Hari Shankar Patta Vs Abhimanyu Patta

On perusal of the application, it appears that the same has been filed at the instance of the complainant in 1.C.C. Case No.17 of 2005 initially filed before the learned S.D.J.M., Sundargarh for commission of an offence punishable under Sections 302, 201, 34 of I.P.C. Later on, the case was committed to the Court of Sessions and eventually the trial was conducted by the Adhoc Addl. Sessions Judge, Sundargarh. The Opposite Parties accused persons faced trial for commission of an offence punishable under Sections 302, 201, 34 of I.P.C. The learned Adhoc Addl. Sessions Judge vide judgment dated 27.08.2010 passed in the abovenoted sessions trial has come to a conclusion that the prosecution has failed to establish the charges

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under the alleged Section against the accused persons beyond all reasonable doubt and, as such, it was held that the accused persons are not guilty of the offences are alleged. Finally, the Opposite Parties accused persons have been acquitted under Section 235(1) of the Cr.P.C. of the charges under Sections 302, 201,34 of I.P.C. The complainant, as Petitioner, has preferred this petition seeking leave to prefer an appeal against the judgment of acquittal dated 27.08.2010. On a close scrutiny of the factual background of the present case as has been narrated in the impugned judgment, this Court observes that the complainant is a victim in this case. As a victim the complaint has sought for leave to prefer an appeal against the judgment of acquittal. Though the judgment of acquittal was delivered on 27.08.2010, however by then the Cr.P.C was amended thereby incorporating the proviso to Section 372 thereby conferring a right on the victim to prefer an appeal against the judgment of the acquittal.

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Taking into consideration the fact that the complainantPetitioner who is the affected party is a victim in the complaint case, this Court is of the view that he could have very well preferred an appeal directly under the proviso to Section 372 of the Cr.P.C. In the aforesaid context, this Court would like to refer to the definition of the victim as has been provided under Section 2(wa) of the Cr.P.C. which provides that a victim is a persons who had suffered any loss or injury caused by any reason of the act or omission for which the accused persons have been charged and the expression ‘victim’ include legal guardian or legal heir. Thus, going by the allegation made in the complaint, this Court has no hesitation to hold that the complainant-petitioner is a victim in this case.

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In view of the right conferred by law in the shape of the

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proviso to Section 372 of the Cr.P.C. which was brought to statute book w.e.f. 31.12.2009 by virtue of the Amending Act 5 of 2009 a valuable right has been conferred upon the victim to prefer an appeal directly under the aforesaid proviso. In view of the aforesaid legal position, this Court is of the view that no leave is required by the Petitioner to prefer an appeal. Hence, the present application is being disposed of by granting liberty to the Petitioner to prefer an appeal directly under the proviso to Section 372. Considering the fact that this application was pending before this Court since 22.11.2010, the Petitioner shall move an application for condonation of such delay on the aforesaid ground and in such eventuality the learned appellate court shall consider the same by taking a lenient view in accordance with law.

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