# Anil Kumar Agarwal v. State of U.P. & Anr

- **Citation:** Application U/S 482 Cr.P.C. No. 3171 of 2016
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-25
- **Case number:** Application U/S 482 Cr.P.C. No. 3171 of 2016
- **Bench:** Shashi Kant Gupta, Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-agarwal-v-state-of-u-p-anr-46366
- **Pages:** 20

## Headnote

(A) Criminal Law- Forum to file an
appeal - legal controversy - referred
to larger bench for opinion - Code of
criminal procedure, 1973 - Section
482 Cr.P.C - appeal being the
creation of statute - when the victim
or
when
the
victim
is
also
a
complainant chose to file an appeal
against acquittal in a case instituted
upon complaint, it would be under
proviso to Section 372 CrPC read with
378 (4) & 378 (5) CrPC - Proviso to
372 CrPC gives right to the victim to
file an appeal - Section 378 (4) & (5)
CrPC provides procedure, limitation
and forum to file an appeal in a case
instituted upon complaint.
(Para-40)

Complainant filed an application under section
138 of Negotiable Instruments Act before the
court of Chief Judicial Magistrate - accused
acquitted by the concerned Magistrate after
dismissal of the complaint - Against the order of
acquittal the complainant preferred an appeal,
before the Sessions Court under section 372
Cr.P.C. - appeal dismissed by the sessions court
- ground - not maintainable under section 372
Cr.P.C. - application under section 482 Cr.P.C.
filed with a prayer to quash the order passed by
the Additional District and Sessions Judge.
(Para-3,4)

HELD:- (a)The appeal by a 'victim' who is a
complainant also against the order of acquittal
in a criminal complaint case under 138 of
Negotiable Instrument Act would lie to the High
Court under proviso to Section 372 read with
Sub-section (4) & (5) of Section 378 CrPC.
(Para - 41)
(b) Against the same judgment and order of
acquittal in a complaint case, in a situation
1570 INDIAN LAW REPORTS ALLAHABAD SERIES
where victim and complainant both are different
persons, appeal by a victim would lie under the
proviso to 372 CrPC read with Section 378 (4)
(5) CrPC only before the High Court.
(Para - 41)

 (B)
Statutory
Interpretation
-
legislative
intent
of
insertion
of
proviso to section 372 CrPC - victim,
whether complainant or not, has right
to file appeal against the acquittal in a
case constituted upon complaint also
- interpretation which promotes and
advances the object and purpose of
the enactment - object and purpose of
insertion of proviso is to strengthen
the give rights to victim - purposive
interpretation to the enactment - not
to result in anomalies, injustices or
absurdities - Section 378 (4) and (5)
CrPC,
provides
procedure
to
file
appeal
by
complainant
against
acquittal in a case instituted upon the
complaint .(Para-49,50,51)

HELD:- Upon conjoint reading, the sole
interpretation is that, an appeal in both the
situations have to be filed before one forum
only as any other interpretation will lead into a
situation of uncertainty and anomalies . The
forum that is prescribed under section 378(4)
CrPC is High Court to file appeal by the
complainant,
therefore
considering
the
principles of statutory interpretation even victim
has to file appeal against acquittal in a case
constituted upon complaint, before High Court
only. This will not only avoid uncertainty but will
also serve the purpose of the enactment.
(Para - 51)

Reference answered (E-7)

List Of Cases Cited:-

## Text

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3-5 All. Anil Kumar Agarwal Vs. State of U.P. & Anr.
1569
despite sufficient opportunity being given
by the trial court, no such prayer was made
by him. Thus the application for getting the
signatures verified by handwriting expert
was simply moved with a view to delay the
disposal of appeal and the application
under Section 391 Cr.P.C. does not appear
to be bonafide.

17.

Having
considered
the
submissions advanced by learned counsel
for the applicant, learned A.G.A. and also
perusing the record, I have come to the
conclusion that application under Section
391 Cr.P.C. filed by the applicant before
the Appellate court was not bonafide and
was simply moved to create confusion and
delay in disposal of appeal and the
application has been rightly rejected by
learned Additional District and Sessions
Judge, Bijnor. Hence the prayer made in
the present application is refused.

