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Madras High Court · body

2015 DIGILAW 2020 (MAD)

S. Ganapathy v. N. Senthilvel

2015-04-27

S.NAGAMUTHU

body2015
Judgment In these cases, an important issue as to the remedy available for an aggrieved to challenge the order of acquittal of the accused in a case instituted on a private complaint, has come up for consideration. 2. Some of the parties, in these cases, contend that the remedy for the aggrieved is only to seek leave to appeal before this Court under Section 378(4) of the Code of Criminal Procedure, whereas the counter argument is that the aggrieved has the right of appeal as per proviso to Section 372 of the Code of Criminal Procedure which was introduced by the Amendment Act, 5/09, with effect from 31.12.2009. 3. It is quite interesting to note that innumerable petitions seeking leave are filed before this Court under Section 378(4) of the Code of Criminal Procedure and equally, appeals are also filed under the proviso to Section 372 of the Code of Criminal Procedure. Among the Sessions Judges in this State, there appears to be no uniformity inasmuch as some Sessions Judges entertain appeals against acquittals of the accused, in private complaint cases under proviso to Section 372 of the Code of Criminal Procedure and some do not. Because of this anomalous situation, I have ventured to examine the said question in depth. 4. Considering the importance and the complexity of the issue, I issued notice to all the Bar Associations also so as to afford an opportunity to the Bar to make their submissions. All the Bar Associations responded positively and the respective counsel for each Bar Association made elaborate submissions. I have heard the learned counsel appearing for the parties also in these matters. They have taken much pains to bring to my notice various Judgments rendered by different High Courts, including the Judgments of the Hon'ble Supreme Court about which I would make reference at the appropriate stages of this order. 5. Since the issue under consideration is all about the rights of victims, let us, at the first, have a glance through the development and recognition of the rights of victims in our criminal justice delivery system. During the Pre-Constitutional era, a victim of a crime was a “Nobody” in the criminal justice delivery system in this country. 5. Since the issue under consideration is all about the rights of victims, let us, at the first, have a glance through the development and recognition of the rights of victims in our criminal justice delivery system. During the Pre-Constitutional era, a victim of a crime was a “Nobody” in the criminal justice delivery system in this country. Though the Constitution guarantees certain Fundamental Rights which are very fundamental to the sustenance of the human dignity and equality, in the years that followed the Constitution, there was no significant change in the system to recognize the rights of the victims in the criminal justice delivery system. After the crime is committed, the moment the victim gives information to the police and the case is registered under Section 154 Cr.PC, he goes into oblivion and he is almost forgotten. During the course of investigation, he has not been given any vital role to play except to make a true statement under Section 161 Cr.PC. Even the arrest of the accused and the further progress made in the case are not informed to the victim. When the question of bail is considered by the Courts, there is no express provision in the Code providing an opportunity for the victim to oppose the grant of bail. Statutorily, there is no express provision to inform the result of the investigation to the victim. At all the subsequent stages also, he has no role to play except to depose in the Court as a witness at the mercy of the police and the prosecutor. Statutorily, the right given to him is to engage a private pleader to assist the prosecutor and submit a written argument before the trial Court, that too, with the permission of the Court. The day of judgment is also not informed. The poor victim, at times, comes to know about the fate of the case only from the newspaper reports. Even after acquittal, prior to the introduction of the proviso to Section 372 of Cr.P.C., the victim had no right of appeal against the acquittal and against the inadequacy of punishment. In short, he was/is almost kept in dark. 6. In our system, of course, the trial relating to a crime cannot be equated to a private civil litigation so as to leave it open for the litigants to fight before the Court. In short, he was/is almost kept in dark. 6. In our system, of course, the trial relating to a crime cannot be equated to a private civil litigation so as to leave it open for the litigants to fight before the Court. The victim who is guaranteed the life and liberty as a Fundamental Right needs the support of the State. Therefore, the injury caused to him by the perpetrator of the crime is treated as an injury to the State and to the Society at large. The poor victims cannot afford to make legal battle against the mighty criminals. It is because of these reasons, every crime committed against an individual is treated as a crime committed against the society and the State and therefore the State takes up the cause of the victim to prosecute the perpetrator of the crime. In case the police do not prosecute a case properly, the victim has the right to approach the Court by way of private complaint to prosecute the criminals. Since the State is taking full care of the cause of the victims, the victim is not burdened with the task of prosecuting the culprits. In course of time, the Society has started experiencing that the prosecutions launched by the State, in some cases, are not properly taken forward and there are many flaws which result in failure of justice to the victims. In order to protect the interest of the victims, the Courts have traveled too long to find innovative ways to afford opportunity to the victims to air their grievance before the Courts of law. At the stage of hearing of bail application, the victim is now heard as an intervenor, though there is no statutory provision enabling the victim to make his submissions. This is an innovative step taken by this Court in Saravanabavanandam