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2015 DIGILAW 228 (CHH)

Sunil Jangde v. State of C. G.

2015-08-26

SANJAY K.AGRAWAL

body2015
ORDER : 1. The petitioner herein is victim of a crime registered and punishable under Sections 294, 323, 452 and 506 Part-II read with Section 34 of the IPC. On his police report, respondents No. 2 to 4 were charge-sheeted by the Station House Officer, Police Station Civil Lines, Raipur and ultimately, they were convicted by the jurisdictional criminal Court in Criminal Case No. 319/2013 on 28-2-2014 for the aforesaid offences and were sentenced to RI for one year with fine of Rs. 100/- each under Section 452of the IPC and also to pay fine of Rs. 100/- each under Sections 294, 323 & 506 Part-II read with Section 34 of the IPC. Feeling dissatisfied with the judgment of conviction and order of sentence passed by the trial Magistrate, they preferred an appeal under Section 374 (3) of the Cr.P.C. before the Court of Sessions. The said Court by its judgment dated 12-3-2015 passed in Cr. A. No. 69/2014 acquitted respondents No. 2 to 4, the accused therein from the offences charged. The petitioner herein/victim preferred an appeal before this Court under proviso to Section 372 of the Cr.P.C. being Acquittal Appeal No. 77/2015 (Sunil Jangde v. State of Chhattisgarh and others). The said acquittal appeal has been dismissed by a coordinate Bench of this Court by judgment dated 6-7-2015 holding that the victim has no right to prefer acquittal appeal under proviso to Section 372 of the Cr.P.C. as respondents No. 2 to 4 were acquitted by the appellate Court in a criminal appeal filed under Section 374(3) of the Cr.P.C. Thereafter, the victim has preferred this revision against the order of acquittal, as liberty was granted to him by the coordinate Bench to prefer revision under Section 397 read with Section 401 of the Cr.P.C. 2. Mr. Mr. Ashish Surana, learned counsel appearing for the petitioner/victim, would submit that according to him, against the order of acquittal whether by the trial Magistrate or in appeal preferred by the accused, the remedy of a victim available would be to prefer an appeal under proviso to Section 372 of the Cr.P.C. but since the appeal filed by the victim has been dismissed as not maintainable by the coordinate Bench of this Court, he has no option except to prefer revision which has been preferred and the same deserves to be admitted for final hearing, as the findings are perverse and there is jurisdictional error in the order acquitting the accused persons. 3. At this stage, it would be appropriate to notice proviso to Section 372 of the Cr.P.C. "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." 4. On a meaningful and careful perusal of proviso to Section 372 of the Cr.P.C. it would appear that first part of the proviso creates an unqualified and substantive right in favour of the victim to prefer an appeal against any order passed by the Court acquitting the accused and second part enumerates the forum before whom appeal against the order of acquittal would lie and to be preferred by the victim. Thus, right of the victim to prefer appeal against the order of acquittal is unfettered and substantial i.e. not controlled by second part of proviso to Section 372 of the Cr.P.C. which provides forum before whom appeal shall lie. If in a given case, the appellate Court affirms conviction of the accused person, then the accused person admittedly has no further right to prefer appeal before the High Court, that would not mean that the victim shall have also no right to prefer appeal against the order of acquittal passed in criminal appeal by the appellate Court, as the remedy available to the accused person upon decision in a criminal appeal would not limit or restrict the right of victim to prefer appeal. The right of victim to prefer appeal under proviso to Section 372 of the Cr.P.C. cannot be equated with the right of accused to prefer revision against the appellate order, as the victim stands in a different and better footing than the accused. Upon acquittal by the appellate Court it would be the absolute right of a victim to prefer an appeal before the appellate Court and such a right cannot be circumscribed by the fact that the accused person does not have that right to prefer an appeal against the judgment or order of the appellate Court affirming the conviction. 5. An appeal is the right of entering a superior court and invoking its aid and interposition to redress an error of the court below. Right to appeal is a creation of statute. The right of appeal is not a matter of procedure, but is a substantive right and such a vested right of appeal can be taken away only by subsequent enactment. Way back in the year 1957, the Constitution Bench of the Supreme Court in the matter of Garikapatti Veeraya Vs. N. Subbiah Choudhury, AIR 1957 SC 540 held that such vested right of appeal Cannot be curtailed far less taken away except by reason of an express provision contained in the statute, which has been followed very recently by Their Lordships of the Supreme Court in Karnail Kaur & Ors. Vs. State of Punjab & Ors. (2015) 3 SCC 206 . Their Lordships of the Constitution Bench laid down the following principles in this regard:- (i) xxx xxx xxx (ii) The right of appeal is not a mere matter of procedure but is a substantive right. (iii) xxx xxx xxx (iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. (v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. 