Prem Kumar v. State Of Haryana & ORS





 
 
 



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 0 "106. The only effective modicum to meet with the situation as we perceive can be to interpret and construe Section 378(1)(a) in such a manner that the State's appeal(s) in respect of all the cognizable offences (whether bailable or non&bailable) are presented to the Court of Session, for such a recourse is the least harmful, non& prejudicial and substantively conforms to the legislative vision underlying the amendments carried out in the Code in the years 2005 and 2009. This can be feasible if the word "and" contained in

 Clause (a) of Section 378(1) of the Code is read as "or" so that the appeal preferred by the State against an order of acquittal passed by the Magistrate in respect of every cognizable offence, whether bailable or not, lies to the Court of Session only. We hasten to add that the action in respect of a non&cognizable offence can be initiated only by filing a private complaint before the Magistrate and against acquittal in such a case the appellate recourse lies under Section 378(4) of the Code.

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120. In the light of the above discussion, we hold that while in view of proviso to Section 372 an appeal preferred by a 'victim' against the order of acquittal passed by a Magistrate in respect of a cognizable offence whether bailable or non&bailable shall lie to the Court of Session, the State's appeal under Section 378(1)(a) of the Code against that order shall also be entertained and/or transferred to the same Sessions Court.

(F) Whether proviso to Section 372Criminal Procedure Code inserted w.e.f. December 31, 2009 is prospective or retrospective in nature and whether a revision petition pending against an order of acquittal before the insertion of the said proviso, can be converted into an appeal and transferred to the Court of competent jurisdiction?

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139. For the reasons assigned above, we sum up our conclusions and answer the questions as formulated in para 6 of this order, in the following terms:& Question& (A) (i) The expression "victim" as defined in Section 2(wa) includes all categories of his/her legal heirs for the purpose of engaging an advocate under Section 24(8) or to prefer an appeal under proviso to Section 372 of the Code. (ii) However, legal heirs comprising only the wife, husband, parent and child of a deceased victim are entitled to payment of compensation under Section 357(1)(c) of the Code. Similarly, only those dependents of a deceased victim who have suffered loss or

 injury as a result of the crime and require rehabilitation, are eligible to seek compensation as per the Scheme formulated under Section 357A of the Code.

Question & (B) (iii) The 'complainant' in a complaint&case who is also a 'victim' and the 'victim' other than a 'complainant' in such case, shall have 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 of the Code.

(iv) 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 unamended provisions read with Section 378 (4) of the Code.

(v) those 'victims' of complaint&cases whose right to appeal have been recognised 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) of the Code. Questions & (C) & (D) (vi) The right conferred on a 'victim' to present appeal under proviso to Section 372 is a substantive and independent right which is neither inferior to nor contingent upon the filing of appeal by the State in that case. Resultantly, the condition of seeking 'leave to appeal' or 'special leave to appeal' as contained in Section 378(3) & (4) cannot be imposed for the maintainability of appeal by a 'victim' under proviso to Section 372 of the Code.

Question & (E) (vii) In view of proviso to Section 372 an appeal preferred by a 'victim' against the order of acquittal passed by a Magistrate in respect of a cognizable offence whether bailable or non&bailable shall lie to the Court of Session, the State's appeal under Section 378(1)(a) of the Code against that very order shall also be entertained and/or transferred to the same Sessions Court.

 Question & (F) (viii) The proviso to Section 372 inserted w.e.f. December 31, 2009 is prospective in application and only those orders which have been passed on or after December 31, 2009, irrespective of the date of occurrence or registration of FIR or filing of complaint, shall be appealable at the instance of a 'victim' under the afore&stated proviso. Consequently, a revision petition preferred against an order of acquittal passed prior to December 31, 2009 cannot be converted into an appeal and shall be decided accordingly.

Question & (G) (ix) Subject to the exception carved out in para&138 of this order, the period of limitation for an appeal by a 'victim' under proviso to Section 372 of the Code shall be as under :& (a) In case of acquittal & Where appeal Date of order (i) lies to the High 90 days appealed Court against Where appeal Date of order (ii) lies to any other 60 days appealed Court against (b) Any other sentence or order & The date of (i) to the High Court 60 days sentence or order The date of (ii) to any other court 30 days sentence or order (emphasis supplied) * 
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