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Shibu Joseph and Others Versus Tomy K.J. and Others

2013 (10) TMI 1485 - KERALA HIGH COURT

Crl. L.P. Nos. 620, 628, 629, 631, 632, 634-637, 639-646, 650, 651, 653, 666 of 2013, Crl. A. Nos. 1140, 1163, 1283, 1332, 1334, 1338, 1339, 1350, 1353, 1357, 1360, 1362, 1369, 1372, 1378, 1379, 1395-1397, 1399, 1400, 1401, 1405, 1410, 1412, 1415, 1 - Dated:- 30-10-2013 - P. Bhavadasan, J. For Appellant/Petitioner/Plaintiff: P. Vijaya Bhanu, S. Sreekumar, Senior Advocates, Sunny Mathew, S. Rajeev, V. Philip Mathew, Kaleeswaram Raj, V.N. Ramesan Nambisan, S.U. Nazar and Mahesh V. Ramakrishnan, Ad .....

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to the new statutory remedy by way of appeal provided under Section 372 proviso or is he confined to the earlier remedy provided for under Section 378(4) Cr.P.C. of filing an appeal before the High Court after obtaining special leave. 2. An unimaginative hasty amendment, little aware of its consequences, though intended to be progressive and beneficial, has created confusion regarding the remedy available to certain group of persons. The matter has engaged the attention of various High Courts in .....

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. which continues to exist in the Statute book and is unamended, the remedy of the complainant is only to resort to the remedy under that provision. 3. Most of the cases dealt with in this judgment arise out of acquittal of accused in a private complaint filed for the offence under Section 138 of Negotiable Instruments Act. In all these cases, the complainants were issued with cheques by the accused persons allegedly due for repayment of debts due to the former. Those cheques, on presentation, b .....

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, as far as the right to appeal is concerned, as to whether acquittal is on merits or on default. 4. Senior Advocate Shri. Vijaya Bhanu, Senior Advocate Shri. S. Sreekumar, Adv. Sunny Mathew, Adv. S. Rajeev, Adv. V. Philip Mathew, Adv. Kaleeswaram Raj, Adv. S.U. Nazar, Adv. V.N. Ramesan Nambisan and Additional Director General of Prosecution Shri. Tom Jose Padinjarekkara were heard in the matter. 5. Two views were expressed by the learned counsel appearing for the parties. One group pointed out .....

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rsons in a crime, and in the absence of any provision in the Cr.P.C. for them to participate in the proceedings or to agitate the matter when they feel aggrieved by the final decision, it was thought necessary that they should be provided with some remedies, and it is with that object and purpose that the amendments have been introduced. Heydon's Rule of Interpretation was invoked in support of this contention. It was also pointed out that as far as the complainants in a private complaint ar .....

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it. The learned counsel supporting this view contended that by a process of interpretation, the scope of the amendment cannot be enlarged. According to them, if this Court is to hold that the complainant in a private complaint, who may be a victim also, is entitled to the benefit of the proviso to Section 372 Cr.P.C., then there will be an apparent conflict between the said proviso and Section 378(4) Cr.P.C., which necessarily needs to be avoided. The Legislature was fully aware of the existence .....

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in private complaints are also entitled to the benefit of the proviso to Section 372 Cr.P.C., then Section 378(4) Cr.P.C. may become redundant. It was highlighted that in case of acquittal, the Legislature felt that interference should be only in absolutely deserving cases and that is the reason why in Section 378(4) Cr.P.C. it was provided that the appeal can be filed by the complainant against the acquittal before the High Court only after obtaining special leave. There is some element of disc .....

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answers the definition of victim as contained in Section 2(wa) Cr.P.C., then there is no justification to deny such a person a right of appeal as provided under the proviso to Section 372 Cr.P.C. It was also contended that the Legislature must be bestowed with the knowledge of the existence of Section 378(4) Cr.P.C. in the Statute book and inspite of the existence of such a provision, while incorporating proviso to Section 372 Cr.P.C. and incorporating the definition of 'victim' under Se .....