Vs. Murugaiyan and another, reported in 1986 LW [Crl 165]. When a final report is filed, be it a negative report or a partly negative report, there is no statutory provision to afford opportunity to the victim to hear him at the time when the said final report is considered by the Court. In Bhagwat Singh Vs. Murugaiyan and another, reported in 1986 LW [Crl 165]. When a final report is filed, be it a negative report or a partly negative report, there is no statutory provision to afford opportunity to the victim to hear him at the time when the said final report is considered by the Court. In Bhagwat Singh Vs. Commissioner of Police reported in 1985 2 SCC 537 , the Hon'ble Supreme Court laid down that notice should be given to the victim by the Court and opportunity should be given to file objections if any, hear him and then to pass appropriate orders. There are several such instances where the Courts have found ways to ensure the protection of the rights of the victims. 7. Fair investigation and fair trial have been held to be implicit in Article 21 of the Constitution of India. The Society reposes enormous confidence in the State and its agencies to ensure these two. But, since such confidence has been slowly eroded, as pointed out earlier, the Courts have gone to the rescue of the victims to find avenues for the victims to appear and air their grievances. 8. In this backdrop, the cry for the statutory recognition of the rights of victims became high. In many other jurisdictions also like Indian system, the victims were a forgotten lot. So the voice for recognition of the victims rights became vibrant in the international scenario. Having taken note of the global situation, the General Assembly of the United Nations at its 96th Plenary on 25.11.1985, adopted a declaration of Basic Principles of Justice for victims of crimes and abuse of power. The plenary declaration recognizes four major rights of victims of crime viz., (i) Access to justice and fair treatment (ii) Restitution (iii) Compensation (iv) Assistance 9. This declaration is considered as the magna carta of the rights of victims of the world. So far as India is concerned, the declarations made in the said magna carta are not something new as these rights of the victims have been constitutionally guaranteed under Chapter III of the Constitution of India more particularly under Article 21 of the Constitution of India. But the statutory provisions were inadequate to ensure these rights of victims. 10. The Government of India, therefore, nominated a Committee on Reforms on Criminal Justice System headed by Hon'ble Dr. But the statutory provisions were inadequate to ensure these rights of victims. 10. The Government of India, therefore, nominated a Committee on Reforms on Criminal Justice System headed by Hon'ble Dr. Justice V.S. Malimath on the need for providing justice to the victims of crimes. The Committee suggested drastic changes in the crime set up. The important recommendations of the Committee relating to the rights of victims in the criminal trial are as follows: (i) The victim, and if he is dead, his legal representative shall have the right to be impleaded as a party in every criminal proceeding where the offence is punishable with 7 years imprisonment or more. (ii) In select cases notified by the appropriate government, with the permission of the court an approved voluntary organization shall also have the right to implead in court proceedings. (iii) The victim has a right to be represented by an advocate of his choice; provided that an advocate shall be provided at the cost of the State if the victim is not in a position to afford a lawyer. (iv) The victim's right to participate in criminal trials. (v) The victim shall have a right to prefer an appeal against any adverse order passed by the court acquitting the accused, convicting for a lesser offence, imposing inadequate sentence, or granting inadequate compensation. Such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such a court. 11. In consonance with the UN Declaration, the recommendations of the Law Commission of India and the recommendations of the Committee, the Code of Criminal Procedure Amendment Bill, 2008, was introduced and the same was passed by the Parliament, which received the assent of the President on 07.01.2009 and it was published in the Gazette of India on 09.01.2009. The same has been brought into force with effect from 31.12.2009. If we analyse the above history of the legislation vis-a-vis the global concerns, it will be very obvious that the intention of the Legislature in amending the Code is to give absolute right to the victims of crimes to file appeals against the acquittal of the accused. 12. By means of this amendment, the proviso to Section 372 of the Code of Criminal Procedure was introduced, thereby creating a statutory right of appeal for the victims of crimes. 12. By means of this amendment, the proviso to Section 372 of the Code of Criminal Procedure was introduced, thereby creating a statutory right of appeal for the victims of crimes. The said proviso to Section 372, reads as follows:- "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." 13. For a better understanding, let us now have a quick look into Section 378(4) of the Code of Criminal Procedure, which reads as follows:- "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." 14. A comparative reading of these two provisions would make it noticeable that the statutory right of appeal has been conferred only on a victim and not on a complainant. The term "victim" has been defined in Section 2(wa), which was also introduced by means of the same amendment, which reads as follows:- "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." 15. But, the term "complainant" as employed in Section 378(4) of the Code of Criminal Procedure, has not been defined precisely anywhere in the Code of Criminal Procedure. However, the legal meaning to the said word is traceable to the term "complaint", as defined in Section 2(d) of the Code, which reads as follows:- "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report". 16. Thus, it is crystal clear that the term "complainant" is the species and the term "complaint" is the genus. Therefore, it is understandable that the complainant is the one, who makes complaint to the Court, upon which cognizance is taken. 