ORDER : P. Sam Koshy, J. 1. This Bench has been constituted to decide a Reference which has been made by a Learned Single Judge of this Court. The question referred to the Larger Bench is as under: “Whether the victim is entitled to prefer an appeal under proviso to Section 372 of the CrPC 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 CrPC would lie against the order of acquittal recorded by the Court of Sessions in a criminal appeal?” 2. Without going into the detailed factual matrix of the case the skeleton picture of facts which led to the Reference being made to this Bench is as under. That the Applicant had lodged an FIR against the Non-applicants for the offence punishable under the provisions of Indian Penal Code and after due investigation and submission of the charge-sheet, the matter was put to trial before the Trial Court which convicted the Non-applicants. The judgment of conviction was challenged by the accused persons by way of an appeal before the Sessions Court. The lower Appellate Court vide its impugned judgment had set-aside the judgment of conviction and acquitted the Non-applicants No.2 to 4. That subsequent to the acquittal of the accused persons the victim who is the complainant feeling aggrieved by the judgment of acquittal filed an acquittal appeal registered as Acquittal Appeal No.77/2015 before the High Court and which was dismissed by another learned Single Bench of this Court holding it to be not maintainable and granting liberty to the Applicant to file a criminal revision, leading to the filing of the present revision petition. 3. The present Revision when it came up for hearing before the Bench having roster, the Hon’ble Judge doubting the maintainability of a revision petition and also not agreeing with the view of the earlier Hon'ble Single Bench which had dismissed the Acquittal Appeal No.77/2015 thought it fit to refer it to the Larger Bench for deciding the Reference as referred to at the beginning of this order. 4. Before we venture to decide the issue it would be appropriate to refer to the provisions of appeal as referred in the Chapter XXIX of CrPC more particularly Section 372 to the precise: “372. No appeal to lie unless otherwise provided. 4. Before we venture to decide the issue it would be appropriate to refer to the provisions of appeal as referred in the Chapter XXIX of CrPC more particularly Section 372 to the precise: “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 shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.}” 5. The Proviso to Section 372 of CrPC enumerated hereinabove was inserted by an amendment brought in the year 2009 and was made in force with effect from 31.12.2009. A plain reading of Section 372 would clearly reflect that the words in the said Section depicts it to be a negative provision as the section itself starts with the words ‘No appeal shall lie….’. Further by way of the proviso inserted in the year 2009 it only carves out an Exception to the General Rule which the negative clause used in the substantive Section of 372 of CrPC envisages. The fact that though Section 372 of CrPC holds that no appeal shall lie in appeal from judgment or order of the Criminal Court except as provided for by this Code or by any other law for the time being in force however the proviso clause enables in a given case, the victim, the liberty to prefer an appeal against the order passed by the Court acquitting the accused or convicted them for lesser offence or imposed an inadequate compensation. This by itself reflects that the proviso inserted in the year 2009 is with an intention whereby the right of the victim has been protected. When we read the amended Proviso to Section 372 it is also relevant to refer to the provisions of Section 378 which substantially deals with the appeal in case of acquittal, which for ready reference is reproduced herein under: “378. When we read the amended Proviso to Section 372 it is also relevant to refer to the provisions of Section 378 which substantially deals with the appeal in case of acquittal, which for ready reference is reproduced herein under: “378. Appeal in case of acquittal – {(1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-Sections (3) and (5), - (a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Sessions from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court {not being an order under clause (a)} or an order of acquittal passed by the Court of Sessions in revision.} (2) XXX XXX XXX (3) {No appeal to the High Court} under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court. (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) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) if, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2).” 