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he inaction on the part of the State to take appropriate action against the offenders. 7. As long as a complainant satisfies the definition of 'victim' as now provided under the Cr.P.C., there is no justification to take them out of the ambit of the proviso to Section 372 Cr.P.C. That may infact lead to the creation of a separate class of persons who are similarly placed as victims in a case instituted on a police report contemplated under the new amended provision and such a classificat .....

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ntitled from the benefits conferred on a victim. By adopting the contention that since Section 378(4) Cr.P.C. has not been amended, the right of complainants against an order of acquittal is confined to the remedy under Section 378(4) Cr.P.C., those complainants who are compelled to file private complaints either statutorily or otherwise, would be losing a valuable right which certainly is not intended. It is incorrect to say that by extending the benefit of the proviso to Section 372 Cr.P.C. to .....

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quitted, the remedies available to the complainant and the victim are different. While the complainant can resort to the remedy available under Section 378(4) Cr.P.C. only, the victim can resort to the remedy provided under the proviso to Section 372 Cr.P.C. 8. Learned counsel supporting the above view also pointed out that to place complainants in a disadvantageous position merely because they were driven to the necessity to file a private complaint may not be in tune with the object and purpos .....

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e relief under the proviso to Section 372 Cr.P.C. which has larger scope and is more beneficial to a victim as he can file an appeal as a matter of right. It is therefore contended that there is no justification in excluding complainants in a private complaint within the ambit of the proviso to Section 372 Cr.P.C. 9. The learned Addl. DGP Shri. Tom Jose Padinjarekkara supported the view that the proviso to Section 372 Cr.P.C. and the definition of 'victim' Section 2(wa) Cr.P.C. has only .....

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(1) MLJ (SC) 159 : 1967 Cri.L.J. 946. Reliance was also placed on the decision reported in Shashikant Laxman Kale v. Union of India 1990 KHC 900 : 1990 (4) SCC 366 : AIR 1990 SC 2114 : 1990 (185) ITR 104 : 1990(36) CTR 201 : 1990 (52) Taxman 352. Learned Addl. DGP contended that the purpose and object of the amendment was to provide relief to the victims of offence who hitherto had no role to play in the criminal proceedings and who were to remain as mere spectators even though they were the rea .....

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ed in these cases, it becomes necessary to refer to the various provisions regarding appeal and the rights of the State, complainant, victim etc. 11. Earlier the victims of crimes had no role to play in the prosecution except to remain as mute spectators. If the prosecution ended in acquittal of the accused, and if the State did not prefer appeal against the acquittal, the de facto complainant or the victim as the case may be could only resort to the remedy by way of revision which is limited in .....

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nducted by the Assistant Public Prosecutor or the Public Prosecutor as the case may be. In a case instituted on a private complaint, the complainant is at liberty to engage his counsel and conduct the proceedings. However, in case the complaint relating to an offence triable by a Court of sessions, after committal, when the matter is before the Sessions Court, further proceedings can be conducted only by the Public Prosecutor. 14. The right of appeal is a statutory right and is circumscribed by .....

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377 Cr.P.C. 15. As far as the complainant was concerned, he had a remedy by way of appeal to the High Court after obtaining special leave only against an order of acquittal under Section 378(4) Cr.P.C. He had no right of appeal against inadequacy of sentence or on any other grounds. The accused were entitled to file an appeal under Section 374 of Cr.P.C. against conviction. The powers of the Appellate Court are enumerated under Section 386 Cr.P.C. The procedures for filing of an appeal, admissio .....

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(b). Those provisions provided right of appeal to Sessions Court and High Court from acquittal on direction by the District Magistrate or State Government as the case may be. However, the provision that the State had to obtain leave for filing appeal against acquittal to High Court continues to exist. 17. By the amending Act 5 of 2009, as far as the cases on hand are concerned, two provisions were introduced. They are (i) proviso to Section 372 Cr.P.C. and (ii) definition of 'victim', w .....