6. So far as revisional power under Section 397 read with Section 401 of the Cr.P.C. is concerned, it is well settled that revisional powers can be exercised by the court suo motu, particularly to examine the legality, validity and correctness of the order passed by inferior court and these two provisions do not create any right in favour of litigant, but only empowers the High Court to see that justice is done in accordance with recognized principles of criminal jurisprudence. Their Lordships of the Supreme Court (Constitution Bench) in the matter of Pranab Kumar Mitra Vs. State of W.B. and Another, AIR 1959 SC 144 succinctly held as under:- "The revisional powers of the High Court vested in it by S. 439 of the Code, read with S. 435, do not create any right in the litigant, but only conserve the power of the High Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence, and that subordinate criminal Courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code." 7. Very recently, Their Lordships of the Supreme Court in the matter of Kamlesh Kumar and Others Vs. State of Jharkhand and Others, (2013) 15 SCC 460 while following the law laid down by the Constitution Bench in the matter of Pranab Kumar Mitra (supra) held that revision is not a right, but only a procedural facility available to a party and if there is any right to revise, it is vested in the superior court by observing as under in paragraph 43 of the report:- "While the revisional power of a superior court actually enables it to correct a grave error, the existence of that power does not confer any corresponding right on a litigant. This is the reason why, in a given case, a superior court may decline to exercise its power of revision, if the facts and circumstances of the case do not warrant the exercise of its discretion. This is also the reason why it is felicitously stated that a revision is not a right but only a "procedural facility" available to a party. This is also the reason why it is felicitously stated that a revision is not a right but only a "procedural facility" available to a party. If the matter is looked at in this light, the transfer of a case from a Magistrate to a Special Judge does not take away this procedural facility available to the petitioners. It only changes the forum and as already held above, the petitioners have no right to choose the forum in which to file an appeal or move a petition for revising an interlocutory order." 8. Thus, from the examination of the legal position, it is quite vivid that right of appeal is substantive right which the victim has under proviso to Section 372 of the Cr.P.C. which is legislatively prescribed under the Code, which cannot be taken away except by express and subsequent legislation, whereas revision is not a right, but only a procedural facility available to a party. If a matter is looked at in that light, the victim has an unqualified right of an appeal, which cannot be taken away, merely because a procedural facility is available to him. Even otherwise, right of appeal is a wider remedy than the revision, whereas power to revise an order is an extraordinary discretionary power which is to be exercised in the aid of justice to set-right grave injustice. 9. Recently, a Full Bench of this Court in the matter of Mithilesh Yadav Vs. State of Chhattisgarh and Others being Acquittal Appeal No. 96/2012 by its report dated 1st of October, 2013, considered the issue. The Full Bench highlighted the right of victim to prefer appeal against the order of acquittal and authoritatively held that the right of victim under proviso to Section 372 of the Cr.P.C. inserted by the Amendment Act of 2009 to prefer appeal is a comprehensive legislative device aimed at creating an important right of appeal which was not earlier available. The Full Bench highlighted the right of victim to prefer appeal against the order of acquittal and authoritatively held that the right of victim under proviso to Section 372 of the Cr.P.C. inserted by the Amendment Act of 2009 to prefer appeal is a comprehensive legislative device aimed at creating an important right of appeal which was not earlier available. Their Lordships observed as under:- "In the light of the aforesaid enunciation of principle relating to interpretation of proviso and applying the aforesaid principle in the present case, we have no doubt that the proviso to Section 372 of the Cr.P.C. inserted by Amendment Act, 2009, is an independent comprehensive and self-contained legislative provision creating a right in favour of a victim to prefer an appeal against different kind of orders including an order of acquittal, brought into force with effect from 31-12-2009." Their Lordships further pertinently observed as under:- "In our quest to search and explore the legislative intention, with reference to the legislative history of provision relating