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2019 DIGILAW 1768 (MAD)

M. Venkataraman v. D. G. Bhaskaran

2019-06-27

P.N.PRAKASH

body2019
JUDGMENT : P.N. PRAKASH, J. 1. For the sake of convenience, the Petitioner/Appellant and the Respondent in the cases at hand are referred to as the Complainant and the Accused respectively. 2. There are four cases at hand. The Petitioners in Crl.R.C. Nos. 494 & 536 of 2019 and the Appellant in Crl.A.S.R. Nos. 25084 & 25112 of 2019 are Complainants, who had launched prosecutions under Section 138 of the Negotiable Instruments Act, 1881 (for brevity "the NI Act") in various Courts and had lost in the Trial Court as well in the Court of Session (Appellate Court). 3. Crl.R.C. Nos. 494 of 2019 & 536 of 2019 have been preferred under Section 397, read with Section 401, Cr.P.C. against the acquittal of the Accused and Crl.A.S.R. Nos. 25084 & 25112 of 2019 have been preferred under Section 378(4), Cr.P.C. against the acquittal of the Accused, which were not numbered by the Registry, since the Registry felt that the Appeals were not maintainable. 4. Hence, on the directions of this Court, Crl.A.S.R. Nos. 25084 & 25112 of 2019 were also listed along with Crl.R.C. Nos. 494 & 536 of 2019 and all the four cases were heard together. 5. The following seminal question arises for determination in these four cases: "Where does the remedy lie for a Complainant in whose Complaint before the Magistrate under Section 138 of the NI Act, the Accused has been acquitted - Is it before the Court of Session under the Proviso to Section 372, Cr.P.C. or before the High Court under Section 378(4), Cr.P.C.?" 6. In Selvaraj v. Venkatachalapathy, 2015 (1) MWN (Cr.) DCC 26 (Mad.), P.R. Shivakumar, J. was of the view that the Complainant's remedy was before the High Court under Section 378(4), Cr.P.C., whereas, in S. Ganapathy v. N. Senthilvel, 2015 (5) CTC 91 : 2015 (2) MWN (Cr.) 8, S. Nagamuthu, J. was of the view that the Complainant's remedy was before the Court of Session under the Proviso to Section 372, Cr.P.C. 7. Since S. Nagamuthu, J. differed with P.R. Shivakumar, J., the former referred the matter to the Chief Justice for an authoritative pronouncement. Since S. Nagamuthu, J. differed with P.R. Shivakumar, J., the former referred the matter to the Chief Justice for an authoritative pronouncement. Accordingly, a 3-Judge Bench comprising V. Ramasubramanian, N. Kirubakaran & S. Vaidyanathan, JJ., in S. Ganapathy v. N. Senthilvel, 2016 (4) CTC 119 (FB) : 2016 (2) MWN (Cr.) 321 : 2016 SCC Online Mad 16417, went into the matter and concurred with S. Nagamuthu, J. by holding that the Appeal by the Complainant would lie before the Court of Session under the Proviso to Section 372, Cr.P.C. 8. Following the said Judgment of the Full Bench in S. Ganapathy (supra), thousands of Appeals against acquittals pending before this Court were remitted to the jurisdictional Courts of Session. In fact, I have also followed the Full Bench Judgment in S. Ganapathy (supra) in my earlier stint and remitted several cases to the jurisdictional Courts of Session. I am informed that M. Venugopal, J. and N. Authinathan, J. did not agree with the law laid down by the Full Bench and instead, by placing reliance upon the Statute, they entertained Appeals against acquittals under Section 378(4), Cr.P.C. 9. While that being so, two Complainants, who have lost before the Trial Court and the Sessions Court under the Proviso to Section 372, Cr.P.C., have filed Revisions against acquittals. When this Court pointed out to them that in a Revision against acquittal, the High Court does not have the power to convert the finding of acquittal into one of conviction in view of the bar under Section 401(3), Cr.P.C., the learned Counsel submitted that this Court can set aside the orders and remit the matter to the lower Court for fresh adjudication. 10. When this Court explained to them that the power under Section 397, Cr.P.C. can be invoked only for satisfying itself as to the correctness, legality or propriety of any finding and that there cannot be re-appreciation of evidence unless it is shown that the Trial Court and the Court of Session had grossly overlooked a piece of evidence, Mr. Aran Anbumani, learned Counsel contended that if this Court finds that the cases at hand fall within the said category, then, this Court can set aside the Orders and remit the cases to the Court below. 11. A great danger would befall if the above submission of Mr. Arun Anbumani is accepted. Aran Anbumani, learned Counsel contended that if this Court finds that the cases at hand fall within the said category, then, this Court can set aside the Orders and remit the cases to the Court below. 11. A great danger would befall if the above submission of Mr. Arun Anbumani is accepted. This can be illustrated with the following example. Let us take the case of an Accused, who has been convicted and sentenced by the Magistrate and whose conviction and sentence have been upheld by the Court of Session. Such an Accused has the remedy under Section 397 read with Section 401, Cr.P.C. to contend before this Court that the Trial Court and the Court of Session had failed to consider a vital piece of evidence in his favour, which had caused prejudice to him. In such an event, this Court can, in the exercise of the Revisional jurisdiction, consider that piece of evidence and if this Court finds that the said piece of evidence would have tilted the case in favour of the Accused, then, the corollary is that the Revision can be allowed and the Accused acquitted. If the High Court adopts the same methodology, while exercising Revisional powers in a case, where the Accused has been acquitted by the Magistrate and confirmed by the Court of Session, then, the question is, to which Court, the matter should be remanded, whether to the Court of Session or the Trial Court? While interfering with the Orders of the two Courts below, the High Court, perforce, would have to give a finding that the Trial Court and the Court of Session had failed to properly consider a piece of evidence in favour of the Complainant while remanding the matter to the