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2010 DIGILAW 72 (UTT)

BCH ELECTRIC LTD. v. STATE OF UTTARAKHAND

2010-02-26

PRAFULLA C.PANT

body2010
JUDGMENT Heard learned counsel for the petitioner and learned Brief Holder for respondent No. 1. 2. By means of this petition, moved under Section 482 of the Code of Criminal Procedure, 1973, the petitioner has sought quashing of the order dated 31.8.2009, passed by learned Addl. Sessions Judge/IV F.T.C., Dehradun, in Criminal Revision No. 148 of 2007, whereby the said court has dismissed the revision on the ground that the same is not maintainable. 3. Brief facts of the case are that respondents No. 2 to 5, namely Wali Mohd., Latif, Islam and Allauddin stood trial before Special Judicial Magistrate I, Dehradun, in Criminal Case No. 2521 of 2006, in respect of offences punishable under Section 420, 467, 468, 471 of I.P.C., police station Kotwali Dehradun. The Magistrate acquitted the accused of the charges vide his judgment and order dated 21.08.2007. Aggrieved by said judgment and order dated 21.08.2007, passed by Special Judicial Magistrate I, Dehradun, in Criminal Case No. 2521 of 2006, Criminal Revision No. 148 of 2007 is filed before the Sessions Judge, Dehradun, by the complainant namely M/s Bhartia Cutler Hammer Electric Ltd. (for brevity BCH Electric Ltd.). Learned Addl. Sessions Judge/IV F.T.C., before whom said revision was transferred for disposal, dismissed the revision on the ground that the order challenged, was appealable under Section 378 of Code of Criminal Procedure, 1973 (for short Cr.P.C.) as such, the revision cannot be maintained. 4. Mr. A. Rab, learned counsel for the petitioner drew attention of this Court to the provision contained in Section 378 Cr.P.C., as it existed on the date the trial court acquitted the accused, which makes provision for appeal against acquittal (as amended vide Act No. 25 of 2005) w.e.f. 23.06.2006 (the date notified/specified by the Government of India). The said provision nowhere empowers the complainant in a State case, to file an appeal against order of acquittal passed by the Magistrate, before the Sessions Judge. 5. The said provision nowhere empowers the complainant in a State case, to file an appeal against order of acquittal passed by the Magistrate, before the Sessions Judge. 5. But, what makes difference is proviso to Section 372 of the Code, which has been inserted vide Code of Criminal Procedure (amendment) Act, 2008 (Act No. 5 of 2009), which reads as under : “Provided that the victim shall have 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.” The above quoted provision has come into force w.e.f. 01.01.2010, the date notified in the official Gazette to make the aforesaid provision enforceable as provided in sub-section (2) of Section 1 of Code of Criminal Procedure (amendment) Act 2008. That being so, prior to 01.01.2010, when the revision was filed, the complainant/victim had no right to file an appeal against the Magistrate’s order. Therefore, this Court is of the view that the impugned order dated 31.08.2009, passed by the revisional court, whereby the revision is dismissed on the ground that the complainant had a right to file an appeal against the acquittal, is erroneous in law, and cannot be sustained in the eyes of law. 6. For the reasons as discussed above, the petition under Section 482 of Cr.P.C. is allowed. The impugned order dated 31.08.2009, passed by the Addl. Sessions Judge/IV F.T.C. Dehradun, in Criminal Revision No. 148 of 2007, is set aside. The revisional court is directed to decide the revision afresh on merits.