17. 16. Thus, it is crystal clear that the term "complainant" is the species and the term "complaint" is the genus. Therefore, it is understandable that the complainant is the one, who makes complaint to the Court, upon which cognizance is taken. 17. In a private complaint case, the complainant need not be the victim always. Even a third party can set the law in motion by filing a private complaint. A victim can also file a private complaint and in such an event, he will fall within the definition of both “the complainant” as well as “the victim”. In a given private compliant case, the victim may not be the complainant, but he may be a witness in the case. The Legislature has not used the term "complainant", while introducing the proviso to Section 372 of the Code of Criminal Procedure and instead, the Legislature has used the expression "victim" and has also taken pains to introduce Section 2(wa) to define the term "victim". It cannot be said that the Legislature was not aware of Section 378(4) of the Code of Criminal Procedure, where the Legislature has used the expression "complainant". This difference in language must serve a purpose. 18. If the Legislature had used the term "complainant", instead of the term "victim" in the proviso to Section 372 of the Code of Criminal Procedure, Section 378(4) of the Code of Criminal Procedure would have become meaningless. But, the Legislature has consciously retained Section 378(4) of the Code of Criminal Procedure, without omitting the same and therefore it should continue to serve its purpose coexisting with the proviso to Section 372 of the Code. It is well settled that no statutory interpretation could lead to a conflict between two provisions of the same enactment. Any interpretation, given to different provisions in a statute, should be to have both the provisions workable, meaningful and such interpretation should not lead to any absurdity or anomalous situation. 19. In the case on hand, if the proviso to Section 372 of the Code of Criminal Procedure and Section 378(4) of the Code of Criminal Procedure are read conjointly, it can be perceived that the Legislature has retained Section 378(4) of the Code of Criminal Procedure, for, the Legislature has not intended to give statutory right of appeal to a complainant/non-victim. The Legislature has given right of appeal under the statute by means of a proviso to Section 372 of the Code of Criminal Procedure only to victims of crimes. To this extent, there can be no difficulty in understanding these two provisions. The difficulty may arise when a complainant happens to be a victim in a private complaint case. One of the arguments advanced before this Court is that in such an event, the remedy for the complainant cum victim is only to seek leave under Section 378(4) of the Code of Criminal Procedure, whereas the other argument advanced is that he can exercise his statutory right of appeal as a victim cum complainant under the proviso to Section 372 of the Code of Criminal Procedure. In my considered view, the latter is the correct view. This can be explained by means of few illustrations. 20. In a given case, there is a victim of grievous hurt; he goes to the police with a complaint; but, no action is taken. Then, he files a private complaint before the Judicial Magistrate. The case ends in acquittal. Though he happens to be the complainant, he is also the victim of the crime. In another case, a non-victim files a private complaint and the victim of the crime does not file any private complaint. But, the victim of the crime deposes in Court as a witness. The case ends in acquittal. Here, in the former case, the victim cum complainant has got a right of appeal under the proviso to Section 372 of the Code of Criminal Procedure, but in the latter case, the complainant has got no such right of appeal and instead he has to approach the High Court seeking leave under Section 378(4) of the Code of Criminal Procedure. 21. Admittedly, the victim of crime in a police report case has got right of appeal under proviso to Section 372 of the Code of Criminal Procedure. Depriving such a victim of his right to file an appeal, for the reason that he filed the private complaint, would be unreasonable and illogical. There can be no further classification of the victims in police report cases and the victims in private complaint cases as two distinct categories. The Legislature has not distinguished the victims in police report cases and the victims in private complaint cases. There can be no further classification of the victims in police report cases and the victims in private complaint cases as two distinct categories. The Legislature has not distinguished the victims in police report cases and the victims in private complaint cases. The Legislature has used the expression "victim" thereby bringing within its ambit the victims in both the police report cases as well as in the private complaint cases. Simply because the victim of a crime has taken pains to prosecute the accused by way of a private complaint, in the event of acquittal of the accused, he should not be deprived of his right of appeal, as, still he continues to be the victim of the crime. The term "victim", as defined in Section 2(wa) of the Code of Criminal Procedure, does not exclude a victim, who happens to be the complainant in the private complaint case. Assume a situation that there are two victims in a private complaint case before a Magistrate, where one is the complainant and the other is only a witness. The case ends in acquittal. If the above interpretation is not accepted, as the correct exposition of law, then, the first victim has to seek leave to appeal before the High Court and the second victim has to file an appeal before the Court of Session. This will result only in an anomalous situation. Therefore, I am of the firm opinion that the contrary view is not correct. 