Court below. This will be an indirect suggestion to the Court below to accept that piece of evidence and convict the Accused. This may amount to witch hunting of the Accused which is not permissible. In other words, entertaining a Revision Petition of a Complainant who has lost in the Trial Court and in the Court of Session and returning a finding that both the Courts below have committed an "X" illegality and remanding the matter to them, would result in endless litigation, because, the Accused will once again have a right to come by way of either Appeal or Revision. That apart, such a finding by the High Court would virtually amount to recommending the conviction of the Accused. What the High Court cannot do in view of the bar under Section 401(3), Cr.P.C. cannot be achieved by remanding the matter to the Court below and suggesting to the said Court in so many words that it had committed an illegality or impropriety in acquitting the Accused. 12. This piquant legal situation will arise even in the case of acquittal of the Accused in a Magisterial trial on Police Report and trial by Assistant Sessions Court on Police Report, because, in those two classes of cases, the victim will have a right of Appeal to the Court of Session under the Proviso to Section 372, Cr.P.C. and a further remedy under Section 397 read with Section 401, Cr.P.C. In my view, the Legislature has to bestow its attention to such obvious anomalies arising out of the amendment to Section 372, Cr.P.C. 13. Coming to the case of the Complainant, who has filed an Appeal against acquittal under Section 378(4), Cr.P.C., Mr. Sharath Chandran, learned Counsel contended that by virtue of the Full Bench Judgment in S. Ganapathy (supra), the Complainant has a remedy under the Proviso to Section 372, Cr.P.C. and after having availed it, now, has a remedy provided under Section 378(4), Cr.P.C., which cannot be whittled down by this Court. In support of this contention, the learned Counsel placed reliance on the Constitution Bench Judgment of the Supreme Court in A.R. Antulay v. R.S. Nayak and another, 1988 (2) SCC 602 , and contended that the remedy of Appeal provided by a Statute cannot be taken away by the Court just because the Complainant had availed of a remedy pursuant to the Full Bench Judgment of this Court in S. Ganapathy (supra). 14. Thus, it is axiomatic that the decision of the Full Bench of this Court in S. Ganapathy (supra) has resulted in two tiers of remedies to a Complainant, who has lost in the Trial Court. The anomalous situation created by S. Ganapathy (supra) made this Court research in order to find out the position that obtains in other States. 15. In the High Courts of Calcutta [M.K. Products v. Blue Ocean Exports (P) Ltd. & others, 2016 (3) MWN (Cr.) DCC 155 (Cal.)]; Delhi [Bhajanpura Coop. Urban Thrift & Credit Society Ltd. v. Rajeshwar Kr. The anomalous situation created by S. Ganapathy (supra) made this Court research in order to find out the position that obtains in other States. 15. In the High Courts of Calcutta [M.K. Products v. Blue Ocean Exports (P) Ltd. & others, 2016 (3) MWN (Cr.) DCC 155 (Cal.)]; Delhi [Bhajanpura Coop. Urban Thrift & Credit Society Ltd. v. Rajeshwar Kr. Gupta, 2014 SCC Online Del 4507]; Kerala [Omanajose & another v. State of Kerala & others, 2014 (2) MWN (Cr.) DCC 22 (DB) (Ker.)]; Gauhati [Bhabesh Chandra Barman v. State of Assam & another, 2017 (4) Gauh. LR 341]; Andhra Pradesh [P. Vijaya Laxmi v. S.P. Sravana and another, MANU/AP/0740/2017]; and Punjab & Haryana [Tata Steel Ltd. v. Atma Tube Products Ltd. & others, ILR 2013 Punjab 719], the procedure that is followed is that a Complainant, who loses in the Trial Court has no remedy before the Court of Session, but has a right to file an Appeal against the Order of Acquittal before the High Court under Section 378(4), Cr.P.C. by obtaining leave under Section 378(5), Cr.P.C. In fact, a Division Bench of the Andhra Pradesh High Court, in P. Vijaya Laxmi (supra) has considered the Full Bench Judgment of this Court in S. Ganapathy (supra) and has disagreed with the same. Of course, this Court is aware that just because other High Courts have differed with the view of the Full Bench of this Court, a Single Judge of this Court cannot follow the other High Courts by turning a Nelson's eye to the law laid down by the Full Bench of this Court. Thus, following the dictates of judicial discipline, this Court would have implicitly followed the Full Bench Judgment in S. Ganapathy (supra) irrespective of the anomalous outcome and entertained both Revisions Petitions and Appeals against acquittals, if not for the recent Judgment of the Supreme Court in Mallikarjun Kodagali v. State of Karnataka, 2019 (2) SCC 752 . 16. Before turning to Mallikarjun Kodagali (supra), it may be necessary to turn the clock back and peep into the legal history of Appellate remedies for acquittals under the Code. 17. 16. Before turning to Mallikarjun Kodagali (supra), it may be necessary to turn the clock back and peep into the legal history of Appellate remedies for acquittals under the Code. 17. Unlike Western democracies where Criminal prosecution of an Accused in a Court of law is the exclusive prerogative of the State, in India, the Code of Criminal Procedure, 1898, itself provided for two streams of prosecutions, viz., prosecution by the Police and prosecution by others like citizens and Public officials such as Customs authorities, Food Adulteration Authorities, Labour Authorities, Municipal Authorities, etc. by Private Complaint procedure. The Code of Criminal Procedure, 1898, prescribed two sets of procedures depending upon who prosecutes. When a prosecution, either by the Police or by others, ended in acquittal, Section 417 of the Code of Criminal Procedure, 1898, provided a remedy and the same read thus: "417. The Local Government may direct the Public Prosecutor to present an Appeal to the High Court from an original or Appellate Order of Acquittal passed by any Court other than a High Court." A reading of the above provision shows that it was only the State, which had the power to direct the Public Prosecutor to file an Appeal against an acquittal in the High Court, whether it is a case on Police Report or otherwise. That is why, in several States, even in Private Complaints, apart from arraying the Accused as a party, the State will also be arrayed as a party. 