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2016 DIGILAW 773 (MP)

Sonu Chandel v. State of M. P.

2016-09-02

JARAT KUMAR JAIN

body2016
ORDER 1. The Additional Chief Judicial Magistrate, Dewas vide judgment dated 2.2.2016 acquitted respondents No.2 to 4 from the charge under section 498A of the IPC. Applicant aggrieved by the said judgment of acquittal has filed this application under section 378(3) of the CrPC for grant of leave to file an appeal. 2. Learned senior counsel for the respondents No.2 to 4 raised the objection as to maintainability of the application for leave to file an appeal before this Court. 3. Learned counsel for the applicant submits that the apex Court in a recent judgment in the case of Satya Pal Singh v. State of M.P. [2015(3) JLJ 244=2015 AIR SCW 6251], held that the proviso to section 372 of CrPC must be read with its main enactment i.e. section 372 itself and together with section 378(3) of the CrPC. Otherwise, the substantive provision of section 372 will be rendered nugatory. In the light of this judgment, the application for leave to file an appeal as well as appeal under section 372 of the CrPC is maintainable before this Court. 4. On the other hand, learned senior counsel for the respondents No.2 to 4 submits that in this case the order of acquittal passed by the Magistrate, hence the applicant should have filed an appeal before the Sessions Court as per proviso to section 372 of the CrPC. Thus, the application for leave to file an appeal as well as the appeal under section 372 of the CrPC. Is not maintainable before this Court. 5. After hearing learned counsel for the parties, I have gone through the judgment of apex Court in the case of Satya Pal Singh (supra), and also section 372 and section 378(3) of the CrPC. 6. Firstly, it is useful to refer the relevant provisions which are as under. Proviso to section 372 of CrPC was inserted w.e.f. 31.12.2009, which reads as under :- “372. ….............. 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.” 7. ….............. 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.” 7. Besides the aforesaid proviso, in the definition clause (wa) “victim” is inserted , 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.” 8. Sub-section (3) of section 378 of CrPC. Reads as under :- “(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.” Thus, it is clear that “victim” includes injured or his or her guardian or legal heir. They can file an appeal against the acquittal order or conviction for lesser offence or imposing inadequate compensation and such appeal shall lie to the Court in which an appeal ordinarily lies against the order of conviction of such Court. When the Magistrate convicts a person, then his appeal lies before the Court of Sessions. Thus, a 'victim' can file an appeal in the aforesaid cases against the order/judgment of Magistrate before the Court of Session. In such a situation, sub-section (3) of section 378 will not come into play as this provision is applicable only when a victim has to file an appeal as per proviso to section 372 of CrPC before the High Court. 9. In Satya Pal Singh's case (supra), the judgment of acquittal was passed by the Additional Sessions Judge, therefore, the victim had filed the appeal in exercise of proviso to section 372 of the CrPC before the High Court without filing an application for grant of leave to file an appeal as provided in sub-section (3) of section 378 of CrPC sub-section (3) of section 378 provides that no appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of High Court. 10. 10. In the present case, Additional Chief Judicial Magistrate has passed the judgment of acquittal and against that judgment of acquittal, the victim should have filed an appeal as per proviso to section 372 of CrPC before the Court of Sessions. Thus, the application for grant of leave to file an appeal and the appeal under section 372 of CrPC. Before this Court is not maintainable. 11. In view of the foregoing discussion, this miscellaneous criminal case (an application for leave to file an appeal) is dismissed. As prayed, office is directed to return the certified copy of the impugned judgment of acquittal to learned counsel for the applicant subject to replacement by a photocopy of the same with a liberty to prefer an appeal before the appropriate Court. However, it is made clear that in case, applicant prefers an appeal before the appropriate Court, the Court concerned while considering the period of limitation shall exclude the period spent by the applicant in filing the present application and appeal before this Court. 12. With the aforesaid, this miscellaneous criminal case Stands dismissed. Ashish Gupta for applicant; R. S. Parmar, Panel Lawyer for respondent No.1/State; B. I. Mehta with Gaurav Rawat for respondents No.2 to 4.