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Madhya Pradesh High Court · body

2013 DIGILAW 79 (MP)

Krishna Bai v. Batan Bai

2013-01-15

G.D.Saxena, S.K.Gangele

body2013
ORDER Saxena, J. -- 1. The criminal appeal has been filed by the appellant against the acquittal of respondent No.1/accused of offences for commission of offence under section 420, 467, 468 and 471 of IPC by the learned First Additional Sessions Judge, Guna vide his judgment and order dated 21.9.2011 in S.T. No.213/10. 2. At the outset, learned counsel for the respondent No.1 accused raised an objection by moving an application (I.A. No.11708/2012) regarding the maintainability of present appeal and submitted that the same is not maintainable before this Court, in view of introduction of proviso to section 372 of the Code, inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), since the appellant herein is not covered by the definition “victim” and a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting him for lesser offence or imposing inadequate compensation, has not been conferred upon him by the said proviso to section 372 of the Code. Therefore, he urged that the present appeal cannot be entertained by this Court and is liable to be dismissed. 3. Shri Lahoti, learned counsel appearing on behalf of the appellant countered the said arguments advanced on behalf of the respondent No.1/accused vehemently, and submitted that the provision of section 378 of the Code is a exclusive provision for appeals in cases of acquittal. He further submitted that the provision of sub-section (3) to section 378 of the Code, which was incorporated by amendment in the year 2005, w.e.f. 23.6.2006, prescribes that no appeal shall lie to the High Court under sub-section (1) or sub-section (2) except with the leave of the High Court, whereas sub-section (4) of section 378 of the Code relates to the appeals to the High Court against the order of acquittal in cases instituted upon the complaint and on an application made to it by the complainant, if the High Court grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. 4. He submitted that the accused in the present case is working as Aganwadi worker in village Munda Khera. She on the basis of forged marks-sheet issued by the District Board of Education Guna of one Vimala Bai, daughter of Roop Singh secured appointment and thereby got all monetory benefits attached to the post. 4. He submitted that the accused in the present case is working as Aganwadi worker in village Munda Khera. She on the basis of forged marks-sheet issued by the District Board of Education Guna of one Vimala Bai, daughter of Roop Singh secured appointment and thereby got all monetory benefits attached to the post. So, the appellant being informer of the incident, according to the learned counsel can be termed as victim of the incident and consequently the appeal under section 372(2) of CrPC is maintainable as per provisions of law. 5. In view of the aforesaid objection raised by the learned counsel for the respondent No.1/State, the question which arises for consideration in the present case is : “Whether the appeal preferred by the appellant is maintainable before this Court, in view of insertion of amended proviso to section 372 of the Code?” 6. In order to consider the aforesaid question for determination, reference to certain provisions of the Code of Criminal Procedure would be relevant. 7. Section 372 of the Code of Criminal Procedure, which provides for appeals under Chapter 29, 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.]” 8. The definition of victim under section 2(wa), which is also inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), reads as follows : “2.(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.” 9. The word ‘injury’ is defined in section 44 of the Indian Penal Code, which is as follows : “44. The word ‘injury’ denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.” 10. The word ‘injury’ is defined in section 44 of the Indian Penal Code, which is as follows : “44. The word ‘injury’ denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.” 10. However, in criminal laws either in Criminal Procedure or Indian Penal Code the word ‘loss’ is not defined but the word ‘wrongful loss’ is defined in section 23 of Indian Penal Code which is as follows : “23. ‘Wrongful loss’ is the loss by unlawful means of property to which the person losing it is legally entitled.’ 11. Now, reverting back to the present case, it is gathered that the appellant who is informer by sending an application in writing to the District Collector Guna complained that respondent No.1/accused by submitting a false and fabricated marks-sheet which was issued to some another candidate secured the service as Aganwadi worker and is thereby getting all benefits available to the post. Under directions of the District Collector, the inquiry was conducted by the Sub-Divisional Officer (Revenue). On his report, the FIR was lodged and after investigation the charge-sheet was filed before the criminal Court. 12. In substance, the learned counsel for the respondent No.1/accused submitted that the amended proviso to section 372 of the Code gives to the victim only, a right to prefer an appeal against any adverse order passed by the trial Court. Under such circumstances, learned counsel urged that applying the said parameters, and more particularly amended proviso to section 372 of the Code, present appeal preferred by the appellant challenging the judgment and order of acquittal of the respondent No.1/accused, would not be maintainable before this Court. 13. The definition of victim under section 2(wa) of the Code reproduced above contemplates to mean 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 heirs. 13. The definition of victim under section 2(wa) of the Code reproduced above contemplates to mean 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 heirs. At this stage, it will be useful to assess the need to amend the Code of Criminal Procedure, more particularly in respect of the aforesaid provisions i.e. proviso to section 372 of the Code of Criminal Procedure and section 2(wa) relating to definition of victim, by way of amendment in 2009 and in the said context, in 154th report of the Law Commission (Chapter XV), it is observed that crimes often entail substantive harm to people and not mere symbolic harm to the social order, and consequently, the needs and rights of victims of crime should receive priority attention in the total response to crime. Initially in the Code, the right to prosecute the offender was given to the State, but later on the right was also conferred on the aggrieved person to file private complaint for the alleged offence, if the State does not prosecute the offender. It was felt that at present, victims are the worst sufferers in the crime and they do not have much role to play in the Court proceedings, and hence, they need to be given certain right and compensation so that there is no distortion of the criminal justice system. 