18. The Code of Criminal Procedure, 1898, was amended by the Code of Criminal Procedure (Amendment) Act, 1955 (Act 26 of 1955), which repealed Section 417, Cr.P.C. extracted above and in its place, substituted the following: "417. Appeal in case of acquittal.--(1) Subject to the provisions of sub-section (5), 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 Acquittal passed by any Court other than a High Court. (2) If such an Order of Acquittal is passed in any case in which the offence has been investigated by the Delhi special Police establishment constituted under the Delhi Special Police Establishment Act, 1946 (XXXV of 1946), the Central Government may also direct the Public Prosecutor to present an Appeal to the High Court from the Order of Acquittal. (2) If such an Order of Acquittal is passed in any case in which the offence has been investigated by the Delhi special Police establishment constituted under the Delhi Special Police Establishment Act, 1946 (XXXV of 1946), the Central Government may also direct the Public Prosecutor to present an Appeal to the High Court from the Order of Acquittal. (3) 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. (4) No Application under sub-section (3) for the grant of Special Leave to Appeal from an Order of Acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that Order of Acquittal. (5) If, in any case, the Application under sub-section (3) 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)." Thus, by way of the aforesaid amendment, for the first time, a remedy was made available for an unsuccessful Private Complainant before the Trial Court to approach the High Court by way of an Appeal against acquittal, after obtaining special leave. Apart from giving a right to the Complainant under Section 417(3), Cr.P.C., the power of the State to file an Appeal against acquittal under Section 417(1), Cr.P.C. even in a Complaint case was preserved, but, with a rider in sub-section (5) to the effect that, if leave had been refused to the Complainant, the State would also lose its remedy. After the 1955 Amendment, an attempt was made to take away this right as it was found that it had resulted in burgeoning litigations in the High Courts. However, Dr. Justice P.B. Gajendragadkar, Chairman of the Law Commission of India, in his 48th Report, torpedoed this attempt by stating as under: "58. We should, however, make it clear that if the right of Appeal against acquittal is itself retained, then, the right to be given to a Private party should not be abolished. And logically, the law should cover cases not instituted on Complaint. The right of a Private party was introduced in 1955. We should, however, make it clear that if the right of Appeal against acquittal is itself retained, then, the right to be given to a Private party should not be abolished. And logically, the law should cover cases not instituted on Complaint. The right of a Private party was introduced in 1955. And, though a recent Committee has recommended its abolition in order to reduce the arrears in High Courts, we do not, with respect, share that approach. Extreme cases of manifest injustice, where the Government fails to act, and the party aggrieved has a strong feeling that the matter requires further consideration, should not, in our view, be left to the mercy of the Government. To inspire and maintain confidence in the administration of justice, the limited right of Appeal with leave given to a Private party should be retained and should embrace cases initiated on Private Complaint or otherwise at the instance of an aggrieved person." (emphasis supplied) Thus, for the first time, the travails of a victim of a crime, whose case was callously dealt with by the State, surfaced. The expression "embrace cases initiated on Private Complaint or otherwise at the instance of an aggrieved person" employed in the 48th report of the Law Commission, clearly shows that the Law Commission had in mind, the victim of a crime and designated him as "an aggrieved person" in contra distinction to a Private Complainant. 19. Despite the recommendation of the Law Commission to provide a remedy for an aggrieved person, the 1973 Code which replaced the 1898 Code, lock, stock and barrel, merely incorporated the amended Section 417 of the 1898 Code as Section 378 in the 1973 Code. 20. While that being so, an interesting case came up before the Supreme Court. One P.S.R. Sadhanantham was convicted under Section 302, I.P.C. and was sentenced to Life Imprisonment by the Trial Court. The Madras High Court allowed his Appeal and acquitted him. The brother of the deceased moved the Supreme Court under Article 136 of the Constitution of India challenging the acquittal. The Supreme Court reversed the acquittal and restored the Trial Court's Order. The Madras High Court allowed his Appeal and acquitted him. The brother of the deceased moved the Supreme Court under Article 136 of the Constitution of India challenging the acquittal. The Supreme Court reversed the acquittal and restored the Trial Court's Order. Challenging the Order, P.S.R. Sadhanantham filed a Petition under Article 32 of the Constitution of India questioning the very validity of the Appeal filed by the brother of the deceased by contending that he (brother of the deceased) had no right in law to challenge his (Sadhanantham's) acquittal in the Supreme Court. A Constitution Bench of the Supreme Court in P.S.R. Sadhanantham v. Arunachalam and another, 1980 (3) SCC 141 , quoted the above passage of the Law Commission and upheld the right of an aggrieved person (the brother of the deceased in that case) to invoke the powers of the Supreme Court via Article 136 of the Constitution of India. In his concurring Judgment, Pathak, J. (as he then was) observed: "25. ..........The Law Commission of India gave anxious thought to this matter, and while noting that the Code recognised a few exceptions by way of permitting