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2023 DIGILAW 2917 (ALL)

Mamta Shukla v. State of U. P.

2023-12-22

UMESH CHANDRA SHARMA

body2023
JUDGMENT Umesh Chandra Sharma, J. Heard Sri Rajiv Lochan Shukla, learned counsel for the revisionist, Sri Mithilesh Kumar, learned AGA for the State, Sri A. Kumar Srivastava, learned counsel for the opposite party nos.2 to 8 and perused the record. 2. At present, before this Court, the application dated 04.12.2019 moved on behalf of the revisionist to convert the present revision into criminal appeal is pending for disposal with an affidavit against which the accused persons have strong objection that at the time of institution of this revision and when cause of action arises to the informant, there was no provision to prefer an appeal against an order of acquittal passed by the Sessions Judge. 3. In brief, facts of the case are that the Sessions Judge, Hamirpur acquitted all the accused persons under the charges under Sections 148, 352, 302 read with Section 149 IPC by the judgment and order dated 07.03.1996. Being aggrieved, the informant preferred this criminal revision under Section 397/401 CrPC on 15.04.1996. During the pendency of the instant criminal revision, learned counsel for the revisionist has moved an application dated 04.12.2019 to convert this revision into criminal appeal under Section 372 CrPC with the allegations that the deponent Smt. Mamta Shukla has been advised to state that by virtue of amendment in the Code of Criminal Procedure, now the victim has right to prefer a criminal appeal against the order of acquittal under Section 372 CrPC. 4. The deponent had preferred a criminal revision in the year 1996 for the remedy as existed at that relevant point of time. However, now due to legislative changes which is beneficiary in nature, a better right to file a criminal appeal is available to the deponent which she prays and she may be allowed to convert the revision into an appeal otherwise the revisionist shall suffer irreparable loss and injury. Therefore, this Court may graciously be pleased to allow the application and convert this criminal revision into criminal appeal as maintainable on behalf of the victim under Section 372 CrPC otherwise the applicant shall suffer irreparable loss and injury. 5. In Chapter XXX of the Code of Criminal Procedure, the provisions regarding the criminal revision has been mentioned in Sections 395 to 405 CrPC. The relevant sections for the purpose of the matter are Sections 397 and 401 CrPC which are as under:- "397. 5. In Chapter XXX of the Code of Criminal Procedure, the provisions regarding the criminal revision has been mentioned in Sections 395 to 405 CrPC. The relevant sections for the purpose of the matter are Sections 397 and 401 CrPC which are as under:- "397. Calling for records to exercise powers of revision.-(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself; to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record. Explanation.-All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. x x x x x 401. High Court's powers of revision.-(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307, and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of Justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly." 6. The provisions regarding criminal appeals have been provided in Chapter XXIX of the Code of Criminal Procedure. The relevant sections for the purpose of the present matter are Sections 372 and 378 CrPC which are 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 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. x x x x x 378. x x x x x 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 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 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. (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 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal- (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) 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. (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. (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)." 7. Following judicial pronouncements have been relied on by the parties:- (i) Mallikarjun Kodagali (Dead) through legal representatives v. State of Karnataka and others, 2018 (0) Supreme (SC) 983. (ii) Baldev Sharma v. Gopal and another, 2017 (0) Supreme (Raj) 1649. (iii) Tata Steel Ltd. v. Atma Tube Products Ltd. and others, 2013 LawSuit (P&H) 1375. (iv) In Re : Provision of Section 14A of SC/ST (Prevention of Atrocities) Amendment Act, 2015 v. Nil, 2018 (0) Supreme (All) 1007 (All) (FB). (v) D. Sudhakar v. Panapu Sreenivasulu @ Evone Water Sreenivasulu and others, 2012 SCC Online AP 416. (vi) John v. Shibu Cherian, (2011) 4 KLJ 25 . (vii)Bhisam Prasad Bareth v. Dinesh Mahant and others, 2012 SCC Online (Chh) 240. (viii) Atma Tube Products Ltd. and others v. Dhiraj Kumar, 2013 (2) RCR (Cri) 1005. 