18. The present application lacks
merit and is, accordingly, rejected.
----------
(2020)03-05ILR A1569
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.02.2020

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Application U/S 482 Cr.P.C. No. 3171 of 2016
connected with
Application U/S 482 Cr.P.C. No. 7792 of 2017
connected with
Application U/S 482 No. 7793 of 2017
connected with
Application U/S 482 No. 7790 of 2017
connected with
Application U/S 482 No. 7795 of 2017

Anil Kumar Agarwal ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Hare Krishna Tripathi

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law- Forum to file an
appeal - legal controversy - referred
to larger bench for opinion - Code of
criminal procedure, 1973 - Section
482 Cr.P.C - appeal being the
creation of statute - when the victim
or
when
the
victim
is
also
a
complainant chose to file an appeal
against acquittal in a case instituted
upon complaint, it would be under
proviso to Section 372 CrPC read with
378 (4) & 378 (5) CrPC - Proviso to
372 CrPC gives right to the victim to
file an appeal - Section 378 (4) & (5)
CrPC provides procedure, limitation
and forum to file an appeal in a case
instituted upon complaint.
(Para-40)

Complainant filed an application under section
138 of Negotiable Instruments Act before the
court of Chief Judicial Magistrate - accused
acquitted by the concerned Magistrate after
dismissal of the complaint - Against the order of
acquittal the complainant preferred an appeal,
before the Sessions Court under section 372
Cr.P.C. - appeal dismissed by the sessions court
- ground - not maintainable under section 372
Cr.P.C. - application under section 482 Cr.P.C.
filed with a prayer to quash the order passed by
the Additional District and Sessions Judge.
(Para-3,4)

HELD:- (a)The appeal by a 'victim' who is a
complainant also against the order of acquittal
in a criminal complaint case under 138 of
Negotiable Instrument Act would lie to the High
Court under proviso to Section 372 read with
Sub-section (4) & (5) of Section 378 CrPC.
(Para - 41)
(b) Against the same judgment and order of
acquittal in a complaint case, in a situation
1570 INDIAN LAW REPORTS ALLAHABAD SERIES
where victim and complainant both are different
persons, appeal by a victim would lie under the
proviso to 372 CrPC read with Section 378 (4)
(5) CrPC only before the High Court.
(Para - 41)

 (B)
Statutory
Interpretation
-
legislative
intent
of
insertion
of
proviso to section 372 CrPC - victim,
whether complainant or not, has right
to file appeal against the acquittal in a
case constituted upon complaint also
- interpretation which promotes and
advances the object and purpose of
the enactment - object and purpose of
insertion of proviso is to strengthen
the give rights to victim - purposive
interpretation to the enactment - not
to result in anomalies, injustices or
absurdities - Section 378 (4) and (5)
CrPC,
provides
procedure
to
file
appeal
by
complainant
against
acquittal in a case instituted upon the
complaint .(Para-49,50,51)

HELD:- Upon conjoint reading, the sole
interpretation is that, an appeal in both the
situations have to be filed before one forum
only as any other interpretation will lead into a
situation of uncertainty and anomalies . The
forum that is prescribed under section 378(4)
CrPC is High Court to file appeal by the
complainant,
therefore
considering
the
principles of statutory interpretation even victim
has to file appeal against acquittal in a case
constituted upon complaint, before High Court
only. This will not only avoid uncertainty but will
also serve the purpose of the enactment.
(Para - 51)

Reference answered (E-7)

List Of Cases Cited:-

1. Legal Representatives Vs. St. of Karn. & ors.,
(2019) 2 SCC 752

2. Subhas Chand Vs. State Delhi Administration,
(2013) 2 SCC 17

3. M/s Tata Steel Ltd. Vs. M/s Atma Tube
Products Ltd. & ors., 2013 (1) ILR 719 (P&H)

4. Damodar S. Prabhu Vs. Sayed Babalal H.
,2010 CrLJ 2860,

5. Dharmveer Singh Tomar Vs. Ramraj Singh
Tomar, 2011, Law Suit (MP) 55,

6. Top Notch Infotronix (I) Pvt. Ltd. Vs. Infosoft
Systems & ors., 2011 Law Suit (Bom) 711.

7. Mast Ram Tiwari Vs. St. of U.P. & ors.,
Criminal Misc. Application u/s 372 Cr.P.C. (Leave
to Appeal) No. 351 of 2017

8. Bhavuben Dineshbhai Makwana Vs. St. of
Guj., 2013 Cri LJ 4225

9. The Central India Spinning and Weaving
Manufacturing
Comp.
Vs.
The
Municipal
Committee, Wardha), AIR 1958 SC 341

10. Girdhari Lal & Sons Vs. Balbir Nath Mathur),
1986(2) SCC 237

11. Utkal Contractors & Joinery Pvt. Ltd. Vs. St.
of Orissa, 1987 (3) SCC 279

12. Eera (through Dr. Manjula Krippendorf) Vs.
St. (NCT of Delhi) and anr., 2017(15) SCC 133

(Delivered by Hon'ble Shashi Kant Gupta, J.)