a person aggrieved to initiate proceedings in certain cases and permitting the complainant to appeal against an acquittal with Special Leave of the High Court, expressed itself against the general desirability to encourage Appeals against acquittal. It referred to the Common Law jurisprudence obtaining in England and other countries where a limited right of Appeal against acquittal was vested in the State and where the emphasis rested on the need to decide a point of law of general importance in the interests of the general administration and proper development of the Criminal law. But simultaneously the Law Commission also noted that if the right to Appeal against acquittal was retained and extended to a Complainant the law should logically cover also cases not instituted on Complaint. It observed: "Extreme cases of manifest injustice, where the Government fails to act, and the party aggrieved has a strong feeling that the matter requires further consideration, should not, in our view, be left to the mercy of the Government. It observed: "Extreme cases of manifest injustice, where the Government fails to act, and the party aggrieved has a strong feeling that the matter requires further consideration, should not, in our view, be left to the mercy of the Government. To inspire and maintain confidence in the administration of justice, the limited right of Appeal with leave given to a Private party should be retained, and should embrace cases initiated on Private Complaint or otherwise at the instance of an aggrieved person." However, when the Criminal Procedure Code, 1973 was enacted the statute, as we have seen, confined the right to Appeal, in the case of Private parties to a Complainant. This is, as it were, a material indication of the policy of the law." (emphasis supplied) 21. The U.N. General Assembly passed a very important Resolution on 29.11.1985 titled "Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power". Paragraph No. 4 of the said Resolution reads as under: "Access to justice and fair treatment: 4. Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by National legislation, for the harm that they have suffered." Following the aforesaid resolution, the Law Commission of India, in its 144th Report, devoted a separate Chapter - Chapter XV - for Victimology. 22. The Law Commission of India, in its 154th report, suggested certain changes to Section 378, Cr.P.C. relating to Appeal against acquittal, which is as under: "6.12. Clause 37: In order to guard against the arbitrary exercise of power and to reduce reckless acquittals, Section 378 is sought to be amended providing an Appeal against an Order of Acquittal passed by a Magistrate in respect of cognizable and non-bailable offence filed on a Police Report to the Court of Session as directed by the District Magistrate. In respect of all other cases filed on a Police Report, an Appeal shall lie to the High Court against an Order of Acquittal passed by any other Court other than the High Court, as directed by the State Government. The power to recommend Appeal in the first category is sought to be vested in the District Magistrate and the power in respect of second category would continue with the State Government. The power to recommend Appeal in the first category is sought to be vested in the District Magistrate and the power in respect of second category would continue with the State Government. In our workshops, we have highlighted this issue and there was near unanimity in favour of incorporating such a provision." 23. Pursuant to the above suggestion, the Parliament amended Section 378, Cr.P.C. by Central Act 25 of 2005, with effect from 23.6.2006. Old Section 378(1): "378. Appeal in case of acquittal.--(1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) & (5), 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 Acquittal passed by any Court other than a High Court." Amendment of Section 378: "In Section 378 of the principal Act,-- (i) for sub-section (1), the following sub-section shall be substituted, namely: "(1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) & (5),-- (a) the District Magistrate may, in any case, direct the Public Prosecutor to present an Appeal to the Court of Session 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 Session in Revision." 24. Though the Law Commission had suggested the employment of the expression "Police Report" in proposing the amendment to Section 378, Cr.P.C., yet, the Parliament did not include the expression "Police Report" for sound reasons, which have been explained by the Supreme Court in Subhash Chand v. State (Delhi Administration), 2013 (2) MWN (Cr.) 308 (SC) : 2013 (2) SCC 17 , which I shall delve into a little later. 25. The Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, popularly called "Justice Malimath Committee" made a vital recommendation in 2003 which is as under: "Victim's Right to Appeal: 2.21. 25. The Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, popularly called "Justice Malimath Committee" made a vital recommendation in 2003 which is as under: "Victim's Right to Appeal: 2.21. The victim or his representative who is a party to the trial should have a right to prefer an Appeal against any adverse Order passed by the Trial Court. In such an Appeal, he could challenge the acquittal, or conviction for a lesser offence or inadequacy of sentence, or in regard to compensation payable to the victim. The Appellate Court should have the same powers as the Trial Court in regard to assessment of evidence and awarding of sentence." 26. The Government became responsive to the plight of the victims of a crime and so, the Code of Criminal Procedure (Amendment) Bill, 2006, was introduced. The statement of Objects and Reasons relating to the "victim of a crime" is as under: "2. .........At present, the victims are the worst sufferers in a crime and they do not have much role in the Court proceedings. They need to be given certain rights and Compensation, so that there is no distortion of the Criminal justice system........." The Bill provided for defining the word "victim" and also proposed an amendment to Section 372, Cr.P.C. Notes on Clauses for the proposed amendment to Section 372, Cr.P.C. reads as under: "Clause 38, amends Section 372 of the Code relating to Appeals from Judgment or Order of a Criminal Court. It gives to the victim the right to prefer an Appeal against any adverse Order passed by the Trial Court." The Bill was referred to the Select Committee, which discussed all the other provisions and suggested amendments, but, did not suggest any amendment qua Section 372, Cr.P.C. that was proposed by the Bill. However, the 2006 Bill lapsed. 