TMI Blog2015 (2) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court of Session against the judgment of acquittal passed by subordinate criminal court arising out of criminal complaint filed by complainant, he will be required to prefer an appeal under Section 378(4) of the Code before the High Court after obtaining leave. The incorporation of proviso to Section 372 of the Code by Act No. 5 of 2009, providing right of appeal to the victim, will not come to the aid those victims who are complainants having much role in the court proceedings. Appeal dismissed being not maintainable. - Criminal Misc. Petition No. 617 of 2012 and Criminal Revision No. 285 of 2014 - - - Dated:- 25-2-2015 - T.P. Sharma and Inder Singh Uboweja, JJ. For the Appellant: Deepali Pandey For the Respondent: Fouzia Mirza, J.K.T. Gilda, Advocate General and Ramakant Mishra, Deputy Advocate General JUDGMENT T.P. Sharma, J. 1. This reference has been made by the learned single Judge Hon'ble Mr. Justice Sarijay K. Agrawal) under Rule 32(2)(ii) of the High Court of Chhattisgarh Rules, 2007 for placing it before Hon'ble the Chief Justice with a recommendation to place the same before larger Bench. Vide order dated 14-11-2013, Hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he victim of the offence by adding proviso to Section 372 of the Code. Both the provisions are not one and same. Remedy to file appeal under the proviso to Section 372 of the Code is not available to the complainant, inter aha, the complainant, who is also a victim, has only right to avail the remedy of special leave to appeal against the judgment of acquittal under sub-section (4) of Section 378 of the Code and victim of the offence, who has not filed complaint, has no right to file appeal after grant of leave under sub-section (4) of Section 378 of the Code, but he may file appeal under the proviso to Section 372 of the Code. 4. The learned Advocate General placed reliance in the matter of Subhash Chand v. State (Delhi Administration), (2013) 2 SCC 17 : (AIR 2013 SC 395) in which the Supreme Court has held that complainant, who might be a private person or public servant or State/State authority, has only right to file application under Section 378(4) of the Code for special leave to appeal against the order of acquittal before the High Court, whether offence is bailable or non-bailable, cognizable or non-cognizable, complainant cannot file such appeal in Sessions Court. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory compulsion. Ultimately, after the complaint case resulted in acquittal, the remedy for the complainant was to file petition for leave to appeal under Section 378(4) of the Code before the High Court and remedy under the proviso to Section 372 of the Code was not available to the complainant. 6. Learned counsel Mr. Anumeh Shrivastava and Mrs. Fouzia Mirza have supported the submissions made by the learned Advocate General and have submitted that before amendment, the victim not being complainant was not having any right of appeal against the judgment of acquittal, but the complainant, who may be the victim and has chosen specific procedure for redressal of grievance by filing complaint, has a right to redress the grievance in case of acquittal under Section 378(4) of the Code by filing petition for leave to appeal. Vide Amending Act No. 5/2009, the word 'victim' has been defined under clause (wa) of Section 2 of the Code and right to appeal against the judgment of acquittal has been provided to the victim under the proviso to Section 372 of the Code. Both are different proceedings available to different class of persons. The complainant may be the victim, remed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ata Steel Ltd. v. Atma Tube Products Ltd. Ors., IV (2013) CCR 57 (FB) (P H) in which the Full Bench of the Punjab Haryana High Court has taken the view that the complainant who is victim has also right to file appeal under the proviso to Section 372 of the Code. 8. Following are the relevant provisions of the Code which read thus, Clause (wa) of Section 2 of the Code 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; Section 372 of the Code 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: 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. Sub-section (4) of Section 378 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that case. Where, as in the present case, the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it by implication what clearly falls within its express terms. The territory of a proviso therefore is to carve out an exception to the main enactment and exclude something which otherwise would have been within the section. It has to operate in the same field and if the language of the main enactment is clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that that is its necessary effect. 11. Right of Appeal provided to the victim in proviso to Section 372 of the Code and remedy of appeal against acquittal provided to the complainant in Section 378(4) of the Code appear to be inter se overlapping, if not conflicting, when either the complainant is the victim or the victim is not the complainant in case where the complaint had to be filed by some person or authority designate owing to statutory prescription, for in these cases the person aggrieve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irmly established in England as far back as 1584 when Heydon's case, 3 Co. Rep. 7a; 76 EIR. 637, was decided that ....for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:-- 1st. What was the common law before the making of the Act, 2nd. What was the mischief and defect for which the common law did not provide, 3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth, and 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico . In In re Mayfair Property Company, L.R. [1898] 2 Ch. 28, 35 Lindley, MR. In 1898 found the rule as necessary now as it was when Lord Coke reported Heydon's case . In Eastman Photographic Material Company v. Comptroller General of Pat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her provisions of the Code particularly relating to appeal in view of the language of Section 372 of the Code which lays down that none can file an appeal except as provided for in that chapter. 20. Section 378(4) of the Code dealing with remedy of appeal in case of acquittal in case instituted upon complaints imposes twin conditions i.e. the appeal has to be filed in the High Court and that the appeal will lie after obtaining special leave. 21. It is already observed that there can be class of persons, who may be aggrieved by acquittal in cases instituted upon complaints, and who may seek to avoid the rigours of Section 378(4) of the Code by resorting to the newly added proviso to Section 372 of the Code. 22. Permitting such an absolute shunt will render the provision of Section 378(4) of the Code otiose and redundant but at the same time disallowing the remedy available under proviso to Section 372 of the Code to all the victims irrespective of the fact whether they belong to the class for whose benefit the proviso to Section 372 of the Code was legislated would offend the purpose of the legislation. 23. To reconcile the two provisions, class of cases dealt with in bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dication of a particular intention to do so. If a special provision deals with certain matter, then that matter is excluded from the application of general provision. 28. Whether the victim in a complaint case can seek remedy under proviso to Section 372 of the Code in the situations where Section 378(4) of the Code is silent about the remedy to the victim even though the subject-matter of Section 378(4) of the Code is complaint cases, would definitely fall in grey area requiring interpretation. 29. To sum up, following points emerge from the above discussion: 1. Proviso to Section 372 of the Code apparently does not distinguish between a victim who is a complainant and who is not a complainant. 2. Out of three circumstances circumscribed under the proviso to Section 372 of the Code, viz., (1) acquittal of accused, (2) conviction of accused for lesser offence, and (3) grant of inadequate compensation, only the first circumstance, i.e. acquittal of accused, is dealt with in Section 378(4) of the Code but Section 378(4) does not prohibit or bar the remedy to the victim in other two circumstances. 3. Section 378(4) of the Code is a special provision dealing specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed earlier, Section 378(4) of the Code is a special provision, dealing specifically with appeal by complainant in case of acquittal of accused in complaint cases, and as such it will have overriding as well as exclusive application and effect in cases of acquittal of accused in cases instituted upon complaint. Section 378(4) of the Code lays down twin criteria for tenability of appeal that it should be filed in the High Court and that the appeal will lie after obtaining special leave. As a corollary it flows that complainant will not be entitled to prefer an appeal under proviso to Section 372 of the Code before the Court of Session against the judgment of acquittal passed by subordinate criminal court arising out of criminal complaint filed by complainant, he will be required to prefer an appeal under Section 378(4) of the Code before the High Court after obtaining leave. Even otherwise, in cases instituted upon complaint, the complainant has much role in the court proceedings and as is apparent from the Statement of Object and Reason of Act No. 5 of 2009 which amended the Code, changes have been brought with a view to give certain rights and compensation to the victims who do not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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