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son 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. 18. It is significant to notice that the definition of victim not only takes in victim, but also guardian and legal heir. Therefore, the claim for compensation does not die with the person, but survives to the legal heir also. 19. The question that is posed for consideration is when a case instituted on a private complaint ends in acquittal an .....

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their own, confined to the remedy under Section 378(4) Cr.P.C. 20. Before going further, it will be useful to refer to the decision of various High Courts in this regard. The High Court of Bombay has been consistent in its approach and in various decisions rendered have taken the view that complainant in a private complaint which ends up in acquittal is not entitled to take the benefit of the proviso to Section 372 Cr.P.C. In fact in the decision in Crl. Appeal 991 of 2011 and 992 of 2011 dispos .....

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police report and is not available to a complainant in a private complaint. The view of the High Court of Bombay is that the definition of victim does not cover complainant in a private complaint. In fact the view taken was that proviso to Section 372 Cr.P.C. comes into play only if the State does not go up in appeal against acquittal or the leave to appeal by State is rejected. It was also held that a complainant in a case filed under Section 138 of NI Act is not a victim. So is the view taken .....

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o are interested persons can file appeal on acquittal before the District Court as provided under Section 372 proviso. The High Court of Allahabad while dealing with a private complaint in which offences under Sections 498A, 323, 504 and 506 of IPC and Section 34 of Dowry Prohibition Act were alleged which ended in acquittal of the accused took the view that the complainant who is equivalent to the victim in such case is entitled to take the benefit of the proviso to Section 372 Cr.P.C. The High .....

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bout only because of the indifferent and casual attitude of the draftsman in the drawing up of the amending provisions. As regards the amending legislation is concerned, it will be useful to refer to the principles laid down in Legislative Drafting by G.C. Thornton, Second Edition, page 311. They are: 1. The language and style of the Amending Act must be consistent with that of the principal Act to be archaic or otherwise capable of improvement. A change in language is likely to give rise to an .....

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lication or transitional provisions. If enough attention had been bestowed before bringing the amendment, the anomalies could have been easily avoided. 22. The current trend seems to be to draw up new Statute and amending provision paying little attention to the consequences and more dangerously, without ascertaining the impact on other Statutes covering the same subject. Recent legislations expose poor draftsman skill. The position is worse with regard to amending provision. Amendments are made .....

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im, (ii) complainant and victim may be different, and (iii) in a case cognizance of which is taken on police report also, complainant and victim may be different. As far as the third category is concerned, prior to the amendment brought about by Act 5 of 2009, neither the complainant nor the victim had a right of appeal. In the case of acquittal on a private complaint, the complainant had a right of appeal under Section 378(4) Cr.P.C. after obtaining special leave to the High Court. 25. The Law .....

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d right of appeal, and in case the State did not avail of that remedy, the victim was left helpless except to resort to the revisional remedy. 26. International conventions and the jurisprudence of victimology highlighted the necessity for participation of the victim in the proceedings, because they are the persons affected by the crime and it was felt necessary that they should be conferred with such rights which would enable them to agitate their grievances. This is highlighted by the Law Comm .....

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here is Section 2(y) of Cr.P.C. which reads as follows: 2{y) words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860) have the meanings respectively assigned to them in that Code. In Section 23 of IPC what is defined is 'wrongful loss' which reads as follows: "Wrongful loss".- "Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled. Section 44 of IPC defines "injury&quo .....

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permanently fastened to anything which is attached to the earth. Section 372 proviso confers right of appeal to a victim under three contingencies which hitherto was unknown. They are (i) against an order of acquittal, (ii) against an order of conviction for a lesser offence, (iii) an order imposing inadequate compensation. It must at once be noticed that no right of appeal is conferred on the victim against inadequacy of sentence and appeal in that regard remains as a prerogative of the State. .....