6. Apparently, the above provision of CrPC leads us to draw the safest of inference that the substantive provision for an appeal against an order of acquittal is that of Section 378 of CrPC. Apparently, the above provision of CrPC leads us to draw the safest of inference that the substantive provision for an appeal against an order of acquittal is that of Section 378 of CrPC. The Proviso to Section 372 of CrPC is only an enabling clause and therefore the appeal in fact be it appeal by the victim/complainant or an appeal by the State, the same has to be under Section 378 of CrPC. 7. Under the provisions of the CrPC till the amendment made in Section 372 with effect from 31.12.2009 the right to file an appeal against the conviction or against the acquittal was vested with the State Government or the Central Government as the case may be under Section 377 and 378 of CrPC. Section 378 of the CrPC empowers only the State Government or the Central Government to prefer an appeal in the High Court against an order of acquittal. That Section 372 of CrPC prior to the amendment with effect from 31.12.2009 was couched in a negative connotation prohibiting or debarring any appeal being filed from any judgment or an order of criminal Court except as provided under the Code. The Proviso which was added to Section 372 of CrPC in the year 2009 carved out an Exception creating an absolute and unfettered right in favour of the victim also to prefer an appeal against an order of acquittal or an order of conviction under a lesser offence or against an order granting inadequate compensation. That prior to the amendment of 2009 the remedy for a victim to challenge an order of acquittal was limited in as much as they could only file the revision petition under Sections 309 and 401 of CrPC where the power of the revisional Court exercising power of revision was very restricted. 8. The term victim has been defined in Section 2(wa) of CrPC, which for ready reference reads as under : “2(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; The said definition also stood inserted vide amendment made in the CrPC at the time of adding of the Proviso to Section 372 of CrPC i.e. with effect from 31.12.2009. This by itself means that prior to December, 2009 the right of the victim was also to be taken care of and protected by the State. 9. Appeal is always a creation of the statute and right to file an appeal cannot be by way of an inference, it must be explicitly spelt out in the statutes. When an appeal against acquittal is filed in the High Court it is always accompanied with an application seeking leave to appeal. The reason being that only in case of strong arguable points are involved does the High Court grant leave to appeal. The presumption of innocence attached to an accused gets fortified from the judgment of acquittal by the Court below. 10. The moot question which has been referred to this Bench is whether in the given facts and circumstances of the case, it would be a revision petition under Section 397/401 of CrPC or whether it has to be a duly constituted appeal under Section 378 of CrPC against an order of acquittal passed by the Court below exercising Appellate powers. If we look into the provisions of CrPC itself it would reveal that the Chapter XXIX starting from Section 372 to Section 394 of CrPC has been exclusively dedicated for the filing of appeals. Prior to the amendment in the year 2009, this Chapter did not confer any right on the victim to prefer an appeal. If at all if a judgment of acquittal had to be challenged it had to be only by the State. Subsequently realizing the need of the hour the Parliament thought it fit for conferring the victim also, the liberty of challenging the judgment of acquittal and accordingly the provisions of CrPC were amended and a proviso was added to Section 372 of CrPC. Once when an amendment has been incorporated conferring the right upon the victim under Chapter XXIX it would definitely and only mean that against a judgment of acquittal it is only an appeal which would lie to the High Court. 11. Section 397 and Section 401 fall under an entirely different Chapter which only deals with the power of the superior Court in entertaining a reference to the High Court or a revision before a higher Court. 11. Section 397 and Section 401 fall under an entirely different Chapter which only deals with the power of the superior Court in entertaining a reference to the High Court or a revision before a higher Court. If a challenge to the judgment of acquittal by the victim was to be by way of a revision then for all practical reasons the amendment brought out in the year 2009 to Section 372 would had been made in Chapter XXX and not under Chapter XXIX. If we peruse the wordings of Section 397 or for that matter Section 401 it does not envisage a situation of scrutinizing a judgment of acquittal. Whereas, if we read the Proviso to Section 372, the power that has been conferred upon the victim is that “the victim shall have a right to prefer an appeal” and such a right is only exercised under Chapter XXIX and not under Chapter XXX. Subsection 3 to Section 401 of CrPC for ready reference is being reproduced as under:- “401. High Court's powers of revision.