378(4)crpc
sorav gupta
(Querist) 18 November 2010
This query is : Resolved
My query is that as to whether the complainant can file an appeal against aquiital in complaint case before sessions court.
Guest
(Expert) 18 November 2010
(b) Code of Criminal Procedure 1973 – Sections 378, Sub-sections (4) of section 378 CrPC, which providesfor appeal in case of acquittal, as it stands today, read thus:“(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 specialleave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
” All appeals against orders of acquittal passed by Magistrates were being filed in High Court prior to amendment of section 378 by Act 25 of 2005. Now, with effect from 23.06.2006, appeals against orders of acquittal passed by Magistrates in respect of cognizable and non-bailable offences in cases filed on police report are beingfiled in the Sessions Court, vide clause (a) of sub-section (1) of the
said section. But, appeal against order of acquittal passed in any case instituted upon complaint continues to be filed in the HighCourt, if special leave is granted by it on an application made to it bythe complainant, vide sub-section (4) of the said section.
Kiran Kumar
(Expert) 18 November 2010
S.372- No appeal to lie unless otherwise provided:- No appeal shall lie from any judgment of a Criminal Court except as provided 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.
If the above provisions are read minutely, the expression used is "any judgment or order of a Criminal Court"
therefore, the distinction of complaint case or case registered on police report goes after the judgment is passed by the Criminal Court.
the proviso clearly provides that the appeal against acquittal shall lie to the Court to which an appeal ordinarily lies against the order of conviction.
So, the appeal against acquittal will be filed before sessions court if the trial has been conducted by Magistrate and there shall be no question of nature of case. It may be a case instituted on a private Complaint or an outcome of FIR. The material aspect is Order or Judgment of Acquittal by a Criminal Court.
Hopefully, the concept will be more clear now :)
Kiran Kumar
(Expert) 18 November 2010
Now, Ajitabh and me are having different opinion....some other friend may kindly step in to resolve the query :)
Anish goyal
(Expert) 18 November 2010
According to my opinion Victims right to appeal as given by 2008 amendment will not be controlled by section 378(4), as both r independent provisions and former deals with right of victim and 2nd deals with right of a complainant,
if complainant is victim also than he can claim right under both.
Kiran Kumar
(Expert) 18 November 2010
the word used in amended provision of S.372 is SHALL and S.378(4) uses the word MAY.
therefore, S.372 (amended) will overpower S.378(4).
legislature created a little blunder here by not removing the provisions of S.378(4) Cr.P.C
otherwise in case of a private complaint, the complainant himself is a victim also?????
Devajyoti Barman
(Expert) 18 November 2010
Thank you for the invitation.
Appeal from acquittal in complaiint case lies to Hiigh Court. We at least file such appeal in High Court at Calcutta.
That is why the Legislature while making such proviison makes a separate provisiion by subsectiion 4 of section 378crpc. In subsectiion 1 the Legislature provides for the appeal from State case and enacted sub section 4 to describe the method for complaint case whether triiable by Magistrate or the Sessions court.
The 'may'here provides for the wish of the complainant to proceed with the appeal after the leave is granted by the high court.
Kumar Krishan Agarwal Advocate
(Expert) 19 November 2010
My answer NO!
The language of sec is plain and only High COurt may grant appeal to file but not the session court.
Kiran Kumar
(Expert) 19 November 2010
but in view of amendment in S.372...(the added proviso), Punjab and Haryana High Court does not entertain any such appeal against an order or judgment of acquittal passed by a Magistrate's court.
Advocate. Arunagiri
(Expert) 19 November 2010
s.372 says no appeal otherwise provided. But, s.378(4) enables the complainant, to appeal against acquittal, before the high court after getting the special leave. S.372 says the rule, s.378 gives the exception to that rule.
Debasish Hota
(Expert) 19 November 2010
Agreed with MR. Kiran Kumar.
Guest
(Expert) 19 November 2010
I am not agreed with Mr Kiran Kumar
Parthasarathi Loganathan
(Expert) 19 November 2010
Nice and knowledge enriching debate. It is a good rehash for me to learn the finer aspects of Sections 372 and 378 of Cr.PC. I advocate and welcome such healthy arguments for the benefit of many where lawyers interpretation skills are exposed. Thanks to Sorav for posting a fine query. Hope it is upto him to come to conclusion.
Kiran Kumar
(Expert) 20 November 2010
well, whatever has to be the debate but the factual position in my High Court is that Appeal against acquittal is not being accepted.
In case any such appeal comes on board all being allowed to be withdrawn with a liberty to file the same before Sessions Court.
Arun Kumar Bhagat
(Expert) 27 November 2010
Kiran Kumar is absolutely right.Cr.P.C is amended in 2010.I am contesting 5 cases in Sessions court, Kolkata in appeal against acquittal.