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. In the decision reported in Shivanarayana Kabra v. State of Madras 1967 KHC 613 : AIR 1967 SC 986 : 1967 (1) SCR 138 : 1967 (1) MLJ (SC) 159 : 1967 Cri.L.J. 946, it was held as follows: 7. .....It is a sound rule of interpretation, that a Statute should be so construed as to prevent the mischief and to advance remedy according to the true intention of the makers of the Statute. In construing, therefore, Section 2(c) of the Act and in determining its true scope it is permissible to have regard .....

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ad a right of appeal by taking recourse Section 378(4) Cr.P.C. and therefore, conferment of a right of appeal on the victim under the proviso to Section 372 Cr.P.C. could not be one intended to benefit the complainant also. 32. The above argument overlooks one crucial aspect. It pre-supposes that the amendment brought about deals with only a right of appeal to the victim. It is not so. By the same Amendment Act, Section 357A of Cr.P.C. has also been introduced which reads as follows: 357A. Victi .....

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be awarded under the scheme referred to in sub-section (1). (3) If the Trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under Section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation. (4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may .....

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edical benefits to be made available free of cost on the certificate of the Police Officer not below the rank of the officer-in-charge of the Police Station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit. Section 357A of Cr.P.C. provides for victim compensation scheme and the provision does not draw a distinction between a victim in a case cognizance of which is taken on a police report and cognizance is taken on a private complaint. It .....

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on to the State or the District Legal Services Authority for award of compensation. It is significant to note that while in the definition of 'victim' the words used are 'guardian' or 'legal heir', the word used in Section 357A(4) Cr.P.C. is 'dependents'. Sections 357B and 357C of Cr.P.C. may also be of some relevance in this context. It is, therefore, necessary to consider the various amendments brought into the Statute book conferring new benefits to the victims .....

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d in the Court. To say that if the proceedings are on a police report, victim stands on a better footing and if the proceedings are on a private complaint, the victim has to suffer, does stand to reason. The issue is not regarding victim of prosecution, but the victim of offence. The victim of offence remains the same whether the proceedings are instituted on a police report or on a private complaint. 34. To draw a distinction between a victim in a private complainant and a victim in a police re .....

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. It may also happen that the police may be inactive and passive, which may necessitate the person aggrieved to file a private complaint. Apart from the above aspects, there are statutory stipulation that certain offences can be agitated only through a private complaint. In all these cases, the person who suffered loss or injury at the hands of the accused has necessarily to be treated as a victim. 36. Again, it may so happen that the complainant in a private complaint and the victim may be diff .....

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rtain other purposes, it cannot be so. 37. Further, Section 372 proviso, as already mentioned, provides appeal under three contingencies. But under Section 378(4) Cr.P.C., the right of appeal is confined to an order of acquittal alone. It does not provide for appeal against conviction for a lesser offence or for inadequacy of compensation. To differentiate between a victim in a case instituted on a police report from a case instituted on a private complaint, may not be justifiable and may not be .....

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have easily done so. Going by the definition of 'victim' as contained in Section 2(wa) Cr.P.C. and also the benefits the victim is entitled to under Sections 357, 357B and 357C Cr.P.C., no distinction is possible between a victim in a case instituted on a police report and a victim in a case instituted on private complaint. It is true that Section 24(8) of Cr.P.C. gives right to the victim to engage a counsel to assist the Public Prosecutor. It must also be remembered here that if a priv .....

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t till the introduction of the proviso to Section 372 Cr.P.C. It is assumed that in a private complaint case, the complainant is able to engage competent counsel and therefore, he is in an advantageous position. 41. The above view overlooks one aspect. The complainant does not have the vast resources the State has at its command for investigation of a crime and efficiency and competency to collect the necessary evidence. Viewed from this angle, complainants are certainly in a disadvantageous pos .....

