Hon'ble Supreme Court, amendment made through Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009) w.e.f. 31.12.2009 does not find place and the amendment made through this Act No.5 of 2009 was not placed before Hon'ble Supreme Court. Hence, the point remains untouched before Hon'ble Supreme Court.
25. In this context, it is very necessary to go through the definition of the word "complaint' as provided under Section 2 (d) of the Code and also definition of the word "injury" as provided under Section 44 of the Indian Penal Code, 1860.
26. The "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
27. The word "injury" denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.
28. On comparing the definition of the word "victim" and that of injury, the word "injury" is included in the definition of the victim. Hence, the victim means the person who has suffered any loss or injury caused by reason of the act or omission, for which the accused person has been charged. Thus, any person who suffers any loss or injury illegally in body, mind, reputation or property by reason of the act or omission of the accused person, is victim.
29. Even the Law Commission's 154th report provides for special protection in respect of the women and injury and on the basis of the Law Commission's 154th report and 177th report, the aforesaid changes were brought into force by Cr.P.C. Amendment Act No.5 of 2009.
30. The whole intention of the legislature in making the amendment Act No.5 of 2009 was to provide relief to the victim of the offence of cruelty, dowry demand and other matrimonial disputes. The intention of the aforesaid amendment cannot be interpreted in such a way that the lady who is victim or sufferer of the offence of cruelty, dowry demand, ill-treatment and torture by her husband and family members, would be compelled to approach the High Court to challenge the order of the acquittal recorded by any lower Court. The intention was further to save the victim lady or her legal heir or guardian from harassment in taking the matters direct to the High Court on the same being acquitted by the trial Court or by the lower appellant court (first appellate court).
31. The purpose of the said amendment of Act No.5 of 2009 was also to provide easy and early relief to the victim lady keeping her economic condition and other problems in mind. If such a lady, whose husband and in-laws are acquitted in the case under Section 498-A, 323, 504, 506 IPC and 3/4 Dowry Prohibition Act by the trial Court, is compelled to move an application to the High Court that too for seeking to grant the leave to appeal then she would be deprived of her right to get immediate relief in matrimonial case including cruelty caused to her physically, mentally or to her reputation or status in the society. Thus, intention of the legislature in making the aforesaid amendment Act No.5 of 2009 applicable w.e.f. 31.12.2009 is to provide remedy to her by filing criminal appeal against the order of acquittal by the Magisterial Court to the Session Court concerned.
32. The victim like Smt. Asha Srivastava cannot be deprived of her statutory right to file an appeal before the Sessions Judge concerned against the judgment and order of acquittal just on the basis of technicalities like absence of the word "complaint or complainant" in the proviso to Section 372 Cr.P.C. This is just a technicality. Since the word "complaint" is not mentioned or included in the proviso to Section 372 Cr.P.C., the victim lady should not be compelled to seek the leave to appeal from the High Court.
33. The Additional Sessions Judge, has rightly admitted the instant appeal by which the order of acquittal has been challenged by the victim lady after discussing the relevant aspects of the matter and citing the complete reasons. There is no error of law or jurisdiction committed by the Additional Sessions Judge, Allahabad, in the impugned order dated 9.2.2012. The application under Section 482 Cr.P.C. being devoid of merits, is dismissed.
Dt.30.3.2012
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