1 APEAL-ST-G-978.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. OF 2010 {STAMP NO.978 OF 2010} Roma Sukhajitsingh Saini .... Appellant Vs. Nirmalsingh Habhansingh Saini & 4 Ors. .... Respondents Ms Rebecca Gonsalvez for the Appellant. S/Shri S.V. Marwadi i/b S.P. Narkar for Respondent Nos.1 to 4. Ms M.M. Deshmukh, APP, for Respondent- No.5-State. WITH CRIMINAL APPLICATION NO.5485 OF 2010 The State of Maharashtra .... Appellant Vs. Nirmalsingh Harbhajansingh Saini & 3 Ors. .... Respondents Ms M.M. Deshmukh, APP, for the Applicant- State. S/Shri S.V. Marwadi i/b S.P. Narkar for Respondents. CORAM: R.C. CHAVAN, J. DATED: AUGUST 04, 2011 P.C: 1. Criminal Appeal (Stamp) No.978 of 2010 2 APEAL-ST-G-978.10 is filed by the victim Roma Sukhajitsingh Saini and Criminal Application No.5485 of 2010 is filed by the State seeking leave to file appeal against the Appellate Judgment of the learned Additional Sessions Judge, Thane allowing Criminal Appeal No.4 of 2009, whereby he set aside the conviction of the respondents recorded by the learned Judicial Magistrate, First Class, Thane, by her Judgment dated 16-12-2008 for the offence punishable under Section 498-A of the IPC and sentence of RI of six months with fine of Rs.5,000/- imposed upon each of the respondents. Roma Sukhajitsingh Saini was married to Sukhajitsingh on 11-5-2003. After marriage she started residing with her husband and the respondents. Both Roma and her husband secured jobs in Bangalore in November and December, 2004 and both started residing at Bangalore. On 26-3-2006 both Roma and her husband came to Thane to see a new born child of Roma s brother in-law Harjitsingh and had planned to go back together to Bangalore on 1-4-2006. On 28-3-2006 Roma s father in-law asked Roma to stay back at Thane and eventually on 1-4-2006 her husband left Thane for Bangalore. Roma had not conceived and was taking treatment. After her husband left, she was taunted by her in-laws that she was barren. 3 APEAL-ST-G-978.10 Some of the respondents also started asking her awkward questions. She was harassed and ill- treated in order to persuade her to agree to a divorce, since she was not conceiving. Eventually, she left for her parents house on 28-5-2006. She claims to have given a report to the police on 10-9-2006. However, an offence was registered by taking cognizance on 21-9-2005. It seems that on 22-9-2006 the husband filed a petition for divorce. 2. On completion of the investigation, charge-sheet was filed against the respondents as well as the first informant s husband Sukhajitsingh. All of them were tried before the learned Judicial Magistrate, First Class, Thane, who convicted all the respondents and Sukhajitsingh of the offence punishable under Section 498-A of the IPC and sentenced them as indicated earlier. She acquitted the accused persons of the offence punishable under Section 406 of the IPC as also held in favour of the accused in respect of unlawful demands of Rs. 8,00,000/-. The accused took the matter in appeals before the Court of Sessions at Thane. The respondents herein preferred Criminal Appeal No.4 of 2009 and Sukhajitsingh also preferred an appeal which came to be registered as Criminal Appeal No.5 of 2009. The 4 APEAL-ST-G-978.10 learned Additional Sessions Judge decided both the appeals by two separate Judgments, delivered on 16-9-2010. He allowed both the appeals and set aside the conviction and sentences imposed upon all the accused persons. The State has preferred an application for leave for leave to file appeal against the said Judgment and the first informant has filed this appeal questioning that acquittal. 3. The learned counsel for the respondents had a preliminary objection to the tenability of the appeal. He submitted that it would be necessary for the appellant to first seek leave of the Court, as required under Section 378 of the Code of Criminal Procedure (for short, the Code ) to file an appeal. He also submitted that the appeal itself not having been preferred within a period of sixty days from the Appellate Judgment, is barred by limitation. The learned counsel for the appellant submitted, first, that in view of the amendment to Section 372 of the Code, whereby a proviso was inserted, the victim has a right to prefer an appeal against any order of the Court acquitting the accused and such appeal lies to the Court to which an appeal ordinarily lie against an order of conviction. She submitted 5 APEAL-ST-G-978.10 that this proviso does not require the victim to prefer an application for leave to file appeal and therefore the appeal has to be entertained as of right. For this purpose, she placed reliance on an order of this Court, dated 20-4-2011, passed on Criminal Application No.241 of 2011 {Suhas Bhaskar Musale v. Sameer Anant Nalawade & Anr.