to appeal under Criminal Procedure Code, in the context of legislative scheme creating right of appeal in favour of a "victim" as defined under Section 2(wa) in the background of various judicial pronouncements recognizing the right of victim, being worst sufferers of a crime, we have observed that proviso to Section 372 seeks to bestow a very valuable right of appeal on a victim for various reasons and circumstances recorded by us in the preceding paragraphs. It has also been concluded that proviso to Section 372, introduced by the Amendment Act of 2009, is a selfsame and comprehensive legislative device aimed at creating an important right of appeal which was earlier not available to a victim and the same cannot be treated at par with or at the same pedestal of provisions of appeal either by the State or by the complainant as embodied under Section 378 of the Cr.P.C. Indeed, it has been noticed that right of appeal created in favour of victim under proviso to Section 372 Cr.P.C. is independent of other provisions relating to appeal against acquittal enumerated in other provisions of Chapter XXIX relating to appeals and in that sense, legislation is a landmark as it seeks to enforce effectively and for the first time, right of victim to prefer an appeal not only against an order of acquittal but also against orders convicting for a lesser offence or granting inadequate compensation. With the aforesaid background and nature and extent of right of appeal created in favour of victim under the legislative scheme, we propose to examine the question required to be answered under this reference." 10. Thus, in view of the legislative provision contained in proviso to Section 372 of the Cr.P.C. as interpreted by the Full Bench of this Court, I a.m. of the considered opinion that against the order of acquittal even passed by the appellate Court, the appropriate remedy available to victim would be to file an acquittal appeal before this Court under proviso to Section 372 of the Cr.P.C. and by no stretch of imagination, second part of proviso to Section 372 of the Cr.P.C. which provides a forum before whom the appeal lies, would circumscribe or take away the victim's right to prefer an appeal against the order of acquittal. 11. Thus, upon thoughtful consideration, I a.m. unable to persuade myself to agree with the opinion expressed by the coordinate Bench in Acquittal Appeal No. 77/2015 (Sunil Jangde vs. State of Chhattisgarh and Others) decided on 6-7-2015 and respectfully differ in the light of above-stated position of law as well as the decision rendered by Full Bench of this Court in Mithilesh Yadav (supra). I a.m. of the considered opinion that the only remedy available to the victim against the order of appeal is to prefer an appeal under proviso to Section 372 of the Cr.P.C. The decision rendered by the coordinate Bench of this Court in Acquittal Appeal No. 77/2015 on 6-7-2015 requires re-consideration in the light of difference of opinion. 12. The procedure to be followed in case of conflict has been laid down by Their Lordships of the Supreme Court in Tribhovandas Purshottamdas Thakkar Vs. Ratilal Motilal Patel and Others, AIR 1968 SC 372 in which it is held that if coordinate Bench takes a different view from a view already prevailing in that Court, then coordinate Bench has to refer the matter to the Larger Bench by opining as under:- "10........ When it appears to a Single Judge or a Division Bench that there are conflicting decisions of the same Court, or there are decisions of other High Court in India which are strongly persuasive and take a different view from the view which prevails in his or their High Court, or that a question of law of importance arises in the trial of a case, the Judge or the Bench passes an order that the papers be placed before the Chief Justice of the High Court with a request to form a special or Full Bench to hear and dispose of the case or the questions raised in the case." 13. Therefore, in my opinion, to give a quietus to the coin of conflict raised in this behalf once for all, it is better that the matter may be examined and authoritatively decided by a larger Bench of appropriate strength. Therefore, in my opinion, to give a quietus to the coin of conflict raised in this behalf once for all, it is better that the matter may be examined and authoritatively decided by a larger Bench of appropriate strength. In exercise of power conferred by Rule 32(2)(ii) read with Rule 32(5) of the High Court of Chhattisgarh Rules, 2007, it is hereby recommended that papers of this proceeding (Criminal Revision No. 643/2015 Sunil Jangde v. State of Chhattisgarh and Others) be placed before Hon'ble the Chief Justice for consideration and appropriate orders for constituting and placing it before a Larger Bench on the following stated question:- "Whether victim is entitled to prefer an appeal under proviso to Section 372 of the Cr.P.C. against the order of acquittal recorded by the Court of Sessions in a criminal appeal or whether revision under Section 397 read with Section 401 of the Cr.P.C. would lie against the order of acquittal recorded by the Court of Sessions in a criminal appeal?"