22. From the above illustrations and discussions, in my considered view, the following conclusions emerge:- * As per proviso to Section 372 of the Code of Criminal Procedure, a victim of a crime, either in a police report case or in a private complaint case, has got statutory right to file an appeal and there is no need for him to seek any leave as Section 378(4) of the Code of Criminal Procedure is not applicable to him. * A victim, who also happens to be a complainant in a private complaint case, also has got right of appeal under proviso to Section 372 of the Code of Criminal Procedure and there is no need for him to seek leave under Section 378(4) of the Code of Criminal Procedure, as the said provision is not applicable to him. * A victim, who also happens to be a complainant in a private complaint case, also has got right of appeal under proviso to Section 372 of the Code of Criminal Procedure and there is no need for him to seek leave under Section 378(4) of the Code of Criminal Procedure, as the said provision is not applicable to him. * If the complainant is not a victim, then, as against the acquittal of the accused, he does not have statutory right of appeal under proviso to Section 372 of the Code of Criminal Procedure and instead, he has to seek only leave under Section 378(4) of the Code of Criminal Procedure. 23. In this regard, let us have a survey of the Judgments of various High Courts, including the Judgments of the Hon'ble Supreme Court. 24. The learned counsel appearing in these cases, have brought to the notice of this Court a Judgment of the Hon'ble Supreme Court in Subash Chand Vs. State [Delhi Administration], reported in 2013 (2) MWN [Cr] 308 [SC]. That was a case, where a private complaint was filed under the Prevention of Food Adulteration Act, 1954, by the Food Inspector. In Paragraph No.13 of the said Judgment, the Hon'ble Supreme Court has held as follows:- "13. Though, the Law Commission's 154th report indicated that Section 378 was being amended to provide that an appeal against an order of acquittal passed by a Magistrate in respect of cognizable and non-bailable offence filed on a police report would lie to the Court of Sessions, the words police report were not included in the amended Section 378. In this connection, it is necessary to refer to the relevant extract from the Law Commission's 221st report of April, 2009. After noting amendment made to Section 378, the Law Commission stated as follows:- 2.9. All appeals against orders of acquittal passed by Magistrates were being filed in High Court prior to amendment of Section 378 by Act 25 of 2005. Now, with effect from 23.06.2006, appeals against orders of acquittal passed by Magistrates in respect of cognizable and non-bailable offences in cases filed on police report are being filed in the Sessions Court, vide clause (1) of sub-section (1) of the said Section. Now, with effect from 23.06.2006, appeals against orders of acquittal passed by Magistrates in respect of cognizable and non-bailable offences in cases filed on police report are being filed in the Sessions Court, vide clause (1) of sub-section (1) of the said Section. But, appeal against order of acquittal passed in any case instituted upon complaint continues to be filed in the High Court, if special leave is granted by it on an application made to it by the complainant, vide sub-section (4) of the said section. 2.10. Section 378 needs change with a view to enable filing of appeals in complaint cases also in the Sessions Court, of course, subject to the grant of special leave by it. These two extracts of Law Commission's report make it clear that though the words police report are not mentioned in Section 378(1)(a), the Law Commission noted that the effect of the amendment was that all appeals against an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence in cases filed on police report are being filed in the Sessions Court. The Law Commission lamented that there is no provision enabling filing of appeal in complaint cases in the Sessions Court subject to the grant of special leave by it. Thus, the Law Commission acknowledged that there is no provision in the Code under which appeals in complaint cases could be filed in the Sessions Court. We agree with this opinion for reasons which we shall now state." 25. Some of the counsel contended that this Judgment has laid down the law that the complainant has got no right of appeal under proviso to Section 372 of the Code of Criminal Procedure. I find no force in the said argument at all, for, in the said Judgment, the Hon'ble Supreme Court has not dealt with the right of appeal of a victim. In a private complaint filed under the Prevention of Food Adulteration Act, 1954, admittedly, the Food Inspector is not a victim. He is only a complainant. Therefore, I understand, the Hon'ble Supreme Court has held that he has got no right of appeal under the proviso to Section 372 of the Code of Criminal Procedure. In Paragraph Nos.20 and 21, the Hon'ble Supreme Court has held as follows:- "20. He is only a complainant. Therefore, I understand, the Hon'ble Supreme Court has held that he has got no right of appeal under the proviso to Section 372 of the Code of Criminal Procedure. In Paragraph Nos.20 and 21, the Hon'ble Supreme Court has held as follows:- "20. It is true that the State has an overall control over the law and order and public order of the area under its jurisdiction. Till Section 378 was amended by Act 25 of 2005, the State could prefer appeals against all acquittal orders. But, the major amendment made in Section 378 by Act 25 of 2005, cannot be ignored. It has a purpose. It does not throw the concern of security of the community to the winds. In fact, it makes filing of appeals against certain types of acquittal orders described in Section 378(1(a) easier, less cumbersome and less time consuming. The Judgments cited by Mr. Malhotra pertain to Section 417 of the Criminal Procedure Code, 1898 and Section 378 prior to its amendment by Act 25 of 2005 and will, therefore, have no relevance to the present case. 21. In view of the above, we conclude that a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court. He cannot file such appeal in the Sessions Court. In the instant case, the complaint alleging offences punishable under Section 16(1)(1A) read with Section 7 of the PFA Act and the Rules is filed by complainant Shri Jaiswal, Local Health Authority through Delhi Administration. The appellant was acquitted by the Metropolitan Magistrate, Patiala House Courts, New Delhi. The complainant can challenge the order of acquittal by filing an application for special leave to appeal in the Delhi High Court and not in the Sessions Court. Therefore, the impugned order holding that this case is not governed by Section 378(4) of the Code is quashed and set aside. In the circumstances, the appeal is allowed". 