Uma Shankar Prasad v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.701 of 2017 Arising Out of PS. Case No.-490 Year-2002 Thana- ROHTAS COMPLAINT CASE DistrictRohtas ====================================================== Uma Shankar Prasad, son of Late Ram Barai Sah, resident of village-Nokha, Police Station-Nokha, District-Rohtas.
... ... Petitioner/s
Versus
1. The State Of Bihar.
2. Kaushal Kumar @ Kaushal Kishore.
3. Ajay Prasad.
Both sons of Late Gupteshwar Prasad.
4. Vanshidhar Prasad, son of Late Laxman Prasad. ... ... Respondent/s ====================================================== Appearance :
For the Petitioner/s :
Mr. Surendra Kumar Choubey, Adv.
For the Respondent/s :
Mr. Jagdhar Prasad, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN ORAL ORDER 24-03-2023 The present Cr. Revision has been filed against order dated 11.05.2017 passed by Sessions Judge, Rohtas at Sasaram in Criminal Appeal No. 60 of 2016 by which the said appeal has been dismissed on technical ground, as not maintainable, against the judgment of acquittal order dated 26.09.2016 passed by Sub Judge-IV-cum-A.C.J.M., Sasaram in Nokha P.S. Case No. 8 of 2009 under Sections 341, 323, 379, 504/34 of the I.P.C. Counsel for the petitioner submits that the present case has arisen from the police case. Counsel submits that after acquittal in this case vide dated 06.09.2016, the informant has
2/5 filed a Criminal Appeal, against the judgment of acquittal before Sessions Court, which was rejected on the ground that this Criminal Appeal is not maintainable and against the order passed by Sub Judge-IV-cum-A.C.J.M., Sasaram, as appeal is not maintainable. Counsel submits that provision of S.L.A. has to be filed against the charge of arising of complaint case. Counsel has placed a judgment of this Court in the Case of Parmeshwar Mandal Vs. State of Bihar & Ors. reported in 2014(I), Cr. R. 152 Pat., in which it has been decided that against the order of acquittal arising from police case, appeal under Section 372 proviso of Cr.P.C., 1973 is maintainable. The operative part of the charge is as follows:- With all reverence to the Full Bench, this Court is unable to agree with this proposition of law also.
If that would have been the intention of the Legislature, instead of giving unfettered right to the victim to file appeal in the opening section of the Chapter itself, it could have added one more sub-section in Section 378 itself.
3/5 complainant under Section 378 of the Code. The recommendations in the Malimath Committee Report, which has been adopted and implemented in the form of amendment in various provisions of the Code of Criminal Procedure by Act 5 of 2009, would show that, by the amendment, victim was intended to be placed at much higher pedestal in criminal justice delivery system than the State (prosecuting agency) or the complainant. Therefore, instead of adding one more sub-section in Section 378, providing for a right of appeal to a victim also, at par with the complainant of a complaint case, or with State in a police case, he/she has been conferred upon the right in the opening section of the Chapter itself without any qualifications.
Clearly by introducing this amendment, the Legislature has recognized the victim in his/her independent capacity in the criminal justice delivery system than the State or informant or complainant. If the interpretation of the Full Bench is accepted, it will result into the victim getting a right to file an appeal only for a lesser wrong done to him/her by a criminal court, i.e.
4/5 be able to file an appeal, without a special leave, for greater wrong done to him/her by acquitting the accused altogether. Therefore, this Court is of the opinion that no distinction can/should be made between a case instituted by a complainant/informant with the police and by a complainant before the Court directly, for the purposes of determining the scope and ambit of right of a victim to file an appeal under the said proviso to Section 372.
Consequently, this court is of the opinion that, any person, covered under the definition of 'victim' as contained in clause (wa) of Section 2 of the Code, and thus getting a right to file an appeal in terms of the said proviso to Section 372, cannot be held, in any way, handicapped in exercise of his/her said right by the provisions of Section 378 of the Code specially in the background of disadvantageous status of victim in the present criminal justice delivery system in the country.
5/5 372 of the Code and also by the learned Single Judge of Allahabad High Court in the case Ashok Kumar Srivastva (supra) and by a Division Bench of Delhi High Court in its judgment dated 24.01.2011 in the case of Jagmohan Bhola vs. Dilbagh Rai Bhola & Ors.
In this view of the matter, the order dated 11.05.2017 passed by Sessions Judge, Rohtas at Sasaram in Criminal Appeal No. 60 of 2016 is hereby set-aside and petitioner is directed that he may file Cr. Appeal against the order passed by the original Court under Section 372 of the Cr.P.C. With the aforesaid direction, this Cr. Revision is hereby allowed.
(Dr. Anshuman, J.) ashishsingh/- U T