– (1) XXX XXX XXX (2) XXX XXX XXX (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.” This by itself clearly suggests that while exercising the revisional powers by the High Court it would not have the authority to convert a finding of acquittal into one of conviction. In other words, subsection 3 of Section 401 clearly holds that the judgment of acquittal cannot be assailed under Section 401. The revisional jurisdiction of the High Court does not postulate re-appreciation of evidence whereas re-appreciation of evidence is permitted only while exercising the appellate power while hearing appeals. 12. Though the Proviso to Section 372 of CrPC enables a victim to prefer an appeal but the procedure and the manner in which the appeal has to be filed would be the same as that is available to the State. In other words, though Proviso to Section 372 enables the victims to prefer an appeal against acquittal but the appeal would have to be filed in the same manner as is otherwise filed by the State under Section 378 of CrPC. The amendment to Section 372 of CrPC confers a separate right also upon a victim in a given case to file an appeal. The amendment to Section 372 of CrPC confers a separate right also upon a victim in a given case to file an appeal. If we read the whole Section, it would clearly depict that the proviso only carves out an Exception and the substantive Section for filing an appeal being section 378 of CrPC it will have to be read into the proviso to Section 372 of CrPC and in the process the victim’s right to prefer an appeal will be under Section 378 of CrPC. 13. At this juncture it would be worth mentioning that as early as in the year 2012 a similar reference “whether a victim who files an appeal under Section 372 of CrPC in the High Court against an acquittal is required to obtain leave before his appeal can be entertained?” came up before the Division Bench of the High Court of Himachal Pradesh, Shimla in Cr.M.P. (M) No. 276/2012. The said Division Bench in which one of us (My Lord, the Hon'ble Chief Justice, Justice Deepak Gupta) was a member and had also authored the judgment dated 14.06.2012. Answering the reference amongst others it held that the victim shall also have to obtain leave to appeal before his appeal is entertained. 14. In the said judgment dated 14.6.2012, the Division Bench had taken the following view :- “23. As pointed out earlier, as per the settled criminal jurisprudence it is only the State which could prosecute the case and file an appeal. When the State files an appeal in the High Court, it must seek leave to appeal. The reason being that the Court must be satisfied that there are sufficient reasons to entertain an appeal even after the presumption of innocence of the accused has been further strengthened by his acquittal. We are of the clear cut opinion that the victim in this system cannot be placed on a higher pedestal than the State. A counsel for the victim can assist the Court only with the permission of the Public Prosecutor. We cannot forget that sometimes the motive of the victim may be to take revenge. One has to be even more careful in the appeals filed by the victims especially when they are against acquittals. 24. A counsel for the victim can assist the Court only with the permission of the Public Prosecutor. We cannot forget that sometimes the motive of the victim may be to take revenge. One has to be even more careful in the appeals filed by the victims especially when they are against acquittals. 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.” 15. Thus, this Court is of the opinion that by virtue of the Proviso to Section 372 of CrPC the complainant/victim has to be placed at par with that of the State. The complainant/victim would also have the same rights so far as preferring an appeal is concerned, which till now was only available to the State. If we read the Proviso to Section 372 of CrPC it would clearly depict that the said Proviso is in three parts. Firstly, conferring a right upon the victim, to also prefer an appeal against any order. The second part deals with different nature of orders passed by the Court against which an appeal could be preferred and it envisages that an appeal can be filed against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. And the third part deals with the Court to which the appeal would lie and it clearly refers that such an appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. And the third part deals with the Court to which the appeal would lie and it clearly refers that such an appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. The term ‘any order’ mentioned in the Proviso has to be read in the manner by which it would mean that it could be either the Magistrate Court hearing the trial or it could also be the Sessions Court in the course of hearing an appeal. The Proviso does not distinguish the nature of power exercised by the Sessions Court as to whether it would be against an order passed by the Magistrate Court or by the Sessions Court in an appeal. Thus, under either of the circumstances it would be an appeal to the next higher Court. 