26. The complainant can challenge the order of acquittal by filing an application for special leave to appeal in the Delhi High Court and not in the Sessions Court. Therefore, the impugned order holding that this case is not governed by Section 378(4) of the Code is quashed and set aside. In the circumstances, the appeal is allowed". 26. From the detailed discussion made by the Hon'ble Supreme Court in the said Judgment and the conclusions arrived at, it can be easily understood that the Hon'ble Supreme Court had taken the view that in respect of acquittal of the accused under the Prevention of Food Adulteration Act, 1954, there is no right of appeal for the Food Inspector as he is not a victim and therefore, the remedy for him is to seek only leave to file an appeal under Section 378(4) of the Code of Criminal Procedure. 27. The learned counsel have brought to the notice of this Court a Judgment of a learned Single Judge of Kerala High Court in Sree Gokulam Chit and Finance Co.(P) Ltd., and another Vs. T.Krishnakumar and others, reported in 2013 (4) KHC 395, wherein the learned Judge took the view that the victim under Section 2(wa) of the Code of Criminal Procedure would not include the complainant in a complaint case filed under Section 138 of the Negotiable Instruments Act, 1881 and therefore, as a matter of right, he would be entitled to prefer appeal as provided in Section 372 of the Code of Criminal Procedure. 28. But, later on, a Division Bench of the Kerala High Court in Omana Jose Vs. State of Kerala, reported in 2014 (2) KLJ 620 : 2014 (2) KLT 054, found a conflicting Judgment in Shibu Joseph and others Vs. Tomy K.J and others, reported in 2013 (4) KHC 629 : ILR 2013 (4) Ker.866. The matter was considered by the Division Bench, on reference to resolve the above conflict. State of Kerala, reported in 2014 (2) KLJ 620 : 2014 (2) KLT 054, found a conflicting Judgment in Shibu Joseph and others Vs. Tomy K.J and others, reported in 2013 (4) KHC 629 : ILR 2013 (4) Ker.866. The matter was considered by the Division Bench, on reference to resolve the above conflict. The Division Bench has considered the term "victim" under Section 2(wa) of the Code of Criminal Procedure and after having elaborately dealt with the matter, at last, the Division Bench has held the view that the complainant in a case under Section 138 of the Negotiable Instruments Act, 1881, cannot challenge the order of acquittal before the Court of Sessions under the proviso to Section 372 of the Code of Criminal Procedure and his remedy is only to file an appeal to the High Court with a Special Leave Petition under Section 378(4) of the Code of Criminal Procedure. Thus, as of now, as has been held by the Division Bench of the Kerala High Court, the view is that a complainant, in a private complaint case, under Section 138 of the Negotiable Instruments Act, 1881, has got no right of appeal under proviso to Section 372 of the Code of Criminal Procedure. 29. The Delhi High Court in Bhajanpura Co-operative Urban Thrift & Credit Society Ltd., Vs. Prabhu Dayal, [Crl.A.No.1163 of 2012, dated 03.09.2014], had an occasion to deal with the same issue. A learned Judge of the Delhi High Court held the view that the remedy available to the complainant under Section 138 of the Negotiable Instruments Act, 1881, against an order of acquittal is only to seek Special Leave before filing an appeal under Section 378(4) of the Code of Criminal Procedure. 30. A Full Bench of the Punbaj and Haryana High Court in M/s. Tata Steel Ltd., Vs. M/s. Atma Tube Products Ltd., and others, 2013 (2) (RCR) (Criminal) : 2014 173 (1) PLR (1), has held the similar view, as that of the view taken by the Kerala High Court. 30. A Full Bench of the Punbaj and Haryana High Court in M/s. Tata Steel Ltd., Vs. M/s. Atma Tube Products Ltd., and others, 2013 (2) (RCR) (Criminal) : 2014 173 (1) PLR (1), has held the similar view, as that of the view taken by the Kerala High Court. In Paragraph No.138, the Full Bench of the Punjab and Haryana High Court, has held as follows:- "Question (B)(iii): The 'complainant' in a complaint case who is also a 'victim' and the 'victim' other than a 'complainant' in such case, shall have remedy of appeal against acquittal under Section 378(4) only, except where he/she succeeds in establishing the guilt of an accused." 31. A Division Bench of the Rajasthan High Court in Mr. Pradeep Shah Vs. Unknown, [Criminal Revision Petition Nos.411 of 2012 and 145 of 2013, has held the similar view in Paragraph No.83 as follows:- "We are in absolute agreement with the reasons and the findings arrived by the Hon'ble Punjab and Haryana High Court. While accepting the same, the question referred to is answered in the terms that;- (i). The 'complainant' in a complaint-case who is also a 'victim' and the 'victim' other than a 'complainant' in such case, shall have remedy of appeal against acquittal under Section 378(4) only, except where he/she succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser offence or imposition of an inadequate compensation, for which he/she shall be entitled to avail the remedy of appeal under proviso to Section 372 of the Code. (ii). The 'victim' who is not the complainant in a private complaint-case, is not entitled to prefer appeal against acquittal under proviso to Section 372 and his/her right to appeal, if any, continues to be governed by the un-amended provisions read with Section 378(4) of the Code. (iii). Those 'victims' of complaint-cases whose right to appeal have been recognized under proviso to Section 372, are not required to seek 'leave' or 'special leave' to appeal from the High Court in the manner contemplated under Section 378(3) & (4) of the Code. (iv). The right conferred on a 'victim' to present appeal under proviso to Section 372 is a substantive and independent right which is neither inferior nor contingent upon the filing of appeal by the State in that case. (iv). The right conferred on a 'victim' to present appeal under proviso to Section 372 is a substantive and independent