9911796707
TMI Blog2010 (10) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... file appeal against acquittal even if the complainant approached the High Court before admission of the appeal against acquittal. On the other hand, counsel for the 2nd Respondent/complainant pointed out that as per recent amendment to Section 372 Code of Criminal Procedure introducing new proviso to that Section, a victim is competent to file appeal to the Sessions Court against acquittal recorded, by the Magistrate. 3. Section 372 Code of Criminal Procedure reads as follows: No appeals shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by 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 4. The 2nd Respondent/complainant filed complaints before the Magistrate alleging two offences against the Petitioner/accused punishable under Section 138 of the Negotiable Instruments Act on the ground that two cheques said to have been dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial provision as to filing of appeal against order of acquittal. After the amendment to Section 372 Code of Criminal Procedure by which the proviso was incorporated therein, Section 372 Code of Criminal Procedure ceased to be a general provision as a whole. The proviso to Section 372 Code of Criminal Procedure makes inroads to original general provision contained in Section 372 Code of Criminal Procedure. After introduction of the said proviso, the field became enlarged clothing a victim also with right to file an appeal apart from the State or the complainant as the case may be. The words Victim' and 'complainant' are not synonymous. At times, a complainant may include a victim and vice versa, but not always. Thus, under the recent amendment of the year 2008, the Parliament thought it fit to confer the right to file appeal on the victim also apart from the State or the complainant. Further, jurisdiction was conferred not only to the High Court but also to the Sessions Court for entertaining such appeal of the victim against order of acquittal, by introducing the words such appeal shall lie to the Court to which an appeal ordinarily lies against the order of convict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s abrogate earlier contrary laws). This principle is subject to the exception embodied in the maxim; generalias specialibus non derogant (a general provision does not derogate from a special one). This means that where the literal meaning of the general enactment covers enactment covers a situation for which specific provision is made by Anr. enactment contained in an earlier Act, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one (Benion: Statutory Interpretation pp. 433-34 10. State of Gujarat v. Salimbhai Abdulgaffar Shaikh (2003) 8 SCC 50 of the Supreme Court has no application in considering provisions of the same enactment which stood before and after amendment. In that case, the question before the Supreme Court was on provisions relating to grant of bail and anticipatory bail under general law contained in the Code of Criminal Procedure, 1973 vis-a-vis the said provisions contained in the special enactment viz., Prevention of Terrorism Act (POTA). 11. While interpreting provisions of Central Excise and Salt Act and Central Excise Rules, the Supreme Court in Collector of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Section 378(4) Code of Criminal Procedure provides for filing appeal against acquittal by the State or by the complainant to the High Court with leave of the High Court. Whereas the amended Section 372 Code of Criminal Procedure provides for appeal against acquittal to the victim of the offence to the Court to which an appeal ordinarily lies against the order of conviction of that Court. Against any order of conviction passed by a Magistrate, appeal lies to the Sessions Court. In case an order of conviction is passed by an Assistant Sessions Court, then appeal lies either to the Sessions Court or to the High Court depending upon the quantum of sentence of imprisonment awarded by that court. In case a conviction is recorded by a Sessions Court or Additional Sessions Court, then appeal lies to the High Court. Thus, a victim irrespective of the fact whether he is complainant or not, has been conferred the right to file appeal against an order recording acquittal by the trial court, either to the Sessions Court or to the High Court as the case may be. In case, the victim is also the complainant in a case instituted by way of a private complaint, then such person has got two options t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
