Thus,
appeal preferred by the accused against his conviction under
Section 374 can also be dismissed summarily after following
procedure prescribed under Section 384 of Cr. P.C. In other
words, that appeal also need not be automatically admitted for
final hearing. Hence, it cannot be accepted that an appeal
against acquittal filed by the victim cannot be summarily
dismissed. The presumption of innocence of acquitted accused
is more strong and hence in appeal, scope of interference
therewith lies in narrow compass.
Section 372 of Cr. P.C. only dispenses with
procedural requirement of securing leave. Earlier, in absence
of that leave, the appeal presented by such victim could not
have been touched. After such leave is granted in terms of
provisions contained in High Court Appellate Side Rules
(supra), the petition seeking leave itself becomes an appeal as
it is entertained by High Court. Section 372 of Cr. P.C. which
gives right of appeal to victim, therefore, does not expect him
to obtain leave of High Court for that purpose. However, the
question whether that appeal has any merit or not or in other
words whether it can be summarily dismissed under Section
384 or not, can still be examined by this Court. Hearing for
admission inherent in unamended provisions of Cr. P.C. read
with Chapter XXVI of High Court Appellate Side Rules, 1960,
is not deleted while giving the victim, a right of appeal under
new Section 372 of Cr. P.C. It cannot be said that appeal of
victim is placed at higher pedestal or in any way becomes
superior as compared with appeal of accused against his
conviction or any other appeal against acquittal of accused.
Therefore, mere deletion of requirement of obtaining leave by
conferring a right of appeal upon the accused, does not mean
that such appeal is automatically admitted for final hearing.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CRIMINAL APPEAL NO. 156 OF 2015
Manikrao s/o Bapurao Kale,
Versus
Vasantrao Vishwasrao Charjan,
CORAM : B.P. DHARMADHIKARI &
P.N. DESHMUKH, JJ.
DATE OF PRONOUNCEMENT : JULY 08, 2015.
Citation;2015 ALLMR(CRI)4754
Judgment on preliminary point.
2. On 29.06.2015, this Court has passed the following
order in these appeals :
“Heard the respective counsel appearing for the
appellant and respondents in both the appeals.
The respective counsel appearing for the
appellant – complainant submit that as requirement
of obtaining leave is deleted in the wake of right given
to the complainant under Section 372 of the Code of
Criminal Procedure, the appeals must be directly
admitted and placed for final hearing. According to
them, there is no question of hearing the appeal again
for admission as parameters to be applied for grant of
leave to appeal and for admission, are same.
The respective counsel appearing for the
respondents urged that law on the point is well settled
and deleting the requirement of leave does not
tantamount to grant of admission of appeal for its
final hearing.
We have heard respective counsel only on this
question and the Appeals are closed for passing orders on
it.”
Accordingly, we decide the question, whether the
Appeal filed by the victim under Section 372 of the Code of
Criminal procedure stands admitted for final hearing as a
matter of course or then it is subjected to provisions of Section
384 of the Code of Criminal Procedure and, therefore, can be
summarily dismissed.
3. In Criminal Appeal No. 25 of 2015, this Court has
on 05.05.2015 while delivering a judgment, has considered
this issue. In para 7 thereof, the said Division Bench has
looked into the conclusions of learned Single Judge, when on
account of difference between judges comprising the Division
Bench, the matter was placed before the Hon'ble third judge of
this Court. The said Division Bench judgment in the case of
Balasaheb Rangnath Khade vs. State of Maharashtra & Ors., is
reported at 2012 ALL MR (Cri) 1153, while judgment of
learned Single Judge is reported in the case of Balasaheb
Rangnath Khade vs. State of Maharashtra & Ors., at 2012 (3)
Mh. L.J. (Cri.) 99. One of us, P.N. Deshmukh, J., is a party to
the judgment dated 05.05.2015 in Criminal Appeal No. 25 of
2015. There, after reproducing in para 8, the findings
recorded in para 66 of Single Judge's judgment (supra), the
Division Bench has found that question whether such an
appeal of victim can be summarily dismissed or not, was not
open before the learned Single Judge. In para 10, finding that
requirement of obtaining leave and power of High Court to
dismiss appeal summarily, is not one and the same, is also
recorded. The discussion in this respect is contained in para
11 of the judgment dated 05.05.2015. The Division Bench on
05.05.2015 has held that High Court has got power to
summarily dismiss the victim's appeal against the acquittal.
