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2019 DIGILAW 1015 (JHR)

Girish Kumar Sharma v. State of Jharkhand

2019-05-09

RAJESH SHANKAR

body2019
ORDER : 1. The present criminal appeal has been preferred by the appellant for setting aside the judgment and order dated 23.12.2017 passed by Shri Anuj Kumar, Judicial Magistrate, 1st Class, Ranchi in Complaint Case No. 1538 of 2007 under Sections 363 and 379 of the Indian Penal Code, whereby the accused respondents have been acquitted of the charges. Further prayer has been made for quashing the judgment and order dated 14.12.2018 passed by the Additional Judicial Commissioner-V, Ranchi in Criminal Appeal No. 35 of 2018 whereby the said appeal preferred by the appellant has been dismissed on the ground of maintainability even after filing of withdrawal petition vide Criminal Miscellaneous Case No. 165 of 2018 under Section 409 of Cr.P.C. which was also disposed of on 20.11.2018 observing that the same is not maintainable. 2. The office has raised the question of maintainability of the present appeal before this court. 3. The learned Additional Judicial Commissioner-V, Ranchi vide judgment and order dated 14.12.2018 while observing that since the appeal was filed by the appellant-victim against the judgment of acquittal of the accused persons, the same was not maintainable and dismissed as such by relying on a full bench judgment of this Court rendered in the case of Tuklal Yadav vs. State of Jharkhand, 2018 (4) JBCJ 327 (HC). 4. I have gone through the judgment of the learned full bench of this Court rendered in the case of Tuklal Yadav (supra), the relevant part of the which is quoted herein-below:- “40. To conclude, we answer the questions referred to the Full Court, as follows:- *** *** *** (4) The complainant, whether the State or a private person, who is also the victim as defined under section 2(wa) of the Cr.P.C. if aggrieved by the judgment/order of acquittal passed by the Trial Court, shall have the only remedy against the order/judgment of acquittal passed by the Trial Court, to seek special leave of the High Court under section 378(4) of the Cr.P.C. and in case the special leave is granted, to file appeal in the High Court itself. *** *** *** (7) In cases the victims are not the complainant, their cases cannot come under section 378(4) of the Cr.P.C. Such victims as defined under section 2(wa) of the Cr.P.C. can avail the remedy of appeal under the Proviso to Section 372 of the Cr.P.C. In such cases, if the order/judgment of acquittal is passed by the Court of Magistrate, the appeal shall lie to the Court of Session, in which case there shall be no requirement to seek any leave to appeal. If the order/judgment of acquittal is passed by the Court of Session, the appeal shall lie to the High Court subject to leave to be taken under Section 378(3) of the Cr.P.C.” 5. In the aforesaid judgment, the learned Full Bench of this Court has made distinction between the “complainant-victim” and a “victim who is not a complainant.” It has been held that if any complainant-victim is aggrieved by a judgment of acquittal passed by the trial court then he/she shall have to seek special leave of the High Court under section 378(4) of the Cr.P.C. and if the leave is granted, may file appeal to the High Court. However, if the victim is not the complainant, he/she can avail the remedy of appeal under the proviso to section 372 of the Cr.P.C. 6. However, the Hon’ble Supreme Court while dealing with the case of Mallikarjun Kodagali vs. State of Karnataka, (2019) 2 SCC 752 , has observed that the distinction between the “complainant-victim” and a “victim, who was not the complainant” is an artificial and unnecessary distinction. 7. The relevant part of the said judgment reads as under:- “34. On the third question, the Full Bench noted that if the victim restricts the appeal to the grievance to inadequacy of the compensation or punishment for a lesser offence, it does not become an appeal against acquittal but the appeal is really directed against “any other sentence or order not being an order of acquittal” within the meaning of Article 115(b) of the Limitation Act, 1963 and thus, no question of taking special leave arises. The Full Bench took the view that for the purposes of Section 378(4) Cr.P.C. a victim who is not a complainant will not come within the purview of that section and would not be required to take recourse to the provision of special leave as provided therein. The Full Bench took the view that for the purposes of Section 378(4) Cr.P.C. a victim who is not a complainant will not come within the purview of that section and would not be required to take recourse to the provision of special leave as provided therein. It was held: Bhavuben Dineshbhai Makwana vs. State of Gujarat, 2012 SCC Online Guj 5764 : 2013 Cri. L.J. 4225. “33. Therefore, in the case before us, the legislature while conferring the right of appeal upon the victim, who is not a complainant, not having imposed any condition of taking leave or special leave, we cannot infer such condition and impose the same upon the victim, although, the legislature was quite conscious of existence of such provision in case of an appeal by a complainant and has retained that provision without consequential amendment thereby making its intention clear that the provision of special leave is not applicable to an appeal preferred by a victim against acquittal if he is not the complainant.” The third question was then answered in the following words: (SCC Online Guj para 36) “36.......If the victim also happens to be the complainant and the appeal is against acquittal, he is required to take leave as provided in Section 378 of the Criminal Procedure Code but if he is not the complainant, he is not required to apply for or obtain any leave. For the appeal against inadequacy of compensation or punishment on a lesser offence, no leave is necessary at the instance of a victim, whether he is the complainant or not.” 35. In our opinion, the Gujarat High Court made an artificial and unnecessary distinction between a victim as a victim and a victim as a complainant in respect of filing an appeal against an order of acquittal. The proviso to Section 372 Cr.P.C. does not introduce or incorporate any such distinction. 75. Under the circumstances, on the basis of the plain language of the law and also as interpreted by several High Courts and in addition the resolution of the General Assembly of the United Nations, it is quite clear to us that a victim as defined in Section 2(wa) Cr.P.C. would be entitled to file an appeal before the Court to which an appeal ordinarily lies against the order of conviction. It must follow from this that the appeal filed by Kodagali before the High Court was maintainable and ought to have been considered on its own merits. 76. As far as the question of the grant of special leave is concerned, once again, we need not be overwhelmed by submissions made at the Bar. The language of the proviso to Section 372 Cr.P.C. is quite clear, particularly when it is contrasted with the language of Section 378(4) Cr.P.C. The text of this provision is quite clear and it is confined to an order of acquittal passed in a case instituted upon a complaint. The word “complaint” has been defined in Section 2(d) Cr.P.C. and refers to any allegation made orally or in writing to a Magistrate. This has nothing to do with the lodging or the registration of an FIR and therefore it is not at all necessary to consider the effect of a victim being the complainant as far as the proviso to Section 372 Cr.P.C. is concerned.” 8. In the present case, the appellant is the victim as defined under Section 2(wa) of Cr.P.C. and as such he would be entitled to file an appeal before the Court to which an appeal ordinarily lies against the order of conviction i.e the Court of Session. 9. In view of the proposition laid down by the Hon’ble Supreme Court in the case of Mallikarjun Kodagali (supra), the impugned judgment and order dated 14.12.2018 passed by the Additional Judicial Commissioner-V, Ranchi in Criminal Appeal No. 35 of 2018 is quashed. The matter is remanded to the Additional Judicial Commissioner-V, Ranchi to decide the appeal preferred by the appellant on merit. 10. The present appeal is accordingly disposed of with the aforesaid observations.