9911796707
TMI Blog2011 (5) TMI 1075X X X X Extracts X X X X X X X X Extracts X X X X ..... S.D. Hiwarekar, Adv. in Criminal Application No. of 3375 of 2010 JUDGMENT S.P. Davare, J. 1. Heard learned Counsel for the respective parties. 2. The applicants in the aforesaid applications are the original complainants who had filed complaints against the Respondents (original accused) under Section 138 of the Negotiable Instruments Act (hereinafter referred to as " NI Act" for brevity's sake) before the respective learned Judicial Magistrates. However, the said complaints were dismissed by the learned respective Magistrates for the reasons stated in the judgments and orders delivered in the respective cases, and thereby acquitted the respective accused for the offence punishable under Section 138 of the NI Act. Hence, being aggrieved and dissatisfied by the said respective judgments and orders of acquittals, original complainants have preferred present applications before this Court, seeking leave to file appeal under Section 378(4) of the Code of Criminal Procedure, 1973.(hereinafter referred to as the 'Code' for the sake of brevity.) 3. At the outset, learned Counsel for the respective Respondents accused raised objection regarding the maintainabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants) are covered by the definition "victim", which also has been introduced by the aforesaid amendment, under Section 2(wa) of the Code, which is a inclusive definition, and also includes the complainant, who is also "victim" since he has suffered financial loss. It is also submitted by the learned Counsel for the Respondents that as per the said amended proviso to Section 372 of the Code, such appeals shall lie to the court to which appeal ordinarily lies against the order of conviction of such court, and therefore, it is consequently, submitted that since the appeal against the order of conviction rendered by the learned Magistrate ordinarily lies before the Court of Sessions, the appeals against the orders of acquittal for the offence punishable under Section 138 of the NI Act shall also lie before the Court of Sessions, and not before this Court. 6. According to learned Counsel for the Respondents, there is no distinction in respect of the private complaints and complaints based on the police reports i.e. police cases, under the amended proviso to Section 372 of the Code and it applies to both the classes of the cases, and therefore, right has been conferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quittals, but there remains one gray area, namely, those police cases wherein, if the State does not file appeal against the judgment of the order of acquittal, what would be the remedy to the original complainant i.e. first informant to whom earlier no remedy of appeal was available and he was entitled only to file revision against such judgment and order of acquittal, and therefore, looking to the said position, the legislature thought it fit to provide a right to such victims to prefer an appeal against the judgments and orders of acquittal, by introduction of proviso to Section 372 of the Code and the said amended proviso to Section 372 of the Code has no application in respect of the appeals preferred against the judgments and orders in private cases, and more particularly to the appeals preferred against the judgments and orders of acquittal for the offence punishable under Section 138 of NI Act. 10. Shri Kasliwal, learned Counsel for the applicants, also canvassed that the definition of victim under Section 2(wa) of the Code contemplates to mean 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Sessions 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 Sessions in revision]. (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, [the Central Government may, subject to the provisions of Sub-section (3), also direct the Public Prosecutor to present an appeal (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and nonbailable offence; (b) to the High Court from an original or appellate order of an acquitta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (wa) relating to definition of victim, by way of amendment in 2009 and in the said context, in 154th report of the Law Commission (Chapter XV), it is observed that crimes often entail substantive harm to people and not mere symbolic harm to the social order, and consequently, the needs and rights of victims of crime should receive priority attention in the total response to crime. Initially in the Code, the right to prosecute the offender was given to the State, but later on the right was also conferred on the aggrieved person to file private complaint for the alleged offence, if the State does not prosecute the offender. It was felt that at present, victims are the worst sufferers in the crime and they do not have much role to play in the court proceedings, and hence, they need to be given certain right and compensation so that there is no distortion of the criminal justice system. 18. In the said context, a useful reference can be made to the judicial pronouncement of the Division Bench of the Punjab and Haryana High Court, at Chandigarh in Criminal Appeal No. 205DB of 2010 in the case of Ram Kaur alias Jaswinder Kaur v. Jabbir Singh alias Jabi and others, wherein it has been ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prefer an appeal against the judgment or order passed by the court acquitting the accused, or convicting him for lesser offence or imposing inadequate punishment, and accordingly, a right has been conferred upon such victim by virtue of the said proviso to prefer an appeal, as stated therein. 20. That takes me to Section 378 of the Code, which is reproduced hereinabove which deals with the appeals in cases of acquittals, which begins with savings clause, as amended and substituted by Act 25 of 2005 ( w.e.f. 23.6.2006) and reads that (1) Save as otherwise provided in Sub-section (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 Sessions from an order of acquittal passed by a Magistrate in respect of a cognizable and nonbailable offence, whereas Clause (b) to Sub-section (1) provides that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial discretion would demand that when the State has already preferred appeal against the order of acquittal and the leave has been granted by this Court and the appeal has been admitted against the order of acquittal, preferred by the State, it would not be a case to entertain another appeal of the victim by this Court and the only observation deserves to be made is to enable the victim to assist the Public Prosecutor as per the provision of Section 24(8) Cr.P.C., at the time of final hearing of the appeal and/or by making the submission before the Court with the P.P. against the order of acquittal. 22. There is no quarrel in the legal position that Sub-section (4) of Section 378 of the Code deals with such orders of acquittal passed in any cases instituted upon complaint and contemplates making an application to the High Court by the complainant in this behalf, seeking special leave to file an appeal from the order of acquittal, and upon grant of such special leave, the complainant may present such an appeal to the High Court, and it is apparently clear that this provision of Section 378, Sub-section (4) of the Code is the exclusive provision which deals with the orders of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
