TMI Blog2017 (12) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... or for any other offence either bailable or non-bailable is required to file an appeal against acquittal in a complaint case seeking special leave of the Court under Section 378 (4) of Cr. P.C.? - Held that: - a complainant in a complaint case relating to an offence under Section 138 of the Act of 1881 would be required to file an appeal against acquittal in such case only under Section 378(4) of the Code, after seeking special leave. In all other complaint cases relating to offences, either bailable or non-bailable, even if the accused therein is charged, the complainant therein would not have the right of preferring an appeal under the proviso to Section 372 of the Code and he would have to continue to avail the special remedy of appeal provided to him under Section 378(4) of the Code, duly seeking special leave - the appeal filed under the proviso to Section 372 of the Code by the first respondent herein, the complainant in a complaint case under Section 138 of the Act of 1881, is not maintainable. It is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proached this Court by way of the present petition under Section 482 of the Code. Her contention is that the learned Metropolitan Sessions Judge, Hyderabad, lacks jurisdiction to entertain an appeal arising out of the acquittal in a case instituted upon a complaint and that an appeal therefrom would only lie to the High Court under Section 378(4) of the Code. She accordingly seeks quashing of the appeal on the file of the learned Metropolitan Sessions Judge, Hyderabad. The learned single Judge who heard the case found that there was divergence of opinion on the framed questions of law and opined that an authoritative pronouncement would be desirable to give a quietus to the issue. 3. Sri Anand Kumar Kapoor, learned counsel representing M/s. Lawyers Solicitors, counsel for the petitioner, advanced copious arguments on various aspects. The learned Public Prosecutors of the State of Telangana and the State of Andhra Pradesh assisted the Court as a pronouncement on the issues raised would have far-reaching consequences. 4. Sri M. Veera Prasada Chary, learned counsel, who appeared for the first respondent/complainant before the learned Judge at the time of the reference, did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) shall be entertained except with the leave of the High Court. (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. (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. (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 acquittal shall lie under sub-section (1) or under sub-section (2). 6. Chapter XXIX of the Code deals with appeals. Section 372, being the first provision therein, stipulates that no appeal would lie from any judgment or order of a Criminal Court except as provided for by the Code or by any other law for the time being in force. A proviso was inserted in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviso to Section 372 of the Code. The decisions of the Kerala High Court in Omana Jose v. State of Kerala [2015] Cri L.J. 2784 (DB), the Chhattisgarh High Court in Kailash Murarka v. K. Geet Srijan [2015] Crl LJ 1627 (DB) and the Punjab Haryana High Court in Tata Steel Ltd. v. Atma Tube Products Ltd. 2013 Law Suit (P H) 1375 were however to the effect that an appeal would lie only to the High Court against acquittal in a complaint-case under Section 378(4) of the Code. 10. In G. Basawaraj (supra), a learned Judge of this Court was dealing with two criminal petitions filed by an accused aggrieved by the filing of criminal appeals by the complainant before the Sessions Court against the judgments acquitting him of offences under Section 138 of the Act of 1881. The issue before the learned Judge was whether an appeal would lie at the behest of the complainant before the High Court under Section 378(4) of the Code or whether such a complainant would have to file an appeal before the Sessions Court under the proviso to Section 372 of the Code, treating him as a victim under Section 2(wa) of the Code. The learned Judge observed that prior to amendment of Section 372 of the Code, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Sessions Court or to the High Court depending upon the quantum of sentence of imprisonment and in case a conviction was recorded by a Sessions Court or Additional Sessions Court, then the appeal would straightaway lie to the High Court. The learned Judge was of the opinion that even otherwise, if the appeals were not maintainable, they would not be quashed and the proper course would be to return them for presentation to the proper Court or to transfer them to such Court. As the appeals in that case were both filed before the insertion of the proviso to Section 372 of the Code, the learned Judge held them to be not maintainable on that ground and accordingly transferred them to this Court. 11. A contrary view, to some extent, was taken by another learned Judge of this Court in Petta Satya Govinda Ramachandra Rao @ Babji (supra). This was also a case arising out of a judgment acquitting the accused of an offence under Section 138 of the Act of 1881. The complainant therein preferred an appeal before this Court under Section 378(4) of the Code and special leave was granted on 11.07.2005. By that date, the proviso to Section 372 of the Code had not been inserted in the statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the High Court for filing appeal with leave under Section 378(4) Cr.P.C; to approach the Court of Session where no leave is required to file such appeal there. Needless to say by virtue of the amended provision without invoking the Court of Session for filing appeal against acquittal, approaching the high Court by saying concurrent right and therefrom, granting leave by the Court by exercise of discretion since amounts to interference with such right