Sunday, 1 January 2017

Whether complainant can file appeal against acquittal as per proviso to S 372 R/W S 378 CRPC before High court?

 The Petitioner herein was the Complainant on behalf of the
Bank. He was Auditor and in his capacity as being the Auditor, he had
lodged the First Information Report against Respondent No.2. Therefore,
though he is the author of the complaint as is understood under Section
2(d) of the Code of Criminal Procedure, he, as an individual, would not
fall within the definition of victim under Section 2(wa). Therefore, though
the right of the Petitioner to file a complaint or lodge an FIR can be
recognized,   yet,   insofar   as   preferring   an   appeal   against   the   order   of
acquittal is concerned, the right of the Petitioner as a Bank under the
proviso to Section 372 will have to be read within the scope of Section
378(3), (4) and (5) of the Code of Criminal Procedure.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 968 OF 2013
Parbhani District Central Bank Ltd.,

­V
 The State of Maharashtra.

  CORAM:  RAVINDRA V. GHUGE, J.
DATE :­ 23rd June, 2016
Citation: 2016 ALLMR(CRI)4822

1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2 The Petitioner is aggrieved by the order dated 01.04.2013 by
which   Miscellaneous   Application   No.1/2013,   filed   by   the   Petitioner
seeking condonation of delay in preferring an appeal, has been rejected by
the learned Additional Sessions Judge, Hingoli.
3 The Petitioner contends that pursuant to the complaint filed
by the Petitioner against Respondent No.2 alleging commission of offences
punishable under Sections 409, 468 and 420 of the Indian Penal Code,
Regular Criminal Case No.68/1999 was adjudicated upon by the learned
Judicial Magistrate First Class, Kalamnuri. By the judgment and order
dated   23.02.2011,   Respondent   No.2/   Accused   was   acquitted   of   the
offences.
4 The grievance is that pursuant to the said judgment, the State
did not prefer an appeal before the learned Additional Sessions Judge at
Hingoli. After the Petitioner got the knowledge of the judgment, it had
approached the Public Prosecutor with regard to the filing of an appeal.
After obtaining the certified copy of the judgment on 11.06.2012, legal

opinion was sought and upon confirming that no appeal was filed by the
Public   Prosecutor,   the   Petitioner   preferred   Miscellaneous   Application
No.1/2013 seeking condonation of delay of 18 months and 12 days in
preferring an appeal. By the impugned order, the said application has been
rejected.
5 Shri Deshmukh, learned Advocate for the Petitioner, submits
that the Petitioner is a victim and hence, a legal injury has been caused to
the Petitioner by the non filing of the appeal by the Public Prosecutor. It
was   under   the   complaint   of   the   Petitioner   that   the   prosecution   was
launched.   Under   the   proviso   to   Section   372   of   the   Code   of   Criminal
Procedure, which has been inserted by Amendment Act No.5 of 2009
w.e.f.  31.12.2009, the  victim  was  bestowed  with a right to  prefer   an
appeal against the order passed by the Court acquitting the accused or
convicting   for   a   lesser   offence   or   imposing   inadequate   compensation.
According   to   Shri   Deshmukh,   limitation   has   not   been   specifically
prescribed under Section 372.
6 He   further   submits   that   an   application   for   obtaining   a
certified copy of the judgment was filed on 07.06.2012 and the same was
obtained on 11.06.2012. Thereafter, the Petitioner Bank sought a legal
opinion and consequent to the legal opinion, the appeal was preferred

along with an application for condonation of delay on 04.01.2013. 
7 He, therefore, submits that if the limitation period of 90 days
is to be computed from the date of receipt of the certified copy, the delay
would be of a minor period. Notwithstanding the same, even if it is held
that the limitation period would start from the date of the judgment, the
delay of 18 months and 12 days can neither be termed as being inordinate
nor having been deliberately caused by the Petitioner. He submits that
neither any laches can be attributed to the conduct of the Petitioner nor
can it be said that the Petitioner would gain an undue advantage by
causing  delay  in   the   matter. He,  therefore,  prays  for   quashing  of  the
impugned order and seeks condonation of delay.
8 Shri   Kakade,   learned   Advocate   appearing   on   behalf   of
Respondent No.2, strenuously opposes this petition. By relying on the
pleadings in the application for condonation of delay, Shri Kakade submits
that   an   untrue   story   has   been   narrated   by   the   Petitioner   in   the   said
application. 
9 He submits that Respondent No.2 had entered an application
dated   10.02.2012   in   the   inward   department   of   the   Petitioner   Bank
indicating that he has been acquitted of the offences and considering the