right which is neither inferior nor contingent upon the filing of appeal by the State in that case. Resultantly, the condition of seeking leave to appeal' or 'special leave to appeal' as contained in Section 378(3)&(4) cannot be imposed for the maintainability of appeal by a 'victim' under proviso to Section 372 of the Code." 32. A Division Bench of Patna High Court in Parmeshwar Mandal Vs. State of Bihar and others, reported in 2014 CRL.LJ 1046, has held, in Paragraph No.49, as follows:- "49. In the circumstances, after consideration of the entire matter, conclusions of this Court are as follows:- "(1). By virtue of the Proviso, as inserted in Section 372 of the Code of Criminal Procedure, 1973, by the Criminal Procedure Code [Amendment] Act, 2008, [Act 5 of 2009], a "victim' has been put at a higher pedestal, than a prosecuting agency or a complainant, in the matter of preferring an appeal against any order of a criminal court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. This proviso gives an unqualified "right' to a "victim" to prefer an appeal in its terms, as against the enabling Sections 377 and 378, which only give liberty to a District Magistrate, the State Government, the Central Government and the complainant, as the case may be, to prefer an appeal against an order of sentence on the ground of its inadequacy or against an order of acquittal. (2). The right of a "victim" to prefer an appeal in terms of the said proviso to Section 372 is an unqualified right and no "leave to appeal" or "special leave" is required to be obtained by him/her for the purpose, as required by the State or the complainant for maintaining an appeal in terms of Section 378 of the Code. (3). No limitation of time has been provided by the Legislature for exercise of such a right of appeal by the "victim" in terms of the said Proviso. Hence, in the facts and circumstances of each case, the Court has to determine as to whether the appeal was entertainable, or not, on the ground of absence of bona fide explanation for delay by the appellant. Hence, in the facts and circumstances of each case, the Court has to determine as to whether the appeal was entertainable, or not, on the ground of absence of bona fide explanation for delay by the appellant. The limitation laid down by the Full Bench of Punjab and Haryana High Court is a judicial fiat and not based on interpretation of the provisions of the Code or the Limitation Act, 1963. Hence, the same is applicable only within the territorial jurisdiction of that High Court and not beyond. (4). However, in view of the legal presumption of innocence in favour of the accused, the yardsticks laid down by the judicial pronouncements for consideration of appeals under Section 378 shall be applicable in case of an appeal under the said proviso to Section 372. 5. The expression – long after the present incident – used under brackets by the Apex Court in paragraph 5 of its Judgment in case of National Commission for Women Vs. State of Delhi and another [AIR 2011 SC [Supp[ 392] : [2010 122 SCC 599] is only an obiter dicum of the Court and it does not lay down a law in terms of Article 141 of the Constitution of India. 6. Proviso to Section 372 of the Code came into operation w.e.f. December 31, 2009. Hence, in absence of any legislative intent to the contrary, in all cases, in which a Judgment and order has been passed by a Criminal Court on and after that date, a right to the "victim" to prefer appeal in terms of the said Proviso, irrespective of the date of occurrence and any subsequent event in the case prior to such Judgment and order." 33. Subsequently, yet another Division Bench of Patna High Court in Jainath Prasad Vs. State of Bihar, reported in 1993 (3) PLJR 227, had an occasion to consider the Judgment of the Full Bench of the Punjab and Haryana High Court, referred to supra and the earlier Judgment of the Patna High Court in Parmeshwar Mandal, cited supra. Subsequently, yet another Division Bench of Patna High Court in Jainath Prasad Vs. State of Bihar, reported in 1993 (3) PLJR 227, had an occasion to consider the Judgment of the Full Bench of the Punjab and Haryana High Court, referred to supra and the earlier Judgment of the Patna High Court in Parmeshwar Mandal, cited supra. The Division Bench expressed its disagreement with the Judgment of the Full Bench of the Punjab and Haryana High Court in M/s. Tata Steel Ltd's case, and in Paragraph No.61, the Division Bench has held as follows:- "We agree with the view of Division Bench, in Subash Chandra (supra) that if the Judgment of acquittal is passed after the date of amendment, the victim would have a right to appeal and accord our respectful decent to the view of Punjab and Haryana High Court, in M/s.Tata Steel Limited (supra), held to the contrary." 34. A learned Single Judge of the Bombay High Court in Top Notch Infotronix [I] Pvt Ltd., Vs. Infosoft Systems and others, reported in 2011 (3) Crimes 699, in Paragraph Nos.6 to 8 has held as follows:- "6. 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 Law Commission in its 154th report recommended comprehensive amendments to the Code of Criminal Procedure relating to various provisions concerning arrest, custody, compounding of offences, victimology, etc. In the statement of objects and reasons of Act, of 2008, it is mentioned in para 2 that "at present, 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 discretion of the criminal justice system. 7. Thus, based on the 'doctrine of victimology' proviso to Section 372 and the definition of 'victim' have been incorporated w.e.f.31st December 2009 there by the victims have not been left at the mercy of the State Government or the Central Government [as the case may be] or the District Magistrate. 7. Thus, based on the 'doctrine of victimology' proviso to Section 372 and the definition of 'victim' have been incorporated w.e.f.31st December 2009 there by the victims have not been left at the mercy of the State Government or the Central Government [as the case may be] or the District Magistrate. 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. 8. In this view of the matter, appeal against an order of acquittal, passed in the case instituted by the appellant, for the offence punishable under Section 138 of the Negotiable Instruments Act would lie to this Court. I, therefore, do not find any force in the preliminary objection, raised by the learned counsel for the respondents". 