1. The questions referred to this
Bench for opinion are as follows:

(i) Whether against acquittal
order in a criminal complaint case under
Section 138 Negotiable Instruments Act,
the victim, who is complainant also, may
prefer appeal before the Sessions Judge
taking recourse to the proviso to Section
372 Cr.P.C. or the said appeal shall lie
before the High Court under the said
provisions.

(ii) Whether against the same
judgment and order of acquittal in a
complaint case, in a situation when victim
3-5 All. Anil Kumar Agarwal Vs. State of U.P. & Anr.
1571
and complainant both are different
persons, victim may file appeal under the
proviso to Section 372 CrPC before the
Sessions Judge or such appeal shall lie
before the High Court ?

2. Since the learned Single Judge
could not subscribe to the views expressed
by the learned Single Judges of this Court
in Criminal Misc. Application (Under
Section 482 Cr.P.C) No. 5934 of 2012,
Ashok Kumar Srivastava and others vs.
State of UP and another, (decided on
30.03.2012) and Criminal Revision No.
3539 of 2015, Ved Prakash Yadav and 2
others Vs. State of UP and 2 others,
(decided on 24.09.2015), referred the
matter to a larger bench for resolving the
conflict, the Chief Justice thereupon has
referred the matter to us for our opinion.

3. Since the legal controversy raised
in all the criminal Misc. Applications are
similar, they are decided by a common
order by treating the Criminal Misc.
Application No. 3171 of 2016 (U/S 482
CrPC) Anil Kumar Agrawal Vs. State of
UP as a leading case. For the purpose of
deciding the matter, it would be appropriate
to have a quick glance to the fact of the
Criminal Misc. Application No. 3171 of
2016 (U/s 482 Cr.P.C) Anil Kumar
Agarwal Vs. State of U. P. and another.
The complainant therein had filed an
application under section 138 of Negotiable
Instruments Act before the the court of
Chief Judicial Magistrate Jhansi. The
accused were acquitted by the concerned
Magistrate after dismissal of the complaint.

4. Against the order of acquittal the
complainant preferred an appeal, being
appeal no. 145 of 2013, Anil Kumar
Agrawal Vs. Braj Bhushan Lahariya and
another before the Sessions Court , Jhansi
under section 372 Cr.P.C. The said appeal
was dismissed by the sessions court, Jhansi
as not maintainable under section 372
Cr.P.C. Hence, the application under
section 482 Cr.P.C. was filed with a prayer
to quash the order dated 16.11.2015 passed
by the Additional District and Sessions
Judge, Fast Track Court, Jhansi in Criminal
Appeal No. 145 of 2013 (Anil Kumar
Agarwal vs. Braj Bhushan Lahariya and
another) .

5. Learned counsel for the applicant
Sri Sushil Shukla has submitted that the
victim or the complainant has been given
unfettered right of appeal in terms of
proviso to Section 372 Cr.P.C to challenge
the acquittal of an accused by preferring an
appeal before the Court of Session if the
order of acquittal is passed by the Court of
Magistrate or before the High Court if
order of acquittal is passed by the Court of
Session and for preferring such appeal
there is no need to obtain leave/special
leave from such Courts after insertion of
the proviso to Section 372 Cr.P.C by Act 5
of 2009 w.e.f. 31.12.2009. He further
submitted that appeal against the order of
acquittal would lie to the Court to which an
appeal ordinarily lies against the order of
conviction of such Court irrespective of the
fact whether the acquittal order is passed in
a case instituted upon a complaint case or
police report. While placing reliance upon
the decision Malikarjun Kodagali (Dead)
Represented
through
Legal
Representatives Vs. State of Karnataka
and others-(2019) 2 SCC 752, he has
submitted that the victim for challenging
the order of acquittal in an appeal need not
to obtain leave of the Court and that his
appeal has to be dealt as a regular appeal.

6. Per contra, learned Standing
Counsel Mr. Syed Ali Murtaza appearing
1572 INDIAN LAW REPORTS ALLAHABAD SERIES
on behalf of the State has submitted that the
complainant in a compliant case, who is a
victim also is entitled to prefer appeal
before the High Court against the order of
acquittal whether it is passed by a
Magistrate or Sessions Judge and appeal
would lie again before the High Court even
when the victim and complainant both are
different persons in a case arising from the
same judgment and order of acquittal in a
complaint case.

