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2015 DIGILAW 2023 (MAD)

Murugesan v. Sankar @ Balasubramani

2015-04-27

S.NAGAMUTHU

body2015
JUDGMENT :- 1. The appellant is the victim in the case in SC No.22 of 2013 on the file of the Assistant Sessions Judge, Kulithalai. The respondents 1 to 3 are the accused. The first respondent stood charged for offences under Sections 326 and 307 IPC. The 2nd respondent stood charged for offences under Section 323 and 307 IPC and the third respondent stood charged for offences under Section 323 IPC. The 4th respondent filed the final report. The trial Court by judgment dated 30.10.2014 acquitted the respondents 1 to 3. Challenging the same, the appellant is before this Court with this appeal. 2. I have heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent State and I have also perused the materials available on record. 3. At the outset, this Court has raised a doubt regarding the maintainability of the appeal before this Court by inviting the learned counsel to address on the said issue. 4. The learned counsel for the appellant submitted that since the major offence said to have been committed by the accused is under Section 307 IPC, an appeal shall normally lie only to this Court against acquittal. But the said submission made by the learned counsel for the appellant does not persuade me for the following reasons: (i) Until the proviso to Section 372 of the Criminal Procedure Code was introduced by means of the Criminal Procedure (Amendment) Act 2008 (Act 5 of 2009) with effect from 31.12.2009, there was no provision for appeal by a victim in a case instituted on a police report. (ii) As per sub section 4 of Section 378 of the Code of Criminal Procedure, leave to file appeal has been conferred only on the complainant in a private complaint, when it resulted in acquittal. Since the victims of crimes were not given rightful place in our criminal justice delivery system, the Parliament thought of introducing a provision to make victims also more or less equivalent to that of accused in the matter of conferring right of appeal. With that object, proviso to Section 372 was added. It is only under this proviso, now the present appeal has been filed. With that object, proviso to Section 372 was added. It is only under this proviso, now the present appeal has been filed. But a close reading of the said proviso would go to show that the Forum before which such appeal is to be filed by the victim is the Court to which an appeal ordinarily lies against order of conviction of such Court. (iii) Now, the next immediate question is as to which Court, an appeal ordinarily lies against conviction recorded by the Assistant Sessions Judge. The answer is found in Sub Section (3) of Section 374 of the Code of Criminal Procedure, which reads as follows: “374. (1) ... (2) ... (3) Save as otherwise provided in sub-section (2), any person - (a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class or of the second class, or (b) sentenced under section 325, or (c) in respect of whom an order has been made or a sentence has been passed under section 360 by any Magistrate, may appeal to the Court of Session.” 5. From the plain reading of the above provision, it can be easily perceived that an appeal as against the conviction recorded by an Assistant Sessions Judge shall normally lie to the Sessions Court. Sub Section (2) of Section 374 also needs to be noted, which reads as follows: “374. (1)... (2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years [has been passed against him or against any other person convicted at the same trial], may appeal to the High Court. 6. In the above provision, the phrase “a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court” would include a trial held by an Assistant Sessions Judge as well. If in conviction, an Assistant Sessions Judge has imposed sentence of imprisonment for more than 7 years, then, appeal lies to the High Court. If in conviction, an Assistant Sessions Judge has imposed sentence of imprisonment for more than 7 years, then, appeal lies to the High Court. This provision, if read conjointly with Sub Section (3) of Section 374, would go to show that ordinarily appeal lies only to the Sessions Court and in extraordinary case, where the conviction is for more than seven years, appeal lies to the High Court. The expression “ordinarily” employed in the proviso to Section 372 of Cr.P.C. needs to be emphasized and it would clearly go to show the intention of the Legislature. Had it been the intention of the Legislature that all appeals against convictions recorded by the Assistant Sessions Judges should be filed only to the High Court directly, the Legislature would not have used the expression “ordinarily” in the proviso to Section 372. 7. The expression “ordinarily” cannot be understood as redundant or unnecessary in a statute. When the Legislature in its wisdom, has used an expression, the same should be construed to carry a meaning and purpose behind that. Therefore, I hold that the expression “ordinarily” as employed under the proviso to Section 372 will convey the intention of the Legislature that an appeal against acquittal recorded by the Assistant Sessions Judge shall lie only to the Sessions Court. Thus, in my considered view, this appeal is not maintainable before this Court. 8. In view of the same, this appeal is transmitted to the Principal Sessions Judge, Karur, who shall hear the appeal and dispose of the same in accordance with law.