35. The same question was subsequently dealt with by a Division Bench of the Bombay High Court in Balasaheb Rengnath Khade Vs. The State of Maharashtra and others, [Criminal Appeal Nos.991, 992, 331 and 854 of 2011, dated 21.09.2011. The Hon'ble Mr. Justice V.M. Kanade took the view that under the proviso to Section 372 of the Code of Criminal Procedure, the right of appeal is available to a victim, though he happens to be a complainant in a private complaint case, in the event, the private complaint case ends in acquittal. But, the other member of the Bench, Hon'ble Justice Mr. A.M. Thipsay held the view that though in view of the proviso to Section 372 of the Code of Criminal Procedure, a victim is entitled to file an appeal, inter alia, against an order of acquittal, if such appeal will lie to the High Court, the victim would be required to obtain the leave of the High Court in the same way as has been contemplated under sub-sections (3) and (4) of Section 378 of the Code of Criminal Procedure. The matter was, thereafter, referred to the third Judge. The Hon'ble Mr. Justice R.S. Dalvi, after having elaborate discussion, fallen in line with the view taken by the Hon'ble Mr. Justice V.M. Kanade. In Paragraph No.70 of the Judgment, he had held as follows:- "70. In the result, I hold that the victim is not required to apply for or obtain leave of the Court to file any of the appeals under the proviso to Section 372. Justice V.M. Kanade. In Paragraph No.70 of the Judgment, he had held as follows:- "70. In the result, I hold that the victim is not required to apply for or obtain leave of the Court to file any of the appeals under the proviso to Section 372. Appeals to be placed before the appropriate Court for hearing". 36. Thus, in Balasaheb Rengnath Khade's case, the majority view is that the complainant in a private complaint case, though he happens to be a victim, has got right of appeal under the proviso to Section 372 of the Code of Criminal Procedure. 37. A learned Judge of the Rajasthan High Court in Gulab Singh Vs. Ashok Kumar reported in 2013 (3) Crimes 493, in Paragraph Nos.7 and 8 has held as follows:- "7. It is pertinent to note here that amended proviso to Section 372 Cr.PC., was not brought to the notice of the Hon'ble Supreme Court when 2013 Cr.L.R[S.C] Page 1, Subash Chand Vs. State was decided by their Lordships of Hon'ble Supreme Court. Same is the case with the order dated 19.01.2011 passed by this High Court in S.B. Cr. Revision Petition No.875/2010 : 2011 (4) RLW 2972, ManjuKawadiya V. Ghanshyam Sahu where also provisions of amended proviso of Section 372 of Cr.PC., were not brought to the notice of the High Court. The Judgment of Hon'ble Mr. Justice Sandeep Mahta of the Rajasthan High Court, Jodhpur, in S.B. Criminal Leave to Appeal No.74/2012, Nathu Ram Bensan Vs. State of Rajasthan, dated 28.02.2013, is also of no help here because unfortunately, that Judgment has also not considered the impact of the amended proviso to Section 372, Cr.PC., in proper perspective. So the aforesaid rulings do not come in the way of process of filing of appeal by victim against acquittal order passed by Magistrate before the concerned Sessions Judge. On the other hand, I get support from 2012 (4) Cr.L.R[Raj] 2015] Laxmi Lal Menaria Vs. Rajendra Kumar [judgment dated 01.50.2012], wherein Hon'ble Mr. Justice Dalip Singh of the Rajasthan High Court has held that once the Section 372, Cr.PC., has been amended, the appeal against acquittal by the Magistrate would lie to the Court of Sessions and leave to appeal in such matters should not be granted by the High Court ordinarily. 8. Rajendra Kumar [judgment dated 01.50.2012], wherein Hon'ble Mr. Justice Dalip Singh of the Rajasthan High Court has held that once the Section 372, Cr.PC., has been amended, the appeal against acquittal by the Magistrate would lie to the Court of Sessions and leave to appeal in such matters should not be granted by the High Court ordinarily. 8. Resultantly, the petition for leave to appeal of the complainant, Gulab Singh is hereby returned to the petitioner for presentation before the Court of Sessions Judge, Rajsamand. The office shall return the original application/appeal to the petitioner after making proper endorsements on it and after retaining a true copy thereof. The petitioner shall then after immediately present the same, on merits as expeditiously as possible. The petitioner is directed to appear before learned Sessions Judge, Rajsamand for this purpose on 18.04.2013 at 10.00 am." 38. A Division Bench of Himachal Pradesh High Court in Joginder Singh Vs.State of Himachal Pradesh, reported in 2013 (3) Crimes 160, has held the similar view and in Paragraph Nos.24 to 26 has held as follows:- "24. Coming to sub-section (4) of Section 378 of the Code, we find that if an order of acquittal is passed on a case instituted upon complaint then the High Court before entertaining an appeal by the complainant must grant special leave to appeal. The expression "special leave to appeal" has no different meaning than the expression "leave to appeal" and it appears to us that the word special has been added only to distinguish leave to appeal sought, by the complainant from the leave to appeal sought by the State. Thus, in a complaint case, where the complainant has set the wheels of the Court in motion even if the complainant files the appeal he must obtain special leave to appeal. This again gives rise to a similar question – Can the victim be placed on a higher pedestal than the complainant?. More often than not, the victim and the complainant are likely to be one and the same person. 25. In case, we accept the proposition that the victim need not seek leave to appeal in case the appeal is to be filed in the High Court there shall be another anomalous situation. More often than not, the victim and the complainant are likely to be one and the same person. 