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TMI Blog2012 (3) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... n rejected and it has been held that the victim lady (appellant) has a right to prefer an appeal. 2. The relevant facts, briefly stated, for disposal of the application under Section 482 Cr.P.C. are that Smt. Asha Srivastava instituted a complaint against the applicants vide Complaint Case No. 1282 of 2010 Smt. Asha Srivastava v. Ashok Srivastava and others, under Sections 498A, 323, 504, 506 IPC and 3/4 Dowry Prohibition Act, Police Station Mutthiganj, District Allahabad, in the Court of the Judicial Magistrate, Court No. 1, Allahabad, alleging therein that she was married to Ashok Srivastava on 16.5.2003 and thereafter both of them started to live as husband and wife jointly with the remaining applicants. The opposite party No. 2 is alleged to have been subjected to humiliation and beating for not bringing fridge, washing machine etc. in dowry. When she complained of this ill-treatment to her father, the applicants threatened to kill her asking to leave her matrimonial home. Ultimately, she was pulled out from her matrimonial home after beating by the applicants. It was after persuasion of the relatives of the lady, she was sent to her Sasural on 7.6.2003 but there was no change ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e.f. 31.12.2009 reads as under: [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.] 9. While inserting the aforesaid proviso to Section 372 Cr.P.C. the definition of the word Victim' has also been incorporated as Section 2 (wa) which reads as under: 2. Amendment of Section 2.--In Section 2 of Code of the Criminal Procedure, 1973 (hereinafter referred to as the principal Act), after clause (w), the following clause shall be inserted, namely :. (wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir. 10. Thus proviso to Section 372 Cr.P.C. and definition of the word Victim' as Section 2 (wa) to the Cr.P.C. have been incorporated and enforced w.e.f. 31.12.2009. These additions/insertions have been made applicable by the Code o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsection (1) or under sub-section (2) 14. Section 378 Cr.P.C. was lastly amended by Cr.P.C. Amendment Act, 2005 (25 of 2005) which has been enforced w.e.f. 23.6.2006 and till date it continues as such. 15. It is clearly evident that no changes have been made by Cr.P.C. (Amendment) Act, No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and trial is expected to reduce delays, help in gathering credible evidences, minimize the risk of escape of the remand prisoners during transit and also facilitate utilization of police personnel for other duties. There is an urgent need to provide relief to women, particularly victims of sexual offences, and provide fair-trial to persons of unsound mind who are not able to defend themselves. To expedite the trial of minor offences, definition of warrant-case and summons-case are to be changed so that more cases can be disposed of in a summary manner. 19. Learned counsel for the applicants has cited the decisions namely Dharmveer Singh Tomar v. Ramraj Singh Tomar, 2011 MPWN 1 118 : 2011 MPJR 1 276, decided on 17.1.2011, by the Single Bench of Madhya Pradesh High Court, Top Notch Infotronix (I) Pvt. Ltd. v. Infosoft Systems, 2011 AIIMR (Cri) 0 2312 decided on 16.6.2011 by the Single Bench of Bombay High Court. Both these decisions cited before me relate to the case under Section 138 of Negotiable Instruments Act, 1881. 20. In the case of Dharmveer Singh Tomar (supra), the case under Section 138 of Negotiable Instruments Act, was decided by the Magistrate, acquitting the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of further legal proceedings would depend on whether there has been a conviction or an acquittal. In the case of conviction, an appeal would lie to the Court of Sessions under Section 374(3)(a) of the CrPC; thereafter a Revision to the High Court under Section 397/401 of the CrPC and finally a petition before the Supreme Court, seeking special leave to appeal under 136 of the Constitution of India. Thus, in case of conviction there will be four levels of litigation. In the case of acquittal by the JMFC, the complainant could appeal to the High Court under Section 378(4) of the CrPC, and thereafter for special leave to appeal to the Supreme Court under Article 136. In such an instance, therefore, there will be three levels of proceedings. 23. Learned AGA taking me through the cited judgments has vehemently submitted that in the judgment of Hon'ble Supreme Court, amendment made through Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009) w.e.f. 31.12.2009 does not find place and the amendment made through this Act No. 5 of 2009 was not placed before Hon'ble Supreme Court. Hence, the point remains untouched before Hon'ble Supreme Court. 24. In this context, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Sections 498A, 323, 504, 506 IPC and 3/4 Dowry Prohibition Act by the trial Court, is compelled to move an application to the High Court that too for seeking to grant the leave to appeal then she would be deprived of her right to get immediate relief in matrimonial case including cruelty caused to her physically, mentally or to her reputation or status in the society. Thus, intention of the legislature in making the aforesaid amendment Act No. 5 of 2009 applicable w.e.f. 31.12.2009 is to provide remedy to her by filing criminal appeal against the order of acquittal by the Magisterial Court to the Session Court concerned. 31. The victim like Smt. Asha Srivastava cannot be deprived of her statutory right to file an appeal before the Sessions Judge concerned against the judgment and order of acquittal just on the basis of technicalities like absence of the word "complaint or complainant" in the proviso to Section 372 Cr.P.C. This is just a technicality. Since the word "complaint" is not mentioned or included in the proviso to Section 372 Cr.P.C. the victim lady should not be compelled to seek the leave to appeal from the High Court. The Additional Sessions Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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