IN THE HIGH COURT OF HIMACHAL RADESH SHIMLA Cr.M.P (M) No. 609/2011 Date of decision: 2.11. 2011 Sh. Kanwar Singh ….Petitioner Versus Sh. Surjan Singh and another ……Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . Yes For the Petitioner: Mr. Ajay Kumar, Advocate. For the respondent : Mr. A.K. Bansal, Addl. Advocate General, and Mr. P.M. Negi, Dy. Advocate General for respondent No. 2. Surinder Singh, J. (Oral) The petitioner seeks leave to appeal under sub Section (4) of Section 378 of the Code of Criminal Procedure, in short “the Code”, which accompanied by the memorandum of appeal, in a case of acquittal recorded by the learned Magistrate under Section 447 and 379 of the Indian Penal Code in a State case. 2. Precisely the question involved in this case is whether the appeal by the alleged “victim” or the 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - complainant in a State case lies to the High Court or else what is the alternative. 3. It shall be relevant here to precisely narrate the undisputed facts giving rise to the present petition. The complainant Kanwar Singh claimed about 22 apple fruit bearing trees over khasra No. 1102/1 measuring 1 bigha 6 biswas owned by him. PW5 Soban Singh an employee of the complainant, informed him that on 8.9.2006 around 4 p.m. respondent Surjan Singh had removed the apple crop of all the above plants thereby causing loss of about 60/65 boxes valuing about `39,000/- to him, as such complainant lodged the report in terms of FIR Ext. PW11/A. 4. Police visited the spot, took into possession 40 apple boxes vide memo Ext. PW1/A, which were ultimately auctioned by the orders of the Court and its sale proceeds were deposited in the Government Treasury vide Challan Ext. PW14/B. 5. The police recorded the statements of the witnesses. After completing investigation found the complicity of the respondent in the alleged offence and filed challan in the court against the respondent for his trial under the sections aforesaid. - 3 - 6. At the end of the trial, respondent was acquitted. The State did not prefer any appeal against acquittal, but however, complainant Kanwar Singh felt aggrieved and filed the present petition seeking leave to appeal 7. Heard. 8. The appeal in fact is a creature of the statute and there is no inherent right of appeal. Chapter XXIX of the Code deals with the appeals in criminal cases. Precisely, Section 374 of the Code deal with the appeals from conviction and whereas Section 378 of the code provides appeal against the acquittal: 9. Section 378, of the Code as it stands now, after the recent amendment, reads as under:- “378. Appeal in case of acquittal (1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub sections (3) and (5),- (a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)} or an order of acquittal passed by the Court of Session in revision.; 2. If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi - 4 - Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act, other than this Code, [the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal- (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision"; 3. No appeal to the High Court under sub-section (1) or sub section (2) shall be entertained except with the leave of the High court. 4. 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. 5. No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant and sixty days in every other case, computed from the date of that order of acquittal. 6. If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub- section (2).” 10. The perusal of the aforesaid provisions reveals that an appeal by the State against an order - 5 - of acquittal passed by the Magistrate in respect of a cognizable and non-bailable offence, filed on a police report would lie to the Court of Sessions, and the District Magistrate is authorized to direct the Public Prosecutor to file such appeals. In respect of any other case filed on a police report, the appeal against order of acquittal passed by any Court other than a High Court shall lie only to the High Court and the authority to direct the Public Prosecutor to present the appeal continues to be with the State Government. 11. Further sub-section (2) aforesaid does not debar jurisdiction of the State Government also to direct presentation of appeal against acquittal in a case investigated by Delhi Police Establishment and also by any other agency empowered under any Central Act other than the Criminal Procedure Code. 12. Section 378 above also provides for an appeal by a private party to the High Court subject to limitation as provided under sub-section (5) against the acquittal passed by a Magistrate in a case instituted upon a complaint when special leave is obtained from the High Court but certainly no appeal by the Government against the acquittal - 6 - shall lie after the special leave under sub-section (4) is refused to complainant. 13. Significantly, sub section (4) above allows a private complainant to prefer an appeal against an acquittal provided the case was instituted upon a “complaint”, as defined in Section 2 (d) of the code. 14. The “complaint” as defined in the Code means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but it does not include a police report. The explanation added to it makes it abundantly clear that even the report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint, and the police officer by whom such report is made be deemed to be the complainant. 15. Thus the distinction is very clear that the appeal against acquittal in a State case only by the State shall lie as per the provisions of sub-section (1) to the Court of Sessions in respect of the cognizable and non-bailable offences and to the High Court from an original and appellate order of acquittal - 7 - passed by the Court, other than a High Court or an order of acquittal passed by the Court of Sessions in revision, as stated above, to the High Court whereas in complaint cases, instituted otherwise than on a police report, the procedure for the appeal by the complainant only is clearly laid down in sub-section (3) to (6) of the Section aforesaid. 16. The instant case was a State case against the respondent, the Magistrate acquitted the respondent under Section 447 and 379 of the Indian Penal Code. Offence under Section 447 is though cognizable and bailable yet Section 379 Indian Penal Code is cognizable and non-bailable. The State opted out and there is no right to appeal given to the complainant under the Code to challenge the acquittal. Therefore, the complainant in a State case is not competent to file appeal against the acquittal passed by the Magistrate in a State case unless his case falls under the proviso added to Section 372 of the Code which is as an exception to the main provision, giving a right to a “victim” to file an appeal. This proviso was added by an amendment in the year 2008. Thus, an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation can be maintained by a “victim” and such appeal shall - 8 - lie to the court to which an appeal ordinarily lies against the order of conviction of such Court. 17. The word ‘victim’ has also been added in the definition clause 2 (wa) of the code by the same 2008 amendment which reads as under:- “(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”. 18. Therefore, the harmonious reading of both the Sections, i.e., 372 and 378 of the Code aforesaid leads to a logical conclusion that the complainant has no right to file an appeal in a State case thus, cannot seek leave to file appeal under the provisions of sub-section (4) of Section 378 of the Code but he can only maintain an appeal under the proviso added to Section 372 of the Code, if he falls within the definition of ‘victim’ before the Court against which an appeal ordinarily lies against conviction. 19. Therefore, for the reasons aforesaid the present petition seeking leave to file appeal under sub-section (4) of Section 378 of the Code preferred by the complainant Kanwar Singh in a State case is not competent in this Court. The appeal would only - 9 - lie before the Court of Sessions, since he is alleged to be the “victim” of the crime. 20. Confronted with the above position the learned counsel for the petitioner submitted that he may be allowed to withdraw the present petition with liberty to file an appeal before the Court of Sessions. The request is allowed and I hereby direct that the memorandum of appeal annexed with the petition under Section 378 (4) of the Code be returned to the petitioner through his counsel, with liberty aforesaid if so advised. The petition under Section 378 (4) of the Code stands accordingly disposed of with the direction to return memorandum of appeal to the petitioner’s counsel. November 2, 2011 (Surinder Singh), (cm) Judge