Thursday, 29 August 2019

Whether appeal from conviction given by assistant session Judge lie to session court?

On perusal of the impugned judgment and order it reveals that the aforesaid order was passed by learned Assistant Sessions Judge and the Section 374(3)(a) of the Code provides that the appeal from convictions given by the learned Assistant Sessions Judge will lie to the Court of Sessions. Although, the present appeal is not intended against the order of conviction but the same provision have to follow as regards the forum to whom the appeal lies. Obviously, against the order of the learned Assistant Sessions Judge appeal will not lie to the High Court by skipping the forum.

In the High Court of Gauhati
(Before Rumi Kumari Phukan, J.)

Akhtar Mirza v. State of Assam
Crl.L.P 136/2018

Decided on May 14, 2019
Citation: 2019 SCC OnLine Gau 2295 : (2019) 6 Gau LR 386

The Order of the Court was delivered by
Rumi Kumari Phukan, J.:— Matter is already heard on 30.04.2019 and today fixed for delivery of order.
2. Applicant herein as an informant lodged an FIR on 02.09.2011 before the O/C, Dhubri PS raising allegation of kidnapping of his daughter by the accused persons (respondent Nos. 2 to 4) forcefully while she was returning from college. She was kept confined by the accused persons but on the massage sent by his daughter on mobile, she was recovered from the clutches of the accused persons.
3. Pursuant to the FIR, Dhubri PS Case No. 484/11 was registered u/s 366/34 of IPC. The case was charge-sheeted against the accused person/respondent No. 2 u/s 366 but the learned trial Court in course of trial impleaded the other accused persons by invoking section 319 of CrPC. All the accused persons faced the trial and denied the charge framed u/s 366/34 of IPC. At the conclusion of the trial, the learned trial Court has acquitted all the accused persons by its order dated 29.08.2018 by learned Assistant Sessions Judge, Dhubri in Sessions Case No. 230/14.
4. Feeling aggrieved with the aforesaid order, the present applicant being the informant in the said case is desirous to file an appeal against the order of acquittal and the present application has been filed u/s 378(3) of CrPC for granting leave to prefer the appeal against the order of acquittal.
5. I have heard Mr. A.T Sarkar, learned counsel for the petitioner as well as Ms. A Begum, learned Addl. PP, Assam.
6. The learned counsel for the petitioner has submitted that in terms of the decision rendered in Satyapal Singh v. State of Madhya Pradesh (2015) 15 SCC 613even though the victim has a right to prefer an appeal against the order of acquittal u/s 372 CrPC but same can be filed only after obtaining leave of the Court as required under Sub-section 3 of 378 CrPC. Accordingly, the present petition has been preferred under the said provision of law.
7. I have heard the submission of the learned counsel for the petitioner who has also referred to recent decision of Hon'ble Supreme Court in Mallikarjun Kodagali v. State of Karnataka decided on 12.10.2018 reported in (2019) 2 SCC 752 to submit that the Hon'ble Apex Court has finally decided the said issue that the victim has a unfettered right to prefer an appeal under the provision of Section 372 CrPC and no leave is required to prefer such appeal.
8. I have also heard the learned counsel for the state/respondent and gone through the relevant citation that has been referred and relied.
9. On perusal of the impugned judgment and order it reveals that the aforesaid order was passed by learned Assistant Sessions Judge and the Section 374(3)(a) of the Code provides that the appeal from convictions given by the learned Assistant Sessions Judge will lie to the Court of Sessions. Although, the present appeal is not intended against the order of conviction but the same provision have to follow as regards the forum to whom the appeal lies. Obviously, against the order of the learned Assistant Sessions Judge appeal will not lie to the High Court by skipping the forum.
10. It is to be noted that the applicant here is the informant and he can be termed as a victim within a meaning of Section 2(wa) which provides victim means a person who has suffered a 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 the legal heir. In view of the provision the petitioner can very well challenged the order of acquittal only u/s 372 of the Code.
11. Although the present application has been preferred u/s 378(3) of the Code which provides that 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, but it is to be appreciated that such appeal indicated in Section 378 of the Code is different than that of the appeal sought to be preferred by the victim.
12. On the pretext of the prayer made by the petitioner and as the case has been decided by learned Assistant Sessions Judge, a conjoint reading of all relevant provision Sections u/s 372, 374 and 378 are required. Let appreciate the provision accordingly.
13. The provision of Section 372 of the Code has been inserted w.e.f 31.12.2009 which reads as follows:
Section 372—No appeal shall lie from any judgment or order of the criminal Court except as provided by this Code or by any other law for the time being in force.
Provided that the victim shall have a right 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.
14. The provision indicates that such appeal against acquittal will lie to the Court to which appeal ordinarily lies. On the other hand, the provision under section 374 read as follows:
Sec. 374 Appeals from convictions:— (1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.
(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years (has been passed against him or against any other person convicted at the same trial), may appeal to the High Court.
(3) Save as otherwise provided in sub-section (2), any person,-
(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, or
(b) sentenced under Section 325, or
(c) in respect of whom an order has been made or a sentence has been passed under Section 360 by any Magistrate, may appeal to the Court of Session.
In view of the aforesaid statutory provision, it can be firmly held that the such an appeal by victim against acquittal will lie to the Court to which appeal against the conviction also lies.
15. The provision of Section 378 of the Code is provided on a different contexts which reproduced below:
Section 378. Appeal in case of acquittal -(1) Save as otherwise provided in subsection (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 an order of acquittal passed by a Magistrate in respect of a congnizable 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.]
(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 congnizable 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.
(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).
16. Bare reading of the section reveals that the petitioner herein will not come under the category of Sub-section 3 of Section 378. As the informant being the victim has sought to challenge the order of acquittal himself and will not come under the provision of Sub-section 1 and 2 of Section 378 of the Code. In view of the matter, this Court is of considered view that the prayer of petitioner to prefer the appeal against acquittal will come under section 372(proviso) of the Code but not under Section 378(3). As it appears that there is a confusion in the mind of the petitioner that he has to sought for leave to prefer the appeal in view of the decision in Satypal Singh (supra) wherein it has been held that-
“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) Cr.P.C under the proviso to Section 372, but only after obtaining the leave of the High Court as required under sub-section (3) of the Section 378 of Cr.P.C”
17. But the recent decision in Mallikarjun (supra) hon'ble Apex Court has dispel the aforesaid confusion. In the case of Mallikarjun vide Para 10 of the judgment the question that was formulated as to whether the victim must apply for leave to appeal against the order of acquittal? and the answer to the question was negative. The decision rendered in Satypal Singh (supra) is also discussed. Relevant observation and findings of the Court is quoted below:
74. What is significant is that several High Courts have taken a consistent view to the effect that the victim of an offence has a right of appeal under the proviso to Section 372 of the Cr.P.C This view is in consonance with the plain language of the proviso. But what is more important is that several High Courts have also taken the view that the date of the alleged offence has no relevance to the right of appeal. It has been held, and we have referred to those decisions above, that the significant date is the date of the order of acquittal passed by the Trial Court. In a sense, the cause of action arises in favour of the victim of an offence only when an order of acquittal is passed and if that happens after 31st December, 2009 the victim has a right to challenge the acquittal, through an appeal. Indeed, the right not only extends to challenging the order of acquittal but also challenging the conviction of the accused for a lesser offence or imposing inadequate compensation. The language of the proviso is quite explicit, and we should not read nuances that do not exist in the proviso.
75. In our opinion, the proviso to Section 372 of the Cr.P.C must also be given a meaning that is realistic, liberal, progressive and beneficial to the victim of an offence. There is a historical reason for this, beginning with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly of the United Nations in the 96th Plenary Session on 29thNovember, 1985. The Declaration is sometimes referred to as the Magna Carta of the rights of victims. One of the significant declarations made was in relation to access to justice for the victim of an offence through the justice delivery mechanisms, both formal and informal. In the Declaration it was stated as follows:
“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.
5. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.
6. The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:
(a) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information;
(b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system;
(c) Providing proper assistance to victims throughout the legal process;
(d) Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;
(e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.
76. Putting the Declaration to practice, it is quite obvious that the victim of an offence is entitled to a variety of rights. Access to mechanisms of justice and redress through formal procedures as provided for in national legislation, must include the right to file an appeal against an order of acquittal in a case such as the one that we are presently concerned with. Considered in this light, there is no doubt that the proviso to Section 372 of the Cr.P.C must be given life, to benefit the victim of an offence.
77. Under the circumstances, on the basis of the plain language of the law and also as interpreted by several High Courts and in addition the resolution of the General Assembly of the United Nations, it is quite clear to us that a victim as defined in Section 2(wa) of the Cr.P.C would be entitled to file an appeal before the Court to which an appeal ordinarily lies against the order of conviction. It must follow from this that the appeal filed by Kodagali before the High Court was maintainable and ought to have been considered on its own merits.
78. 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 of the CrPC is quite clear, particularly when it is contrasted with the language of Section 378(4) of the CrPC. 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) of the CrPC 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 of the CrPC is concerned.
18. In view of the legal provision and the pronouncement discussed above, the petitioner herein being the informant has a right to prefer an appeal u/s 372 (proviso) CrPC and he being the informant in the GR Case he cannot be equated as complainant within the purview of Section 378(3) of CrPC and no leave is required to prefer such appeal. As the appeal sought to be preferred against the order of the learned Assistant Sessions Judge so the appeal will lie to the Court of learned Sessions Judge as discussed above. Present application has been preferred bona fide by quoting the provision u/s 378(3) CrPC, which does not necessarily debar the petitioner to prefer the appeal to which he is entitled under the statute.
19. Present petition stands disposed with a liberty to the petitioner to prefer the appeal in the Court of concern Sessions Judge and on such appeal being preferred, the learned Sessions Judge will dispose the same in accordance with law. Period of filing present petition before this Court, shall be excluded by learned Court, on the matter of delay, if any.
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