7. Learned AGA in support of his
contention has placed reliance upon the
following decisions of the High Court as
well as of the Apex Court:

i. Mallikarjun Kodagali (Dead)
Represented
Through
Legal
Representative Vs. State of Karnataka &
others, (2019) 2 SCC 752

ii. Subhas Chand Vs. State
Delhi Administration, (2013) 2 SCC 17

iii. M/s Tata Steel Ltd. Vs. M/s
Atma Tube Products Ltd. & others, 2013
(1) ILR 719 (P&H)

iv. Damodar S. Prabhu Vs.
Sayed Babalal H. 2010 CrLJ 2860,

v. Dharmveer Singh Tomar Vs.
Ramraj Singh Tomar, 2011, Law Suit
(MP) 55,

vi. Top Notch Infotronix (I)
Pvt. Ltd. Vs. Infosoft Systems & Ors,
2011 Law Suit (Bom) 711.

8. Before we proceed further, it would
be relevant to note certain provisions of
CrPC, which are relevant for our purpose,
to address the questions. The word
'complaint' and the word 'victim' have been
defined by clauses (d) and (wa) of Section
2 of CrPC, which read as under :

"(d) "complaint" means any
allegation made orally or in writing to a
Magistrate, with a view to his taking
action under this Code, that some person,
whether
known
or
unknown,
has
committed an offence, but does not
include a police report.

Explanation.- A report made by
a police officer in a case which discloses,
after investigation, the commission of a
non-cognizable offence shall be deemed to
be a complaint; and the police officer by
whom such report is made shall be
deemed to be the complainant; (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".

9. We are referring to above
definitions, 'complainant and victim' as
they are referred to in Section 372 and
Section 378 of CrPC respectively around
which the whole web of arguments has
been woven by learned counsel for the
parties. Chapter XXIX CrPC deals with
appeal. The heading of section 372 CrPC is
"No appeal to lie unless otherwise
provided". Unamended Section 372 CrPC
prior to 31.12.2009 stood as follows:

"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
by any other law for the time being in
force:

10.

Section
372
CrPC
was
amended by Act 5 of 2009 with effect
from 31.12.2009, whereby a proviso
was added. It would be advantageous at
this stage to reproduce the amended
Section 372 CrPC, which reads as
under:
3-5 All. Anil Kumar Agarwal Vs. State of U.P. & Anr.
1573

"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."

11. A bare reading of the proviso
inserted to Section 372 CrPC, it is evident
that there are following three circumstances
in which the victim shall have the right to
prefer an appeal against any order:

(a) acquitting the accused;

(b) convicting for lesser offence;

(c)
imposing
inadequate
compensation.

12. Similarly, we are also concerned
with Section 378, which provides for
appeal in case of acquittal. The provisions
contained in Section 378, read as follows:

"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 (5), -

(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 subsection (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
1574 INDIAN LAW REPORTS ALLAHABAD SERIES
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)."

13. Prior to the amendment in section
372 Cr.P.C. there was no specific provision
for the victim. By way of amendment in
section 372 Cr.P.C. the proviso was added
to enable the victim to file a statutory
appeal against any order passed by the
court acquitting or convicting the accused
for a lesser offence or imposing inadequate
compensations and further providing that
that such appeal shall lie to the court to
which an appeal ordinarily lies against the
order of conviction of such court.

14. At this stage, it would also be
appropriate to refer to the statements and
reasons to achieve the objectives for
whichthe amendment of Codeof Criminal
Procedure by Act No.5 of 2009 was
enforced. It reads as follows:

"(1) The Law Commission has
undertaken a comprehensive review of the
Codeof Criminal Procedure in its 154th
report and its recommendations have been
found very appropriate, particularly those
relating to provisions concerning arrest,
custody, and remand, procedure for
summons
and
warrant-cases,
compounding of offences, victimology,
special protection in respect of women and
injury and trial of persons of unsound
mind. Also, as per the Law Commission's
177th report relating to arrest, it has been
found necessary to revise the law to
maintain a balance between the liberty of
the citizens and the society's interest in
maintenance of peace as well as law and
order.

(2) The need has also been felt to
include measures for preventing the
growing tendency of witnesses being
induced or threatened to turn hostile by
the accused parties who are influential,
rich and powerful. At present, the victims
are the worst sufferers in a crime and they
don't have much role in the Court
proceedings. They need to be given certain
rights and compensation, so that there is
no distortion of the criminal justice
system. The application of technology in
investigation, inquiry 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."

15. While creating a substantive right
to the victim to prefer an appeal against an
order passed by the Court acquitting the
accused or convicting for a lessor offence
or imposing inadequate compensation, no
limitation was provided under Section 372
CrPC.