4. Shri Manohar, learned counsel for the appellant
has urged that as there is no question of obtaining leave of this
Court by victim while filing appeal under Section 372 of Cr.
P.C., the appeal must be deemed to have admitted for final
hearing. He is relying upon the judgment of the learned
Single Judge of Madhya Pradesh High Court in the case of
Dongarsingh vs. Krishan Kant Vyas & Anr., reported at AIR
1957 Madhya Pradesh 162, to urge that scope of hearing,
while considering the question of grant of leave and while
admitting such appeal, is identical and hence in case leave is
granted, the appeal against the acquittal automatically stands
admitted. He has taken us through paragraphs 15 to 18 of the
observations of the Madhya Pradesh judgment. He points out
that if leave is granted, judgment of acquittal is likely to be
reversed. The support is also taken from the judgment of the
Hon'ble Apex Court in the case of State of Madhya Pradesh vs.
Giriraj Dubey, reported at 2013 CRI. L.J. 1676. There, the
Hon'ble Apex Court has in paragraphs 4 & 5 pointed out the
obligation of High Court to give reasons while dismissing the
application for grant of leave. In paragraph 12, the Hon'ble
Apex Court has pointed out that a crime generally creates
disturbance in the society and it is the duty of High Court to
see that justice is done to the sufferer of crime. Recording of
reasons is found necessary to demonstrate discharge of such a
duty or obligation.
5. Shri Gupte, Senior Advocate with Shri Dere,
learned Advocate for respondent Nos. 1 to 4 has, however,
submitted that due to amendment giving a right to victim to
file appeal vide Section 372 of Cr. P.C., only the requirement
of prior leave of this Court has been removed. The leave was
essential in view of provisions of Section 378(4). After that
leave is granted, the appeal presented by the complainant
could have been entertained by High Court. He submits that
thus, victim could have earlier come to this Court after
obtaining leave and if that leave is granted, his appeal could
have been entertained. That requirement now no more exists
but then the appeal needs to be placed for admission and
considered as per law. He states that presumption of
innocence of the accused is reinforced by his acquittal and that
acquittal, therefore, cannot be lightly interfered by this Court.
The limited scope of hearing available in the appeal against
acquittal is also pressed into service by him.
6. Before proceeding further, it will be appropriate to
look into the provisions of Rules 19 & 20 of Chapter XXVI of
the Bombay High Court Appellate Side Rules, 1960, dealing
with the appeal against acquittal. Rule 19 of Chapter XXVI
provides for filing of composite petition, seeking leave and
giving grounds of appeal. If the leave is granted, the same
memo is registered as appeal. The appellant is obliged to pay
Court fee on his memo of appeal at that stage. Next provision
is the procedure to be followed by the office, if the appeal is
admitted. Thus, Appellate Side Rules themselves contemplate
different stage for grant of leave, of registration of appeal and
stage of its admission for final hearing. Procedure stipulated
in Rule 20 i.e. notice to District Magistrate and obligation of
later to inform the High Court whether accused is in jail and in
what jail, starts only after such an appeal is admitted.
7. In this background, when the parameters pointed
out by Shri Manohar, learned counsel, indicating scope of
hearing at the stage of grant of leave are looked into, it is
apparent that the provisions of High Court Appellate Side
Rules are in consonance therewith. Duplication has been
avoided by providing hearing for grant of leave and at that
stage to demonstrate merits in the matter.
8. A perusal of Section 384 of Code of Criminal
Procedure shows that if after examining the petition of appeal
and copy of the judgment received under Section 382 or
Section 383, the Appellate Court finds that there is no
sufficient ground for interfering, it can dismiss the appeal
summarily. However, if appeal is presented under Section 382
of Cr. P.C., it cannot be dismissed unless the appellant or his
Advocate are given reasonable opportunity of hearing. Appeal
presented under Section 383 of Cr. P.C. also cannot be
dismissed without such opportunity unless the Appellate Court
considers that appeal is frivolous or that the production of the
accused in custody before the Court would involve such
inconvenience as would be disproportionate in the
circumstances of the case. Appeal presented under Section
383 of Cr. P.C. cannot be dismissed summarily until period
allowed for preferring such appeal has expired. Subsection (2)
thereof provides that before summary dismissal of appeal, the
Court can call for records from trial Court. Subsection (3) is
on requirement of recording reasons in support of such
dismissal. The provision contained in subsection (4) of
Section 384 is not relevant for this consideration. Thus,
appeal preferred by the accused against his conviction under
Section 374 can also be dismissed summarily after following
procedure prescribed under Section 384 of Cr. P.C. In other
words, that appeal also need not be automatically admitted for
final hearing. Hence, it cannot be accepted that an appeal
against acquittal filed by the victim cannot be summarily
dismissed. The presumption of innocence of acquitted accused
is more strong and hence in appeal, scope of interference
therewith lies in narrow compass.
