Allowed

Amit Sao Alias Amit Shaw v. The State Of Jharkhand And Anr.

Jharkhand HC13 Jun 2023Cr.Rev./11/2017

Case brief

AI extract

What is this about?

The Court dismissed the criminal revision as not maintainable and allowed the writ petition by setting aside the appellate judgment. The petitioner successfully argued that the appeal was filed without necessary special leave under Section 378(4) Cr.P.C. as required for complainants in private complaint cases prior to filing the appeal.

What did the court decide?

The prayer in W.P.(Cr.) No.426 of 2016 to quash the order was allowed, dismissing the criminal revision against it.

Amit Sao Alias Amit Shaw Vs The State Of… — Civil Procedure and Limitation | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND, RANCHI

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W.P.(Cr.) No. 426 of 2016 ---- Amit Sao @ Amit Shaw .... Petitioner -- Versus -- The State of Jharkhand .... Respondent With Cr. Revision No. 11 of 2017 ---- Amit Sao @ Amit Shaw .... Petitioner

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-- Versus -- The State of Jharkhand and Anr. .... Respondents

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CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Sanjay Kumar Thakur, Advocate For the State :- Mrs. Ruby Pandey, APP Mr. K.K. Bhatt, AC to SC-I ---7 /13.06.2023 Notice upon O.P.no.2 has been effected and he has received the notice personally. By order dated 28.3.2023 the matter was adjourned with a view to provide one more opportunity to the O.P.no.2 and the matter was directed to be listed on 18.4.2023. When the matter was taken up, on repeated call, nobody has responded on behalf of the O.P.no.2 even the Vakalatnama has been filed earlier and these facts suggest that the O.P.No.2 has lost the interest in the matter and that is why the matter is being heard on merits in absence of O.P.No.2.

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Heard Mr. Sanjay Kumar Thakur, the learned counsel for the petitioner, Mrs. Ruby Pandey and Mr. K.K. Bhatt, the learned counsels appearing for the respondent State in respective cases.

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In W.P.(Cr.) No.426 of 2016 the prayer is made for quashing of the order dated 4.12.2014 passed in Cr.Appeal No.203 of 2014 by the learned Judicial Commissioner, Ranchi. In Cr.Revision No.11 of 2017, the prayer is made to set aside the judgment dated 26.11.2016 passed by the learned Additional Judicial Commissioner, Ranchi.

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The learned counsel appearing for the petitioner submits that the issue involved in this case is with regard to filing of the appeal without taking special leave to appeal from the High Court in view of the amendment made under section 372 of Cr.P.C. He submits that without

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any Special Leave to Appeal the said appeal has been filed by the complainant and the learned court has entertained the appeal and has been pleased to set aside the judgment of the learned trial court and allowed the appeal. He took the Court to the provisions of section 372 of Cr.P.C and submits that in view of proviso to section 372 Cr.P.C read with sub section (4) of section 378 Cr.P.C. and submits that in view of these provisions the appeal can be maintained only after taking special leave to appeal from the High Court by the victim. He further submits that this aspect of the matter has already been settled in the judgments of the several High Courts as well as Full Bench of this Court in the case of “Tuklal Yadav Vs. The State of Jharkhand & Ors and analogous cases” [2018 SCC OnLine Jhar 1193]. Paragraph nos.8 and 28 of the said judgment are quoted below:

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8. Taking into consideration all these facts, the following questions of law were referred by the Division Bench of this Court, for being adjudicated by Larger Bench, by order dated 09.07.2018 passed in these cases:- (i) Whether the acquittal appeals arising out of the appellate judgments / orders passed by the Courts of Session should be heard by a Division Bench, or it should be heard by the Single Judge in view of Proviso to Section 372, r/w 378 (3) of the Cr.P.C., as was being done earlier.

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(ii) Whether the orders passed by the Hon'ble Single Judge, referring the acquittal appeals filed against the appellate judgments / orders passed by the Courts of Session, in view of Rule 152 of the High Court of Jharkhand Rules, is in consonance with Proviso to Section 372 of the Cr.P.C., or whether such appeals shall lie to the Court to which the appeals ordinarily lie against the orders of conviction, i.e., Single Judge, in view of Proviso to Section 372 of the Cr.P.C.

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(iii) Whether Rule 152 of the High Court of Jharkhand Rules, 2001, needs to be amended in view of subsequent amendment of Section 372 of the Cr.P.C., w.e.f. 31.12.2009.

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(iv) Whether the acquittal appeals arising out of acquittal orders / judgments passed by the Magistrates in complaint Cr. Appeal (S.J) No. 1281 of 2016 And connected matters. cases, can be entertained by the Courts of Session under the Proviso to Section 372 of the Cr.P.C., or the complainant has to prefer an application for special leave to appeal before the High Court, and if special leave is granted to him, to file the appeal in the High Court itself, as required under Section 378 (4) of the Cr.P.C.

