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Mahesh Kumar Sinha Versus State of Jharkhand And Binod Kumar Das

2013 (4) TMI 889 - JHARKHAND HIGH COURT

Acquittal. Appeal (DB) No. 04 of 2013 - Dated:- 15-4-2013 - MR. JUSTICE D.N. PATEL And MR. JUSTICE SHREE CHANDRASHEKHAR, JJ. For the Appellant : Mr. Jay Prakash Jha, Sr. Advocate And Mr. Aishwarya Prakash, Mr. Ashish Thakur, Advocates For the State : APP ORDER Per D.N. Patel, J.: 1. The present appeal has been preferred against the judgment and order of acquittal passed by the Judicial Magistrate First Class, Dhanbad in C.P. Case No. 1320 of 2011. The judgment and order of acquittal passed by th .....

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l appeal will be argued at length. Counsel for the appellant has also submitted that the present appellant is a complainant, who has preferred a complaint case before the Judicial Magistrate First Class, Dhanbad for the offence under Section 138 of the Negotiable Instruments Act and therefore, upon acquittal present appeal has been preferred along with the prayer for grant of special leave to appeal. 3. We have heard counsel appearing for the State i.e. respondent No. 1, who has raised prelimina .....

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for both the sides and looking to the facts and circumstances of the case we see no reasons to grant special leave to appeal to this appellant against the judgment and order of acquittal passed by the Judicial Magistrate First Class, Dhanbad dated 14.02.2013 In CP Case No. 1320 of 2011, mainly for the following facts and reasons: (i) It appears from the facts of the case that the present appellant is a complainant, who has preferred complaint before the learned Trial Court under Section 138 of t .....

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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 apeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. (Emphasis Supplied) Under this proviso, the victim has statutory right to prefer an appeal. As st .....

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f Section 378 of Code of Criminal Procedure and therefore, he is seeking special leave to prefer an appeal. Section 378 (4) of Code of Criminal Procedure reads as under : 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. Looking to the aforesaid provisions, it ap .....

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o the very same person under Sub-section 4 of Section 378 of Code of Criminal Procedure. Efficacious alternative remedy by way of statutory appeal is thus available to the complainant, whenever, complainant is victim. (v) Counsel appearing for the appellant submitted that the provision of Sub-section 4 of Section 378 cannot be made redundant in the facts of the present case. This contention is also not accepted by this Court, mainly for the reasons that the two provisions namely Proviso to Secti .....

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inant, but, they are not the victim and, therefore, if these type of complainants are filing complaint before the Judicial Magistrate First Class for certain peculiar offences under this special enactment and whenever acquittal from such type of charges by the Judicial Magistrate First Class then such complainant can come under sub-Section 4 of Section 378 of Code of Criminal Procedure, before this Court because these types of complainants have no statutory right to prefer an appeal under Provis .....

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ion to proviso of Section 372 of Code of Criminal Procedure. (vi) As stated herein above, the present appellant is both namely, complainant as well as victim and, therefore, against the impugned order of acquittal of the Judicial Magistrate First Class, Dhanbad, the present appellant, who is complainant has right to prefer an statutory appeal as victim also and whenever, statutory right to prefer an appeal is also provided under this special enactment, we are not inclined to give special leave t .....

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the victim and the complainant are the same person(s), then the complainants have a right to prefer statutory appeal under Section 372 of the Code of Criminal Procedure and, therefore, the Special Leave to Appeal cannot be granted in the facts and circumstances of the present case. Whenever the statutory appeal is provided, the parties have to avail the statutory right to prefer an appeal. VIII. It further appears that in the facts of the present case and also looking to both the aforesaid prov .....

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nal Procedure. Whereas, the cases in which the complainant and the victim are the same person, then they have to avail the statutory remedy by way of appeal instead of preferring an application for getting Special Leave to Appeal directly the High Court. IX. Moreover, in a judicial hierarchy, whenever any appeal or application is tenable at law before the lower Court, then always the applicant should approach the lower forum first so that after exhausting the said remedy, still if the petitioner .....

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