@JUDGMENTTAG-ORDER
Sanjay K. Agrawal, J.@mdashThe neat question that arises for consideration in this revision is whether complainant is entitled to prefer an appeal under proviso to Section 372 of the Code of Criminal Procedure, 1973 (in short ''Cr.P.C.'') before the Court of Session against the judgment of acquittal passed by subordinate Criminal Court arising out of criminal complaint filed by complainant or he is required to prefer an appeal under sub-section (4) of Section 378 of the Cr.P.C before this Court after obtaining leave? The applicant/complainant herein filed an criminal complaint against the non-applicant No. 1 for commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (''N.I. Act, 1881'' for brevity) before jurisdictional Criminal Court.
2. The said Court by its judgment dated 30/11/2012, acquitted the non-applicant No. 1 herein holding that the applicant/complainant has failed to bring home the offence under Section 138 of the N.I. Act, 1881.
3. Feeling aggrieved against the judgment of acquittal, the applicant/complainant preferred an appeal under proviso to Section 372 of the Cr.P.C. questioning the said judgment of acquittal.
4. By the impugned judgment, the Third Additional Session Judge dismissed the appeal holding that the appeal against the judgment of acquittal in a complaint case under proviso to Section 372 of the Cr.P.C. is not maintainable and remedy of the complainant lies is to file appeal before High Court after obtaining leave under sub-section (4) of Section 378 of the Cr.P.C.
5. Questioning the said judgment, dismissing his appeal as not maintainable, the present revision has been filed by the present applicant/complainant under Section 397/401 of the Cr.P.C.
6. Appearing for the applicant, Mr. Atul Pandey, learned counsel would submit that the applicant/complainant also comes within the meaning of ''victim'' as defined in Section 2(wa) of the Cr.P.C., therefore, the applicant/complainant aggrieved by the judgment of acquittal is entitled to invoke the jurisdiction of Criminal Appellate Court (Court of Session) under proviso to Section 372 of the Cr.P.C., as such, the impugned order holding that the complainant is not entitled to invoke the jurisdiction of the Criminal Court by preferring appeal under proviso to Section 372 of the Cr.P.C. is clearly unsustainable and bad in law. Mr. Pandey placed heavy reliance on decision rendered by Co-ordinate Bench of this Court, in Criminal Revision No. 779/2012 (Sunder Das Rohra v. Anil Mishra) decided on 15/04/2013.
7. Appearing for the non-applicant No. 1, Ms. Fouzia Mirza, learned counsel would submit that against the judgment of acquittal in a complaint case filed by the complainant, his/her sole remedy is only to file appeal under Sub-section (4) of Section 378 of the Cr.P.C. by obtaining leave from the High Court. She would further submit that the definition of ''victim'' as defined in Section 2(wa) of the Cr.P.C. does not include the complainant of a complaint case and as such, the appeal has rightly been dismissed as not maintainable by the Court of Session as the remedy of complainant lies to file appeal after obtaining leave of this Court under sub-section (4) of Section 378 of the Cr.P.C.
8. I have heard learned counsel appearing for the parties on this legal question and has considered their rival submission and examined the record with utmost circumspection.
9. In order to judge the correctness of the impugned judgment, it would be proper to notice certain statutory provision under Section 2(wa) as well as Sections 372 and 378 of the Cr.P.C.:--
"2(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."
"372. No appeal to lie unless otherwise provided.--No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any 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.]".
"378. Appeal in case of acquittal.--[(1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and
(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable 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 cognizable 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 ah order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, arid 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)."
10. From a close and careful reading of the aforesaid statutory provision, it would appear that the complainant in a proceeding under Section 138 of the N.I. Act, 1881 cannot be considered as a "victim" falling within the sweep of Section 2(wa) of the Cr.P.C. The complainant in this proceeding cannot be taken at par with those, who put criminal trial into motion and to bring the offenders to book. The amendment in question permitted the victim to challenge the order of acquittal by filing an appeal under proviso to Section 372 of the Cr.P.C.
11. Extremely recently, the Supreme Court in
"12..........No distinction is made while using the words ''informant'' and ''complainant''. In many of the judgments, the person giving the report under Section 154 of the Code is described as the ''complainant'' or the defacto complainant'' instead of ''informant'' assuming that the State is the complainant. These are not words of literature. In a case registered under Section 154 of the Code the State is the prosecutor and the person whose information is the cause for lodging the report is the informant. This is obvious from sub-section (2) of Section 154 of the Code which, inter alia, provides for giving a copy of the information to the ''informant'' and not to the complainant''. However the complainant is the person who lodges the complaint. The word ''complaint'' is defined under Section 2(d) of the Code to mean any allegation made orally or in writing to a Magistrate and the person who makes the allegation is the complainant, which would be evident from Section 200 of the Code. Which provides for examination of the complainant in a complaint case. Therefore, these words carry different meanings and are not interchangeable. In short the person giving information, which leads to lodging of the report under Section 154 of the Code is the informant and the person who files the complaint is the complainant."
12. In the considered opinion of this Court, the issue involved herein stands concluded and no longer res Integra in view of following two authoritative pronouncement of their Lordships of the Supreme Court;--
13.1 In
"20......In the case of conviction, an appeal would lie to the Court of Sessions under Section 374(3)(a) Cr.P.C. Therefore a revision to the High Court under Section 397/401 Cr.P.C. and finally a petition before the Supreme Court, seeking special leave to appeal under Section 136 of the Constitution of India. Thus, in case of conviction there will be four levels of litigation.