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(v) Whether such applications for leave / special leave to appeal, even in the acquittal appeals arising out of the appellate

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judgments / orders passed by the Courts of Session, are to be heard and decided by the Division Bench, as is being presently done, or they can be heard and decided by a Single Judge, which is the Court of appeal in such cases under Proviso to Section 372 of the Cr.P.C., on the analogy that the Court which can decide the main appeal, can also decide the question whether the leave / special leave to appeal in a particular case be granted or not.

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(vi) Whether the applications for leave / special leave to appeal under Section 378 (3) Cr.P.C., and Section 378 (4) Cr.P.C., have to be filed separately as independent applications in the form of Cr.M.P., or the same can be filed by way of interlocutory applications (I.A.), in the same appeal, in which case the multiplicity of cases may also be avoided, thus, reducing the pendency of the cases.

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(vii) Whether the acquittal appeals should necessarily be registered as Acquittal Appeals, and not as Criminal Appeals. The nomenclature Cr. Appeals should only be for the appeals arising out of the Judgments / Orders of conviction.

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(viii) Any other question(s), which may arise, for consideration before the larger Bench.

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28. Having considered the various stands advanced by the learned counsels on this question, taking into consideration the views of the other High Courts, as also the law laid down by the Apex Court, as referred above, and trying to harmonize the provisions of Proviso to Sections 372 of the Cr.P.C., and Section 378 of the Cr.P.C., we propose to answer this question, with respect to appeals arising out of complaint cases, as follows:-

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(A). The complainant, whether the State or a private person, who is also the victim as defined under Section 2 (wa) of the Cr.P.C., if aggrieved by the judgment / order of acquittal passed by the Trial Court, their case is now set at rest by the decision of the Hon’ble Apex Court in Subhash Chandra’s case (supra), and as such, they have the only remedy against the order / judgment of acquittal passed by the Trial Court, to seek special leave of the High Court under Section 378 (4) of the Cr.P.C., and in case the special leave is granted, to file appeal in the High Court itself. In case the special leave is not granted to the private complainant, the appeal even by the State shall be barred in terms of Section 378 (6) of the Cr.P.C.

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(B). Such complainants, even if they are victims as defined under Section 2 (wa) of the Cr.P.C., now cannot take recourse to Proviso to Section 372 of the Cr.P.C. They cannot be allowed two forums of appeal, as argued by learned counsels, and they can also be given only one forum of appeal, as is given to the victims in case of judgment / order of acquittal in police cases.

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(C). In cases the victims are not the complainant, their cases cannot come under Section 378 (4) of the Cr.P.C., as Section 378 (4) clearly speaks about the right of complainant only. Such victims as defined under Section 2 (wa) of the Cr.P.C., can avail the remedy of appeal under the Proviso to Section 372 of the Cr.P.C. In such cases, if the order / judgment of acquittal is passed by the Court of Magistrate, the appeal shall lie to the Court of

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Session, in which case there shall be no requirement to seek any leave to appeal. If the order / judgment of acquittal is passed by the Court of Session, the appeal shall lie to the High Court, subject to leave to be taken under Section 378 (3) of the Cr.P.C.

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(D). At the same time, we cannot ignore the right of the victim complainant, if such victim complainant is aggrieved by the conviction of the accused for lesser offence, or imposing inadequate compensation. Such appeals shall not be against the judgment / order of acquittal and shall not come within the purview of Section 378 (4) of the Cr.P.C., and are also not covered by the decision of the Apex Court in Subhash Chandra’s case (supra). In such cases, we are of the considered view that the victims as defined under Section 2 (wa) of the Cr.P.C., whether they are complainant or not, shall have the right to appeal under the Proviso to Section 372 of the Cr.P.C. against the judgment / order of convicting the accused for lesser offence, or imposing inadequate compensation. In such cases also, if the order / judgment is Cr. Appeal (S.J) No. 1281 of 2016 And connected matters. passed by the Court of Magistrate, the appeal shall lie to the Court of Session, in which case there shall be no requirement to seek any leave to appeal, and if the order / judgment is passed by the Court of Session, the appeal shall lie to the High Court, subject to leave to be taken under Section 378 (3) of the Cr.P.C.

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Re. Question Nos. (v) & (vi)

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(v) Whether such applications for leave / special leave to appeal, even in the acquittal appeals arising out of the appellate judgments / orders passed by the Courts of Session, are to be heard and decided by the Division Bench, as is being presently done, or they can be heard and decided by a Single Judge, which is the Court of appeal in such cases under Proviso to Section 372 of the Cr.P.C., on the analogy that the Court which can decide the main appeal, can also decide the question whether the leave / special leave to appeal in a particular case be granted or not.

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He further submits that identical issues were raised in

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several Cr.M.Ps and that is why the matter was referred to Division Bench in the case of Mossabha Khatoon v. The State of Jharkhand and Others (Cr.M.P. No.71 of 2010 and analogous case). He submits that “Tuklal Yadav Vs. The State of Jharkhand & Ors” and analogous cases (supra) case is held to be a good law by the Division Bench on reference and on that ground he submits that the order passed by the learned appellate court is required to be set aside.