27. The Law Commission of India, in its 221st Report, made the following suggestions: "2.11. Further, at present, against Orders of Acquittal passed by Magistrates (where the offence is cognizable and non-bailable) or by Sessions Courts, Appeal in cases filed on Police Reports can be filed only at the instance of the District Magistrate or the State Government, as the case may be, vide sub-section (1) of Section 378. In such matters, the aggrieved person or the informant cannot himself file an Appeal. However, he can prefer a Revision. In such matters, the aggrieved person or the informant cannot himself file an Appeal. However, he can prefer a Revision. If the Revisional Court finds that the Accused has been wrongly acquitted, it cannot convict him in view of sub-section (3) of Section 401, but, it has to remand the case. It is a cumbersome process and involves wastage of money and time. This provision also needs a change and in such matters also, where the District Magistrate or the State does not direct the Public Prosecutor to prefer Appeal against an Order of Acquittal, the aggrieved person or the informant should have the right to prefer Appeal, though with the leave of the Appellate Court. This will also give an opportunity to the aggrieved person to challenge the findings of fact recorded by lower Court. Also, this will introduce more transparency and accountability in the lower judiciary, as at present, the percentage of acquittal is quite high." 28. Even prior to the aforesaid recommendation by the Law Commission of India, the Parliament had tabled the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009), which came into force on 31.12.2009. The definition of the word "victim" and the amendment to Section 372, proposed by the 2006 Bill was carried into Act 5 of 2009, and they read 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." "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 Court 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." 29. It is necessary to state that Act 5 of 2009 did not amend Sections 378(4), (5) & (6), Cr.P.C. After the 2009 Amendment, two streams of prosecution end up in three streams of Appeals, viz., (i) Appeal by the State, (ii) Appeal by the victim of a crime (including the relatives as "aggrieved persons"), and (iii) Appeal by the Complainant. 30. An interesting issue arose in Subhash Chand (supra), wherein, one P.K. Jaiswal, the Local Health Authority initiated a prosecution under the provisions of the Prevention of Food Adulteration Act against Subhash Chand before the Metropolitan Magistrate, New Delhi, in which, Subhash Chand was acquitted by the Magistrate. Challenging the acquittal, the Local Health Authority preferred an Appeal against acquittal before the Delhi High Court. The Delhi High Court refused to entertain the Appeal against acquittal by holding that pursuant to the amendment to Section 378(1) by Act 25 of 2005, an Appeal against the Acquittal Order of a Magistrate is maintainable only before the Sessions Court. The matter was taken up on Appeal and it has been extensively dealt with by the Supreme Court in Subhash Chand (supra). The Supreme Court has quoted the 154th Law Commission Report and has held that all the Appeals against acquittals in cases instituted on Complaints shall have to be filed only before the High Court, after obtaining Special Leave to Appeal. The verdict in Subhash Chand (supra) was delivered by the Supreme Court on 8.1.2013. The date 8.1.2013 is emphasised, because, on that day, the amended Section 372, Cr.P.C. was in force and therefore, we cannot say that the Supreme Court was not aware that the Parliament has provided a forum of Appeal to a new class of individuals called "victims". 31. The aforesaid discussion, unavoidably a little too long, is to highlight the point that the legislative history of Sections 372 & 378, Cr.P.C. would clearly reveal that the intention of the Legislature was to provide a right of Appeal to a victim in a Police case, which was a class hitherto left remediless. The provision of a right of Appeal to a Private Complainant under the Proviso to Section 372, was never in the contemplation of the Legislature at any point of time. 32. The provision of a right of Appeal to a Private Complainant under the Proviso to Section 372, was never in the contemplation of the Legislature at any point of time. 32. P.R. Shivakumar, J. held that a Complainant, who has filed a Complaint and prosecuted an Accused, be it a Public Officer or a private individual, will not fall within the meaning of the word "victim", whereas, S. Nagamuthu, J. held otherwise, with which opinion, the Full Bench, in S. Ganapathy (supra), concurred. 33. S. Nagamuthu, J., in his Referral Order, has discussed the history of the legislation and what persuaded him to hold that the word "victim" would also include a Complainant, can be best explained through the Illustration that he has given in Paragraph Nos. 19 & 20 of his Referral Order which read as under: "19. In the case on hand, if the Proviso to Section 372 of the Code of Criminal Procedure and Section 378(4) of the Code of Criminal Procedure are read conjointly, it can be perceived that the Legislature has retained Section 378(4) of the Code of Criminal Procedure, for, the Legislature has not intended to give statutory right of Appeal to a Complainant/non-victim. The Legislature has given right of Appeal under the Statute by means of a Proviso to Section 372 of the Code of Criminal Procedure only to victims of crimes. To this extent, there can be no difficulty in understanding these two provisions. The difficulty may arise when a Complainant happens to be a victim in a Private Complaint case. One of the arguments advanced before this Court is that in such an event, the remedy for the Complainant cum Victim is only to seek leave under Section 378(4) of the Code of Criminal Procedure, whereas the other argument advanced is that he can exercise his statutory right of Appeal as a Victim cum Complainant under the Proviso to Section 372 of the Code of Criminal Procedure. In my considered view, the latter is the correct view. This can be explained by means of few Illustrations. 