R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA I.A.NO.1/2017 IN CRIMINAL APPEAL NO.21 OF 2017 BETWEEN:
M/S SURABHI CHITS LIMITED OFFICE AT NO.5, GAJENDRA TOWERS, 11TH MAIN, 4TH BLOCK, JAYANAGAR, BANGALORE-560085 AND BRANCH OFFICE AT NO.24/1, ADARSHA COMPLEX, CRESCENT ROAD, SHIVANANDA CIRCLE, BANGALORE-560 001 REPRESENTED BY ITS MARKETING MANAGER SRI. VISHWANATH PATIL S/O RACHAPPA GOWDA, AGED ABOUT 31 YEARS ... APPELLANT (BY SRI: V. RAVI PRAKASH, ADVOCATE) AND SRI GANSHYAM T S/O TARACHAND, AGED ABOUT 56 YEARS, R/AT “ GHAR KA KAHANA DELICIOUS VEGETARIAN HOME FOODS” , NO.104, WILSON VINTAGE APARTMENTS, 14TH CROSS, OPP. NEW AUDUGODI POST OFFICE WILSON GARDEN, BANGALORE-560030 ... RESPONDENT (BY SRI: B PRAMOD, ADVOCATE) THIS I.A.1/2017 IS FILED UNDER SECTION 378(4) OF CRPC PRAYING TO GRANT SPECIAL LEAVE TO FILE THE ABOVE APPEAL AGAINST THE JUDGMENT PASSED BY THE TRIAL COURT IN CC.NO.33441/2014 DATED 7.10.2016 IN THE COURT OF XXV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE.
THIS I.A.1/2017 COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R ON I.A.1/17 The instant application is filed under section 378(4) Cr.P.C. seeking leave to appeal.
2. Learned counsel for the appellant has relied on the proviso to section 372 of the Code to contend that the appellant being a victim has a right to file an appeal without leave. In support of his argument, learned counsel has referred to the decision in MALLIKARJUN KODAGALI(DEAD) REPRESENTED THROUGH LEGAL REPRESENTATIVES vs. STATE OF KARNATAKA AND OTHERS, reported in (2019) 2 SCC 752 and later decision of the Hon’ble Supreme Court in NAVAL KISHORE MISHRA vs. STATE OF U.P. AND ORS. in Crl.A.No.979/2019 dated 05.07.2019.
3. Law is now well settled that in terms of amendment carried on by insertion of proviso to section 372 of Cr.P.C. and the law laid down by the Hon’ble Supreme Court in Mallikarjun’s case referred above, there is no need for a victim to apply leave to appeal against an order of acquittal while preferring an appeal under the proviso to section 372 of the Code.
4. The contention of the learned counsel for respondent is that the applicant is not a ‘victim’ as defined under section 2(wa) of the code, rather he is an informant at whose instance, law was set in motion and charge sheet was filed by the police. The instant appeal is arising out of police case and therefore the proviso to Section 372 of the Code is not applicable to the appellant.
5. Learned counsel has made a distinction between a police case arising out of an FIR under section 154 Cr.P.C. and a complaint case filed before the Magistrate under section 200 Cr.P.C. Referring to para 76 of the decision in Mallikarjun’s case referred above, he emphasized that proviso to section 372 of Cr.P.C. is confined only to an order of acquittal passed in a case instituted upon a complaint and therefore the complainant or the informant does not fall within the meaning of the expression “victim” under section 372 of Cr.P.C.
6. In the light of the above contention, the point that arises for consideration is:-
“Whether leave of the Court is necessary in an appeal filed against an order of acquittal arising out of a police case.?’ 7. It cannot be denied that in a police case arising out of a FIR, the informant can also be as much a victim as a complainant as defined under section 2(d) of the Code. In this context, it may be noticed that section 2(wa) of Cr.P.C. defines the term ‘victim’ as under:-
2(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.
This definition does not make any distinction between a victim who approaches the court by making an application under section 200 Cr.P.C., and a complainant or informant who lodges the FIR alleging that he has suffered loss or injury on account of act or omission of the accused person charged for the said offence. Therefore, it would be travesty of justice to say that it is only a victim who knocks the door of the criminal court by making a complaint under section 200 of Cr.P.C. could only be termed as a ‘victim’. The proviso to section 372 Cr.P.C. does not envisage any such distinction either.
8. In this context, it may be apposite to refer to the constitutional Bench decision in LALITA KUMARI vs. GOVERNMENT OF UTTAR PRADESH AND OTHERS, reported in (2014) 2 SCC 1. In para 97 of the said judgment, the Hon’ble Supreme Court has held as under:-
97). The Code contemplates two kinds of FIRs. The duly signed FIR under Section 154(1) is by the informant to the concerned officer at the police station. The second kind of FIR could be which is registered by the police itself on any information received or other than by way of an informant [Section 157(1)] and even this information has to be duly recorded and the copy should be sent to the Magistrate forthwith. The registration of FIR either on the basis of the information furnished by the
obligatory. The obligation to register FIR has inherent advantages:
97.1(a) It is the first step to ‘access to justice’ for a victim.
97.2.(b) It upholds the ‘Rule of Law’ inasmuch as the ordinary person brings forth the commission of a cognizable crime in the knowledge of the State.
97.3.(c) It also facilitates swift investigation and sometimes even prevention of the crime. In both cases, it only effectuates the regime of law.
97.4.(d) It leads to less manipulation in criminal cases and lessens incidents of “antedated” FIR or deliberately delayed FIR.
This exposition makes it clear that the obligation to register the FIR is cast on the police with intent to secure access to justice for a victim and therefore merely because the victim of the offence becomes an informant or a complainant in the FIR, he/she does not cease to be a victim as defined under section 2(wa) of the Code. Viewed in that manner, the expression ‘victim’ used in section 372 of the Code undoubtedly encompasses within its fold even the informant or the complainant under section 154(1) Cr.P.C. Therefore, there is no scope to make any distinction between a ‘victim’ who sets law in motion by making a complaint under section 200 Cr.P.C. or a ‘victim’ who sets law in motion by lodging first information under section 154(1) Cr.P.C. In this context, it may also be useful to refer to section 156(3) Cr.P.C., wherein a Magistrate receiving a private complaint under section 200 Cr.P.C. is empowered to direct investigation on the said complaint by the Police Officer. It is trite that when a Magistrate issues a direction under section 156(3) Cr.P.C., the Police Officer registers cognizable offence on the complaint treating the same as FIR and after investigation, submits a report leading to the prosecution of the accused. Therefore, it is immaterial whether the victim sets the law in motion by making a complaint under section 200 Cr.P.C. or by filing a FIR under section 154 of Cr.P.C. before the police. In both the situations, he or she remains a “victim” and is therefore entitled for the benefit of the proviso to section 372 of Cr.P.C. Obviously for this reason in Mallikarjun’s case at para 35, the Hon’ble Supreme Court while disagreeing with the artificial distinction made by Hon’ble Gujarat High Court has held as under:-
35. “In our opinion, the Gujarat High Court made an artificial and unnecessary distinction between a victim as a victim and a victim as a complainant in respect of filing an appeal against an order of acquittal. The proviso to Section 372 of the Cr.P.C. does not introduce or incorporate any such distinction.”
In view of the aforesaid discussion, I do not have any hesitation to hold that the informant or the complainant under section 154(1) Cr.P.C. is also a “victim” within the meaning of section 372 of the Code and therefore he/she is entitled to file an appeal against an order of acquittal in terms of the proviso to the said section without leave of the Court.
I.A.No.1/2017 is accordingly disposed of. List the matter next week.
Sd/- JUDGE *mn/-