25. In case, we accept the proposition that the victim need not seek leave to appeal in case the appeal is to be filed in the High Court there shall be another anomalous situation. Supposing there are two victims in a case and one of the victims files a complaint and sets the wheels of justice moving arid the case is tried as a complaint case. In such a case, the victim who is the complainant will have to seek special leave to appeal whereas the victim who had not even approached the Court at the initial stage will be entitled to file an appeal without seeking leave to appeal. This could not have been the intention of the Legislature. 26. For the aforesaid reasons, we answer the question by holding that when a victim files an appeal against the acquittal of the accused in the High Court then, he is required to obtain leave to appeal before his appeal is entertained. It is made clear that no leave to appeal would be required if the appeal lies to the Sessions Court or even in an appeal filed to the High Court where the only issue is with regard of the adequacy of the compensation." 39. A Full Bench of the Gujarat High Court in Bhavuben Dineshbhai Makwana Vs. State of Gujarat, reported in 2013 Crl LT 4225, has held the similar view to that of the view taken by the Punjab and Haryana High Court and held as follows:- "We do not agree fully with the said view, as we have pointed out that if the 'victim' happens to be the complainant, he being a complainant, is required to take leave as there is no consequential amendment of Section 378 of the Code". 40. Insofar as the Madras High Court is concerned, on this issue, I am able to find only one Judgment vide Selvaraj Vs. Venkatachalapathy, reported in 2015 (1) MWN [Cr] DCC 26 [Mad]. 40. Insofar as the Madras High Court is concerned, on this issue, I am able to find only one Judgment vide Selvaraj Vs. Venkatachalapathy, reported in 2015 (1) MWN [Cr] DCC 26 [Mad]. A learned Single Judge of this Court, in that case, has held the view that the term "victim" employed in the Proviso to Section 372 of the Code of Criminal Procedure shall not include a victim, who is a complainant in a private complaint case and that the same shall be confined only to the victims, in the cases instituted on police reports. While dealing with a case under Section 138 of the Negotiable Instruments Act, 1881, the learned Judge has taken the view that in the event of acquittal of the accused, the remedy for the complainant is only to seek leave under Section 378(4) of the Code of Criminal Procedure and he has no right of appeal, as per the proviso to Section 372 of the Code of Criminal Procedure. But, the learned Judge was not appraised of the other Judgments, referred to herein above, taking the opposite view. Further, the learned Judge, with due respect, has not noticed the Judgment of the Hon'ble Supreme Court in Subash Chand's case, wherein it has been held that an appeal cannot be filed by the complainant, who is not a victim of the crime. The learned Judge has relied on the Judgment of the Division Bench of Kerala High Court in Omana Jose case, which is contrary to the view taken by other High Courts, such as the Full Benches of Bombay, Gujarat and the Division Benches of various other High Courts dealt with supra. 41. In view of the discussions made thus far, with due respect, I regret, I find it very difficult to persuade myself to fall in line with the view taken by this Court in Selvaraj's case and also the Judgments of various Courts, holding the view that the victim cum complainant has got no right to file appeal under proviso to Section 372 of the Code of Criminal Procedure. I agree with the view taken by various High Courts, taking the view that the complainant, who happens to be a victim, has got right of appeal under proviso to Section 372 of the Code of Criminal Procedure. 42. I agree with the view taken by various High Courts, taking the view that the complainant, who happens to be a victim, has got right of appeal under proviso to Section 372 of the Code of Criminal Procedure. 42. Considering the conflicting views taken by various High Courts, considering the importance of the issue involved, inasmuch as there is no uniformity among various Sessions Courts in the State in entertaining the appeals, as some Sessions Judges entertain the appeals against acquittals in private complaint cases under proviso to Section 372 of the Code of Criminal Procedure and some do not entertain, there are innumerable such appeals filed straightaway under proviso to Section 372 of the Code of Criminal Procedure and they are pending on the file of this Court and a number of petitions, seeking leave under proviso to Section 378(4) of the Code of Criminal Procedure, are also pending before this Court, I deem it appropriate to place the matter before My Lord, the Hon'ble The Chief Justice for referring the following questions to a Larger Bench of Hon'ble Judges. I recommend for the constitution of a Full Bench of three Hon'ble Judges. The questions are:- 1. Whether a victim of a crime, who has prosecuted an accused by way of a private complaint, does not have statutory right of appeal against acquittal under proviso to Section 372 of the Code of Criminal Procedure?. 2. Whether a complainant, in a private complaint case, who is not a victim, has got the remedy to seek only leave to file appeal under Section 378(4) of the Code of Criminal Procedure in the event of acquittal of the accused?. 3. In a private complaint case, if a victim does not happen to be a complainant and in the event of acquittal, whether he has got right of appeal under proviso to Section 372 of the Code of Criminal Procedure or he has to seek leave to file appeal under Section 378(4) of the Code of Criminal Procedure?. 4. Whether a victim in a case instituted on a police report, has a better place in the criminal justice delivery system than a victim in a private complaint case?. 5. 4. Whether a victim in a case instituted on a police report, has a better place in the criminal justice delivery system than a victim in a private complaint case?. 5. Whether the term 'victim' as defined in Section 2(w)(a) of the Code of Criminal Procedure excludes a complainant in a private complaint case, though he has suffered loss or injury on account of the offence committed against him?. 6. Whether the view held in the judgment of this Court in Selvaraj Vs. Venkatachalapathy, reported in 2015 (1) MWN [Cr] DCC 26 Mad, reflects correct exposition of law or the same requires to be overruled?.