(Per : HONOURABLE MR.JUSTICE RAVI R. TRIPATHI)
1. These two appeals are directed against the judgment and order passed by learned Additional Sessions Judge, Bhavnagar in Sessions Case No. 147/2010, dated 10.2.2012 whereby, the accused therein, who were charged for the offences punishable under sections 147, 148, 149, 323, 324, 325, 307 and 302 of IPC and section 135 of the Bombay Police Act, are acquitted. Criminal Appeal No. 238/2012 is preferred by the wife of the deceased Dineshbhai Makwana, invoking her right under proviso to section 372 of Code of Criminal Procedure ('Cr.P.C.' for short). The same order of acquittal is also challenged by the State in Criminal Appeal No. 608/2012, under section 378 of Cr.P.C. and as required, application seeking leave to prefer appeal, being Criminal Misc. Application No. 6516/2012 is also filed. Both these appeals and the application praying for leave to appeal by the State, are listed for hearing before this Court.
2. These matters were first listed before this Court on 13.6.2012 and during the course of hearing, a question had cropped up as to whether, Criminal Appeal No. 238/2012, which is filed by the wife of the deceased i.e. the victim, invoking her right under proviso to section 372 of Cr.P.C. would be maintainable, in view of the judgement of division bench of this Court (Coram: Jayant Patel and Z.K.Saiyed JJ.) in the case of Bhikhabhai Motibhai Chavda vs. State of Gujarat, recorded in Criminal Misc. Application No.5522/ 2009 dated 10.5.2010, since State has also challenged the same order of acquittal by way of filing Criminal Appeal No. 608/2012. In the said judgment, the coordinate bench of this court has taken the view that, once an appeal is filed by the State, the appeal by the victim against the same judgment is not maintainable.
3. During the course of hearing, it was also pointed out that as against the aforesaid view, another Coordinate Bench of this Court (Coram: D.H. Waghela and J.C.Upadhyaya JJ.) has recorded a different view in case of State of Gujarat vs. Chaudhary (Patel) Pababhai Devabhai & Ors.
(in Criminal Misc. Application No. 4350/ 2011) dated 4.10.2011. By this subsequent order, in effect, it is held that since the appeal filed by the victim, against the order of acquittal passed by the Sessions Court, invoking his right under section 372 of Cr.P.C. is already admitted, subsequent filing of acquittal appeal by the State, against the same order, under section 378 of Cr.P.C. need not be entertained. The said order reads as under:
"Admittedly, the original complainant - victim has filed Criminal Appeal No. 304 of 2011 from the same impugned judgment and it has been admitted; and the State is a party therein. Therefore, the present application and acquittal appeal by the State are not required to be entertained. Accordingly, they are disposed without entering into merits."
4. Thus, this Court is faced with two views about the maintainability of the acquittal appeal preferred by the victim and State. Under these circumstances, this Bench deems it necessary to refer this matter and the issues arising therefrom to the Larger Bench for consideration of the issues which are enumerated in para 10 below.
5. While the reference to the Larger Bench is required to resolve the above referred two views of the Coordinate Benches, this Court (Bench) is of the opinion that the above two views create the following situations, firstly, as if the substantive right of the victim under the statute, i.e. under proviso to section 372 of Code of Criminal Procedure is dependent on the State not discharging its duty under sections 378 and/ or 377 of Cr.P.C., and secondly, whosoever comes first before the court, his appeal can be entertained and subsequent appeal, even if it is by the State, need not be entertained. This Court (Bench) is not able to concur with either of these two prepositions of law in light of the statutory provisions in this regard.