16. Full Bench of this court in the
case of Mast Ram Tiwari Vs. State of
U.P. and others passed in Criminal Misc.
Application u/s 372 Cr.P.C. (Leave to
Appeal) No. 351 of 2017 decided on
19.1.2018 held that the limitation for
preferring an appeal against the order of
3-5 All. Anil Kumar Agarwal Vs. State of U.P. & Anr.
1575
acquittal by the victim would be 90 days in
all cases other than the cases instituted
upon complaint, and six months where the
complainant is Public Servant and 60 days
in every other case instituted upon
complaint against the order of acquittal
after the High Court grants special leave to
appeal. Meaning thereby the aforesaid Full
Bench of this Court in Mast Ram Tiwari
(supra) acknowledged the fact that an
appeal filed against the order of acquittal
by the victim instituted upon complaint
would be maintainable before the high
court subject to limitation as provided
under the said section 378(5) Cr.P.C.

17. The word 'victim' as defined under
Section
2(wa)
does
not
make
any
distinction between the victim in a
complaint case and the victim in a police
case ( State prosecution) and if, for taking
recourse to proviso to Section 372, the
victim in a complaint case opts to file
appeal against the order of acquittal, he
would be governed by sub-section (5) of
Section 378 CrPC. Section 378, does not
use the word 'victim'. Sub-sections (4) and
(5) of Section 378 thereof, deal with a right
of appeal against the order of acquittal in
any case instituted upon complaint on
behalf of the complainant and, that too, on
an application made to the High Court
seeking special leave to appeal and once
the leave is granted, the complainant can
present the appeal to the High Court.

18. It may be noted that the Code of
Criminal
Procedure
when
originally
enacted in the year 1861 did not provide for
any right to appeal against acquittal to
anyone including the State. It was in the
Code of Criminal Procedure of 1898 that
Section 417 was inserted enabling the
Government to direct the Public Prosecutor
to present an appeal to the High Court from
an original or appellate order of acquittal
passed by any Court other than a High
Court. The Code of Criminal Procedure,
1973 came into being on January 25, 1974
repealing the Code of Criminal Procedure,
1898. The recommendations made by the
Law Commission of India, referred to
above, was more or less adopted by the
Parliament when it imposed a restriction in
sub-Section (3) to Section 378 against
entertainment of an appeal against acquittal
"except with the leave of the High Court".
Sub- section (4) of Section 378 retained the
condition of maintainability of an appeal at
the instance of a complainant against an
order of acquittal passed in a complaintcase only if special leave to appeal was
granted by the High Court.

19. The only significant amendment
brought into force was in Section 378
whereby the appeals against acquittal in
certain cases are now maintainable in the
Court of Session without any leave to
appeal to check arbitrary exercise of power
and to curb reckless acquittal. Amending
Act 5 of 2009 came into force conferring
the 'right to a victim and further adding a
new Section 2(wa) which defines "victim".
The concept of 'Victim Compensation
Scheme' has also been brought on the
Statute Book by the same Amendment Act
through a newly-added Section 357A
which inter alia provides that "every State
Government in co-ordination with the
Central Government shall prepare a scheme
for providing funds for the purpose of
compensation to them victim or his
dependents who have suffered loss or
injury as a result of the crime and who,
require rehabilitation".

20. The principal controversy before
us is whether against acquittal order in a
criminal complaint case under Section 138
1576 INDIAN LAW REPORTS ALLAHABAD SERIES
Negotiable Instruments Act, the victim,
who is a complainant also, may prefer
appeal against the order passed by the
Magistrate before the Sessions Judge taking
recourse to the proviso to Section 372
Cr.P.C. or the said appeal shall lie before
the High Court under the said provisions
and secondly whether against the same
judgment and order of acquittal in a
complaint case, in a situation when victim
and complainant both are different persons,
victim may file appeal under the proviso to
Section 372 CrPC before the Sessions
Judge or such appeal shall lie before the
High Court ?

21. The Full Bench of this Court in
the case of Manoj Kumar Singh Vs. State
of U.P. & 3 Others in Criminal Misc.
Application Defective U/s 372 CrPC
(Leave to Appeal) No. 67 of 2013 while
referring to the definition of Section 2 (wa)
of Cr.P.C has held that the victim means
the actual sufferer of offence (receiver of
harm caused by the alleged offence) and no
person other than actual receiver of harm
can be treated as victim of offence, so as to
provide him /her right to prefer appeal
under the proviso of section 372, though, in
his or her absence or disability, his "legal
heir" or "guardian" would qualify as victim
and have a right to appeal. A person who
claims himself to be 'guardian' or 'legal
heir' of actual victim (direct sufferer),
would be able to maintain appeal provided
he establishes his claim as such before the
court in his application by disclosing his
particulars; relationship with the direct
sufferer; and the grounds on which such
claim of being "legal heir" or "guardian" is
based. It was further held that the
expression
"Legal
Heir"
has
to
be
understood in its ordinary or natural sense.
That is if any person is able to establish his
status as "heir" recognized by law, he can
be termed as "Legal Heir" and the
preferences/restrictions
/
categories
provided under any statute / personal law
governing succession/ inheritance will have
no consequence. It was further held that the
word "Guardian" includes a Judicial
Guardian (appointed by law), a legal
Guardian, a Natural Guardian.

