Why i got summon from session court in criminal appeal against acquittal?
Jeevan
(Querist) 19 August 2016
This query is : Resolved
Respected Sirs,
I got a summon from session court about criminal appeal against my acquittal in 498a case (after 1.5 years). Criminal appeal filed by my ex wife under crpc 372.
Since the appeal against acquittal can only be applied at HC, why session court admitted the case and sent me the summons? Is there a difference of handling between crpc 372 and 378?
Thank you for your advice.
Ms.Usha Kapoor
(Expert) 20 August 2016
Dear Client,
Th e /session s court has no jurisdiction to entertain the criminal appeal. Your wife should have file criminal appeal by taking leave to appeal from sessions court under section 372 read with 378 of Cr.P.C.in High Court. Tell your lawyer to represent the same in sessions court on your behalf and let her file a criminal appeal against your acquittal of 498 A proceedings.in Highcourt.
Jeevan
(Querist) 20 August 2016
Thank you madam. This should be the routine procedure and session court should be aware of this and hence I was wondering why appeal was not rejected by court itself without sending me the summon?
Also, in our objection, should we be filing objection on this point only or other points based on the merit of the case. We know that she will go to high court so want to save the rest of the points for high court.
Thanks you so much
R.K Nanda
(Expert) 20 August 2016
Ask ur lawyer to appear on next date in court for you.
Kumar Doab
(Expert) 20 August 2016
Your counsel shall do the needful for you.
Jeevan
(Querist) 20 August 2016
Thank for advice sirs, my counsel will appear but I want to know the reason why session court sent me summons at all when it's not under their jurisdiction.
Also, does summon means case is admitted? It says "your attendance is necessary to answer to the above petition"
H. S. Thukral
(Expert) 20 August 2016
With the amendment in section CRPCa victim has been given a right to appeal against acquittal of the accused under Proviso to Sec. 372 CrPC. Appeal in such a case is filed by the victim. Unlike this, an appeal against acquittal u/s 378 CrPC is filed by Public Prosecutor on instructions of either District Magistrate or the State Govt. or the Central Govt. Appeal against acquittal u/s 378 CrPC is also filed by a complainant in cases which are instituted upon a complaint.
I think in your case, appeal has been filed by the victim and is maintainable.
Jeevan
(Querist) 20 August 2016
Thukral Sir, correct me if I am wrong but the Supreme Court of India in Satya Pal Singh vs State Of M.P. held that a victim is required to obtain a leave of appeal from High Court before preferring such appeal even in 372 case
"The Court is of the view that the right of questioning the correctness of the judgment and 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 Cr.PC under proviso to Section 372, but only after obtaining the leave of the High Court as required under sub-Section (3) to Section 378 of Cr.PC."
In fact court went on sayig that "Section 372 of Cr.P.C. must be read along with its main enactment i.e., Section 372 itself and together with
sub-Section (3) to Section 378 of Cr.P.C.
otherwise the substantive provision of Section 372 of
Cr.P.C. will be rendered nugatory"
H. S. Thukral
(Expert) 21 August 2016
Thank you for correcting me. I had not seen the apex court ruling. General view of various HC was that the right of victim was unqualified right to file appeal without seeking leave. If the forum to file an appeal against acquittal is session court, would the victim go to HC first to take leave of the court? In the referred case the forum of appeal was HC where application for leave to appeal and merit of appeal could be considered.
Jeevan
(Querist) 21 August 2016
Sir, there is one more point which was ruled in that order that 372 must be with 378 (3), without which it will be rendered nugatory. Now 378(3) clearly says no appeal must be entertained except with the leave of the High Court.
So is it safe to assume now that appeal in session without leave from HC is not maintainable?
DEFENSE ADVOCATE.-firmaction@g
(Expert) 21 August 2016
Nothing wrong in it. Read the law
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.”
+
Satya pal singh was Sessions case hence appeal to HC and hence prior permission for filing appeal needed even after 372 but 498 A is lower court case and hence appeal / revision before sessions court.
Jeevan
(Querist) 21 August 2016
I don't think appenx court said anything about lower court, wordings are very absolute, both in the order and 378(3).
Update: read judgement again after your comment, even that case was referred from the trial court.
Raj Kumar Makkad
(Expert) 21 August 2016
In case of acquittal in complaint case, the victim is required to obtain permission of AG which if declined then the sole remedy is to approach High Court.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 22 August 2016
The related citation is against the judgment of Sessions court hence so need of mentioning lower court.
Please read the amended CRPC 372. What it says where appeal lies against conviction. Suppose you are convicted by lower court so appeal will be before sessions court.
So in case of acquittal the provision has given right to VICTIM to file appeal before sessions court.
H. S. Thukral
(Expert) 22 August 2016
The SC interpreted the 2009 amendment and observed that a proviso must be limited to the subject-matter of the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. “Words are dependent on the principal enacting words to which they are tacked as a proviso. They cannot be read as divorced from their context. The enacting clause says that no appeal shall lie from the acquittal otherwise as provided in CRPC. The judgment of DHC which said that it was an independent right was held incorrect. Therefore it appears that even if session court is forum of appeal, a leave from HC to file the same is required. After giving leave HC can send the case to session.
Rajendra K Goyal
(Expert) 25 August 2016
Well advised, the author can be benefited from the advice.