fact that the charge of misappropriation of money has not been proved
against him, he should be paid his retiral benefits taking into account that
he   had   attained   the   age   of   superannuation.   Shri   Kakade,   therefore,
submits that by virtue of the application dated 10.02.2012, the Petitioner
was made aware of the judgment and despite the same, the Petitioner has
not preferred an appeal.
10 Shri Kakade further submits that though the Petitioner had
lodged the complaint levelling allegations against Respondent No.2, it was
the State which, under the scheme of law, has to prosecute Respondent
No.2. Having so done and in the light of the proceedings resulting in the
acquittal of Respondent No.2, the Petitioner is not competent to file an
appeal since the State has to prefer an appeal under Section 378 of the
Code of Criminal Procedure. He submits that Section 372 would have no
applicability in this backdrop. He, therefore, prays for the dismissal of this
petition.
11 The learned APP has supported the impugned order and has
prayed for the dismissal of the petition with costs.
12 Considering the conspectus of the matter, I called upon Shri
Shirish   Gupte,   the   learned   Senior   Advocate,   to   assist   the   Court.

Coincidentally, Shri Gupte has been the counsel for one of the Appellants
in the reported judgment of the learned Division Bench of this Court in the
matter of  Balasaheb Rangnath Khade vs. The State of Maharashtra and
others, 2013 ALL MR (Cri) 1153. Shri Gupte graciously agreed to assist
the Court on the point of law in this matter.
13 Shri Gupte contended that Chapter­IX of the Code of Criminal
Procedure, 1973, pertains to appeals and the scope and jurisdiction of the
Appeal  Court. He stated that in  the  light of  the  facts of this case, a
criminal revision application would not be maintainable considering the
fact   that   the   learned   Magistrate   has   delivered   its   judgment   thereby,
acquitting the accused.
14 He submits that Section 372 along with the proviso, which
has   been   introduced   by   way   of   an   amendment,   cannot   be   read   in
isolation. The appeal to be preferred is provided only in Section 378.
Section 372 is a prohibition on filing of any appeal except in accordance
with the provisions under the Code of Criminal Procedure. He, therefore,
submits that Section 372 will have to be read along with Section 378 and
the golden rule of interpretation as well as the test would be that the
proviso below Section 372 read with Section 378 leads to a harmonious
interpretation. He hastens to clarify that the proviso to Section 372 cannot

be interpreted in a manner which would do violence to the scheme under
Section 378.
15 In   support   of   his   contentions,   he   has   relied   upon   the
judgment in the matter of CASIO India Company Private Limited vs. State
of Haryana,     2016 (3) Scale 441 :   (Civil Appeal Nos.1410 and 1411/2007
and   5450/2013,   decided   on   29.03.2016).   He   specifically   relies   upon
paragraphs 19 and 20 of the said judgment, which read as under:­
“19.    We have reproduced the exemption notification above
and   referred   to the language employed.   At this
juncture,  it  is  absolutely  necessary  to understand
the   language   employed   in   the   proviso     to     the
notification.   If there   was   no   proviso   to   the
notification  there  would  have  been  no difficulty
whatsoever in  holding  that  the  exemption  is  qua
the   goods manufactured and was not curtailed or
restricted to the sales   made   by   the manufacturer
dealer   and   would   not   apply   to   the   second     or
subsequent   sales made by a trader, who buys the
goods from the manufacturer­dealer and   sells the
same in the course of inter­state trade or commerce.
It  is  pertinent to note that, clause (ii)  of  sub­rule
(n)  refers  to  sale  of  finished products in the course
of inter­state trade or commerce where  the  finished
products  are  manufactured  by  eligible  industrial
unit.   There  is  no stipulation that only the first sale
or the sale by the eligible   industrial unit in Inter
State   or   Trade   would   be   exempt.   The   confusion
arises,   as   it seems to us, in the proviso   to   the
notification   which   states   that   the manufacturerdealer
should not  have  charged  tax.   It  needs  no
special emphasis to mention that provisos can serve
various  purposes.   The  normal function is to qualify
something enacted therein but for  the  said  proviso

would fall within the purview of the enactment.  It  is
in   the  nature  of exception. [See : Kedarnath Jute
Manufacturing Co.  Ltd  v.  Commercial  Tax Officer,
AIR 1966 SC 12].  Hidayatullah, J. (as his Lordship
then was) in   Shah   Bhojraj Kuverji Oil Mills and
Ginning Factory v. Subhash  Chandra  Yograj  Sinha,
AIR 1961 SC 1596, had observed that a proviso is
generally  added  to an    enactment    to   qualify  or
create an exception to what is in the enactment, and
the proviso   is   not interpreted as stating a general
rule.  Further, except for instances  dealt with in the
proviso, the same should not be used for interpreting
the   main   provision/enactment,   so   as   to   exclude
something by implication.     It   is   by nature of an
addendum or dealing with a subject matter which is
foreign  to the main  enactment.  (See  :  CIT,  Mysore
etc.   v   Indo   Mercantile   Bank Ltd, AIR 1959 SC
713). Proviso  should  not  be  normally  construed
as     nullifying     the   enactment   or   as   taking   away
completely a right conferred. 
20.    Read in this manner, we do not think the proviso
should  be  given  a greater or more significant role in
interpretation of the main part  of  the notification,
except as carving out an  exception.  It  means  and
implies that the requirement of the proviso should be
satisfied  i.e.  manufacturing dealer should not have
charged the tax.  The proviso would  not  scuttle  or
negate the main provision by holding  that  the  first
transaction  by  the eligible manufacturing dealer in
the   course   by   way   of   inter­state   sale would be
exempt   but   if   the   inter­state   sale     is     made     by
trader/purchaser,   the   same   would   not   be   exempt.
That will not be  the   correct   understanding of the
proviso.   Giving   over   due   and   extended   implied
interpretation to  the proviso in the notification  will
nullify  and  unreasonably  restrict  the general and
plain   words   of   the   main   notification.   Such
construction is  not warranted.”
16 He then submits that a proviso cannot be read beyond the