9. Section 372 of Cr. P.C. only dispenses with
procedural requirement of securing leave. Earlier, in absence
of that leave, the appeal presented by such victim could not
have been touched. After such leave is granted in terms of
provisions contained in High Court Appellate Side Rules
(supra), the petition seeking leave itself becomes an appeal as
it is entertained by High Court. Section 372 of Cr. P.C. which
gives right of appeal to victim, therefore, does not expect him
to obtain leave of High Court for that purpose. However, the
question whether that appeal has any merit or not or in other
words whether it can be summarily dismissed under Section
384 or not, can still be examined by this Court. Hearing for
admission inherent in unamended provisions of Cr. P.C. read
with Chapter XXVI of High Court Appellate Side Rules, 1960,
is not deleted while giving the victim, a right of appeal under
new Section 372 of Cr. P.C. It cannot be said that appeal of
victim is placed at higher pedestal or in any way becomes
superior as compared with appeal of accused against his
conviction or any other appeal against acquittal of accused.
Therefore, mere deletion of requirement of obtaining leave by
conferring a right of appeal upon the accused, does not mean
that such appeal is automatically admitted for final hearing.
10. We, therefore, find no substance in the contention
of Shri Manohar and Shri Surjuse, learned counsel for the
appellants. Accordingly, the preliminary contention raised by
the appellants is rejected.
The Registry to place Criminal Appeals for
admission in accordance with law.
Print Page
appeal preferred by the accused against his conviction under
Section 374 can also be dismissed summarily after following
procedure prescribed under Section 384 of Cr. P.C. In other
words, that appeal also need not be automatically admitted for
final hearing. Hence, it cannot be accepted that an appeal
against acquittal filed by the victim cannot be summarily
dismissed. The presumption of innocence of acquitted accused
is more strong and hence in appeal, scope of interference
therewith lies in narrow compass.
Section 372 of Cr. P.C. only dispenses with
procedural requirement of securing leave. Earlier, in absence
of that leave, the appeal presented by such victim could not
have been touched. After such leave is granted in terms of
provisions contained in High Court Appellate Side Rules
(supra), the petition seeking leave itself becomes an appeal as
it is entertained by High Court. Section 372 of Cr. P.C. which
gives right of appeal to victim, therefore, does not expect him
to obtain leave of High Court for that purpose. However, the
question whether that appeal has any merit or not or in other
words whether it can be summarily dismissed under Section
384 or not, can still be examined by this Court. Hearing for
admission inherent in unamended provisions of Cr. P.C. read
with Chapter XXVI of High Court Appellate Side Rules, 1960,
is not deleted while giving the victim, a right of appeal under
new Section 372 of Cr. P.C. It cannot be said that appeal of
victim is placed at higher pedestal or in any way becomes
superior as compared with appeal of accused against his
conviction or any other appeal against acquittal of accused.
Therefore, mere deletion of requirement of obtaining leave by
conferring a right of appeal upon the accused, does not mean
that such appeal is automatically admitted for final hearing.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CRIMINAL APPEAL NO. 156 OF 2015
Manikrao s/o Bapurao Kale,
Versus
Vasantrao Vishwasrao Charjan,
CORAM : B.P. DHARMADHIKARI &
P.N. DESHMUKH, JJ.
DATE OF PRONOUNCEMENT : JULY 08, 2015.
Citation;2015 ALLMR(CRI)4754
Judgment on preliminary point.
2. On 29.06.2015, this Court has passed the following
order in these appeals :
“Heard the respective counsel appearing for the
appellant and respondents in both the appeals.