16. At this juncture, it would all the more be relevant to refer to the powers which have been conferred under the CrPC on the Appellate Court in Chapter XXIX dealing with appeal more particularly Section 386. For ready reference, Section 386 (a) is reproduced below : “386. Powers of the Appellate Court. – After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may – (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; ...” The plain reading of the said provision of law clearly reflects that it is only while exercising the power of appeal under Chapter XXIX can the Appellate Court, which in the instant case would be the High Court, reverse the finding of the Trial Court and can also find him guilty and pass an appropriate sentence in accordance with law. Such a power however is not conferred upon the High Court when it exercises the power under Section 401 of CrPC which is the power of revision and which specifically restrains the High Court from converting a finding of acquittal into one of conviction. Thus, equating complainant/victim on parity with the State this Court has no hesitation in reaching to the conclusion that in a case where even against an order of acquittal passed by the Sessions Court in exercise of its Appellate powers, if the State has got the power to file an appeal to the High Court then in view of the Proviso to Section 372 of CrPC the complainant/victim would also have the power to file an appeal and it would not be something different from what is conferred upon the State. 17. It would also be trite at this juncture to mention that a reading of Clause (b) of sub-Section (1) of Section 378 of CrPC makes it more clear that an appeal can also be preferred by the State Government in any case to the High Court from either an original order of acquittal or from an order passed in an appellate proceeding. Further, the said provision of law i.e., Clause (b) of sub-Section (1) of Section 378 of CrPC also clearly excludes an appeal being preferred from an order of acquittal passed by the Court of Sessions in revision. This further strengthens the opinion of this Court to hold that against an order of acquittal passed by the Court of Sessions while exercising its Appellate jurisdiction it would only be an appeal under Section 378 which could be preferred by the State to the High Court and the complainant/victim also therefore would have the same power and for the complainant also it would have to be an appeal to be preferred against an order of acquittal by the Sessions Court passed in an appellate proceeding. 18. In view of the discussions made in the preceding paragraphs and the judicial pronouncements referred to above, we are of the considered opinion that the reference made to this Bench needs to be answered holding that against the judgment/ order of acquittal recorded by the Court of Sessions in a criminal appeal it would only be an appeal which would lie to the High Court. 19. 19. Thus, answering the reference we hold that it is only an appeal which could have been filed by the victim against the judgment of acquittal from the Court below even though passed in an appellate jurisdiction. Accordingly, we send the matter back to the Hon’ble Single Bench having roster for an appropriate order/direction. 20. As it is only an appeal which could have been preferred against a judgment of acquittal and the instant is a revision preferred by the victim is therefore not maintainable. Conscious of the fact that, when this Court holds that the present Revision is not maintainable and the earlier appeal preferred by the Applicant stood dismissed granting liberty to the Applicant to file the present criminal revision, we should not create a situation where the victim or the complainant because of the intricacies of law or on the basis of wrongful interpretation of law given by the Court the victim loses his right to appeal and in the process of the two Hon’ble Benches interpreting the provisions of law differently, the complainant/victim should not be rendered remediless. Thus, in the peculiar facts of the case we may deem it fit to observe that the Hon’ble Single Bench hearing the Revision may exercising its extraordinary inherent powers conferred upon the High Court under Section 482 of CrPC pass an appropriate order so that the Applicant may move an application for converting this revision petition into an appeal or may grant an opportunity to the Applicant to get the earlier appeal i.e., Acquittal Appeal No. 77 of 2015, be restored to its original number by moving an appropriate application in this regard. 21. Before parting, we would be failing in our responsibility if we do not appreciate the valuable assistance provided by the Amicus Curiae Dr. N.K. Shukla, Senior Advocate. We therefore extend our deep appreciation to the learned Senior Counsel for his work.