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On the other hand, the learned counsel appearing on behalf of the respondent State submits that it appears that the complainant is a victim and that is why the learned court has rightly entertained the appeal. He submits that there is no illegality in the orders passed by the learned appellate court.

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In view of the submission of the learned counsels appearing for the parties, the Court has gone through the contents of the judgment passed by the learned appellate court. The learned court has admittedly entertained the appeal and has been pleased to set aside the judgment of the learned trial court. The law in this regard is now well settled in view of the Hon’ble Full Bench judgment of this Court which has been again considered by the Hon’ble Division Bench of this Court in the analogous cases as discussed hereinabove and it has been held that in a complaint case if the complainant is aggrieved with the acquittal order the said can be only challenged after taking special leave to appeal by the High Court. A reference may be made to the said discussion of Division Bench in Paragraph nos. 8, 9, 10, 12 and 13 which are quoted below:

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“ 9. When these matters came up before the Full Bench, again a question arose with respect to the complaint cases, i.e., in cases where complainant is also the victim, the case may be covered by the decision of the Apex Court in Subhash Chand’s case (supra), but in the cases, the complainant is not a victim, and such victim wanted to prefer an appeal against the judgment of acquittal, whether the appeal filed by such victim could be entertained under Section 378 (4) of the Cr.P.C., or such victim had a right to file an appeal under the Proviso to Section 372 of the Cr.P.C., particularly in view of the fact that Section 378 (4) of the Cr.P.C., speaks about the acquittal appeals filed by the complainants only. The word 'victim' is not there in Section 378 (4) of the Cr.P.C.

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10. Yet another question that would arise, is what shall be the remedy available to the complainant if he / she is victim also, in case such complainant is aggrieved by the conviction of the accused for lesser offence, or due to imposing inadequate compensation, as Section 378 (4) of the Cr.P.C., does not provide any remedy in such situations

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12. For deciding these questions, Sections 372 and 378 of

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the Cr.P.C., and Rule 152 of the High Court of Jharkhand Rules, 2001, need to be referred.

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Section 372 of the Cr.P.C., reads as follows:-

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“372. No appeal to lie unless otherwise provided. - 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. Cr. Appeal (S.J) No. 1281 of 2016 And connected matters.

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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.” (Proviso brought in by Amendment Act 5 of 2009, w.e.f. 31.12.2009.)

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Relevant provisions of Section 378 of the Cr.P.C., reads as follows:- “378. Appeal in case of acquittal. - (1) Save as otherwise provided in sub-section (2), and subject to the provisions of subsections (3) and (5), -

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(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 ;

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(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.

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(2) --------------------- .

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(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.

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(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.

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(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.

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(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 Cr. Appeal (S.J) No. 1281 of 2016 And connected matters. - 8 - acquittal shall lie under subsection (1) or under sub-section (2).”

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Rule 152 of the High Court of Jharkhand Rules reads as follows:-

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“152. All Acquittal Appeals shall be listed before the Division Bench for Admission, and if admitted, shall be processed for hearing. The

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record of the Court below shall immediately be sent for.

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13. It may be stated that there is an amendment in the High Court of Jharkhand Rules in the year 2005, whereby Rules 35 and 36, as they presently exist, have been brought in the High Court Rules, 2001, wherein Rules 35 (1) (f) and 36 (ii) read as follows:-

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“35. (1)The following matters may be heard and disposed of by a Single Judge: (a) to (e) ---------------.

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(f) Appeal against judgment of acquittal in which a substantive sentence of less than 10 (ten) years of imprisonment could have been passed; (g) & (h) ------------.

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(2) ----------------- .

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36. The following matters may be heard and disposed of by a Division Bench:- (i) ------------- . (ii) Appeal against judgment of acquittal in which a substantive sentence of 10 (ten) years imprisonment or more could have been passed. (iii) & (iv) ------------- .””

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In view of the above discussion and as has been made in the judgment of the Division Bench wherein the case of “Tuklal Yadav Vs. The State of Jharkhand & Ors” and analogous cases (supra) has been considered elaborately, it has been held that special leave to appeal is required to be filed by the complainant before filing of the appeal which is lacking in the case in hand. Further the revision is not maintainable as has been discussed in the said judgment elaborately. In view of the settled proposition of law and in view of that the judgment passed by the learned appellate court is set aside. The prayer made in the Writ petition (W.P.(Cr.) No.426 of 2016) is allowed and disposed of.

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In view of the discussions made above, criminal revision (Cr.Revision No.11 of 2017) is not maintainable and hence it is dismissed.

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Both these petitions stand disposed of in above terms.

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It is open to the complainant that if he is so advised may take steps in view of law laid down by this Court in case of “Tuklal Yadav Vs. The State of Jharkhand & Ors” and analogous cases (supra) and Division Bench in case of “Mossabha Khatoon v. The State of Jharkhand and Ors. (Cr.M.P.No.71 of 2010 and analogous cases).

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( Sanjay Kumar Dwivedi, J.)

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SI/;

Amit Sao Alias Amit Shaw v. The State Of Jharkhand And Anr.

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Amit Sao Alias Amit Shaw v. The State Of Jharkhand And Anr.

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