section. The proviso is aimed at either clarifying the position in law in
consonance with the specific section or would in itself be a substantive
provision   without   running   counter   to   the   meaning   flowing   from   the
section.   He,   therefore,   relied   upon   the   judgment   of   the   Honourable
Supreme Court (four Judges' Bench) in the matter of Dwarka Prasad vs.
Dwarka Das Saraf,  (1976) 1 SCC 128  and especially on  paragraphs 17
and 18, which read as under:­
“17. While rulings and text books bearing on statutory
construction   have   assigned   many   functions   for
provisos, we have to be selective, having regard to the
text and context of a statute. Nothing is gained by
extensive references to luminous classics or supportive
case law. Having explained the approach we make to
the specific 'proviso' situation in s. 2(a) of the Act,
what   strikes   us   as   meaningful   here   is   that   the
legislature by the amending Act clarified what was
implicit   earlier   and   expressly   carved   out   what
otherwise might be mistakenly covered by the main
definition. The proviso does not, in this case, expand,
by   implication,   the   protected   area   of   building
tenancies to embrace 'business' leases. 
18. We   may   mention   fairness   to   counsel   that   the
following, among other decisions, were cited at the
bar   bearing   on   the   uses   of   provisos   in   statutes:
Commissioner of Income­tax v. Indo­Mercantile Bank
Ltd.;   M/s.   Ram   Narain   Sons   Ltd.   v.   Asst.
Commissioner of Sales Tax; Thompson v. Dibdin; Rex
v. Dibdin   and Tahsildar Singh v. State of U.P.. The
law is trite. A proviso must be limited to the subject
matter of the enacting clause. It is a settled rule of
construction that a proviso must prima facie be read
and considered in relation to the principal matter to
which   it   is   a   proviso.   It   is   not   a   separate   or
independent enactment. 'Words are dependent on the

principal enacting words, to which they are tacked as
a proviso. They cannot be read as divorced from their
context' (1912 A.C. 544). If the rule of construction is
that prima facie a proviso should be limited in its
operation to the subject matter of the enacting clause,
the stand  we have taken  is sound. To expand  the
enacting clause, inflated by the proviso, sins against
the fundamental rule of construction that a proviso
must be considered in relation to the principal matter
to which it stands as a proviso. A proviso ordinarily is
but a proviso, although the golden rule is to read the
whole   section,   inclusive   of   the   proviso,   in   such
manner that they mutually throw light on each other
and result in a harmonious construction. 
"The   proper   course   is   to   apply   the   broad
general rule of construction which is that a section or
enactment must be construed as a whole each portion
throwing light if need be on the rest. 
The   true   principle   undoubtedly   is,   that   the
sound interpretation and meaning of the statute, on a
view   of   the   enacting   clause,   saving   clause,   and
proviso, taken and construed together is to prevail. 
(Maxwell on Interpretation of Statutes, 10th
Edn. P. 162)”
17 In   support   of   his   submission   that   Section   372   cannot   be
applied in isolation and that it should be read along with Section 378, he
has placed reliance upon the observations of the Honourable Supreme
Court in paragraphs 15 and 16 of it's judgment in the matter of Satya Pal
Singh vs. State of M.P., 2016(1) Supreme Court Journal 691, which read
as under:­
“15. Thus, from a reading of the abovesaid legal position
laid down by this Court in the cases referred to supra,
it is abundantly clear that the proviso to Section 372
of Cr.P.C. must be read along with its main enactment

