Court No. - 77
Case :- APPLICATION U/S 482 No. - 44351 of 2019 Applicant :- Hari Shankar Tiwari Opposite Party :- State Of U.P. And 7 Others Counsel for Applicant :- Ramesh Singh,Achint Ranjan Singh Counsel for Opposite Party :- G.A.
Hon'ble Ram Krishna Gautam,J.
Heard learned counsel for the applicant and learned A.G.A. representing the State. Perused the records.
This application under Section 482 Cr.P.C. has been filed by applicant Hari Shankar Tiwari against State of U.P. and seven others, with prayer to quash the order dated 11.9.2019 passed by Additional Sessions Judge 13th, Kanpur Nagar, in Criminal Appeal No. 12 of 2019, Hari Shankar Tiwari Vs. State of U.P., u/s 323, 504, 506 I.P.C. arising out of Complaint Case No. 6723 of 2011.
Learned counsel for the applicant argued that the impugned order has been passed as an abuse of process of law. Apex Court in Mallikarjun Kodagali (dead) represented through legal representatives Vs. STate of Karnataka and others, (2019) 2 SCC 752 has propounded that an appeal u/s 372 Cr.P.C. against judgment of acquittal, by amendment, a substantive right has been provided to the victim and there is no need for getting any leave to appeal u/s 372 Cr.P.C. The Apex Court in para 35 of the judgment has held that there is no difference between a victim being complainant and a victim being otherwise. Hence even in case of victim being a complainant, the appeal is to be admitted without any application for leave to appeal. But the learned lower appellate court failed to appreciate above facts and law and thereby accepted application 10 Kha and thereby held the appeal to be not maintainable. Hence this application with above prayer.
Learned A.G.A. has vehemently opposed the above argument.
From the very perusal of the judgment of Apex Court in Mallikarjun Kodagali (supra), it is apparent that for an appeal u/s 372 Cr.P.C. there is no need for any leave. It is not related with an appeal u/s 378 Cr.P.C. The above law was propounded in a case where there was charge-sheet by way of registration of case crime number and therein judgment of acquittal was passed. Hence victim had filed an appeal before the Sessions Judge. Hence, under above circumstances now by way of amendment in section 372 Cr.P.C. the appeal had become a substantive right and not only procedural law. Hence this citation was regarding an appeal u/s 372 Cr.P.C. Whereas the present appeal was not filed u/s 372 Cr.P.C. Rather it was an appeal against judgment of acquittal in a complaint case and section 378 Cr.P.C. provides for provision of appeal in case of acquittal. Sub-section 4 of section 378 Cr.P.C. provides 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. Meaning thereby in a complaint case, if there is a judgment of acquittal the complainant may present an appeal along with application u/s 378(4) Cr.P.C. for getting leave to appeal by High Court and this appeal is maintainable before High Court only. Hence appellate court, under above facts and law, has rightly rejected the appeal on above ground. There is no illegality or irregularity or misuse of process of law. Accordingly, this application merits its dismissal.
Dismissed as such. Order Date :- 18.12.2019 Pcl