Appeal after acquital in pvt complaint case
VISHNU
(Querist) 28 October 2011
This query is : Resolved
SIR
1. Once a person is acquitted in a pRIVATE criminal complaint by trail court, whethere cr. appeal lies to session court or to high court in wake of amended provision of section 372 Cr pC.
2. wHETHER SECTION 372 cRPC IS APPLICABLE TO PRIVATE COMPLAINT?
ajay sethi
(Expert) 28 October 2011
this query has already been answered by experts . reproducing same for your benefit
Expert : Kiran Kumar
Posted On
read section 372 Cr.P.C (as amended)
the proviso appended will be relevant to you :)
complete answer ke liye thodi mehnat kar lo :)
Expert : Amit Minocha
Posted On
10 February 2011
rightly advised
Expert : Ajay Bansal
Posted On
10 February 2011
No.I disagree with aforesaid experts.Section 372 Cr.P.C. deals with only state cases,not private complaints.Aginst aquittal order in a private complaint,the complainant can prefer an appeal in High Court under section 378 Cr.P.C.
Expert : Ajay Bansal
Posted On
10 February 2011
No. I disagree with aforesaid experts.Section 372 Cr.P.C. deals with only state cases,not private complaints. Against aquittal order in a private complaint, the complainant can prefer an appeal in High Court under section 378 Cr.P.C.
Expert : Advocate. Arunagiri
Posted On
10 February 2011
I agree with MR.Bansal. Nothing to add.
Expert : salilkumarp
Posted On
13 February 2011
Ajay Bansal IS ABSOLUTELY RIGHT .
Shonee Kapoor
(Expert) 28 October 2011
Agreed.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Ravikant Soni
(Expert) 29 October 2011
But I humbly disagree.
Vishnu joined this forum in August 2011 so we should not expect him to be aware of everything what happened before his joining. A query may be repeated one but it could happened that the author be different. So we should not frustrate someone by being reluctant to answer a query, only for the reason that same was asked before.
Now abt query:
The law of interpretation say an amended provision supersede upon existing provision of law.
section 2(wa) which reads as under :-
"victim" means a person who has suffered any loss or injury caused by reason 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.
By virtue of the recent amendment which has come into force from 23/6/2006 two forums are available for filing an appeal against the order of acquittal. In respect of a cognizable and non-bailable offences, the District Magistrate may direct the Public Prosecutor to present an appeal to the Court of Sessions. In other cases, the State Government or the Central Government, as the case may be, may direct the Public Prosecutor to present an appeal to the High Court.
The Criminal Procedure Code makes distinction between the case filed by the complainant and the case filed on the police report. If the case is instituted otherwise than upon a police report that means if it is a complaint case and the accused is acquitted, the complainant has a remedy to assail an order by resorting to the provisions of section 378 (4) of the Criminal Procedure Code which reads as under :- " 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."
The phrase "in any case instituted upon complaint" doesn't discriminate the cases into cognizable or non cognizable here. Means all the cases instituted upon complaint, whether cognizable or not are taken in same way and can be appealable as per the provisions laid down in section 378(4).
Before Act of 2008 came into force, "victim" in a criminal case, instituted on a police report, had no right to file an appeal against the order of acquittal to any Court. However, in a complaint case, right in the form of provisions under section 378(4) of the Criminal Procedure Code was already in existence. The amendment in 372 was brought for the reason of that the victims are the worst sufferers in a crime and they don't have much role in the court proceedings. They need to be given certain rights and compensation, so that there is no distortion of the criminal justice system.
The aforesaid provision does not in any manner affect provisions of section 378(4) of the Criminal Procedure Code dealing with the appeal against the order of acquittal in any case instituted upon complaint.
Raj Kumar Makkad
(Expert) 29 October 2011
The interpretation of Kant is praiseworthy.
kuldeep kumar
(Expert) 29 October 2011
very good explanation by kant
VISHNU
(Querist) 29 October 2011
Dear Sir
I am properly satisfied by the answer of expert, GREAT THANKS.
But I request to put re-joinder query as under:-
1. In a Private complaint case against acquital of accused by JMIC, the High Court has given an order to Complainant to approach session court. The complainant has filed case in session court. Accepted.
2. In view of opinions above, keeping in high faith in HC Order, whether session court has jurisdiction to decide Crl.appeal.
Ravikant Soni
(Expert) 29 October 2011
I refer a judgment:
Go thru....
Madhya Pradesh High Court Judgment Date 17-Jan-2011
Dharmveer Singh Tomar Vs Shri Ramraj Singh Tomar
Case No Criminal Revision No. 944/201
Order:
Indrani Datta, J., (Gwalior Bench)
1. This revision has been preferred by applicant/complainant against order dated 31.8.2010 passed by Fourth
Additional Judge to First Additional Sessions Judge, Gwalior, in Criminal Appeal No. 266/2010, whereby
appeal preferred against judgment dated 28.1.2010 passed in Criminal Case No. 2302/2008 acquitting
Respondent from the charge under Section 138 of the Negotiable Instruments Act, (for brevity the Act) is
dismissed.
2. Facts stated in brief are that applicant/complainant filed a complaint under Section 138 of the Act before
JMFC, Gwalior, which was registered as Criminal Case No. 2302/2008. In that case, Respondent/accused
was acquitted by judgment dated 28.1.2010 from the charge under Section 138 of the Act. Against that
judgment of acquittal, applicant/complainant preferred Criminal Appeal No. 266/2010 which was dismissed
by learned Appellate Court vide order dated 31.8.2010 on two grounds; firstly that appeal is time barred and
secondly appeal is not maintainable. Against this order of Appellate Court dismissing the appeal,
applicant/complainant has preferred this revision.
