TMI Blog2015 (10) TMI 2483X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (3) to Section 378 of Cr.P.C. and thereafter proceed in the matter For the reasons stated supra, this appeal is allowed by setting aside the impugned judgment and order of the High Court. The case is remanded to the High Court to hear the appellant with regard to grant of leave to file an appeal as the appellant is legal heir of the victim as defined under Section 2(wa) of Cr.P.C. and dispose of the appeal in accordance with law in the light of observations made in this order as expeditiously as possible. - CRIMINAL APPEAL NO. 1315 OF 2015 (Arising out of S.L.P. (Crl) NO. 7954 of 2014) - - - Dated:- 6-10-2015 - T.S. THAKUR V. GOPALA GOWDA, JJ. JUDGMENT V. GOPALA GOWDA, J. Leave granted. 2. This criminal appeal by special leave is directed against the impugned judgment and order dated 04.03.2014 passed in Criminal Appeal No.547 of 2013 by the High Court of M.P. at Gwalior whereby the High Court has upheld the decision of the Sessions Court, Bhind, M.P. (the trial court) in Sessions Case No. 293/2010 by acquitting all the accused i.e. respondent nos. 2 to 6 herein. 3. The appellant herein made a written complaint dated 19.07.2010 regarding the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant was maintainable before the High Court of M.P. under the abovesaid provisions of Cr.P.C. He further urged that undoubtedly, the said legal aspect of the matter has not been dealt with by the High Court and the appeal was decided on merits but without examining as to whether the leave to file an appeal by the appellant is required to be granted or not under the above provisions of Cr.P.C. 6. The learned counsel for the appellant drew the attention of this Court towards the decision rendered by Delhi High Court in the case referred to supra, wherein it has elaborately adverted to the definition of victim as defined under Section 2(wa) of Cr.P.C. and proviso to Section 372 of Cr.P.C. and has examined them in the light of their legislative history. It has also adverted to 154th Law Commission Report of 1996 in connection with the said legal provision of Cr.P.C. and has succinctly held that where the victim is unable to prefer an appeal then the appeal can be preferred by persons - such as relatives, foster children, guardians, fianc or live-in partners, etc. of the victim, who are in a position to do so in his/her behalf. He urged that in the instant case, there is no need ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so to Section 372 of Cr.P.C. as he falls within the definition of victim as defined under Section 2(wa) of Cr.P.C. to question the correctness of the judgment and order of acquittal passed by the trial court in favour of respondent nos. 2 to 6 in Sessions Case No. 293/2010. 10. The proviso to Section 372 of Cr.P.C. was amended by Act No.5 of 2009. The said proviso confers a statutory right upon the victim, as defined under Section 2(wa) of Cr.P.C. to prefer an appeal against an order passed by the trial court either acquitting the accused or convicting him/her for a lesser offence or imposing inadequate compensation. In this regard, the Full Bench of Delhi High Court in the case referred to supra has elaborately dealt with the legislative history of insertion of the proviso to Section 372 of Cr.P.C. by Act No. 5 of 2009 with effect from 31.12.2009. The relevant provision of Section 372 of Cr.P.C. reads thus: 372. 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 acquittin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prefer an appeal under proviso to Section 372 of Cr.P.C. The said view of the High Court is not legally correct for the reason that the substantive provision of Section 372 of Cr.P.C. clearly provides that no appeal shall lie from any judgment and order of a Criminal Court except as provided for by Cr.P.C. Further, sub-Section (3) to Section 378 of Cr.P.C. provides that for preferring an appeal to the High Court against an order of acquittal it is necessary to obtain its leave. We have to refer to the rules of interpretation of statutes to find out what is the effect of the proviso to Section 372 of Cr.P.C., it is well established that the proviso of a statute must be given an interpretation limited to the subject-matter of the enacting provision. Reliance is placed on the decision of this Court rendered by four Judge Bench in Dwarka Prasad v. Dwarka Das Saraf (1976) 1 SCC 128, the relevant para 18 of which reads thus: 18. A proviso must be limited to the subject-matter of the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or indepe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directed to be read as supplemental to the earlier one. (j)A proviso may sometimes contain a substantive provision. XXX XXX XXX 32. In Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai it was held that the main object of a proviso is merely to qualify the main enactment. In Madras and Southern Mahrata Railway Co. Ltd. v. Bezwada Municipality Lord Macmillan observed thus: The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case. 33. The above case was approved by this Court in CIT v. Indo Mercantile Bank Ltd. where Kapur, J. held that the proper function of a proviso was merely to qualify the generality of the main enactment by providing an exception and taking out, as it were, from the main enactment a portion which, but for the proviso, would fall within the main enactment. In Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subbash Chandra Yograj Sinha Hidayatullah, J., as he then was, very aptly and succinctly indicated the parameters of a proviso thus: As a general rule, a proviso is added to an enactment to qualify or create ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out adverting to the legal contentions and evidence on record. The High Court in a very mechanical way has stated that after a perusal of the evidence on record it found no reason to interfere with the decision of the trial court as the prosecution has failed to establish the charges levelled against the accused beyond reasonable doubt and it has dismissed the appeal by passing a cryptic order. This Court is of the view that the High Court, being the Appellate Court, has to exercise its appellate jurisdiction keeping in view the serious nature of the charges levelled against the accused. The High Court has failed to exercise its appellate jurisdiction properly in the appeal filed by the appellant against the judgment and order of acquittal passed by the trial court. 15. Hence, the impugned judgment and order of the High Court is not sustainable in law and the same is liable to be set aside by this Court and the case is required to be remanded to the High Court to consider for grant of leave to file an appeal by the appellant as required under sub-Section (3) to Section 378 of Cr.P.C. and thereafter proceed in the matter 16. For the reasons stated supra, this appeal is allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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