20. In a given case, there is a victim of grievous hurt; he goes to the Police with a Complaint; but, no action is taken. Then, he files a Private Complaint before the Judicial Magistrate. The case ends in acquittal. Though he happens to be the Complainant, he is also the victim of the crime. 20. In a given case, there is a victim of grievous hurt; he goes to the Police with a Complaint; but, no action is taken. Then, he files a Private Complaint before the Judicial Magistrate. The case ends in acquittal. Though he happens to be the Complainant, he is also the victim of the crime. In another case, a non-victim files a Private Complaint and the victim of the crime does not file any Private Complaint. But, the victim of the crime deposes in Court as a Witness. The case ends in acquittal. Here, in the former case, the Victim cum Complainant has got a right of Appeal under the Proviso to Section 372 of the Code of Criminal Procedure, but in the latter case, the Complainant has got no such right of Appeal and instead he has to approach the High Court seeking leave under Section 378(4) of the Code of Criminal Procedure." 34. With due respect, I am unable to persuade myself to agree with the view expressed by S. Nagamuthu, J. on this aspect, because, a person, who has the wherewithal to prosecute another by lodging a Private Complaint and losing in it, should not be permitted to take cover under the definition of the word "victim" and seek a remedy of Appeal under the Proviso to Section 372, Cr.P.C., when he already has one under Section 378(4), Cr.P.C. If such a person is given a remedy under the Proviso to Section 372, Cr.P.C. and he loses before the Court of Session, he will be perfectly justified in coming before the High Court under Section 378(4), Cr.P.C., because, he would be entitled to contend that he satisfies the definition of the expression "in any case instituted upon complaint" used in Section 378(4), Cr.P.C. 35. S. Nagamuthu, J.'s anxiety to provide a remedy for the victim of a crime, who is not a Private Complainant but who has been examined as a Witness in the Private Complaint can be addressed with an illustration thus. "A" & "B" suffer injuries at the hands of "X" in the course of a transaction. "A" files a Private Complaint in which "A" is examined as PW1 and "B" is examined as PW2. The Trial Court acquits "X". Supposing "A" does not challenge the acquittal of "X", what is the remedy for "B"? 36. "A" & "B" suffer injuries at the hands of "X" in the course of a transaction. "A" files a Private Complaint in which "A" is examined as PW1 and "B" is examined as PW2. The Trial Court acquits "X". Supposing "A" does not challenge the acquittal of "X", what is the remedy for "B"? 36. S. Nagamuthu, J.'s concern for "B" (PW2), in the aforesaid example is understandable. However, what cannot be lost sight of is the fact that a right of Appeal is a creature of Statute. In providing a forum for Appellate redress, the Legislature is entitled to classify and, if necessary, isolate certain categories of persons, who may avail such a right. In the present case, the aforesaid discussion clearly brings out that "Private Complainants" as a class, were never in the contemplation of the Legislature. Ex consequenti, it is not for the Court to extend a right of Appeal to persons, who do not fall within the categories of persons for whom the Appellate remedy was enacted. That is the state of the law for the present. The anomaly, if any, must be remedied by the Legislature. We can only interpret the law as we find it. The hypothetical example alluded to by S. Nagamuthu, J. are few and far between. On the contrary, statistical data are a legion to show that the cases under Section 138 of the NI Act, are clogging an already over-worked legal system. 37. "B" (PW2), in the example set out above, is not remediless. He can still approach the Revisional Court (Court of Session/High Court) under Section 397, Cr.P.C. and seek interference. In the anxiety to provide an Appellate remedy to "B" (PW2), S. Nagamuthu, J. and the Full Bench unwittingly provided an extra tier of Appeal for "A" (PW1) under the Proviso to Section 372, Cr.P.C. Thus, "A" (PW1) will have two Appellate remedies whereas "B" (PW2) will have only one Appellate remedy. Such incongruity will lead to absurd and anomalous results, which was never the intention of the Legislature. This is best exemplified by the cases at hand. 38. Such incongruity will lead to absurd and anomalous results, which was never the intention of the Legislature. This is best exemplified by the cases at hand. 38. The Full Bench, in S. Ganapathy (supra), has categorically held that the remedy for a Complainant is only under the Proviso to Section 372, Cr.P.C. and has, thus, extinguished the remedy provided by Section 378(4), Cr.P.C. which does not square with the decision of the Constitution Bench in A.R. Antulay (supra). 39. There is yet another School of thought which holds the view that the defeated Complainant has concurrent remedies, viz., under the Proviso to Section 372 and under Section 378(4), Cr.P.C. and that the Complainant must, therefore, elect his forum of Appeal. However, the Full Bench, in S. Ganapathy (supra), has not taken this view into consideration. Had the Full Bench subscribed to this view, there would not have been any reason for this Court to send back thousands of cases to the jurisdictional Courts of Session. 