Research › Search › Judgment

Kerala High Court · body

2016 DIGILAW 1137 (KER)

Prabhakaran v. Manikantan

2016-12-19

ANIL K.NARENDRAN, K.T.SANKARAN

body2016
ORDER : K.T. Sankaran, J. - The preliminary question involved in this Criminal Appeal (V) filed by the victim is whether the matter requires to be posted before a Single Bench or Division Bench for admission. 2. The Criminal Appeal is filed challenging the acquittal of the accused in S.C. No. 256 of 2011 on the file of the Court of the I Additional Sessions Judge, Palakkad. The accused was tried for the offence under Section 302 of the Indian Penal Code. The appellant is the father of the deceased in the case. The appellant was examined as PW1 in the Sessions Case. After trial, the Sessions Court extended the benefit of doubt to the accused and acquitted him under Section 235(1) of the Code of Criminal Procedure. 3. The Registry raised a doubt as to whether the Criminal Appeal shall be heard by a Division Bench or by a Single Judge. The Registry referred to the proviso to Section 3(13)(a) of the Kerala High Court Act, 1958 (hereinafter referred to as 'the High Court Act'). As per Section 3(13)(a) of the High Court Act, the matter requires to be posted before a Single Judge. If the charge or the sentence is treated as the deciding factor, the matter has to be posted before a Division Bench. 4. Since the Registry raised a doubt, the appellant as well as the learned Public Prosecutor were heard. 5. Section 2(wa) of the Code of Criminal Procedure defines "victim". "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. The deceased was the only son of the appellant. The deceased was a bachelor. Therefore, being the legal heir of the deceased, the appellant comes under the definition of "victim". Under the proviso to Section 372 of the Cr.P.C., 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 proviso to Section 372 of the Cr.P.C. and the definition of "victim" under Section 2(wa) were inserted by the Amendment Act 5 of 2009. 6. The Kerala High Court Act is an Act to make provision regulating the business and the exercise of the powers of the High Court of the State of Kerala. Section 3 of the High Court Act provides for the powers of a Single Judge. The relevant provision in Section 3 for the purpose of this case is Section 3(13)(a), which reads as follows: "3. Powers of Single Judge.-The powers of the High Court in relation to the following matters may be exercised by a Single Judge, provided that the Judge before whom the matter is posted for hearing may adjourn it for being heard and determined by a Bench of two Judges:- (13) An appeal- (a) from a judgment or order of a Criminal Court, except in cases in which the appellant or a person tried with him has been sentenced to death or imprisonment for life: Provided that in the exercise of such power a Single Judge shall not impose a sentence of death or imprisonment for life;" 7. Section 4 of the High Court Act provides that the powers of the High Court in relation to the matters mentioned therein may be exercised by a Bench of two Judges, provided that if both Judges agree that the decision involves a question of law they may order that the matter or question of law be referred to a Full Bench. Section 4(2)(b) and 4(7) are relevant for the purpose of this case, which read as follows: "4. Powers of a Bench of two Judges. -...... (1).... (2) An appeal - (a) from a decree or order of a Civil Court, except those coming under Section 3; (b) from the judgment of a Criminal Court in which a sentence of death or imprisonment for life has been passed on the appellant or on a person tried with him. (7) All matters not expressly provided for in this Act or in any other law for the time being in force." 8. Going by the proviso to Section 372 of the Cr.P.C., the appeal filed by the victim shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. (7) All matters not expressly provided for in this Act or in any other law for the time being in force." 8. Going by the proviso to Section 372 of the Cr.P.C., the appeal filed by the victim shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. Even though the appeal is against the order of acquittal or an order convicting for a lesser offence or imposing inadequate compensation, the appeal filed by the victim shall lie to the Court to which an appeal ordinarily lies against the order of conviction. So, the jurisdiction of the Court to deal with appeal filed by the victim is determined on the basis of the maintainability of the appeal against an order of conviction. An appeal from a judgment of a Criminal Court in which a sentence of death or imprisonment for life has been passed on the appellant or a person tried with him lies to the Division Bench, as per Section 4(2)(b). An appeal to the Single Bench under Section 3(13) is from a judgment or order of a Criminal Court except in cases in which the appellant or person tried with him has been sentenced to death or imprisonment for life. An appeal under the proviso to Section 372 is not an appeal in which the appellant or the person tried with him has been sentenced to death or imprisonment for life. Therefore, as a residuary clause, Section 3(13) of the High Court Act can be applied. But the determining factor as to the Court to which the appeal lies under the proviso to Section 372 of the Cr. P.C. is the Court to which an appeal ordinarily lies against the order of conviction. So the crucial test as regards jurisdiction is even though the appeal is against acquittal or against any order mentioned in the proviso to Section 372, to which Court the appeal lies. Evidently, the appeal lies to the High Court. If the appeal lies to the High Court against the order of conviction, the most appropriate provision which would be applicable is Section 4(2)(b) or at least Section 4(7) of the High Court Act. 9. Evidently, the appeal lies to the High Court. If the appeal lies to the High Court against the order of conviction, the most appropriate provision which would be applicable is Section 4(2)(b) or at least Section 4(7) of the High Court Act. 9. In Mary v. Pappu ( 2001 (1) KLT 12 ), a Division Bench of this Court considered the question of maintainability of an appeal from a decree passed by a Civil Court in a suit for specific performance. In that context, the Division Bench held: "whether it be a Single Judge or a Division Bench, it is the High Court that hears the appeal and the rules of business of the High Court in respect of hearing is based on the Kerala High Court Act and the assigning of the cases by the Chief Justice". It was also held that under Section 4(1) of the High Court Act, the Division Bench has power to hear any matter in respect of which the powers of the High Court can be exercised by a Single Judge. The Division Bench could always exercise jurisdiction in respect of an appeal filed before the High Court even if it could have been heard by a Single Judge in terms of Section 3(13) of the High Court Act. 10. In the light of the proviso to Section 372 of the Cr.P.C. and the determinative factor being the Court to which an appeal lies against the order of conviction, the conclusion that could be arrived at is that an appeal by a victim challenging the acquittal of the accused in a case in which the sentence of death or imprisonment for life could be awarded lies before a Division Bench of the High Court. If it is to be held that such appeal lies before a Single Bench, the Single Judge cannot impose a sentence of death or imprisonment for life. In that view of the matter also, it would be only appropriate to hold that the appeal lies to a Division Bench. 11. Accordingly, we hold that the present appeal lies before a Division Bench. We are of the view that an amendment to Section 3 or 4 or both of the High Court Act would be ideal to make the position clear so that parties, their counsel and the Registry of the High Court would have a clear idea in the matter. Accordingly, we hold that the present appeal lies before a Division Bench. We are of the view that an amendment to Section 3 or 4 or both of the High Court Act would be ideal to make the position clear so that parties, their counsel and the Registry of the High Court would have a clear idea in the matter. Therefore, the Registry shall place a copy of this order before the Honourable the Chief Justice.