22. It may be noted that the
Legislature
has
prescribed
different
conditions for the maintainability of appeal
against order of acquittal passed in a
'police-case' vis-à-vis a 'complaint-case' i.e.
a case instituted upon a private complaint.
No appeal against acquittal in a complaintcase is maintainable to the Court of Session
and for an appeal to High Court, the State
or Central Government are required to
obtain 'leave' of the High Court as
mandated by Section 378(3) and if such an
appeal is presented by the complainant,
he/she is required to seek 'special leave' of
the High Court under Section 378(4) of the
Code.

23. In this context, it is notable to
refer to the decision of the Apex Court in
the case of Subhash Chand Vs. State (Delhi
Administration)- (2013) 2 SCC 17 wherein
it has been held that Sub-Section (4) of
Section 378 makes provision for appeal
against an order of acquittal passed in case
instituted upon complaint. It states that in
such case if the complainant makes an
application to the High Court and the High
Court grants special leave to appeal, the
complainant may present such an appeal to
the High Court. This sub-section speaks of
''special leave' as against sub-section (3)
relating to other appeals which speaks of
''leave'.
Thus,
complainant's
appeal
against an order of acquittal is a
category by itself. The complainant could
be a private person or a public servant. This
3-5 All. Anil Kumar Agarwal Vs. State of U.P. & Anr.
1577
is evident from sub-section (5) which refers
to application filed for ''special leave' by
the complainant. It grants six months
period of limitation to a complainant who is
a public servant and sixty days in every
other case for filing application. Sub-
Section (6) is important. It states that if in
any case complainant's application for
''special leave' under sub-Section (4) is
refused no appeal from order of acquittal
shall lie under sub-section (1) or under sub-
section (2). Thus, if ''special leave' is not
granted to the complainant to appeal
against an order of acquittal the matter
must end there. Neither the District
Magistrate not the State Government can
appeal against that order of acquittal.

24. The question arose before the Full
Bench of High Court of Punjab and
Haryana in the case of M/s Tata Steel Ltd
Vs. M/S Atma Tube Products Ltd
(Supra) that What will happen if the
'victim' in a complaint-case is different
from the 'complainant' or where such
'victim' cannot otherwise be a 'complainant'
due to statutory embargo against the filing
of the complaint by some one other than
the designated authority of State? Would
he/she be entitled to file an appeal under
proviso to Section 372 Cr.P.C and it was
held by the Full Bench of the said Court
interalia as follows:-

(i)
the
'complainant'
in
a
complaint-case who is a 'victim' also, shall
continue to avail the remedy of appeal
against acquittal under Section 378(4)
only except where he/she succeeds in
establishing the guilt of an accused but is
aggrieved at the conviction for a lesser
offence or imposition of an inadequate
compensation, for which he/she shall be
entitled to avail the remedy of appeal
under proviso to Section 372;

(ii) the 'victim', who is not the
complainant in a private complaint-case,
is not entitled to prefer appeal against
acquittal under proviso to Section 372 and
his/her right to appeal, if any, continues to
be
governed
by
the
un-
amended
provisions read with Section 378 (4) of the
Code;

(iii) the Legislature has given no
separate entity to a 'victim' in the
complaint-case filed by a public servant
under a special Statute and the appeal
against acquittal in such a case can also
be availed by the 'complainant' of that
case under Section 378(4) of the Code
only.

(iv) those 'victims' of complaintcases whose right to appeal have been
recognized under proviso to Section 372,
are not required to seek 'leave' or 'special
leave' to appeal from the High Court in
the manner contemplated under Section
378(3) & (4), for the Legislature while
enacting proviso to Section 372 has
prescribed no such fetter nor has it
applied the same language used for
appeals against acquittals while enacting
sub-Section (3) & (4) of Section 378 of the
Code.