14. Section 372 of the Code, pertaining to appeal under Chapter XXIX thereof, commences with non-obstante clause and reads that 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. Hence, there is general bar to the appeal against the judgment and order of the criminal Court, unless expressly provided by this Code, or any other law for the time being in force. Admittedly, there is no amendment to the said first part of section 372. Hence, there is general bar to the appeal against the judgment and order of the criminal Court, unless expressly provided by this Code, or any other law for the time being in force. Admittedly, there is no amendment to the said first part of section 372. The legislature has only added proviso thereto, and in this context, a reference to the scope and ambit of proviso to section 372 of the Code inserted by way of Act No.5 of 2009 with effect from 31.12.2009, is vital and important, and the said proviso enables the victim to prefer an appeal against the judgment or order passed by the Court acquitting the accused or convicting him for lesser offence or imposing inadequate punishment. In this manner, a right has been conferred upon such victim by virtue of the said proviso to prefer an appeal, as stated therein. 15. As discussed above, by way of introduction of proviso to section 372 and definition of “victim” under clause (wa) to section 2 of the Code, by way of amendment, a right has been conferred upon the victim, which includes a person who has suffered any loss or injury caused by reason of the act or omission for which accused person has been charged, to file appeal against the judgments and orders of acquittal in such cases. Accordingly, in the cases in which the State is showing any lethargy or not pursuing the matter for ensuring that the offenders are booked, the victim may legitimately make a grievance and may also step into litigation by ensuring that the culprits are prosecuted and the suffering of the victim is sufficiently given solace and compensation, by right conferred upon him, by introduction of proviso to section 372 of the Code. 16. In the said context, a useful reference can also be made to the judicial pronouncement in the case of Bhikhabhai Motibhai Chavda v. State of Gujarat and others [2010 Cr.LJ 3325], wherein, in paragraph 14, it has been held as under : “14. 16. In the said context, a useful reference can also be made to the judicial pronouncement in the case of Bhikhabhai Motibhai Chavda v. State of Gujarat and others [2010 Cr.LJ 3325], wherein, in paragraph 14, it has been held as under : “14. Under these circumstances, it can be concluded that if the State has not preferred appeal against the order of acquittal or if the leave is not granted and the appeal of the State is not entertained, the victim may claim right of preferring the appeal in absolute but such right of preferring the appeal may not be available if the appeal of the State is already admitted and the leave has been granted against the order of acquittal of the State. In any case, even if it is read for the sake of consideration that the victim has absolute right to prefer appeal then also the judicial discretion would demand that when the State has already preferred appeal against the order of acquittal and the leave been granted by this Court and the appeal has been admitted against the order of acquittal, preferred by the State, it would not be a case to entertain another appeal of the victim by this Court and the only observation deserves to be made is to enable the victim to assist the Public Prosecutor as per the provision of section 24(8) CrPC, at the time of final hearing of the appeal and/or by making the submission before the Court with the Public Prosecutor against the order of acquittal.” 17. There is no quarrel in the legal position that sub-section (4) of section 378 of the Code deals with such orders of acquittal passed in any cases instituted upon complaint and contemplates making an application to the High Court by the complainant in this behalf, seeking special leave to file an appeal from the order of acquittal, and upon grant of such special leave, the complainant may present such an appeal to the High Court, and it is apparently clear that this provision of section 378, sub-section (4) of the Code is the exclusive provision which deals with the orders of acquittal passed in any cases instituted upon complaint. Hence, the present provision of section 378, sub-section (4) of the Code and amended proviso to section 372 of the Code operate in two different areas, separately. 18. Hence, the present provision of section 378, sub-section (4) of the Code and amended proviso to section 372 of the Code operate in two different areas, separately. 18. Having the comprehensive view of the matter and considering the above referred provisions of the Code and also considering rival submissions advanced by the learned counsel for the parties, anxiously, and further considering the aforesaid judicial pronouncement and observations made therein, and more particularly considering the aims and objects of the legislature in introducing the proviso to section 372 of the Code, by way of amendment of 2009, we are of the view that the arguments advanced by the learned counsel for the appellant are not acceptable on the touchstone of the above enunciated legal position, and therefore, we are not inclined to accept the same. Hence, the question for determination in respect of maintainability of the present appeal before this Court is answered against the appellant. Resultantly, present appeal challenging the judgment and order of acquittal for the offence is not maintainable before this Court, since there is application of the amended proviso of section 372 of the Code thereto. 19. Accordingly, appeal fails and is hereby dismissed.