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0 : 2011 (2) KLD 547 : 2011 (4) KLJ 25, this Court has occasion to consider the applicability of the proviso to Section 372 Cr.P.C. That was a case in which cognizance was taken on a police report and the prosecution ended in acquittal of the accused. This Court opined that after the introduction of proviso to Section 372 Cr.P.C., the victim has a right of appeal in the Court to which the appeal is provided for. In the said decision it was held as follows: 4. Mr. Sooraj T. Elenjickal, counsel ap .....

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hereby, a proviso is introduced to Section 372 of Cr.P.C. which reads as follows: 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. Thus, in the light of the above proviso to Section 372 of Cr.P.C., the remedy is available to the vi .....

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delay petition is that the appellant himself has filed a revision petition before this Court and the Registry has raised an objection stating that the remedy is to file an appeal. It is, thereafter, the present appeal is preferred. However, on receiving the appeal memorandum, the Registry has failed to take note of the amendment brought to Section 372 of Cr.P.C. 44. In the decision reported in Balakrishnan Master v. Ramachandran Master : 2011 KHC 631 : 2011 (4) KLT 160 : 2011 (4) KLJ 201 : ILR 2 .....

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72 of the Code will not enable the victim to prefer appeal where judgment had been rendered prior to the coming into force of the Amendment Act 5 of 2009. In cases where judgment is rendered on or after 31/12/2009, after the commencement of the Act 5 of 2009, and that too, where any of the circumstances covered by the proviso, the victim has a right to prefer an appeal before the competent Court to which an appeal ordinarily lies in the event of conviction of the accused in such case. The incide .....

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889 : ILR 2011 (2) Ker. 704 : 2011 (2) KLJ 858, this Court had occasion to consider the question whether the victim or the complainant, as the case may be, is entitled to file an appeal against inadequacy of sentence. In the said decision, it was held as follows: The impugned order in this case is not an order of acquittal. It is not an order convicting the accused for a lesser offence, it is also not an order, directing payment of any compensation. Learned counsel for petitioner argued that pe .....

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Hence, no appeal can be filed by the victim or legal heir of the victim under the proviso to Section 372 of the Code challenging failure or omission on the part of the Court to pass an order of compensation. The request for treating this petition as an appeal under Section 372 of the Code cannot, therefore, be accepted. 46. In an unreported decision Sree Gokulam Chit and Finance Co. (P) Ltd.. Kasaragod v. Damodaran N. and Another, 2013 (4) KHC 395 : 2013 (2) KLD 803 : 2013 (4) KLT 547 dt. 15/07 .....

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that the word 'victim' appearing in Section 372 of Cr.P.C. has to be given a contextual interpretation. For the said purpose, reliance was placed on the following: 2. Definitions.- in this Code unless the context otherwise requires,- 47. Relying on the various decisions of the Supreme Court interpreting the words 'context unless otherwise requires' went on to hold that it may be possible in certain circumstances that a word may carry different meanings in different sections of th .....

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Section 372 proviso does not comprehend a complainant. 48. In the unreported decision7 referred to above it is significant to notice that the various provisions regarding the rights conferred on the victim were not considered and it may not be possible to say that complainant in a proceedings under Section 138 cannot be a victim. A complainant in a proceedings under Section 138 of NI Act is certainly a person who has suffered loss and also injury going by the definition of 'victim', ' .....

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not be able to take aid of Section 357A of Cr.P.C., but, he is certainly a person who is affected by the act of the accused. This Court in the unreported decision7 was primarily guided by the fact that Section 372 proviso is intended to confer a new benefit only to a victim who hitherto has no right of appeal against acquittal. Apart from the fact that it may not be possible to say that the complainant in a proceedings under Section 138 of NI Act is not a victim, it is also not possible to under .....