The respective counsel appearing for the
appellant – complainant submit that as requirement
of obtaining leave is deleted in the wake of right given
to the complainant under Section 372 of the Code of
Criminal Procedure, the appeals must be directly
admitted and placed for final hearing. According to
them, there is no question of hearing the appeal again
for admission as parameters to be applied for grant of
leave to appeal and for admission, are same.
The respective counsel appearing for the
respondents urged that law on the point is well settled
and deleting the requirement of leave does not
tantamount to grant of admission of appeal for its
final hearing.
We have heard respective counsel only on this
question and the Appeals are closed for passing orders on
it.”
Accordingly, we decide the question, whether the
Appeal filed by the victim under Section 372 of the Code of
Criminal procedure stands admitted for final hearing as a
matter of course or then it is subjected to provisions of Section
384 of the Code of Criminal Procedure and, therefore, can be
summarily dismissed.
3. In Criminal Appeal No. 25 of 2015, this Court has
on 05.05.2015 while delivering a judgment, has considered
this issue. In para 7 thereof, the said Division Bench has
looked into the conclusions of learned Single Judge, when on
account of difference between judges comprising the Division
Bench, the matter was placed before the Hon'ble third judge of
this Court. The said Division Bench judgment in the case of
Balasaheb Rangnath Khade vs. State of Maharashtra & Ors., is
reported at 2012 ALL MR (Cri) 1153, while judgment of
learned Single Judge is reported in the case of Balasaheb
Rangnath Khade vs. State of Maharashtra & Ors., at 2012 (3)
Mh. L.J. (Cri.) 99. One of us, P.N. Deshmukh, J., is a party to
the judgment dated 05.05.2015 in Criminal Appeal No. 25 of
2015. There, after reproducing in para 8, the findings
recorded in para 66 of Single Judge's judgment (supra), the
Division Bench has found that question whether such an
appeal of victim can be summarily dismissed or not, was not
open before the learned Single Judge. In para 10, finding that
requirement of obtaining leave and power of High Court to
dismiss appeal summarily, is not one and the same, is also
recorded. The discussion in this respect is contained in para
11 of the judgment dated 05.05.2015. The Division Bench on
05.05.2015 has held that High Court has got power to
summarily dismiss the victim's appeal against the acquittal.
4. Shri Manohar, learned counsel for the appellant
has urged that as there is no question of obtaining leave of this
Court by victim while filing appeal under Section 372 of Cr.
P.C., the appeal must be deemed to have admitted for final
hearing. He is relying upon the judgment of the learned
Single Judge of Madhya Pradesh High Court in the case of
Dongarsingh vs. Krishan Kant Vyas & Anr., reported at AIR
1957 Madhya Pradesh 162, to urge that scope of hearing,
while considering the question of grant of leave and while
admitting such appeal, is identical and hence in case leave is
granted, the appeal against the acquittal automatically stands
admitted. He has taken us through paragraphs 15 to 18 of the
observations of the Madhya Pradesh judgment. He points out
that if leave is granted, judgment of acquittal is likely to be
reversed. The support is also taken from the judgment of the
Hon'ble Apex Court in the case of State of Madhya Pradesh vs.
Giriraj Dubey, reported at 2013 CRI. L.J. 1676. There, the
Hon'ble Apex Court has in paragraphs 4 & 5 pointed out the
obligation of High Court to give reasons while dismissing the
application for grant of leave. In paragraph 12, the Hon'ble
Apex Court has pointed out that a crime generally creates
disturbance in the society and it is the duty of High Court to
see that justice is done to the sufferer of crime. Recording of
reasons is found necessary to demonstrate discharge of such a
duty or obligation.
5. Shri Gupte, Senior Advocate with Shri Dere,
learned Advocate for respondent Nos. 1 to 4 has, however,
submitted that due to amendment giving a right to victim to
file appeal vide Section 372 of Cr. P.C., only the requirement
of prior leave of this Court has been removed. The leave was
essential in view of provisions of Section 378(4). After that
leave is granted, the appeal presented by the complainant
could have been entertained by High Court. He submits that
thus, victim could have earlier come to this Court after
obtaining leave and if that leave is granted, his appeal could
have been entertained. That requirement now no more exists
but then the appeal needs to be placed for admission and
considered as per law. He states that presumption of
innocence of the accused is reinforced by his acquittal and that
acquittal, therefore, cannot be lightly interfered by this Court.