8. In Re: provisions of Section 14A of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Amendment Act, 2015 (supra) is concerned, it is not dealing with the present matter in which the second proviso to Section 14A(3) of the Act it is violative of both Articles 14 and 21 of the Constitution of India. It has also been held that the constitutional and inherent powers of the High Court are not ousted by Section 14A of the Act, 2015. It has also been held that the applicability of Section 14A will not depend of date of commission of offence. One of the determinative factors would be the date of order of Special Court or Exclusive Court. 9. It has also been held that the applicability of Section 14A will not depend of date of commission of offence. One of the determinative factors would be the date of order of Special Court or Exclusive Court. 9. According to this Court, the aforesaid judgment is not helpful to the revisionist as in this case the impugned judgment of acquittal had been passed on 07.03.1996 when there was provision of preferring a revision by the informant if he is aggrieved by the judgment and order of acquittal passed by the lower court. 10. In Mallikarjun Kodagali (supra) it has been held that the proviso to Section 372 has come into force on 31.12.2009 and in case of a judgment and order of acquittal, the relevant date would be the date of judgment and order of the trial court. The date of occurrence would not be material. It has also been held that the right to appeal is a substantive right and it is not a mere matter of procedure. The Apex Court held that the judgment of Andhra Pradhesh High Court in D. Sudhakar v. Panapu Sreenivasulu @ Evone Water Sreenivasulu and others, 2012 SCC Online AP 416, the Andhra Pradesh High Court has wrongly concluded that since the order of acquittal was passed on 30.11.2011 and the offence had been committed prior to 31.12.2009, hence, revision would lie. Similarly, the judgment of the learned single Judge in John v. Shibu Cherian, (2011) 4 KLJ 25 , decided on 05.08.2011 by the Kerala High Court has also been held to be no good law. The Apex Court also found the judgment in Bhisam Prasad Bareth v. Dinesh Mahant and others, 2012 SCC Online (Chh) 240, decided on 15.03.2012 to be no good law which had been pronounced on the basis of the judgment of the Apex Court in National Commission of Women v. State of Delhi and another, (2010) 12 SCC 599 . In this regard paragraph-72 of the judgment is relevant which is as under:- "72. In this regard paragraph-72 of the judgment is relevant which is as under:- "72. It was also submitted by learned counsel for the accused that in the present fact situation, if we were to hold that Kodagali was entitled to file an appeal against the acquittal of the accused, then we would be giving retrospective effect to the proviso to Section 372 of the Cr.P.C. It was submitted that if Parliament intended to confer a statutory right of appeal on a victim with retrospective effect, it would have specifically said so. Since the proviso to Section 372 of the Cr.P.C. was not specifically given retrospective effect, it must operate prospectively and the crucial date in a case such as the present would be the date of the alleged offence." 11. From the aforesaid judgment it is clear that the Apex Court has held that if a judgment of acquittal had been passed on or after 31.12.2009 only then an appeal can be preferred otherwise only a revision can be preferred in case of a judgment and order of acquittal. 12. In Atma Tube Products Ltd. and others v. Dhiraj Kumar, 2013 (2) RCR (Cri) 1005, it has been held that the proviso to Section 372 to prefer an appeal in case of a judgment of acquittal is prospective in application and only those orders which have been passed on or after 31.12.2009, irrespective of date of occurrence or registration of FIR or filing of complaint shall be appealable at the instance of a victim under the aforestated proviso. The Full Bench of Punjab and Haryana High Court has finally concluded that a revision preferred against an order of acquittal passed prior to 31.12.2009 cannot be converted into an appeal and shall be decided accordingly. 13. The Full Bench of Punjab and Haryana High Court has finally concluded that a revision preferred against an order of acquittal passed prior to 31.12.2009 cannot be converted into an appeal and shall be decided accordingly. 13. In Baldev Sharma v. Gopal and another, 2017 (0) Supreme (Raj) 1649, the Full Bench of Rajasthan High Court framed five questions out of which question no.2 relates with this matter which is as under:- "(ii) Whether the proviso to Section 372 as introduced by the amending Act No.5 of 2009 which has been brought into effect on 31.12.2009 can be given effect to in cases where the offence occurred prior to 31.12.2009 and thereby given the right of appeal to the victim in the event; (a) whether the court below has acquitted the accused or (b) has convicted the accused for a lesser offence or (c) has imposed inadequate compensation. Though the judgment in such cases may have been passed by the court below after 31.12.2009." 