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n as victim is determined by the result of prosecution. In order to qualify as a victim going by the definition of victim and 2(wa) Cr.P.C., the ingredients are: (i) The person has suffered loss or injury, (ii) Loss or injury must have been caused by or, (iii) an act or omission for which the accused has been charged. 49. The word 'loss' is not seen defined. IPC only defines 'wrongful loss'. As per Law Lexicon by P. Ramanath Aiyar the word loss' means deprivation. In its most .....

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object is taken away; a person who causes a disadvantage. In Black's Law Dictionary, the meaning of the word loss is given as thus: an understandable out of a risk; the disappearance or diminution of value, usu. In an unexpected or relatively unpredictable way. When the loss is a decrease in value, the usual method of calculating the loss is to ascertain the amount by which a thing's original cost exceeds its later selling price. The excess of a property's adjusted value over the amo .....

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y of complainant from the term victim, as already stated, it could have been easily done. The Legislature must be deemed to be aware of the existing law. The Legislature must have known that Section 378(4) Cr.P.C. existed in the Statute book and still continues to exist. The Legislature must also be credited with the wisdom that they were aware of the fact that the complainant, who may also be the victim in a private complaint, is also entitled to compensation and it is significant to notice tha .....

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ances which has driven a person to file a private complaint. Just because his cause is agitated through private complaint, to deprive him of the statutory benefits would not be just, legal and reasonable. 53. A person who is a victim in a case instituted on a police report does not cease to be so when he files a private complaint. To put the victim on a police report on a higher pedestal who are entitled to more benefits and to deny the same benefit to the victim in a private complaint cannot ha .....

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Sessions Court. To say that proviso to Section 372 Cr.P.C. is not available to a private complainant would be to say that even if he is dissatisfied with the compensation awarded to him, he has to suffer. But if he is a victim in a case instituted on a police report, he will be in a more fortunate position. The status of a victim of offence certainly cannot change depending upon the nature of proceedings. A victim remains a victim, whether it be in a case instituted on a police report or on a p .....

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f acquittal is passed by the Sessions Court, regarding proceedings which originated on a private complaint. The victim in such a case will have a right of appeal as a matter of right. To say that a complainant, who may also be the victim, will have to take recourse to Section 378(4) Cr.P.C. does not appear to be reasonable. The position would be different if the complainant and the victim are not the same person. We need not consider this aspect as it does not arise for consideration in these pr .....

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ces when there may be a complainant but no victim as defined under Section 2(wa) of Cr.P.C. For example, statutory offences in which complaint has to be filed by the statutory authorities. There may be cases where the complainant and victims are different in a private complaint. In all these cases, the remedy available in a case of acquittal is under Section 378(4) Cr.P.C. The difficulty arises only when the complainant is also the victim in a private complaint. 57. Well, at best it could be sai .....

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L.J. 962 to contend for the position that in a case of acquittal on a private complaint, the only remedy available is under Section 378(4) Cr.P.C. In fact, in the decision reported in National Commission for Women v. State of Delhi 2010 KHC 2029 : 2010 (12) SCC 599 : 2011 Cri.L.J. 962, the issue considered was whether an appeal lies regarding inadequacy of sentence at the instance of a private person. The Apex Court held that such a right is not available to a private person including the victim .....

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ourt. In the present case, the complaint alleging offences punishable under Sections 16(1) and (1-A) read with Section 7, PFA Act and the Rules was filed by complainant, the Local Health Authority of the Delhi Administration. The appellant was acquitted by the Metropolitan Magistrate. The complainant could challenge the order of acquittal by filing an application for special leave to appeal ion the High Court and not in the Sessions Court. 59. A reading of the decision shows that that was a case .....

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an apply to the facts of the present case. 60. For the reasons already stated, this Court finds no reason or justification to consider the proviso to Section 372 Cr.P.C. which creates a substantive right in such a manner to exclude the complainant in a private complaint from the ambit of the provision. It is felt unnecessary to undertake an exercise of interpretation and to read something into the Statute which is neither intended nor is desirable. 61. From the above discussion, the following co .....

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