i.e.  Section 372 itself and together with sub­Section
(3) to Section 378 of Cr.P.C. otherwise the substantive
provision of  Section 372 of Cr.P.C. will be rendered
nugatory, as it clearly states that no appeal shall lie
from   any   judgment   or   order   of   a   Criminal   Court
except as provided by Cr.P.C..
16. Thus, to conclude on the legal issue: “Whether the
appellant herein, being the father of the deceased, has
statutory right to prefer an appeal to the High Court
against the order of acquittal under proviso to Section
372 of Cr.P.C. without obtaining the leave of the High
Court as required under sub­Section (3) to  Section
378 of Cr.P.C.”, this Court is of the view that the right
of questioning the correctness of the judgment and
order of acquittal by preferring an appeal to the High
Court is conferred upon the victim including the legal
heir and others, as defined under  Section 2(wa) of
Cr.P.C., under proviso to  Section 372, but only after
obtaining   the leave  of  the  High   Court  as  required
under sub­Section (3) to  Section 378 of Cr.P.C. The
High   Court   of   M.P.   has   failed   to   deal   with   this
important legal aspect of the matter while passing the
impugned judgment and order.”
18 He has placed reliance upon the judgment of the Honourable
Supreme Court (a three judges' Bench) in the matter of S.Sundaram Pillai
vs.   V.R.Pattabiraman,  (1985)   1   SCC   591.   Paragraph   43   of   the   said
judgment reads as under:­
“43. We need not multiply authorities after authorities on
this   point   because   the   legal   position   seems   to   be
clearly and manifestly well established. To sum up, a
proviso may serve four different purposes:­
(1) qualifying   or   excepting   certain   provisions   from   the
main enactment;
(2) it   may   entirely   change   the   very   concept   of   the
intendment of the enactment by insisting on certain

mandatory conditions to be fulfilled in order to make
the enactment workable;
(3) it may be so embedded in the Act itself as to become
an integral part of the enactment and thus acquire the
tenor and colour of the substantive enactment itself;
and
(4) it may be used merely to act as an optional addenda
to the enactment with the sole object of explaining the
real intendment of the statutory provision.”
19 He, therefore, submitted that in the peculiar facts of this case,
that as the State has not preferred an appeal against the judgment of
acquittal, the victim could not have filed the criminal revision application,
which was rightly not considered as the application for condonation of
delay was rejected. The Petitioner has no option, but to prefer an appeal in
this Court along with an application for condonation of delay and an
application for seeking leave of this Court for filing an appeal. 
20 He   has   then   placed   reliance   upon   the   judgment   of   the
Honourable Supreme Court in the matter of  Subhash Chand vs. State
(Delhi Administration), (2013) 2 SCC 17. Paragraphs 17, 18, 19 and 23 of
Subhash Chand judgment (supra) read as under:­
“17. At the outset, it must be noted that as per  Section
378(3) appeals against orders of acquittal which have
to be filed in the High Court under Section 378(1)(b)
and  378(2)(b)   of   the   Code   cannot   be   entertained
except   with   the   leave   of   the   High   Court.  Section
378(1)(a) provides that, in any case, if an order of
acquittal is passed by a Magistrate in respect of a

cognizable   and   non­bailable   offence   the   District
Magistrate may direct the Public Prosecutor to present
an appeal to the court of Sessions. Sub­ Section (1)(b)
of  Section 378 provides that, in any case, the State
Government may direct the Public Prosecutor to file
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. Sub­Section (2) of  Section 378
refers   to   orders   of   acquittal   passed   in   any   case
investigated by the Delhi Special Police Establishment
constituted   under   the  Delhi   Special   Police
Establishment   Act,   1946   or   by   any   other   agency
empowered   to   make   investigation   into   an   offence
under   any  Central   Act   other   than  the   Code.   This
provision is similar to sub­section(1) except that here
the words ‘State Government’ are substituted by the
words ‘Central Government’. 
18.  If we analyse Section 378(1)(a) & (b), it is clear that
the   State   Government   cannot   direct   the   Public
Prosecutor   to   file   an   appeal   against   an   order   of
acquittal   passed   by   a   Magistrate   in   respect   of   a
cognizable   and   non­bailable   offence   because   of   the
categorical bar created by Section 378(1)(b). Such
appeals, that is appeals against orders of acquittal
passed by a Magistrate in respect of a cognizable and
non­bailable offence can only be filed in the Sessions
Court   at   the   instance   of   the   Public   Prosecutor   as
directed by the District Magistrate. Section 378(1)(b)
uses the words “in any case” but leaves out orders of
acquittal   passed   by   a   Magistrate   in   respect   of   a
cognizable and non­bailable offence from the control
of the State Government. Therefore, in all other cases
where orders of acquittal are passed appeals can be
filed by the Public Prosecutor as directed by the State
Government to the High Court. 
19.  Sub­Section (4) of Section 378 makes provision for
appeal against an order of acquittal passed in case
instituted upon complaint. It states that in such case if