of accused and taking away another future right of appeal in such contingency to approach the High Court and as the discretion is to be exercised judiciously within the canons of law, and this is when taken into consideration, this Court under Section 378(4) Cr. P.C., must be slow for grant of such leave but for any special reasons and for any exceptional circumstances to accord by so assigning besides the party approaching for filing appeal to satisfy by giving the reasons and exceptional circumstances in the leave application. As such, no appellant of appeal against acquittal can say that there are two forums with concurrent jurisdiction available and he got right to approach any of the forums and thereby can file appeal before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so to Section 372 of the Code must be read along with the main enactment, i.e., Section 372 itself, and with Section 378(3), as reading it otherwise would render the substantive provision of Section 372 of the Code nugatory. The Supreme Court concluded that the right of questioning the correctness of the order of acquittal by preferring an appeal to the High Court is conferred upon the victim, including the legal heir and others, as defined under Section 2(wa) of the Code, under the proviso to Section 372 but only after obtaining leave of the High Court as required under Section 378(3) of the Code. In the light of this authoritative edict by the Supreme Court, the judgments of various High Courts holding to the contrary, referred to hereinafter, no longer constitute good law. 14. In Tamilnad Mercantile Bank Ltd. (supra), the learned Judge who decided Petta Satya Govinda Ramachandra Rao @ Babji (supra) again had an occasion to deal with the issue. This case also involved conviction of an accused under Section 138 of the Act of 1881. Aggrieved by the convictions and sentences, the accused preferred criminal revision petitions before the Sessions Court under Section 397 of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the victim could only challenge the order of acquittal by way of a revision under Section 397 of the Code and after the amendment and introduction of Section 2(wa) defining a victim, such a victim was conferred with the right of preferring an appeal to the Sessions Court against an order passed by the trial Court acquitting the accused or convicting him of a lesser offence or awarding inadequate compensation, the Division Bench pointed out that if it is to be construed that a complainant could also file an appeal to the Sessions Court under Section 372 proviso or to the High Court under Section 378(4) of the Code, it would mean that a complainant in a complaint case would have two remedies and if he chooses the remedy under Section 372 proviso, he could file an appeal as of right to the Sessions Court without leave and if he files an appeal under Section 378(4) of the Code, special leave is required. The Bench was of the view that the law makers would not have wanted to provide two remedies to a complainant in a complaint case, who is also a victim, as there is no provision either in Section 372 or in Section 378 of the Code that, when an appeal against an order of acquittal file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of the proviso to Section 372 of the Code by Act No.5 of 2009, thereby providing a right of appeal to the victim, would not come to the aid of those victims who qualify as complainants, already having sufficient role in the Court proceedings. 17. In Tata Steel Ltd. (supra), a Full Bench of the Punjab Haryana High Court summed up its conclusions on this issue as under: Question (B)(iii) The complainant in a complaint-case who is also a victim and the victim other than a complainant in such case, shall have remedy of appeal against acquittal under Section 378(4) only, except where he/she succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser offence or imposition of an inadequate compensation, for which he/she shall be entitled to avail the remedy of appeal under proviso to Section 372 of the Code. ( iv) The victim who is not the complainant in a private complaint-case, is not entitled to prefer appeal against acquittal under proviso to Section 372 and his/her right to appeal, if any, continues to be governed by the unamended provisions read with Section 378(4) of the Code. (v) those victims of complaint-cases whose rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition before the Supreme Court, seeking special leave to appeal under Section 136 of the Constitution of India. Thus, in case of conviction there will be four levels of litigation. In the case of acquittal by JMFC, the complainant could appeal to the High Court under Section 378(4) CrPC, and thereafter for special leave to appeal to the Supreme Court under Article 136. In such an instance, therefore, there will be three levels of proceedings. 20. In Subhash Chand v. State (Delhi Administration) [2013] 2 SCC 17, the Supreme Court was dealing with the validity of an order passed by the High Court of Delhi holding to the effect that an appeal filed by the State against the order of acquittal therein would lie to the Sessions Court under Section 378(1) of the Code and not to the High Court under Section 378(4) thereof. The Supreme Court encapsulated the point for consideration thus: whether in a complaint case, an appeal from an order of acquittal of the Magistrate would lie to the Sessions Court under Section 378(1)(a) of the Code or to the High Court under Section 378(4) thereof. Referring to the Law Commissions 154th and 221st reports opining that there was no provision in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quietus to the case in such a situation. The Supreme Court further concluded that a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court and he cannot file such an appeal in the Sessions Court. This judgment was delivered on 08.01.2013, long after