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2016 DIGILAW 518 (MP)

State of Madhya Pradesh v. Rampal

2016-06-30

J.P.GUPTA

body2016
ORDER : J.P. Gupta, J. This application is filed under section 378(3) of the Cr.P.C. on 28.10.2013 against the order of acquittal of the respondents passed by the Judicial Magistrate Class I, Satna, on 26.6.2013 in Criminal Case No. 4403/2011 whereby the respondents have been acquitted of the charge under sections 325/34, 324/34 and 323/34 of the I.P.C. 2. During the course of hearing on admission, on perusal of record it is noticed that against the impugned judgment of acquittal private parties as victims had filed an appeal under the amended provision of section 372 Cr.P.C., which was registered as Criminal Appeal No. 8/2014 before the Sessions Court, Satna, on 16.8.2013 in which the State was not made party and the said criminal appeal was dismissed on merit on 6.3.2014 affirming the impugned order of acquittal. Now, the question is whether this application filed by the State under section 378(3) Cr.P.C. is maintainable or has become infructuous. 3. Under the provisions of the Cr.P.C. in State case, the State has a right to file an appeal against the order of acquittal under section 378(1)(b) subject to provisions of sub section (3). In exercising this power the State has filed this application for leave to appeal. 4. Similarly, under section 372 Cr.P.C. after the amendment made by the Code of Criminal Procedure Amendment Act (No.5 of 2009) section 29, victim also has a right to file appeal against the order of acquittal in the Court where an appeal ordinarily lie against the order of conviction of such court. The amended provision of section 372 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 shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court." 5. 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 word "victim" has also been defined by the same Amendment Act inserting provision of clause 'wa' in section 2 of the Cr.P.C. which reads as under :- (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; 6. In the present case, on perusal of record of the lower court, it is evident that the applicants who filed the appeal before the Sessions Judge, were injured person in the incident, hence they come within the purview of the victims. Therefore, they have rightly exercised their right to appeal given by the amended provision of section 372 Cr.P.C. 7. Learned Panel Lawyer appearing for the State has contended that in the appeal before the Sessions Court, the State was not made party and, hence, right of the State to file appeal against the order of acquittal cannot be considered to be extinguished, therefore, this application under section 378(3) Cr.P.C. is not infructuous and it is maintainable in law. 8. The aforesaid contention of learned Panel lawyer is not acceptable as the provision of section 393 Cr.P.C. makes it clear that the order passed by the appellate court upon an appeal shall be final except some exceptions. In this regard it would be appropriate to reproduce the provisions of section 393 Cr.P.C. in toto :- "393. Finality of judgments and orders on appeal.- Judgments and orders passed by an Appellate Court upon an appeal shall be final, except in the case provided for in section 377, section 378, Sub-Section (4) of section 384 or Chapter XXX: Provided that notwithstanding the final disposal of an appeal against conviction in any case, the Appellate Court may hear and dispose of, on the merits. 1. an appeal against acquittal under section 378, arising out of the same case, or 2. an appeal for the enhancement of sentence under section 377, arising out of the same case. 9. 1. an appeal against acquittal under section 378, arising out of the same case, or 2. an appeal for the enhancement of sentence under section 377, arising out of the same case. 9. The facts and circumstances of the case do not come in the purview of any exceptions mentioned in the provision of section 393 Cr.P.C. In such circumstances, the order passed by the appellate court, i.e. sessions court, is final in this case. In such circumstances, no further appeal by the State would lie against the impugned order of acquittal. 10. In the circumstances of this case, if the State is not agree and having grievance against the final order of the appellate court on account of not impleading the State as a party and giving any opportunity to support its case or for any other reason, the State may file revision or may also invoke the provision of section 482 Cr.P.C. or Article 226 and 227 of the Constitution of India according to its grievance. But, the State cannot claim that even the appeal against the impugned order is dismissed by the Sessions Judge and has become final, the State shall be given an opportunity to pursue its application for leave to appeal under section 378(3) Cr.P.C. Hence, it is held that in the aforesaid circumstances, the application of the State has become infructuous and is accordingly dismissed. 11. Before parting with this case with a view to avoid such situation in future, I would like to record a note of caution to bring into the notice of all criminal appellate courts below in the State that without failing they shall follow the provisions of section 385 Cr.P.C. which imposes duty on the appellate courts to issue notice to the State, in case State is not party as appellant. Therefore, the Registrar General is requested to send a copy of this order to all the Sessions Court of the State for strict compliance of the provision of section 385 Cr.P.C. with regard to issuance of notice to the State notwithstanding the fact that the State is a party or not as a respondent. 12. With the aforesaid, this application stands dismissed.