6. The matter was heard at length on different dates and on behalf of the State, learned Additional Advocate General had addressed the Court. The learned Additional Advocate General submitted that, when this Court decided the case of Bhikhabhai Chavda (supra), all relevant aspects were not brought to the notice of the Court, and therefore the court has reached to a conclusion, which requires a re-look. Learned Additional Advocate General also invited the attention of this Court to the orders of different High Courts. It is pointed out that the judgment of this Court in the case of Bhikhabhai Chavda (supra), is referred to by other High Courts, but the same is not accepted. Detailed reference was made to the judgment of the Bombay High Court in the case of Balasaheb Rangnath Khade v/s. State of Maharashtra & Ors. , (Criminal Appeal No: 991 of 2011 and cognate matters) where the Division Bench of the Bombay High Court, while acknowledging the right of the victim under section 372 of the Code of Criminal Procedure, the Members of the Bench had difference of opinion on the point of procedural requirement of filing an application seeking 'leave to appeal', that since the State is also obliged to seek leave of the Court to prefer appeal under sec. 378 of the Code of Criminal Procedure, why the same procedure be not applied in case of appeal by the victim, under section 372 of the Code of Criminal Procedure as well. On this, the matter was referred to the third Hon'ble Judge. The third Hon'ble Judge of the Bombay High Court in judgment dated 27.04.2012 has dealt with this issue in detail and after considering the historical back ground and ground realities, expressed the view that the victim who is invoking his right under section 372 of Cr.P.C. can not be asked to file an application praying for leave to appeal. Learned Additional Advocate General was candid to submit that, only on the ground that the view expressed by our high court in the case of Bhikhabhai Motibhai Chavda (supra) is not accepted by other High Courts, itself is no ground to make a reference to the Larger Bench, but there being two different views of coordinate benches of this court, and when the matter is being referred to the Larger Bench, the benefit of the aforesaid view of the Larger Bench of the Bombay High Court can be availed of.
7. The learned Additional Advocate General also drew the attention of this court to the various recommendations of the Law Commission, based on which section 372 of the Code of Criminal Procedure came to be amended by incorporating proviso. The learned Additional Advocate General further submitted that, ' in case of awarding compensation to the victim, and appeal for enhancement an anomalous situation will arise. He reiterated that when this Court decided the case of Bhikhabhai Motibhai Chavda (supra), all relevant aspects were not brought to the notice of the Court, and therefore, the conclusion reached by this Court requires a re-look. This Court prima facie, finds substance in the submissions of the learned Additional Advocate General, but do not deem it proper to consider them in detail, since independent of it also, as noted above, the Court intends to refer the matter to the Larger Bench. It will be open for the State to reiterate these submissions before the Larger Bench.
8. At this stage, a reference is also required to be made to Criminal Appeals No. 373 of 2012 and 413 of 2012, which were listed for hearing today before this bench. In the said case, 11 accused were charged with the offence punishable under section 302 of IPC, wherein three persons are convicted for the offence under section 325, read with section 34 of IPC and sentenced to three years of rigorous imprisonment. On going through the grounds mentioned in the memo of appeal of Criminal Appeal no. 413/2012, filed by State, by which, the sentence of three years is sought to be enhanced, grievance is made as if the accused ought not to have been acquitted at all. On these grounds, the Government, out of 11 accused persons, has prayed for enhancement of sentence qua three accused. Against the said acquittal order, the victim has preferred an appeal being Criminal Appeal No. 373 of 2012 challenging the acquittal of all accused from the offence under section 302 of IPC, including three accused persons who are convicted for the lesser offence. Appropriate orders are passed in the said appeals. However, while doing so, the Court noticed that the object with which amendment in section 372 of Code of Criminal Procedure is incorporated, is better served by entertaining appeals at the hands of the victim.
9. Considering the totality, the Court is of the view that the issues need to be re-looked as to whether, the appeal filed by the victim under section 372 of Cr.P.C. would not be maintainable in spite of specific right conferred upon the victim by the statute, only on the ground that the State is filing an appeal, against the same order, and further as to, whether the appeal filed by the State should not be entertained only on the ground that the victim has already filed appeal against the same order and the same is admitted.
10. Under the circumstances, the Registry is directed to place this matter before the Honourable the Acting Chief Justice for appropriate consideration, to place it before the larger bench, to consider the following issues:
(i) Whether an appeal filed by the victim, invoking his right under proviso to section 372 of Cr.P.C, challenging acquittal, or conviction for a lesser offence, or awarding inadequate compensation, is not maintainable, on the ground that the State has filed an appeal against the same order and for the same purpose ?
(ii) Whether an appeal filed by the State should not be entertained, on the ground that the appeal preferred by the victim invoking his right under proviso to section 372 of Cr.P.C., against the same order, is admitted by the Court ?
(iii) If the victim prefers an appeal before this Court, challenging the acquittal, invoking his right under proviso to section 372 of Cr.P.C., whether that appellant is required to first seek leave of the Court, as is required in case of appeal being preferred by the State ?
(RAVI R. TRIPATHI, J.) (PARESH UPADHYAY, J.) mandora/ Top