Remanded

M/s. Rukkus Save-n-Smile Cosmetic and Dental Hospital, v. State of Andhra Pradesh

Telangana HC7 Aug 2014CRLA/1203/2010

Case brief

AI extract

What is this about?

In an appeal under Section 378(4) Cr.P.C. challenging an acquittal maintained prior to the 2009 amendment, the High Court held that the amended Section 372 Cr.P.C. has retrospective effect. The Court exercised inherent powers to make over the appeal to the Sessions Court for disposal in accordance with law to ensure uniformity and statutory compliance.

What did the court decide?

Remand of the Criminal Appeal to the Sessions Judge of the concerned Sessions Division for disposal.

M/s. Rukkus Save-n-Smile Cosmetic and Dental… — Criminal Trial and Appeal | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR

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CRIMINAL APPEAL No.1203 of 2010

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JUDGMENT:

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The complainant in C.C.No.272 of 2009 on the file of the XV Additional Judge-cum-XIX Additional Chief Metropolitan Magistrate, Hyderabad, preferred the present appeal under Section 378(4) of the Code of Criminal Procedure, challenging the judgment dated 26.05.2010 passed in the above C.C wherein the accused in the said case was acquitted for an offence punishable under Section 138 of the Negotiable Instruments Act (for short, the Act).

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The facts in issue disclose that the appellant/complainant filed a private complaint against the accused for an offence punishable under Section 138 of the NI Act. After a full fledged trial, learned Magistrate acquitted the accused for the said offence. Aggrieved by the said judgment, the complainant preferred the present appeal. On 06.10.2010, this Court while granting leave to the complainant to file this appeal under Section 378(4) Cr.P.C., admitted the appeal and issued notice to the accused.

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When the matter is taken up for hearing the learned counsel for the appellant submits that in view of the proviso to Section 372 Cr.P.C. which was introduced with effect from 31.12.2009, seeks remand of the matter to the Court of Sessions. He further submits that in some of the appeals filed by the appellant herein this Court has remanded them back to the lower Appellate Court. With a view to avoid inconsistent judgments he pleads for remand of this case as well.

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Proviso to Section 372 Cr.P.C was introduced by way of Act 5 of 2009 which was made effective from 31.12.2009. It would be relevant to extract the said proviso which reads as under:

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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

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compensation and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”

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The word ‘victim’ in the said proviso was defined in Section 2(w)(a) Cr.P.C. The meaning of the word victim was also introduced by virtue of Act 5 of 2009. It would be relevant to refer to the definition of the word victim which is as under:

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“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.”

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A conjoint reading of the above two would disclose that a person who has sustained loss or injury will get a right to prefer an appeal to the Court of Session against an order passed by Court subordinate to the Court of Session, acquitting the accused or awarding inadequate sentence or compensation.

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The question before this Court is whether the appeal filed before this Court prior to the introduction of the proviso to Section 372 Cr.P.C. can be sent back to the Court of Session for hearing.

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The issue came up for consideration before this Court in Crl.A.No. No.1043 of 2005 and batch wherein a learned single Judge of this Court after considering the judgments of the Apex Court and the provisions of the Code, “made over appeals to the concerned Sessions Judge of the Sessions Division concerned by special order passed under Section 381(2) read with 482 Cr.P.C. directing the Sessions Court to decide or make over to any of the Additional Sessions Judges of the Sessions Division to decide the appeal by proceeding further from this stage under Section 372 Cr.P.C. and orders be passed in accordance with law.”

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The question as to whether an amendment to the Code fixing the jurisdiction of the trial of the cases will have retrospective or prospective effect came up for consideration before the Apex Court in Ramesh Kumar

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Soni v. State of Madhya Pradesh^[1] . It was a case where by virtue of an amendment to first schedule of the Cr.P.C. (Madhya Pradesh Amendment Act of 2007) offences punishable under Section 467, 468 and 471 IPC were made triable by a Court of Session. A full bench of the Madhya Pradesh High Court held that all cases pending in the Court of Judicial Magistrate of First Class will remain unaffected by such amendment and such matters which were committed to the Court of Sessions shall be sent back to the Judicial Magistrate of First Class for trial in accordance with law. The issue which came up for consideration before the Apex Court was whether the said amendment is prospective and will be applicable only to offences committed after the date of amendment was notified or will govern the cases that were pending on the date of amendment or filed after the same had become operative. The Apex Court after referring to the authorities on the subject and the provisions of the Code held as under:

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“The amendment to the Criminal Procedure Code in the instant case has the effect of shifting the forum of trial of the accused from the Court of Magistrate First Class to the Court of Sessions. Apart from the fact that as on the date of amendment came into force no case had been instituted against the appellant nor the Magistrate had taken cognizance against the appellant, any amendment shifting the forum of the trial had to be on principle retrospective in nature in the absence of any indication in the Amendment Act to the contrary. The appellant could not claim a vested right of forum for his trial for no such right is recognized. The High Court was, in that view of the matter, justified in interfering with the order passed by the Trial Court.

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Similarly, the Apex Court in Sudhir G. Angur and others v. M. Sanjeev and others^[2] , while approving the decision of the Bombay High Court in Shiv Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass and others^[3] , observed as under:

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“….. It has been held that a Court is bound to take notice of the change in the law and is bound to administer the law as it was when the suit came up for hearing. It has been held that if a

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Court has jurisdiction to try the suit, when it comes on for disposal, it then cannot refuse to assume jurisdiction by reason of the fact that it had no jurisdiction to entertain it at the date when it was instituted. We are in complete agreement with these observations …..”

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Therefore, from the judgments of the Apex Court referred to above, it is clear that any amendment, in the absence of any indication to the contrary in the Code, relating to procedure to be followed for trial of cases has to be retrospective in nature. A reading of said proviso to Section 372 Cr.P.C would indicate that it gives a statutory right to the victim to file an appeal before the Court of Sessions against an order passed by a Magistrate affecting their rights, unlike Section 378(4) wherein the complainant has to seek special leave while filing the appeal. Though the said proviso was introduced to the benefit of the victims, it would also give an opportunity to the accused to challenge the said order before the High Court if he is convicted by that Court. The said remedy was not available to the accused when appeals were filed directly before the High Court under Section 378(4) Cr.P.C.

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Further in Crl.A.No.317 of 2010 and in Crl.A.No.1137 of 2010, which are filed by the appellant herein and where the transaction is identical, this Court has already remanded them back to lower appellate Court vide orders dated 18.03.2014 and 26.03.2012 respectively.

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For the aforesaid reasons this appeal is made over to the Sessions Judge of the Sessions Division concerned directing him to decide either by himself or to make over to any of the Additional Sessions Judges of the Sessions Division to decide the appeal by proceeding further from this stage.

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The appellant/complainant shall appear before the Court of Session on 22.09.2014 without waiting for any notice from the concerned Sessions Court.

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Accordingly, the Criminal Appeal is disposed of by remanding the matter to the Sessions Court for disposal in accordance with law. The

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Registry is directed to return the entire original record to the Court concerned forthwith.

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Consequently, Miscellaneous Petitions, if any, pending in this Criminal Appeal shall stand closed.

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___________________________ JUSTICE C. PRAVEEN KUMAR

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07.08.2014 gkv

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