25. Thus, the Full Bench of the
Punjab and Haryana High Court in the case
M/S
Tata
Steels
Ltd.
(Supra)
has
categorically held that the complaint in a
complaint case who is a victim shall
continue to avail the remedy of appeal
against acquittal order under Section 378
(4) and when the 'victim' who is not the
complainant in a private complaint-case, is
not entitled to prefer appeal against
acquittal under proviso to Section 372 and
his/her right to appeal, if any, continues to
be governed by the un- amended provisions
read with Section 378 (4) of the Code.
However, if the appeal is being filed by the
1578 INDIAN LAW REPORTS ALLAHABAD SERIES
victim in his own right or where the
complainant is also a victim, he or she is
not required to take leave to appeal or
special leave to appeal under Section
378(3)(4) of the Code. The decision of Full
Bench of Punjab and Haryana High Court
in Tata Steel Ltd. (supra) with regard to
taking special leave to appeal or leave to
appeal under Section 378(3)(4) of the Code
has been affirmed by the Apex Court in the
case of Malikarjun Kodagali (Supra)
wherein it has been held in paragraph 93 of
the judgment that the right(s) of a ''victim'
under the amended Code are substantive
and not mere brutam fulmen hence these
are not accessory or auxiliary to those of
the State and are totally incomparable as
both the sets of rights or duties operate in
different and their respective fields. It was
further held that a ''victim' is not obligated
to seek ''leave' or ''special leave' of the High
Court for presentation of appeal under
proviso to Section 372 of the Code."

26. It may be worthwhile to note that
the Full Bench of the Punjab and Haryana
High Court in the case of M/S Tata Steel
Ltd. (Supra) has further held that where a
'victim' is competent to institute a private
complaint but permits or consents expressly
or implicitly to the filing of such complaint
by his family-members, near and dears or
an
acquaintance,
the
'victim'
and
'complainant' in such a case cannot be seen
differently and would be inseparable, hence
the 'victim' will also fall back on Section
378(4) only which specifically refers to
filing of appeals against acquittal at the
instance of complainant and not under
proviso to Section 372 of the Code which
has been pre-dominantly incorporated to
provide right to appeal to the 'victims' in
police-case who are not permitted to
participate or have any say during trial.
For ready reference Para 81 of the
judgment rendered in the Tata Steel Ltd.'s
case (supra) is quoted hereinbelow :

"What will happen if the 'victim'
in a complaint-case is different from the
'complainant' or where such 'victim'
cannot otherwise be a 'complainant' due
to statutory embargo against the filing of
the complaint by some one other than the
designated authority of State? Would
he/she be entitled to file an appeal under
proviso to Section 372 or should he/she be
clubbed together with the complainant
underSection 378(4) of the Code? We are
of the view that the 'victim' in complaintcases cannot have a remedy superior to
that of the complainant of such case and
since the Apex Court in the latest decision
in Subhash Chand's case (supra) has held
that the complainant's remedy, whether he
is a private person or a public servant, to
question the acquittal lies only inSection
378(4) of the Code, hence the 'victim' will
also have to be relegated to that
conditional remedy only. Similarly, where
a 'victim' is competent to institute a
private complaint but permits or consents
expressly or implicitly to the filing of such
complaint by his family-members, near
and dears or an acquaintance, the 'victim'
and 'complainant' in such a case cannot
be
seen
differently
and
would
be
inseparable, hence the 'victim' will also
fall back onSection 378(4) only which
specifically refers to filing of appeals
against acquittal at the instance of
complainant and not
under proviso
toSection 372 of the Code which has been
pre-dominantly incorporated to provide
right to appeal to the 'victims' in policecase who are not permitted to participate
or have any say during trial."

27. At this stage, it would also be
apposite to refer to the decision of the three
3-5 All. Anil Kumar Agarwal Vs. State of U.P. & Anr.
1579
Judges Bench of the Apex Court in the case
of Mallikarjun Kodagali (Supra). In the
aforesaid case, the basic question arose
before the Apex Court that whether the
appeal filed by the appellant before the
High Court under the proviso to Section
372 CrPC was maintainable or not against
the order dated 28.10.2013 passed by the
District and Sessions Judge, Bagalkot
(Karnataka) acquitting the accused by a
judgment wherein the alleged offence was
committed
prior
to
31.12.2009
i.e.
06.02.2009 although the judgment was
passed after 31.12.2009 i.e. on 28.10.2013.
The Apex Court held that right to appeal is
available even if alleged offence took place
prior to 31.12.2009 (Act 5 of 2009 was
enacted) but the order of acquittal was
passed by Trial Court after 31.12.2009. The
Apex Court for the reasons mentioned in
the judgment allowed the appeals setting
aside the judgment passed by the High
Court holding that the victim as defined in
Section 2(wa) of the Cr.P.C. would be
entitled to file an appeal before the Court to
which an appeal ordinarily lies against the
order of conviction, as such, the appeal
filed by Kodagali was found maintainable.
Facts
of
the
aforementioned
case
(Mallikarjun)
clearly
indicates
that
judgment was passed therein by the
Sessions Judge in a case instituted upon
a Police Report and not upon complaint.
Thus, the Apex Court was dealing with a
situation as to whether right of appeal is
available if the alleged offence was
committed prior to 31.12.2009 (before
enactment of Act 5 of 2019) but the
judgement was passed by the Sessions
Judge after 31.12.2009.