14. In paragraphs-3 to 6 of the aforesaid judgment this question has been answered which is as under:- "3. As regards point No.2, the date wherefrom right accrues to a victim to seek leave to appeal, in the decision reported as (2011) 6 SCC 739 , Thirumalai Chemicals Ltd. v. Union of India, the Supreme Court clearly held that the 'right of appeal being a substantive right always acts prospectively. It is trite law that every statute is prospective unless it is expressly or by necessary implication made to have retrospective operation.' This is a consistent position of law, and has been affirmed by the Supreme Court in numerous cases, such as AIR 1994 SC 2623 , Hitendra Vishnu Thakur v. State of Maharashtra, (2005) 4 SCC 480 , Kailash v. Nanhku & Ors., and (2014) 5 SCC 219 , H.P. State Electricity Regulatory Commission v. H.P. SEB, 4. This has also been the view of most of the High Courts, with respect to this question. This has also been the view of most of the High Courts, with respect to this question. The Punjab and Haryana High Court, in the decision reported as (2014) 1 PLR 1, CRM-790- MA-2010, Tata Steel v. Atma Tube Projects, held : "Since right to appeal is a substantive right and it cannot be inferred by implication unless the Statute expressly provides so, the only inescapable conclusion would be to hold that the right to appeal given to a 'victim' under proviso to Section 372 of the Code is prospective and has become enforceable w.e.f. December 31, 2009 only. A 'victim' is entitled to prefer appeal in respect of any type of order referred to in the proviso to Section 372 if such order has been passed on or after December 31, 2009 irrespective of the date of registration of FIR or the date of occurrence etc. To be more specific, it is clarified that it is the date of passing of the order to be appealed from and not any other fact situation, which shall determine the right to appeal of a 'victim'." 5. Similarly, in the decision reported as 2014 Crim. Law Journal 1046, Parmeshwar Mandal v. The State of Bihar, the Patna High Court held: "...the said proviso contains both substantive part, creating right in the victim to prefer an appeal, and procedural part, by identifying the forum for filing such an appeal. It is not in dispute that the substantive part of law operates prospectively.....it has to be concluded that the right of victim, to prefer an appeal in terms of said proviso to Section 372, became available to the victim(s) of all cases in which orders were passed by any criminal court acquitting the accused or convicting him for a lesser offence or imposing inadequate compensation, on or after 31st of December, 2009. In other words, date of judgment of a criminal court has to be necessarily treated as the relevant date for applying the test of maintainability of appeal by the victim under three contingencies laid down under the proviso to Section 372 of the Code, irrespective of the date of occurrence, institution of the case, cognizance or commitment." 6. Thus, the effective date is 31.12.2009. Thus, the effective date is 31.12.2009. Judgments passed on or after said date are the ones in respect whereto, irrespective of the date of the offence, the victim can avail the right to file an application seeking leave to appeal." 15. From the perusal of the above judgments and principles laid down by the Apex Court and different High Courts it is very much clear that if an order or judgment of acquittal has been passed on or after 31.12.2009 only then an appeal can be preferred against such order by the victim or the injured otherwise he can file revision only. In this case the offence had been committed prior to 31.12.2009 and the order and judgment of acquittal was also passed on 07.03.1996 against which the informant has already preferred revision which can be decided as per existing rules and law. 16. According to this Court, considering the facts and circumstances of the case in hand, the present revision is not liable to be converted into an appeal. 17. This revision is pending since 1996 and the learned counsel for the revisionist never tried to get the revision decided. Even this revision was once dismissed for want of prosecution which was later on restored. Had the argument been advanced after institution of the revision, the same would have been decided much earlier. In case the revision would have been allowed, the trial court would have been directed to decide the sessions trial afresh within stipulated period prescribed by this Court. 18. Thus, this Court is of the view that the application with the prayer to convert this criminal revision into an appeal is devoid of merit which has no force and is liable to be rejected. ORDER 19. Accordingly, the application dated 04.12.2019 moved by the revisionist to convert the present revision into criminal appeal is hereby rejected. 20. List this criminal revision on 18.01.2024 in the additional cause list for disposal before the appropriate Bench.