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2014 DIGILAW 1208 (JHR)

Rajendra Mahato v. State of Jharkhand

2014-12-03

AMITAV K.GUPTA

body2014
ORDER : The revision is directed against the order dated 07.01.2014 passed by learned Sessions Judge, Dhanbad in Cr. Appeal no.160 of 2013 whereby the aforesaid appeal was dismissed as not maintainable. 2. It is urged by Mr. Gautam Kumar learned counsel for the petitioner that criminal appeal no.160/13 was preferred by the petitioner who is the informant in Sindri (Gaushala) P.S. case no.09/2003 corresponding to G.R. No.576/2003. That the aforesaid case was lodged under Sections 341,323,324,506/34 IPC and after investigation, police laid charge-sheet against accused persons upon which cognizance was taken whereafter, the case was transferred for trial and disposal to the court of Judicial Magistrate 1st class Dhanbad and thereafter it was transferred to the Court of SDJM, Dhanbad. After framing of charges under the aforesaid Sections the accused were put to trial and witnesses were examined whereafter statement of accused persons under Sections 313 Cr. P.C. was recorded. On consideration of evidence and materials on record all the six accused persons were acquitted vide order dated 21.03.2013 passed by the learned S.D.J.M, Dhanbad. Being aggrieved by the judgment of acquittal the petitioner/informant preferred the appeal under Sections 372 Cr. P.C. before the Sessions Judge, Dhanbad but the appeal was dismissed by the aforesaid impugned order. 3. It is contended that the court below has failed to appreciate that provision of Section 372 Cr. P.C. envisages the right of the victim to prefer an appeal against any order of acquittal or conviction for lessor offence or against inadequate compensation. To buttress his argument he has relied on the decision in the case of Vivekanand Pathak Vs. State of Jharkhand, reported in 2013 (1) JLJR 1 . It is submitted that in the said case the court has held that the complainant being the victim has the substantive right to prefer the appeal under Section 372 Cr. P.C. and such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction passed by the court. 4. Learned counsel for the State has not controverted the submissions advanced on behalf of the petitioner. 5. Heard. P.C. and such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction passed by the court. 4. Learned counsel for the State has not controverted the submissions advanced on behalf of the petitioner. 5. Heard. At this juncture it is pertinent to refer to the conclusion and reasoning given by the Sessions Judge, Dhanbad while dismissing the appeal which is as follows- “Therefore, in view of above discussion, this Court is of the opinion that this appeal has been filed by the appellant in FIR case, in which, cognizance has been taken by court on police report. Therefore, in case of acquittal only State can file appeal against the order of acquittal passed in cognizable and non-cognizable offence. Therefore, informant is not entitled to file appeal and can get benefit of proviso of Section 372 Cr. P.C. because impugned judgment has been passed in case of cognizable and bailable offence for which cognizance was taken on the basis of police report. Therefore, appeal preferred by the appellant is not maintainable for hearing. Therefore, this appeal is not admitted for hearing. Hence, it stands dismissed at the stage of admission itself.” 6. On perusal of the reasoning assigned by the court below it is abundantly clear that the conclusion arrived by the court is not in consonance with the provisions of Section 372 Cr. P.C. For appreciating the legal position it will be beneficial to refer to the provisions of Section 372 Cr. P.C. which reads as follows:- “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.” The said provision was incorporated by the Legislature vide Act 5 of 2009 with effect from 31.12.2009 and the intent of the provision is to redress the grievance of the victim. Victim has been defined in Section 2 (wa) of the Code as a person who has suffered a loss or injury. Victim has been defined in Section 2 (wa) of the Code as a person who has suffered a loss or injury. It naturally follows that the informant and the complainant depending on the facts of the case, if he has sustained loss or injury would come within the purview of definition of victim. It is settled legal proposition that a proviso has to be interpreted and construed in nexus with the subject matter covered by the language of the Section. In the case of State of Punjab v. Kailashnath, reported in 1989(1) SCC 558, the Supreme Court held that the proviso has to be read as an exception to the main provision. From plain reading of the provisions of Section 372 Cr. P.C. as enumerated above there is no ambiguity that statutory right has been vested on the victim to file an appeal under the statute against any order by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. At the cost of repetition it is explicit that the provisions has been incorporated by the legislature keeping in view the U.N. Declaration of Basic Principles of Justice for Victims of crime and Abuse of Power adopted by the General Assembly in 1985 acknowledging the rights of victims with respect to access of fair justice. 7. It is necessary to emphasise that in the proviso therein makes no categorisation of cognizable, non-bailable or bailable offences or the case being registered with the police or a complaint filed by an individual in the court. The statute has to be construed and interpreted keeping in view the grievance which is to be remedied and redressed by the provisions of the statute. It goes without saying that against the order passed by the Judicial Magistrate the appeal lies to the court of Sessions. Likewise, in a judgment passed by the Sessions Court the appeal or revision would lie before the High Court. This being the general hierarchy in administration of criminal justice the statutory right has been conferred on the victim to prefer appeal under Section 372 Cr. P.c. Section 378(1) Cr. P.C. creates no bar for exercising the right under Section 372. The statute does not draw any distinction between a complaint case or a case registered by the police as is amply clear from the plain reading of the provision. P.c. Section 378(1) Cr. P.C. creates no bar for exercising the right under Section 372. The statute does not draw any distinction between a complaint case or a case registered by the police as is amply clear from the plain reading of the provision. The duty of the court is to give effect to the purpose and intent as expressed in clear and unambiguous language of the statute and the rule of construction does not permit the court in restraining the comprehensive language used by the legislature and the object for which the statute was incorporated. 8. Thus, in view of the unambiguity in the language of the statute and the underlying principle for which it was incorporated it is amply clear that the court below has committed an error in law by not interpreting the provisions of Section 372 in its correct perspective and giving overriding effect to the provisions of Section 378 Cr. P.C. The Court should keep in mind that change in social attitude is an important factor to be considered in upkeep of law and with the passage of time and social perspective the right of victim has been recognized and crystallised by incorporation of statutes under the criminal law and Acts to ensure fair play and access to justice to the victims in the dispensation and administration of criminal justice. 9. In the backdrop of the settled legal proposition and discussions made above it is held that the impugned order dated 07.01.2014 passed by the learned Sessions Judge, Dhanbad is not sustainable in law hence, it is hereby set aside. The matter is remitted to the court blow which shall hear and decide the appeal on merit after hearing the parties. In the result the revision is hereby allowed.