28. A close look to para 76 of the
judgment in the case of Mallikarjun
Kodagali (supra) would reveal that the
apex court in the said para was engaged in
a controversy as to whether the 'victim' as
defined in Section 2 (wa) CrPC was
required leave to appeal for preferring
appeal against the order of acquittal. It was
further observed by the Apex Court in
paragraph 76 of aforementioned case
Mallikarjun Kodagali (supra) that the
language of the proviso to Section 372
CrPC is quite clear particularly when it is
contrasted with the language of Section
378(4) CrPC, which confines to an order of
acquittal passed in a case instituted upon a
complaint, and the word ''complaint' has
been defined in Section 2(d) of the Cr.P.C.
and refers to any allegation made orally or
in writing to a Magistrate and this has
nothing to do with the lodging or the
registration of an FIR, and therefore,
according to the Apex Court, it is not at all
necessary to consider the effect of a victim
being the complainant as far as the proviso
to Section 372 of the Cr.P.C. is concerned.
Thus, the Apex Court was also of the
opinion that Section 378(4) CrPC deals
with the appeal arising against the acquittal
in any case instituted upon the complaint. It
has nothing to do with the case arising out
of the police report. For ready reference
para 76 of Mallikarjun Kodagali (Supra) is
quoted here under:

"76. As far as the question of the
grant of special leave is concerned, once
again, we need not be overwhelmed by
submissions made at the Bar. The
language of the proviso to Section 372 of
the Cr.P.C. is quite clear, particularly
when it is contrasted with the language of
Section 378(4) of the Cr.P.C. The text of
this provision is quite clear and it is
confined to an order of acquittal passed in
a case instituted upon a complaint. The
word ''complaint' has been defined in
Section 2(d) of the Cr.P.C. and refers to
any allegation made orally or in writing to
1580 INDIAN LAW REPORTS ALLAHABAD SERIES
a Magistrate. This has nothing to do with
the lodging or the registration of an FIR,
and therefore it is not at all necessary to
consider the effect of a victim being the
complainant as far as the proviso to
Section 372 of the Cr.P.C. is concerned."

29.
 Section
378(4)
&
378(5)
specifically
provides
remedy
to
the
complainant to file an appeal against the
acquittal in any case instituted upon
complaint.
Section
378(4)(5)
Cr.PC
provides the forum to file an appeal, period
of limitation and leave to appeal.

30. Before amendment in 372 CrPC
there was no provision for the victim to file
an appeal against acquittal either in a police
case, or complaint case. However, proviso
to 372 Cr.P.C gives substantive right to the
victim to file appeal without leave to
appeal. Section 378(1) (2) & (3) CrPC has
been predominantly incorporated to deal
with the appeal against acquittal arising out
of police case.

31. The Full Bench of this Court in the
case of Mast Ram Tiwari Vs. State of UP
(Supra) has held that the word 'victim' as
defined under Section 2(wa) does not make any
distinction between the victim in a complaint
case and the victim in a police case ( State
prosecution) and if, for taking recourse to
proviso to Section 372, if the victim in a
complaint case opts to file appeal against the
order of acquittal, he would be governed by
sub-section (5) insofar as the limitation is
concerned. In other words, a limitation for filing
an appeal by the victim in a complaint case
against the order of acquittal would be 60 days
as provided for under sub-section (5) by
seeking leave to appeal from the High Court.

32. The apex court in Subhash Chand
Vs. State (Delhi Admn.) (supra) has held that
once it is a case instituted on a complaint and an
order of acquittal is passed, whether the offence
is bailable or non-bailable, cognizable or noncognizable, the complainant can file an
application under Section 378 (4) for special
leave to appeal against it in the High Court. 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. The
apex court in the aforesaid case Subhash
Chand finally concluded at paragraph 23 of the
judgment 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. For ready reference para 20 of
the judgment in Subhash Chand (supra) is
quoted hereinbelow :-