the complainant makes an application to the High
Court   and   the   High   Court   grants   special   leave   to
appeal, the complainant may present such an appeal
to the High Court. This sub­section speaks of ‘special
leave’   as   against   sub­section   (3)   relating   to   other
appeals which speaks of ‘leave’. Thus, complainant’s
appeal against an order of acquittal is a category by
itself. The complainant could be a private person or a
public servant. This is evident from sub­section (5)
which refers to application filed for ‘special leave’ by
the   complainant.   It   grants   six   months   period   of
limitation to a complainant who is a public servant
and   sixty   days   in   every   other   case   for   filing
application. Sub­ Section (6) is important. It states
that   if   in   any   case   complainant’s   application   for
‘special   leave’   under   sub­Section   (4)   is   refused   no
appeal from order of acquittal shall lie under subsection
(1) or under sub­ section (2). Thus, if ‘special
leave’ is not granted to the complainant to appeal
against an order of acquittal the matter must end
there. Neither the District Magistrate not the State
Government   can   appeal   against   that   order   of
acquittal. The idea appears to be to accord quietus to
the case in such a situation. 
23. In view of the above, we conclude that a complainant
can   file   an   application   for   special   leave   to   appeal
against an order of acquittal of any kind only to the
High Court. He cannot file such appeal in the Sessions
Court.   In   the   instant   case   the   complaint   alleging
offences   punishable   under   Section   16(1)(1A)   read
with Section 7 of the PFA Act and the Rules is filed by
complainant   Shri   Jaiswal,   Local   Health   Authority
through   Delhi   Administration.   The   appellant   was
acquitted   by   the   Metropolitan   Magistrate,   Patiala
House   Courts,   New   Delhi.   The   complainant   can
challenge   the   order   of   acquittal   by   filing   an
application for special leave to appeal in the Delhi
High Court and not in the Sessions Court. Therefore,
the   impugned   order   holding   that   this   case   is   not
governed by Section 378(4) of the Code is quashed
and   set   aside.   In   the   circumstances   the   appeal   is

allowed.”
21 He, therefore, submits that the last word of the Honourable
Supreme Court on the right of the complainant, complainant­victim or the
victim, is found in it's judgments delivered in  Subhash Chand and Satya
Pal Singh (supra). 
22 He further adds that though the Criminal Writ Petition before
this Court is not maintainable, the Petitioner can request this Court for
converting this Criminal Writ Petition into a criminal appeal and can file
applications for condonation of delay and for seeking leave of this Court
to entertain such an appeal.
23 I have considered the submissions of the learned Advocates.
24 Section   372   of   the   Code   of   Criminal   Procedure   reads   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 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.”
25 Section   378   of   the   Code   of   Criminal   Procedure   reads   as
under:­
“378. Appeal in case of acquittal.
(1) Save as otherwise provided in sub­section (2), and
subject to the provisions of sub­sections (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   nonbailable
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.]
(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 sub­section (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
non­bailable 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 sub­section (1) or
sub­section (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 sub­section (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 sub­section (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 sub­section (1) or under subsection
(2).”
26 It is apparent from the impugned order that the Petitioner has
invoked Section 372 in support of it's contention that the victim can prefer
an appeal. The learned Additional Sessions Judge, Hingoli has come to the
conclusion that the State or Authority concerned can alone direct the
Public Prosecutor to present an appeal under sub­sections (1) and (2) of
Section 378. Unless such direction is issued, the Petitioner claiming to be
the victim, cannot prefer an appeal. 
27 I find that if the State or the District Magistrate does not
direct the Public Prosecutor to prefer an appeal, a victim could be said to
have been aggrieved by the failure to lodge an appeal and as such, would

be in a position to invoke the proviso to Section 372 and file an appeal
with the Court before which such an appeal would ordinarily lie against
the   order   of   acquittal.   However,   whether,   this   could   be   done   de­hors
Section 378(4), is the issue.
28 The   proviso   to   Section   372   has   been   introduced   by
Amendment Act No.5 of 2009 w.e.f. 31.12.2009 with the sole purpose of
enabling the victim to have a right to prefer an appeal against any order
passed by the Court, either acquitting the accused or convicting him for a
lesser offence or imposing inadequate compensation. The phraseology of
the proviso by which the right to prefer an appeal has been given to the
victim, cannot be ignored in view of the fact that the words "shall have a
right to prefer an appeal" find place in the proviso. I am, therefore, of the
view that since the State did not prefer an appeal, the Petitioner can
invoke the proviso to Section 372 in it's capacity of being a complainant/
victim.
29 The Honourable Supreme Court in the matter of  Satya Pal
Singh   vs.   State   of   M.P.,  2016(1)   Supreme   Court   Journal   691,   has
extensively dealt with the scope, purpose and ambit of the proviso to
Section 372 in the light of sub­section (3) of Section 378 of the Code of
Criminal Procedure. It has been held that where an appeal to the High