40. In my view, the definition of the word "victim" in Section 2(wa), Cr.P.C. and the Proviso to Section 372, Cr.P.C. were intended to take care of those victims of crimes whose cases were taken up by the Police and not by way of Private Complaints either by themselves or through someone acting on their behalf. It is true that there will be cases where the Complainant himself would be the victim. But, that cannot be a reason to extend the benefits provided by the statute to a class of persons, who had the capacity to prosecute the alleged offender by way of a Private Complaint. As was pointed out by Pathak, J. in Sadhanantham (supra), the position prior to 2009 confined the right of Appeal, in cases of Private parties, to a Complainant. The Police Charge-sheet cases were, therefore, outside the ken of the Appellate remedies qua Private parties. This was the existing state of affairs that was rectified by Act 5 of 2009. The amendments, which were brought in by Act 5 of 2009, were intended for that class of persons, whose prosecution was conducted by the State and who were left in the lurch on account of the lapses of the prosecution, resulting in the acquittal of the Accused. 41. The amendments, which were brought in by Act 5 of 2009, were intended for that class of persons, whose prosecution was conducted by the State and who were left in the lurch on account of the lapses of the prosecution, resulting in the acquittal of the Accused. 41. The Full Bench of this Court, in S. Ganapathy (supra), has quoted in extenso, the law laid down by the Full Bench of the Delhi High Court in Ram Phal v. State, 2015 (3) MWN (Cr.) 491 (FB) (Del), and the Judgment of the Supreme Court in Satya Pal Singh v. State of M.P., 2015 (3) MWN (Cr.) 633 (SC) : 2015 (15) SCC 613 , to hold that the Complainant and the victim are one and the same. The issue in Ram Phal (supra) and Satya Pal Singh (supra) were totally different. Both cases arose on a Police Report and not on a Private Complaint. 42. Ram Phal (supra) arose from a Police prosecution of the Accused for the offences under Sections 317, 304 & 120-B, I.P.C. in which the Accused were acquitted by the Trial Court. The question before the Full Bench of the Delhi High Court was whether a family member of the deceased can prefer an Appeal in his capacity as victim, with Special Leave or without Special Leave. The Full Bench of the Delhi High Court held that the victim would not require prior Special Leave to Appeal. 43. In Satya Pal Singh (supra), the Accused was prosecuted for the offences under Sections 498-A & 304-B, I.P.C. on a Police Report and was acquitted by the Trial Court. The father of the deceased challenged the acquittal in the High Court which was dismissed. The father approached the Supreme Court and it was argued that he has a right to Appeal under the Proviso to Section 372, Cr.P.C. without seeking special leave under Section 378(3), Cr.P.C. In the said case, reliance was placed on the Full Bench Judgment of the Delhi High Court in Ram Phal (supra). The Supreme Court held that Ram Phal (supra) was bad in law and further held that even for an Appeal under the Proviso to Section 372, Cr.P.C., leave should be obtained under Section 378(3), Cr.P.C. 44. The Supreme Court held that Ram Phal (supra) was bad in law and further held that even for an Appeal under the Proviso to Section 372, Cr.P.C., leave should be obtained under Section 378(3), Cr.P.C. 44. The cases relied upon by S. Nagamuthu, J. and the Full Bench in S. Ganapathy (supra), were ones which arose on a Police Charge-sheet and not on Private Complaint. This is obvious from the following table: S. No. Citation Coram Nature of Appeal Treatment 1. Parameshwar Mandal v. State of Bihar, 2014 Cr.L.J. 1046 2 Against Judgment and Order, dated 28.8.2012 passed by the Ad-hoc Additional Sessions Judge IV, Araria in Sessions Trial No. 846 of 2003/Tr. No. 259 of 2011, arising out of Jokihat P.S. Case No. 169 of 1999, acquitting Respondent Nos. 2 to 9 of charges under Sections 341, 342 & 302/34 of the Indian Penal Code framed against them. Approved and relied on 2. Jainath Prasad v. State of Bihar, 1993 (3) PLJR 227 2 Appeal against acquittal under Section 417 of the IPC Approved and relied on 3. Balasaheb Renganath Khade v. State of Maharashtra 2 Divergence of opinion between Kanade, J and Thipsay, J. referred to Roshan Dalvi, J, who agreed with the former on the question of maintainability. Appeal against acquittal-charge-sheeted for offences under punishable under Sections 143, 147, 148, 302 read with 149, 307 r/w. 149, 323 r/w. 149, 504 r/w. 149, 506 r/w. 149 & 427 r/w. 149, I.P.C. Appeal still pending on the file of the Bombay High Court. Last listed on 10.6.2019 before I. Mahanty and A.M. Badar, JJ. Approved and relied on 4. Gulab Singh v. Ashok Kumar, 2013 (3) Crimes 493) 1 Appeal against acquittal-Section 138 of the Negotiable Instruments Act. However, this view was impliedly overruled by a Division Bench in Dhanne Singh v. State of Rajasthan, 2015 (147) AIC 483 (Govind Mathur and Prakash Gupta, JJ.), which was not noticed by the referring Judge. Approved and relied on 5. Joginder Singh v. State of H.P., 2013 (3) Cr. However, this view was impliedly overruled by a Division Bench in Dhanne Singh v. State of Rajasthan, 2015 (147) AIC 483 (Govind Mathur and Prakash Gupta, JJ.), which was not noticed by the referring Judge. Approved and relied on 5. Joginder Singh v. State of H.P., 2013 (3) Cr. 160 2 Criminal Appeal 100 of 2012 arising out of a Judgment passed by the Court of learned Sessions Judge, Bilaspur, dated 16.12.2011, in Sessions Trial No. 15 of 2007, vide which learned Trial Court has acquitted the Accused therein for offences under Sections 307, 323, 341, 447 & 506, I.P.C. read with Section 34, I.P.C. Disposed of on 10.5.2016 Approved and relied on 6. Bhavuben Dineshbhai Makwana v. State of Gujarat, 2013 (3) MWN (Cr.) 268 (FB) (Guj.) 3 Two Appeals were directed against an Order of Acquittal passed by the learned Additional Sessions Judge, Bhavnagar in Sessions Case No. 147 of 2010 by which the Accused therein, who were charged for the offences punishable under Sections 147, 148, 149, 323, 324, 325, 307 & 302 of the Indian Penal Code and Section 135 of the Bombay Police Act, were acquitted. Approved and relied on 45. A 3-Judge Bench of the