The limited scope of hearing available in the appeal against
acquittal is also pressed into service by him.
6. Before proceeding further, it will be appropriate to
look into the provisions of Rules 19 & 20 of Chapter XXVI of
the Bombay High Court Appellate Side Rules, 1960, dealing
with the appeal against acquittal. Rule 19 of Chapter XXVI
provides for filing of composite petition, seeking leave and
giving grounds of appeal. If the leave is granted, the same
memo is registered as appeal. The appellant is obliged to pay
Court fee on his memo of appeal at that stage. Next provision
is the procedure to be followed by the office, if the appeal is
admitted. Thus, Appellate Side Rules themselves contemplate
different stage for grant of leave, of registration of appeal and
stage of its admission for final hearing. Procedure stipulated
in Rule 20 i.e. notice to District Magistrate and obligation of
later to inform the High Court whether accused is in jail and in
what jail, starts only after such an appeal is admitted.
7. In this background, when the parameters pointed
out by Shri Manohar, learned counsel, indicating scope of
hearing at the stage of grant of leave are looked into, it is
apparent that the provisions of High Court Appellate Side
Rules are in consonance therewith. Duplication has been
avoided by providing hearing for grant of leave and at that
stage to demonstrate merits in the matter.
8. A perusal of Section 384 of Code of Criminal
Procedure shows that if after examining the petition of appeal
and copy of the judgment received under Section 382 or
Section 383, the Appellate Court finds that there is no
sufficient ground for interfering, it can dismiss the appeal
summarily. However, if appeal is presented under Section 382
of Cr. P.C., it cannot be dismissed unless the appellant or his
Advocate are given reasonable opportunity of hearing. Appeal
presented under Section 383 of Cr. P.C. also cannot be
dismissed without such opportunity unless the Appellate Court
considers that appeal is frivolous or that the production of the
accused in custody before the Court would involve such
inconvenience as would be disproportionate in the
circumstances of the case. Appeal presented under Section
383 of Cr. P.C. cannot be dismissed summarily until period
allowed for preferring such appeal has expired. Subsection (2)
thereof provides that before summary dismissal of appeal, the
Court can call for records from trial Court. Subsection (3) is
on requirement of recording reasons in support of such
dismissal. The provision contained in subsection (4) of
Section 384 is not relevant for this consideration. Thus,
appeal preferred by the accused against his conviction under
Section 374 can also be dismissed summarily after following
procedure prescribed under Section 384 of Cr. P.C. In other
words, that appeal also need not be automatically admitted for
final hearing. Hence, it cannot be accepted that an appeal
against acquittal filed by the victim cannot be summarily
dismissed. The presumption of innocence of acquitted accused
is more strong and hence in appeal, scope of interference
therewith lies in narrow compass.
9. Section 372 of Cr. P.C. only dispenses with
procedural requirement of securing leave. Earlier, in absence
of that leave, the appeal presented by such victim could not
have been touched. After such leave is granted in terms of
provisions contained in High Court Appellate Side Rules
(supra), the petition seeking leave itself becomes an appeal as
it is entertained by High Court. Section 372 of Cr. P.C. which
gives right of appeal to victim, therefore, does not expect him
to obtain leave of High Court for that purpose. However, the
question whether that appeal has any merit or not or in other
words whether it can be summarily dismissed under Section
384 or not, can still be examined by this Court. Hearing for
admission inherent in unamended provisions of Cr. P.C. read
with Chapter XXVI of High Court Appellate Side Rules, 1960,
is not deleted while giving the victim, a right of appeal under
new Section 372 of Cr. P.C. It cannot be said that appeal of
victim is placed at higher pedestal or in any way becomes
superior as compared with appeal of accused against his
conviction or any other appeal against acquittal of accused.
Therefore, mere deletion of requirement of obtaining leave by
conferring a right of appeal upon the accused, does not mean
that such appeal is automatically admitted for final hearing.
10. We, therefore, find no substance in the contention
of Shri Manohar and Shri Surjuse, learned counsel for the
appellants. Accordingly, the preliminary contention raised by
the appellants is rejected.
The Registry to place Criminal Appeals for
admission in accordance with law.
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