Court against an order of acquittal can be preferred under Section 378(3),
it was necessary to obtain leave of the High Court. Section 372 clearly
indicates that no appeal shall lie against the judgment or order of the
Criminal   Court   except   as   is   provided   for   by   the   Code   of   Criminal
Procedure.   The   Apex   Court,   therefore,   concluded   that   the   proviso   to
Section 372, if involves a right to file an appeal before the High Court,
leave of the High Court as envisaged under Section 378(3) will have to be
obtained.
30 It would be apposite to refer to paragraphs 9, 10, 11, 12 and
13 of Satya Pal Singh judgment (supra) as under:­
“9. We   have   carefully   examined   the   above   mentioned
provisions  of  Cr.P.C.  and the Full Bench decision of
Delhi High Court referred   to   supra   upon   which
strong reliance is placed by the learned counsel for
the  appellant.  There is no doubt that the appellant,
being the father of the deceased, has  locus standi to
prefer an appeal before the High Court under  proviso
to     Section   372   of   Cr.P.C.   as   he   falls   within   the
definition of victim as defined  under Section 2(wa) of
Cr.P.C. to question the correctness  of  the  judgment
and order of acquittal passed by the trial court in
favour of respondent nos. 2 to 6 in Sessions Case No.
293/2010.
10. The proviso to Section 372 of Cr.P.C. was amended by
Act   No.5   of     2009.     The   said   proviso   confers   a
statutory right upon the  victim,  as  defined  under
Section 2(wa) of Cr.P.C. to prefer an appeal against
an order passed by the trial court either acquitting
the   accused   or   convicting   him/her   for   a lesser
offence or imposing inadequate   compensation.   In

this  regard,  the Full  Bench  of  Delhi  High  Court
in  the  case  referred  to  supra  has elaborately dealt
with the legislative history of insertion of  the  proviso
to Section 372 of Cr.P.C. by Act No. 5 of 2009 with
effect from   31.12.2009. The relevant provision of
Section 372 of Cr.P.C. reads thus:­
“372. No appeal shall lie from any judgment or
order  of  a  Criminal  Court except as provided for by
this Code 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.”
The said amendment to the provision of Section
372   of   Cr.P.C.     was     prompted   by     154th     Law
Commission   Report.   The   said   Law   Commission
Report   has undertaken a comprehensive review of
Cr.P.C. and  its  recommendations  were found to be
very     appropriate     in     amending     the     Cr.P.C.
particularly     in   relation   to   provisions   concerning
arrest,   custody   and   remand,     procedure     to   be
followed   in     summons     and     warrant­cases,
compounding  of  offences  and special protection in
respect of women and inquiry and trial of  persons  of
unsound mind. Further, the Law  Commission  in  its
report  has  noted  the relevant aspect of  the  matter
namely  that  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   said
report  of the Law Commission has also taken note of
the   views     of     the     criminologist,   penologist   and
reformers of  criminal  justice  system  at  length  and
has focused on victimology, control  of  victimization
and   protection   of   the victims of crimes and the
issues of compensation to be awarded in favour   of

them. Therefore, the Parliament on the basis of the
aforesaid Report of   the Law Commission, which is
victim oriented in approach,  has  amended  certain
provisions of the Cr.P.C. and in that amendment the
proviso to  Section  372 of Cr.P.C. was added to confer
the  statutory  right  upon  the  victim  to prefer an
appeal before the High Court against acquittal order,
or   an     order   convicting   the   accused   for   the  lesser
offence   or   against   the  order    imposing  inadequate
compensation.
11. The Full Bench of the High Court   of   Delhi   after
examining     the     relevant   provisions   under   Section
2(wa) and proviso to Section  372  of  Cr.P.C.,  in the
light of their legislative history has held that the right
to prefer   an appeal  conferred upon the victim or
relatives of the   victim   by    virtue   of proviso to
Section   372   is   an   independent   statutory   right.
Therefore, it   has held that there is no need for the
victim  in  terms  of  definition  under Section 2(wa)
of Cr.P.C. to seek the leave of the   High   Court   as
required   under   sub­Section   (3)   of   Section   378   of
Cr.P.C. to prefer  an  appeal  under proviso to Section
372 of Cr.P.C. The said view of the   High  Court  is
not legally correct for the reason that the  substantive
provision   of   Section 372 of Cr.P.C. clearly provides
that no appeal shall lie from   any   judgment and
order of a Criminal Court except as provided  for  by
Cr.P.C.    Further, sub­Section  (3) to  Section  378 of
Cr.P.C. provides that  for  preferring  an appeal to the
High   Court   against   an   order   of   acquittal   it     is
necessary  to obtain its leave. We have  to  refer  to
the  rules  of  interpretation  of statutes to find out
what is the effect of the proviso  to  Section  372  of
Cr.P.C.,  it is  well  established that  the proviso  of a
statute must be  given an interpretation limited to the
subject­matter of the  enacting  provision. Reliance is
placed on the decision of this   Court   rendered   by
four  Judge Bench in Dwarka Prasad v. Dwarka Das
Saraf, (1976) 1 SCC 128,  the  relevant  para  18  of
which reads thus:
“18.  …  A  proviso   must  be  limited     to     the

