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2015 DIGILAW 528 (UTT)

Krishan Kant Anand v. State of Uttarakhand

2015-11-06

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. 1. The revisionist before this Court was an Engineer in the Tehri Hydro Development Corporation (from hereinafter referred to as “THDC”). He had some problems with the management of the THDC, regarding his service. On 08.04.2009 between 4.00-4.30 in the evening, when he was on his way to the office of the General Manager, his car was stopped at the office gate by a Guard of the Central Industrial Security Force, who was on duty. According to the revisionist he was then taken out from his car and repeatedly assaulted by the said Guard. Thereafter the revisionist tried to lodge the first information report before the police but it was only lodged as a non cognizable report. Aggrieved, the revisionist moved a complaint before the learned Magistrate which was dismissed by the learned Magistrate. Against the said order, the revisionist preferred a revision before the revisional court, which was allowed by the revisional court and it was directed to the learned Magistrate to decide the complaint as per the law. Consequently, the learned Magistrate passed an order directing the police authorities to lodge an FIR, investigate the matter and do the needful. The police investigated the matter but filed the charge-sheet only under Section 323 IPC against the respondent no. 2 i.e. Gyanendra Singh who was the erstwhile Constable of CISF who assaulted the revisionist. Section 323 IPC, is a non cognizable offence. 2. The trial court acquitted the Constable. The present revisionist thereafter preferred an appeal before the learned District & Sessions Judge, Tehri Garhwal against the acquittal order dated 01.05.2013, which was dismissed on the ground of delay as well as on maintainability. It is the order of the appellate court dated 11.06.2015 which is under challenge before this Court. The present revisionist relies upon the proviso inserted to Section 372 of Cr.P.C. by an amendment w.e.f. 31.12.2009. Section 372 CrPC reads as under:- “372. It is the order of the appellate court dated 11.06.2015 which is under challenge before this Court. The present revisionist relies upon the proviso inserted to Section 372 of Cr.P.C. by an amendment w.e.f. 31.12.2009. Section 372 CrPC 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 lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.” (Emphasis provided) 3. The revisionist has relied upon the above proviso to Section 372 CrPC, which was amended on 31.12.2009 and which gives a right to a “victim” to file an appeal against acquittal. It is not visualized that any leave of the Court is to be taken here, as it is simply a right of appeal to a victim. However, an appeal under Section 372 Cr.P.C. was filed belatedly by the revisionist, as according to the revisionist he was making efforts and trying to persuade the State to file an appeal and when he realized the State will not file its appeal, he had to file the appeal himself and this delayed the matter. 4. The learned Sessions Judge, however, rejected the appeal not only on the ground that it is belated and does not explain enough reasons for condonation of the delay but has further appreciated the case on merit and has come to the conclusion that the only remedy for the revisionist was actually to move an appeal against the acquittal before the High Court under Section 378(4) CrPC of a leave is granted to him under Section 378(4) CrPC. Section 378(4) CrPC reads as under:- “378. Appeal in case of acquittal – (1)…………………. Section 378(4) CrPC reads as under:- “378. Appeal in case of acquittal – (1)…………………. (a)………………… (b)………………… (2) ………………… (a)………………… (b)………………… (3) ………………… (4) 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.” 5. Against the said order, the revisionist has filed the present revision before this Court. The present revisionist appears in person. Regarding the incident dated 08.04.2009, police too has filed a case against the revisionist where he is presently facing a trial. 6. The learned counsel for the respondent no. 2/accused Mr. Lokendra Dobhal has relied upon decision of the Hon’ble Apex Court in Subhash Chand Vs. State (Delhi Administration) reported in 2013 (2) SCC 17 and submits that the only remedy for the revisionist before this Court is to come up with a prayer for a leave under Section 378(4) of CrPC and if such leave is granted to him, he could have filed an appeal against the acquittal before this Court and his appeal has rightly been rejected by the court below, as it was not maintainable. 7. The revisionist, who has argued his case in person, relies upon a catena of decisions of various High Courts, and a decision of the Hon’ble Apex Court and submits that he is not a “complainant”, therefore Section 378(4) CrPC is not attracted in his case, as it is clear from the definition of the “complainant” under Section 2(d) of CrPC, as to who would be a complainant. In the present case, it is the Police Officer who has filed the charge-sheet would be a complainant and therefore the remedy to file an appeal before this Court is not available to him. He further argued that the only remedy given to him under the law, under these circumstances is under Section 372 CrPC. He is a “victim’” and ‘victim’ has a right to appeal before the appellate court. He is liable to be heard on merits by the appellate court. 