3. It is contended by learned Counsel on behalf of the applicant that order of learned Appellate Court is
illegal, arbitrary and contrary to law and deserves to be set aside. It is further contended that as per the
provisions of Section 372 of Cr.P.C., victim can prefer an appeal against any judgment or order passed by the
criminal Court acquitting the accused before Session Court. Hence, applicant has rightly preferred appeal in
Sessions Court and learned Court below has erred in holding that appeal is not maintainable under Section
372 of Code of Criminal Procedure It is further submitted that Section 378(4) of Code of Criminal Procedure
prescribes that complainant can only prefer an application for leave to appeal and if such leave is granted,
then such appeal lies before High Court. Under the provisions of Section 378(4) of Code of Criminal
Procedure right to file appeal depends upon the discretion of the Court, while Section 372 of Code of
Criminal Procedure gives an absolute right to the victim to prefer an appeal against the judgment of acquittal
in Session Court.
4. It is further submitted by learned Counsel that judgment was passed on 28.1.2010 and applicant could not
receive information about the judgment as he went to Shivpuri. When he came back from Shivpuri and was
intimated on 10.5.2010 about the result of the case, he applied for getting certified copy of the judgment and
got it on 29.5.2010. Thereafter, he preferred appeal on 2.6.2010. In such circumstances, there are sufficient
reasons for condoning the delay, and hence, learned Trial Court has erred in holding that applicant failed to
show sufficient cause for condoning the delay. It is further submitted that order of learned court below is not
sustainable and is to be set aside and matter be remanded back to learned Trial Court for deciding afresh on
its merit.
5. Heard learned Counsel for the applicant and perused the record of learned Trial Court.
6. In the present case, the points that arise for consideration are that (i) Whether in case of acquittal by
Judicial Magistrate First Class, complainant can prefer appeal to Sessions Court under Section 372 of Code
of Criminal Procedure? and (ii) Whether in case of acquittal by Judicial Magistrate First Class complainant
can only prefer appeal before High Court under Section 378(4) of Code of Criminal Procedure and cannot
prefer appeal under Section 372 of Code of Criminal Procedure?
7. In order to examine the scope of Sections 372 and 378(4) of Code of Criminal Procedure and to specify
the meaning of word "victim", which is explained in Section 2 (wa), these Sections need to be quoted, which
reads as under:
372. No appeal to lie unless otherwise provided.-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
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.
"2. Definitions.-In this Code, unless the context otherwise requires.-
(a) to (w).........
(wa) "victim" means a person who has suffered any loss or injury caused by reason 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."
(x) to (y)....."
"378. Appeal in case of acquittal.-(1) to (3)....
(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) to (6)...."
On a bare reading of Section 372 of Cr.P.C., it is crystal clear that this Section nowhere specifies that victim
also includes complainant of complaint case. In Section 372 of Code of Criminal Procedure the word used is
victim and in Section 378(4) of Code of Criminal Procedure the word used is complainant and this Section
applies to complaint case.
8. In the case of Damodar S. Prabhu v. Sayed Babalal H. 2010 CriLJ 2860, Hon'ble Apex Court has held in
para 14 as under:
14. It may be noted here that Section 143 of the Act makes an offence under Section 138 triable by a
Judicial Magistrate First Class (JMFC). After trial, the progression of further legal proceedings would depend
on whether there has been a conviction or an acquittal.
• In the case of conviction, an appeal would lie to the Court of Session under Section 374(3) (a) of the
Cr.P.C.; thereafter a Revision to the High Court under Section 397/401 of the Code of Criminal Procedure
and finally a petition before the Supreme Court, seeking special leave to appeal under 136 of the
Constitution of India. Thus, in case of conviction there will be four levels of litigation.
• In the case of acquittal by the JMFC, the complainant could appeal to the High Court under Section 378(4)
of the Cr.P.C., 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.
Considering this legal aspect and in the light of amended provision and decision of Hon'ble Apex Court, in
my considered opinion, the only remedy available to the applicant/complainant of complaint case is to prefer
appeal against the judgment of acquittal before High Court under Section 378(4) of Code of Criminal
Procedure
9. In view of the above observation, there is no necessity to discuss anything on the point of limitation, as the
appeal has rightly been rejected by learned Appellate Court on the ground of non-maintainability.
10. This revision sans merit and is dismissed accordingly
Ravikant Soni
(Expert) 29 October 2011
follow this link as well
http://indiankanoon.org/doc/101186/
Arun Kumar Bhagat
(Expert) 30 October 2011
See this link for perfect answer:
http://www.lawyersclubindia.com/experts/Appeal-against-acquittal-in-pvt-complaint-is-maintainable-before-sessions-court--239411.asp
VISHNU
(Querist) 31 March 2012
sir
the above reply at site studies and it is
opinied that no appeal lies to session court in any way in acquittal in cr. complaint case.confirme it.
VISHNU
(Querist) 07 October 2013
Sir.
To all Ld advocates who has made sincere efforts to answer this dispute query. Thanks.
But due to various HC's decisions the party/Pvt. complainant has to suffer because of sec 372 and 378(4) Code. Due to this dust prevailing in various legal avenues, it is advisable to read Full Bench judgement delieverd by Punjab & haryana Hc ON 18.03.2013 which only disposes for their HC.