subject­matter  of  the  enacting clause. It is a settled
rule of  construction  that  a  proviso  must  prima
facie   be   read   and   considered   in   relation   to   the
principal  matter  to  which it is a proviso. It is not a
separate   or   independent   enactment.     “Words     are
dependent on the principal enacting words to which
they  are  tacked  as  a proviso. They cannot be read
as   divorced   from   their     context”     (Thompson     v.
Dibdin, 1912 AC 533). If the rule of construction  is
that  prima  facie  a proviso should be limited in its
operation   to   the   subject­matter   of   the enacting
clause, the stand we have taken is sound. To  expand
the   enacting clause, inflated by the   proviso,   sins
against  the  fundamental  rule  of construction that a
proviso   must   be   considered   in   relation   to   the
principal matter to which it stands as a  proviso.  A
proviso  ordinarily   is   but   a proviso, although the
golden rule is to read the  whole  section,  inclusive of
the proviso, in such manner that they mutually throw
light   on   each     other   and   result   in   a   harmonious
construction.”
          
12. Further, a three Judge Bench of this Court by majority
of 2:1 in   the   case of S. Sundaram Pillai v. V.R.
Pattabiraman, (1985) 1  SCC 591, has elaborately
examined     the   scope   of   proviso   to   the   substantive
provision   of   the   Section     and     rules     of   its
interpretation.   The   relevant   paras   are   reproduced
hereunder:
“30.   Sarathi   in   Interpretation  of   Statutes   at
pages  294­295  has  collected the following principles
in regard to a proviso:
(a) When one finds a proviso to a section the
natural  presumption  is  that, but for the proviso, the
enacting part of the section  would  have  included the
subject­matter of the proviso.
(b) A proviso must be construed with reference
to the preceding parts of   the clause to which it is
appended. 
(c) Where the proviso is directly repugnant to a
section, the  proviso  shall stand and be held a repeal
of   the   section   as   the   proviso   speaks     the     latter

intention of the makers.
(d) Where the  section is doubtful, a  proviso
may be used as a   guide   to   its interpretation: but
when it is clear, a proviso cannot imply  the  existence
of words of which there is no trace in the section.
(e)   The   proviso   is   subordinate   to   the   main
section. 
(f) A proviso does not enlarge an enactment
except for compelling reasons.
(g)   Sometimes   an   unnecessary   proviso   is
inserted by way of abundant caution.
(h) A construction placed   upon   a   proviso
which   brings   it   into   general harmony with the
terms of section should prevail.
(i) When a proviso is repugnant to the enacting
part, the  proviso  will  not prevail over the absolute
terms of a   later   Act   directed   to   be   read   as
supplemental to the earlier one.
(j)   A   proviso   may   sometimes   contain   a
substantive provision.
 XXX            XXX                 XXX
32.   In   Ishverlal   Thakorelal   Almaula   v.   Motibhai
Nagjibhai it was   held   that the main object of a
proviso is merely to qualify  the  main  enactment.  In
Madras and Southern Mahrata Railway Co. Ltd. v.
Bezwada     Municipality     Lord   Macmillan   observed
thus:
“The proper function of a proviso is to except
and deal with   a   case   which would otherwise fall
within the general language of the main enactment,
and its effect is confined to that case.”
33. The above case was approved by this Court   in
CIT  v.  Indo  Mercantile Bank Ltd. where Kapur, J.
held that the proper function   of   a   proviso   was
merely   to   qualify   the   generality   of     the     main
enactment   by   providing   an exception and taking
out, as it were, from  the  main  enactment  a  portion
which, but for the proviso, would fall within the main
enactment.   In   Shah Bhojraj Kuverji Oil Mills and
Ginning  Factory  v.  Subbash  Chandra  Yograj Sinha
Hidayatullah,   J.,   as   he   then   was,   very   aptly   and
succinctly  indicated the parameters of a proviso thus:

“As a general rule, a proviso is added to an
enactment to qualify or  create an exception to what
is in the enactment, and ordinarily, a proviso  is  not
interpreted as stating a general rule.”
XXX               XXX                XXX
36.  While   interpreting   a   proviso   care   must   be
taken  that  it  is  used  to remove special cases  from
the   general   enactment   and   provide   for   them
separately.
37.  In short, generally   speaking,   a   proviso   is
intended   to   limit   the enacted provision so as to
except something which would have otherwise   been
within it or in some measure to modify  the  enacting
clause.  Sometimes  a proviso may be embedded in the
main provision and becomes an  integral  part of it so
as to amount to a substantive provision itself.”
Thus, from a reading  of the abovesaid legal
position     laid   down   by   this Court in the cases
referred to  supra,  it  is  abundantly  clear  that  the
proviso to Section   372   of   Cr.P.C.   must   be   read
along   with   its   main enactment i.e., Section 372
itself and  together  with  sub­Section  (3)  to Section
378 of Cr.P.C. otherwise the substantive provision  of
Section  372 of Cr.P.C. will be rendered nugatory, as it
clearly states   that   no   appeal shall lie from any
judgment   or   order   of   a   Criminal   Court   except   as
provided by Cr.P.C.
13. Thus, to conclude on the legal issue: “whether the
appellant  herein,  being  the  father  of  the  deceased,
has statutory right to prefer an appeal to the High
Court against the  order  of acquittal under proviso to
Section 372  of  Cr.P.C.  without  obtaining  the leave
of the High Court as required under sub­Section (3)
to Section 378  of Cr.P.C.”, this Court is of the  view
that  the  right  of  questioning  the correctness of the
judgment and order of acquittal by preferring   an
appeal to the High Court is conferred upon the victim
including the legal heir  and others, as defined under
Section 2(wa) of Cr.P.C., under proviso to   Section
372, but only after obtaining the leave of the High