insertion of Section 2(wa) and the proviso to Section 372 in the Code. 21. In Bhajanpura Cooperative Urban Thrift Credit Society Ltd. v. Sushil Kumar 2015 (1) NIJ 166 (Delhi), a learned Judge of the Delhi High Court took the view to the effect that the remedy available to a complainant in a case under Section 138 of the Act of 1881 against an order of acquittal is only to seek special leave to file an appeal under Section 378(4) to the High Court and not under Section 372 proviso of the Code. 22. In D. Sudhakar v. Panapu Sreenivasulu @ Evone Water Sreenivasulu 2013 (1) ALD (Crl.) 366 (AP.), a Division Bench of this Court, drawing support from National Commission for Women v. State of Delhi 2010 (1) SCALE 17, held that as the amendment to Section 372 of the Code came into the effect only on 31.12.2009 creating a right in the victim to prefer an appeal, such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 378(5) thereof, at the behest of the complainant in a case arising under Section 138 of the Act of 1881 The questions framed for consideration by the Full Bench were as under: 1. Whether a victim of a crime, who has prosecuted an accused by way of a private complaint, does not have statutory right of appeal against acquittal under proviso to Section 372 of the Code of Criminal Procedure 2. Whether a complainant, in a private compliant case, who is not a victim, has got the remedy to seek only leave to file appeal under Section 378(4) of the Code of Criminal Procedure in the event of acquittal of the accused 3. In a private complaint case, if a victim does not happen to be a complainant and in the event of acquittal, whether he has got right of appeal under proviso to Section 372 of the Code of Criminal Procedure or he has to seek leave to file appeal under Section 378(4) of the Code of Criminal Procedure 4. Whether a victim in a case instituted on a police report, has a better place in the criminal justice delivery system than a victim in a private complaint case 5. Whether the term victim as defined in Section 2(wa) of the Code of Criminal Procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewell Leathers (P.) Ltd. v. Bhankerpur Simbhaoli Beverages (P.) Ltd. [1994] 1 SCC 34, the Supreme Court observed that ordinarily, substitution of a new forum for the existing forum of appeal should not be readily inferred in the absence of a clear provision to that effect or at least any incongruity resulting from that view. It was further observed that express provision would be made in the statutory amendment to indicate a different or substituted appellate forum than the existing appellate forum if that was the intention of the amendment of jurisdiction of the Court for the purpose of an appeal had been altered in any manner and the absence of any indication in the amendment to suggest any change or substitution in the appellate forum is a pointer in the direction that the same continued unaltered. 30. As regards the sanctity of the remedy provided, reference may be made to Mukund Deo (Dead) Represented By His Legal Representatives Kasibai v. Mahadu AIR 1965 SC 703, wherein the Supreme Court found on facts that under Section 602 of the Hyderabad Civil Procedure Code, 1328 Fasli, a second appeal lay to the High Court on questions of fact as well as of law and this was the posi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht when the action was initiated at the time of the institution of action; and 22.3 That if the court to which an appeal lies is altogether abolished without any forum constituted in its place for the disposal of pending matters or for lodgment of the appeals, vested right perishes. 34. The Supreme Court concluded that that what is unaffected by repeal of a statute is a right acquired under it and not a mere hope or expectation of, or liberty to apply for, acquiring the right. 35. On the aspect of interpretation of statutes, the following case law is of guidance: In State of Maharashtra v. Marwanjee F. Desai [2002] 2 SCC 310, the Supreme Court observed that the statute has to be considered in its entirety and picking up one word from one particular provision and thereby analyzing it in a manner contrary to the Statement of Objects and Reasons is neither permissible nor warranted. Adverting to the fixed canons of construction and interpretation of statutes, the Supreme Court held that a statute cannot be read in the manner as was done by the High Court and the true intent of the legislature has to be gathered and deciphered in its true spirit, having due regard to the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffort should always be made to read the legislative provision in such a way that there is no wastage of words and any construction which makes some words of the statute redundant should be avoided. No doubt, if the natural meaning of the words leads to an interpretation which is contrary to the objects of the Act or makes the provision unworkable or highly unreasonable and arbitrary, then the Courts either add words or subtract words or read down the statute, but this should only be done when there is an ambiguity in the language used. In my view, there is no ambiguity in the wording of Section 167(2) of the Code and, therefore, the wise course would be to follow the principle laid down by Patanjali Shastry, CJI in Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC 369, where he very eloquently held as follows: 38. It is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute. 39. Sri Anand Kumar Kapoor, learned counsel, would point out that a complaint case under Section 138 of the Act of 1881 is tried as a summons case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f persons, such existing law of limitation, applicable to the old class/classes of persons, shall automatically be applicable to the new class/classes of persons in whose favour such right has subsequently been extended. The Division Bench accordingly