In the case of acquittal by JMFC, the complainant could appeal to the High Court under Section 378(4) Cr.P.C., 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."
13.2 In
"20........Thus, whether a case is a case instituted on a complaint depends on the legal provisions relating to the offence involved therein. But once it is a case instituted on a complaint and an order of acquittal is passed, whether the offence be bailable or non-bailable, cognizable or non-cognizable, the complainant can file an application under Section 378(4) for special leave to appeal against it in the High Court. Section 378(4) places no restriction on the complainant So far as the State is concerned, as per Section 378(1)(b), it can in any case, that is even in a case instituted on a complaint, direct the Public Prosecutor to file an appeal to the High Court from an original or appellate order of acquittal passed by any court other than High Court. But there is, as stated by us hereinabove, an important inbuilt and categorical restriction on the State''s power. It cannot direct the Public Prosecutor to present an appeal from an order of acquittal passed by a Magistrate in respect of a cognizable and non-cognizable offence. In such a case the District Magistrate may under Section 378(1)(a) direct the Public Prosecutor to file an appeal to the Session Court. This appears to be the right approach and correct interpretation of Section 378 of the Code."
13.3 In the later part of judgment while concluding their Lordships authoritatively expressed their opinion as under:--
"23..........we conclude that a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court. He cannot file such appeal in the Sessions Court. In the instant case the complaint alleging offences punishable under Section 16(1) & (1-A) read with Section 7 of the PFA Act and the Rules is filed by complainant Shri Jaiswal, Local Health Authority through Delhi Administration. The appellant was acquitted by the Metropolitan Magistrate, Patiala House Courts, New Delhi. The complainant can challenge the order of acquittal by filing an application for special leave to appeal in the Delhi High Court and not in the Sessions Court. Therefore, the impugned order holding that this case is not governed by Section 378(4) of the Code is quashed and set aside. In the circumstances the appeal is allowed."
13. The Division Bench of Kerala High Court in
"For the aforesaid reasons, we hold that the complainant in a case under Section 138 of the Negotiable Instruments Act cannot challenge the order of acquittal before the Sessions Court under the proviso to Section 372 of the Cr.P.C. and his remedy is only to file an appeal to the High Court with special leave under Section 378(4) Cr.P.C."
14. Similar view has been expressed by Delhi High Court in Criminal Appeal No. 972/2012 (The Bhajanpura Cooperative Urban Thrift & Credit Society Ltd. v. Sunil Kumar) decided on 3rd September, 2014 and also by the High Court of Madhya Pradesh in
15. The Co-ordinate Bench of this Court in Sunder Das Rohra (supra) has held that the complainant of a complaint case for offence punishable under Section 138 of the N.I. Act, 1881 also comes within the definition of ''victim'' as defined in Section 2(wa) of the Cr.P.C. and therefore he has a right to file an appeal against the judgment of acquittal before the Court of Session under proviso to Section 372 of the Cr.P.C. The relevant extract of Sunder Das (supra) held as under:--
"9. So far as cause of action is concerned, the Amending Act No. 5 of 2009 vide which proviso to Section 372 of the Cr.P.C. has been added had come into force on 31/12/2009, as such in the instant case, cause of action has arisen after coming into force of the Amending Act 5 on 31/12/2009 vide which proviso to Section 372 of the Cr.P.C. was added. Revision petitioner has filed a complaint for offence punishable under Section 138 of the N.I. Act, 1881 and as such Revision petitioner herein comes within the definition of victim as defined under Section 2(wa) of the Cr.P.C. and he had a right to file an appeal against the order of acquittal dated 21/09/2012 before the Court of Session. In view of this, Sixth Additional Session Judge, Bilaspur has definitely committed illegality and impropriety in passing the impugned order dated 23/11/2012 dismissing the appeal filed by revision petitioner holding it as not maintainable, which deserves to be and is hereby set-aside."
16. Upon thoughtful consideration, I am unable to persuade myself to agree with the opinion expressed by co-ordinate Bench in case of Sunder Das (supra) and respectfully differ in light of clear pronouncement of Supreme Court in
17. The procedure to be followed in case of conflict has been laid down by their Lordships of the Supreme Court in
"10...........When it appears to a Single Judge or a Division Bench that there are conflicting decisions of the same Court, or, there are decisions of other High Court in India which are strongly persuasive and take a different view from the view which prevails in his or their High Court, or that a question of law of importance arises in the trial of a case, the Judge or the Bench passes an order that the papers be placed before the Chief Justice of the High Court with a request to form a special or Full Bench to hear and dispose of the case or the questions raised in the case."
18. Rule 32 of the High Court of Chhattisgarh Rules, 2007 (in short ''Rules of 2007'') lays down the procedure for referring any proceeding, if it is considered that decision in a proceeding involves reconsideration of a decision of co-ordinate Bench. In exercise of power conferred by Rule 32(2)(ii) read with Rule 32(5) Rules of 2007, it is hereby recommended that papers of this proceeding (Criminal Revision No. 285/2014 Sandeep Agrawal v. Raja Ram Tripathi and another) be placed before Hon''ble the Chief Justice for consideration and appropriate orders for constituting and placing it before a Larger Bench on following "stated question":--
"Whether complainant is entitled to prefer an appeal under proviso to Section 372 of Cr.P.C. before the Court of Session against the judgment of acquittal passed by subordinate Criminal Court arising out of criminal complaint filed by complainant, or he is required to prefer an appeal under sub-section (4) of Section 378 of the Cr.P.C. before this Court after obtaining leave?"