Court as required   under sub­Section (3) to Section
378 of  Cr.P.C.   The  High  Court  of  M.P.  has failed
to deal with this important legal aspect of the matter
while  passing the impugned judgment and order.”
31 In the instant case, the Petitioner claims to be a victim of the
offences allegedly committed by Respondent No.2 and, therefore, have the
right to prefer an appeal and more so in the backdrop of the State having
failed in filing such an appeal against the order of acquittal. 
32 The learned Advocates for the respective sides were not in a
position to submit as to whether, any limitation in filing an appeal under
the   proviso   to   Section   372   is   prescribed   or   not,   on   the   lines   of   the
limitation  period in  filing such an appeal as is prescribed under subsection
(5) of Section 378. It is, however, submitted that Article 114(1) of
the Limitation Act, 1963 can be read into the proviso to Section 372. 
33 Notwithstanding the same, the learned Advocates submitted
that there are no judicial pronouncements on the issue of limitation in
relation to the filing of an appeal under the proviso to Section 372. It is
further submitted that the Petitioner has proceeded on the premise that
the limitation of 90 days is applicable to the Petitioner while filing an
appeal.

34 In the fact situation as above, I am inclined to accept the
submissions   of   Shri   Gupte   considering   the   ratio   laid   down   by   the
Honourable Supreme Court in the cases of  Casio India Company Private
Limited, Dwarka Prasad, Subhash Chand and Satya Pal Singh (supra), that
it is the only District Magistrate who can direct the filing of an appeal
under Section 378(1) and the proviso to Section 372 will have to be read
along with Section 378(4) and (5). 
35 The Petitioner herein was the Complainant on behalf of the
Bank. He was Auditor and in his capacity as being the Auditor, he had
lodged the First Information Report against Respondent No.2. Therefore,
though he is the author of the complaint as is understood under Section
2(d) of the Code of Criminal Procedure, he, as an individual, would not
fall within the definition of victim under Section 2(wa). Therefore, though
the right of the Petitioner to file a complaint or lodge an FIR can be
recognized,   yet,   insofar   as   preferring   an   appeal   against   the   order   of
acquittal is concerned, the right of the Petitioner as a Bank under the
proviso to Section 372 will have to be read within the scope of Section
378(3), (4) and (5) of the Code of Criminal Procedure.
36 In view of the above conclusion, the Petitioner could not have
preferred an appeal before the learned Additional Sessions Judge, Hingoli.

The Petitioner could have filed an appeal before this Court in its capacity
of being the Complainant/ victim by relying upon the proviso to Section
372 of the Code of Criminal Procedure.
37 At   this   juncture,   the   learned   Advocate   for   the   Petitioner
submits that the Petitioner be granted leave to convert this Criminal Writ
Petition   into   a   Criminal   Appeal   and   the   Petitioner   would   prefer   an
application for seeking leave of this Court to entertain the said appeal. The
Petitioner   would   also   file   an   application   making   out   a   case   for
condonation of delay in the light of the fact that the Petitioner has lost
precious time in it's Criminal Appeal dated 04.01.2013 erroneously filed
before the learned Additional Sessions Judge as well as time spent by the
Petitioner in this Court till the date of this order.
38 The learned Advocate for Respondent No.2 has opposed the
request put forth by the Petitioner as above. 
39 However, considering the peculiar facts of this case and after
having concluded that the Petitioner was required to prefer an appeal
before this Court under the proviso to Section 372 r/w Section 378 of the
Code of Criminal Procedure, I am inclined to accept the request of the
Petitioner.

40 As   such,   after   having   concluded   that   the   Petitioner   has
erroneously filed Miscellaneous Criminal Application No.1/2013 before
the   learned   Additional   Sessions   Judge,   Hingoli,   I   hereby   permit   the
Petitioner to convert this Criminal Writ Petition into a criminal appeal.
While doing so, the Petitioner shall have to file an application for seeking
leave of this Court to entertain the appeal and file another application for
seeking condonation of delay. 
41 Needless to state, this Court has not dealt with the merits of
the appeal.
kps         (RAVINDRA V. GHUGE, J.)

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