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REMEDY TO SEEK LEAVE – APPEAL U/S SECTION 378(4) OF THE CR.P.C IN THE EVENT OF ACQUITTAL OF TH

ANNADURAI & ORS v MOHAMMED HUSSAIN & ORS. CRIMINAL APPEAL NO. NOS.382 of 2012 and 315 of 2015 – 05-4-2016 

The bench constituting of Honourable Justice V.Ramasubramanian, Honourable Justice N.Kirubakaran and Honourable Justice S.Vaidyanathan gave the judgement where the respondent in the appeal was acquitted on finding that the respondent/accused was not guilty of an offence under Section 138 of the Negotiable Instruments Act, 1881.

The appellant in the present appeal was the complainant before the Lower Court. As against the acquittal, he filed the present appeal under Section 378 of Cr.P.C.

The Registry raised an objection as to how the appeal was maintainable, as it was filed beyond 60 days as laid down under Section 378(5) of Cr.P.C.

The learned judge Nagamuthu,J framed questions which were placed before the Chief Justice as under:

  1. Whether a victim of a crime, who has prosecuted an accused by way of a private complaint, does not have statutory right of appeal against acquittal under proviso to Section 372 of the Code of Criminal Procedure?

  2. Whether a complainant, in a private compliant case, who is not a victim, has got the remedy to seek only leave to file appeal under Section 378(4) of the Code of Criminal Procedure in the event of acquittal of the accused?

  3. In a private complaint case, if a victim does not happen to be a complainant and in the event of acquittal, whether he has got right of appeal under proviso to Section 372 of the Code of Criminal Procedure or he has to seek leave to file appeal under Section 378(4) of the Code of Criminal Procedure?

  4. Whether a victim in a case instituted on a police report, has a better place in the criminal justice delivery system than a victim in a private complaint case?

  5. Whether the term ‘victim’ as defined in Section 2 of the Code of Criminal Procedure excludes a complainant in a private complaint case, though he has suffered loss or injury on account of the offence committed against him?

  6. Whether the view held in the judgment of this Court in Selvaraj Vs.Venkatachalapathy, reported in 2015 (1) MWN (Cr) DCC 26 (Mad.), reflects correct exposition of law or the same requires to be overruled?

The learned Chief Justice, by his order dated 18.6.2015, directed the matters to be listed before a Full Bench. Subsequently, when 26 other criminal appeals (both numbered and unnumbered) were put up before the Judge in-charge of administration in the Madurai Bench at the relevant time, he, by an order dated 7.7.2015, directed those matters also to be listed along with the batch of these cases. Hence, those cases are also tagged together in order to answer the order of reference.

Among the several deficiencies found in the existing justice delivery system, he also made a pertinent comment on the lack of right of a victim to appeal against a judgment acquitting an offender in the following lines:-

“Even after the case ends up in a conviction, it is the State which defends the judgment of the trial court in appeal, if any, filed against the conviction and sentence. The victim of crime has hardly any role to play in the whole proceedings except that he may, if alive, be examined by the prosecution as a witness. Under the Cr.P.C. a victim of crime has got a very limited right of revision and that too under exceptional circumstances. It humiliates and frustrates a victim of crime when the offender goes unpunished or is let off with a relatively minor punishment as the present system pays no attention to his injured feelings. Imposition of appropriate punishment on the criminal is the response of the courts to the society’s cry for justice. Indifference to the rights of the victim of crime is fast eroding the faith of the society in general and the victim of crime in particular in the criminal justice system and this has already given rise to the incidents of crime and lawlessness, in the form of terrorism, which is raising its ugly head to settle private and political scores over the adversary with the barrel of gun.”

Almost all the cases, which were used to interpret the case at hand, arose out of private complaints filed under Section 138 of the Negotiable Instruments Act, 1881. Until the introduction of this provision, the matter relating to dishonour of negotiable instruments were dealt with as a civil matter and aggrieved parties moved the civil courts. By the introduction of Section 138 of the Negotiable Instruments Act, it has now become a crime and if proved, punishable with imprisonment. However, under Section 142, the taking cognizance of the offence has been defined and only upon a complaint made by the payee or holder in due course, the Court can take cognizance of any offence.”

Since, in this case, the Court was concerned with the interpretation of Sections 372 and 378 of Cr.P.C, it was necessary to extract them in its entirety.

In this regard, it was necessary to refer to the decision of the Supreme Court interpreting Section 378(4) in the light of the amendment made to the Code by Central Act 25 of 2005. The Supreme Court, vide its judgment in Subhash Chand Vs. State (Delhi Administration) [2013 (2) SCC 17], held that a complainant of an offence can file an appeal only in the High Court after getting a special leave.

In the light of the above legal precedents and the discussion, the questions posed by the Referral Judge were answered as follows:-

(1) A victim of the crime, who has prosecuted an accused by way of a private complaint, has a statutory right of appeal within the limits prescribed under Section 372 of Cr.P.C.

(2) A complainant (in a private complaint), who is not a victim, has a remedy and can file an appeal in the event of acquittal of the accused after obtaining leave to appeal under Section 378(4) of Cr.P.C

(3) In a private complaint, even if the victim is not a complainant, he has a right to appeal under the proviso to Section 372 of Cr.P.C., but he has to seek leave as held by the Supreme Court in Satyapal Singh.

(4) The term “victim” has been correctly interpreted by the Full Bench of the Delhi High Court in Ramphal and we are in agreement with the same.

(5) A victim (as defined under Section 2(wa) of the Cr.P.C does not cease to be a victim merely because he also happens to be a complainant and he can avail all the rights and privileges of a victim also and

(6) The decision of the Single Judge in Selvaraj holding that the term “victim” found in Section 372 excludes a complainant, is not legally correct and in a given case, a complainant, who is also a victim, can avail right granted under Section 372 of Cr.P.C.

Tanvi Srivatsan

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