8. In the present case, therefore an interpretation and applicability of certain provisions of CrPC has to be seen. 9. He is a “victim’” and ‘victim’ has a right to appeal before the appellate court. He is liable to be heard on merits by the appellate court. 8. In the present case, therefore an interpretation and applicability of certain provisions of CrPC has to be seen. 9. We must note that a “Complaint” has been defined under Section 2(d) of CrPC which reads as under:- “2. Definitions – In this Code, unless the context otherwise requires:- (a) ……………… (b) ……………… (c) ……………… (d) “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. Explanation.-A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint and the police officer by whom such report is made shall be deemed to be the complainant.” 10. In other words, in case the police had filed a charge-sheet regarding a non cognizable offence, (as in the present case since under Section 323 IPC is a non cognizable offence) then the matter shall proceed as a complaint case and the police officer who has filed the charge sheet would be the complainant. Another definition which is given under Section 2 (wa) of the Code of Criminal Procedure of victim which reads as under:- “2. Definitions – In this Code, unless the context otherwise requires, - (a) to (w) ……………… (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.” 11. As to whether a complainant who is also a victim has a right to file an appeal against acquittal under the proviso to Section 372 CrPC or he can do it only under Section 378(4) CrPC, after taking leave of the High Court under Section 378(3) CrPC different High Courts have dealt with it differently. On this there is a conflicting opinion of various High Courts. 12. All the same, in view of the decision of the Hon’ble Apex Court in Subhash Chand Vs. On this there is a conflicting opinion of various High Courts. 12. All the same, in view of the decision of the Hon’ble Apex Court in Subhash Chand Vs. State (Delhi Administration) reported in 2013 (2) SCC 17 the matter stands concluded that in cases where a complainant and the victim is the same person, the remedy would indeed lie under Section 378(3) & (4) CrPC, before the High Court. 13. In the present case, there is an important distinction, the revisionist before this Court though a victim is yet not a complainant, which is a rarity but in the given contingency this too can happen, as it has happened in the present case, where the revisionist though a victim is not technically a complainant in view of the explanation given in the definition clause i.e. Section 2(d) of CrPC. 14. Under these peculiar facts and circumstances and the interpretation of law as well as provisions of CrPC in the present case referred above, the revisionist though a “victim" under Section 2 (wa) of CrPC is not a complainant, as the police had filed a charge-sheet under a non cognizable offence and hence the complainant is technically the police officer, who has filed the charge-sheet. 15. Pursuant to the facts as well as the relevant provisions of Code of Criminal Procedure already referred above in such a case therefore, it is a considered view of this Court that the only remedy for the revisionist who is only a victim is to file an appeal before the appellate court under proviso to Section 372 CrPC. 16. In Ranu Thakur Vs. Dayashanker and others, reported in 2015 (2) RCR(CRI) 153 the Hon’ble Apex Court has held that the proviso to Section 372 CrPC gives unfettered right to a victim to file an appeal against acquittal. It was held as under:- “Having regard to the object and intendment of proviso to Section 372 Code of Criminal Procedure, it confers a statutory right upon the victim to prefer an appeal against an order of acquittal. The permission has to be granted by the High Court to maintain the appeal in favour of the victim was not considered by the High Court, particularly having regard to the fact that the prosecution has not chosen to file an appeal Under Section 378 Code of Criminal Procedure, against acquittal of Respondent no. The permission has to be granted by the High Court to maintain the appeal in favour of the victim was not considered by the High Court, particularly having regard to the fact that the prosecution has not chosen to file an appeal Under Section 378 Code of Criminal Procedure, against acquittal of Respondent no. 1 on the charges leveled against him. Since this aspect of the matter has not been considered by the High Court, we allow the present appeal on this count alone.” 17. In view thereof, the order dated 11.06.2015 passed by the District & Sessions Judge, Tehri Garhwal is hereby set aside. The matter is remanded back to the lower appellate court to decide the case on its own merit as expeditiously as possible. 18. This Court is also of the opinion that the revisionist had a just cause for condonation of delay and the delay was liable to be condoned as the explanation given by the revisionist seems to be bona fide, but it appears that the court below has dismissed the appeal itself on the ground of maintainability. Let the appeal be decided on merits. 19. In view of the above, the criminal revision stands disposed accordingly. 20. Let a certified copy of this order be given to the revisionist today itself on the payment of usual charges.