applied the law of limitation to such appeals also. He would point out that the limitation adopted was on par with the limitation applicable to appeals arising out of cases based on police reports and therefore, a complainant in a Section 138 complaint case under the Act of 1881 could not be put on par with a victim under Section 2(wa) of the Code. 41. The learned Public Prosecutor for the State of Telangana would refer to the judgment of the Chhattisgarh High Court in KAILASH MURARKA5 and point out that para 2 of the Statement of Objects and Reasons of Act No.5 of 2009, referred to therein, reflects the concern for victims by summing up that at present the victims are worst sufferers in a crime and they do not have much role in Court proceedings. They need to be given certain rights and compensation so that there is no distortion of the criminal justice system. He would assert that this observation would manifest that a complainan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has a very limited participatory role. The law, as it existed prior to amendment of Section 372 of the Code, only provided for appeals being preferred against acquittal in such cases by the State. The victim or his near relation in a case of this nature only had the right of preferring a revision under Section 397 of the Code, if an order of acquittal was passed therein. As it was felt that this limited remedy of revision was not adequate, as the scope of interference in a revision would be far less than in an appeal, the law makers thought it fit to provide the right of appeal to such a victim or his near relation by inserting the proviso to Section 372 of the Code. This being one aspect, Section 142 of the Act of 1881 demonstrates that cognizance of an offence under Section 138 thereof would not be taken by the Court except upon the written complaint of the payee of the cheque or its holder in due course. Therefore, law is set in motion in such a case upon the private complaint itself and the police have little role to play. It is the complainant who practically prosecutes the accused in the case. However, the scheme of the Act of 1881 does not visualize the complainant in such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd no appeal could lie thereafter against such acquittal either under Section 378(1) or (2). 44. Therefore, even as on the date of amendment of the Code vide the Act No.5 of 2009, a complainant in a case arising out of a private complaint had the right to prefer an appeal to the High Court against acquittal therein, with special leave. As rightly pointed out, it cannot be presumed that the legislature was unaware of the existing appellate remedy while creating a right of appeal in favour of a victim, by inserting Section 2(wa) in the Code along with a proviso to Section 372 thereof. Had it been the intention of the legislature to provide dual remedies to such a complainant by allowing him to come within the ambit of a victim under Section 2(wa) and avail the right of appeal under the proviso to Section 372, express mention would have been made of the same. Be it noted, Section 397 of the Code specifically confers upon an aggrieved party the right of revision either before the Sessions Court or before the High Court and once the remedy of revision is invoked before either of the aforestated fora, a further revision would not lie thereunder to the other forum. 45. Significantly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal under the proviso to Section 372 of the Code. Notably, cases under Section 138 of the Act of 1881 are tried as summons cases. A summons case is defined under Section 2(w) of the Code to mean a case relating to an offence not being a warrant case, while Section 2(x) defines a warrant case to mean a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. As an offence under Section 138 of the Act of 1881 attracts imprisonment for a term which may extend upto two years only, such a complaint case would be only a summons case, wherein no charge requires to be framed. Under Chapter XIX of the Code relating to trial of warrant cases, framing of a charge is required under Section 240, while no such procedure is contemplated under Chapter XX of the Code, dealing with trial of summons cases. As the accused in a cheque-dishonour case under Section 138 of the Act of 1881 is not charged, the complainant in such a case, though he may suffer loss and injury by the omission of the accused to pay his dues, cannot be brought within the ambit of a victim as defined in Section 2(wa) of the Code. Ergo, a complainant in a cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of acquittal in such a case under the proviso to Section 372 of the Code. Given the special remedy already provided to them under Section 378(4) of the Code in the status of being a complainant, the general remedy provided to victims under the proviso to Section 372 of the Code cannot be extended to them. They would therefore have to continue to avail the remedy of appeal under Section 378(4) of the Code by following the due procedure. 50. To sum up, we answer the first question as to whether the complainant in a complaint case for an offence punishable under Section 138 of the Act of 1881 is a victim as defined under Section 2(wa) of the Code, as amended by Act No.5 of 2009, in the negative. Such a complainant is not a victim within the meaning of Section 2(wa) of the Code and would stand excluded therefrom, by virtue of the fact that the accused in such a case is not subjected to a charge. 51. In consequence, we also answer the second question as to whether such a complainant would be entitled to file an appeal under the proviso to Section 372 of the Code before the Court to which an appeal lies against conviction, in the negative. As such a complainant does not come withi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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