Supreme Court in Mallikarjun Kodagali (supra) had to decide a case arising on a Police Report as to whether Special Leave is required for entertaining an Appeal against acquittal. Two-Judges of the Bench, viz., Madan B. Lokur and S. Abdul Nazeer, JJ. held that special leave is not required and the Proviso to Section 372, Cr.P.C. is a standalone section, whereas, the dissenting Judge, viz., Deepak Gupta, J. held otherwise. While deciding this issue, the Supreme Court, at Paragraph No. 76 of the Judgment, specifically adverted to the applicability of Section 372, Cr.P.C. to Private Complaint cases and held as under: "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 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." (emphasis supplied) The dissenting Judge, Deepak Gupta, J. was in agreement with Madan B. Lokur and Abdul Nazeer, JJ. on this point, as could be seen from Paragraph Nos. 90 & 91 of the report which read as under: "90. Adverting to sub-section (4) of Section 378, Cr.P.C., if an Order of Acquittal is passed on a case instituted upon a 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 me 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 an interesting 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. 91. In case, I accept the proposition that the victim need not seek leave to Appeal in case the Appeal is to be filed in the High Court there shall be another anomalous situation. More often than not, the victim and the Complainant are likely to be one and the same person. 91. In case, I accept the proposition that the victim need not seek leave to Appeal in case the Appeal is to be filed in the High Court there shall be another anomalous situation. Supposing there are two victims in a case and one of the victims files a Complaint and sets the wheels of justice moving and the case is tried as a Complaint case, in case the Accused is acquitted and the victim, who is the Complainant wants to file an Appeal in the High Court, he will have to seek Special Leave to Appeal whereas the victim who had not even approached the Court at the initial stage will be entitled to file an Appeal without seeking leave to Appeal. This could not have been the intention of the legislature." 46. Albeit Mallikarjun Kodagali (supra) arose on a Police case, yet, the observation in Paragraph Nos. 76, 90 & 91 extracted above which directly answer the issues arising in these cases, even if construed as obiter, will be binding on the High Court in the absence of any direct pronouncement by the Supreme Court vide Oriental Insurance Co. Ltd. v. Meena Variyal and others, 2007 (2) TN MAC 9 (SC) : 2007 (5) SCC 428 . 47. In the opinion of this Court, the aforesaid Paragraphs in Mallikarjun Kodagali (supra) appear to have substantially set at naught the law laid down by the Full Bench of this Court in S. Ganapathy (supra). Judicial discipline would require that I refrain from giving any such declaration sitting single. Therefore, I deem it fit that the papers be placed before the Hon'ble Chief Justice to decide whether the decision of the Full Bench in S. Ganapathy (supra) requires reconsideration. 48. Judicial discipline would require that I refrain from giving any such declaration sitting single. Therefore, I deem it fit that the papers be placed before the Hon'ble Chief Justice to decide whether the decision of the Full Bench in S. Ganapathy (supra) requires reconsideration. 48. Hence, the following questions are framed and the Registry is directed to place this matter before the Hon'ble Chief Justice with a request to constitute a Bench of appropriate strength to decide the correctness of the law laid down by the Full Bench of this Court in S. Ganapathy (supra): i. When a Magistrate acquits an Accused in a case instituted upon a Private Complaint, like a prosecution under Section 138 of the NI Act, where does the remedy lie for the unsuccessful Complainant - Whether to the Court of Session under the Proviso to Section 372, Cr.P.C. or before the High Court under Sections 378(4) & (5), Cr.P.C. or are there concurrent remedies available, with the right to the Complainant to elect the forum of choice? ii. If the remedy is under the Proviso to Section 372, Cr.P.C., should the Complainant seek Special Leave from the Court of Session and if so, under what provision of law? iii. What is the period of limitation for filing an Appeal against acquittal before the Court of Session under the Proviso to Section 372, Cr.P.C. in a Private Complaint case like Section 138 of the NI Act? iv. If the answer to Question No. 1 under reference is that the Appeal will have to be filed under the Proviso to Section 372, Cr.P.C., then, if such Appeal filed by the Complainant before the Court of Session is dismissed and the Order of Acquittal passed by the Magistrate is upheld, does the Complainant have a remedy to file a Revision under Section 397 read with Section 401, Cr.P.C. before the High Court or file another round of Appeal against such acquittal by the Court of Session before the High Court under Section 378(4) & (5), Cr.P.C.? v. If the Complainant has the Revisional remedy before the High Court under Section 397 read with Section 401, Cr.P.C., can the High Court set aside only the Appellate Court's Order or the Trial Court's Order or the Orders of both the Courts below? vi. v. If the Complainant has the Revisional remedy before the High Court under Section 397 read with Section 401, Cr.P.C., can the High Court set aside only the Appellate Court's Order or the Trial Court's Order or the Orders of both the Courts below? vi. In the event of the Larger Bench holding that the Complainant, who has lost before the Trial Court and the Court of Session has the remedy to file a Revision under Section 397 read with Section 401, Cr.P.C. before the High Court, then, after setting aside the Orders, should the High Court remand the case to the Court of Session or to the Trial Court for re-trial? vii. In the event of the law laid down by the Full Bench in S. Ganapathy (supra) being overruled, what impact would such overruling have on the cases which have been decided by the Courts of Session during the interregnum?