}, wherein this Court had considered the relevant provisions and concluded that the requirement of obtaining leave before preferring an appeal could not be read into the proviso to Section 372 which enables the appellant-victim to prefer this appeal. The learned counsel for the respondents submitted that the proviso to Section 372 only lifts the bar imposed by Section 372 that, no appeal shall lie against any Judgment, except as provided by the Code and therefore merely removes the disability in the case of a victim to prefer an appeal since appeals by victims were not specifically provided in the said Chapter. Therefore, according to him, the victim would have to follow the procedure prescribed for preferring an appeal in case of acquittal, as envisaged in Section 378 of the Code. There is no doubt that Section 378 is titled as Appeal in case of acquittal . But it does not follow that it covers cases of all 6 APEAL-ST-G-978.10 sort of appeals in case of acquittal. In any case, question of granting leave to file appeal would arise only if the appeal is one which is covered by sub-section (1) or (2) of Section 378 of the Code. Sub-section (4) enables a complainant in a private complaint to file an appeal to the High Court and it specifically provides that such complainant has to seek special leave to appeal. Since the appellant in this case is the victim and not a complainant on whose complaint the respondents were prosecuted, sub-section (4) does not apply to her. As far as sub-section (3) is concerned, it refers to only appeals under sub-sections (1) and (2) which provides for appeals by the District Magistrate or the Government. Therefore, though it may seem that an appeal by a first informant would have absolutely no filter of evaluation of merits in the appeal, since Section 378 does not require such victim to prefer an application for leave to file appeal, it would be impermissible to read such a requirement in the said Section. 4. The learned counsel for the respondents next submitted that when the limitation of sixty days has been prescribed under sub-section (5) of Section 378 for 7 APEAL-ST-G-978.10 applications for grant of special leave to file appeal, ordinarily such limitation should apply even to the victim who seeks to prefer an appeal before the High Court. The learned counsel for the appellant submitted, first, that the limitation prescribed under sub- section (5) is only in relation to applications under sub-section (4) and, in any case, the Limitation Act itself does not provide for any limitation in respect of an appeal by a victim. Therefore, according to her, since there is no provision expressly requiring the victim to exercise her right of appeal within any specific period, no such limitation could be read. The learned counsel for the respondents may be right in submitting that absence of limitation would result in appeals being filed by the victims even long after the Judgments of acquittals are rendered and would keep a sword of uncertainty dangling over the heads of the accused person who were acquitted, possibly throughout their life. But this is the choice of the Legislature. Since the Legislature has chosen not to impose any limitation for exercise of this right, it would not be permissible for the Court to impose any limitation when none exist. There may be a reason for not prescribing a limitation for 8 APEAL-ST-G-978.10 exercise of such right by the victim. When a complainant files a complaint before a Magistrate, he is a party to the proceedings and therefore would ordinarily know the result of the case. The same may not be the case of the victim who is not a party to the proceedings before the Court and may not come to know about the delivery of Judgment in his/her case and therefore, may be for good reasons, no limitation has been prescribed for exercise of this right by the victims. 5. The learned counsel for the respondents also submitted that entertaining appeals by the victims as of right would open a flood-gate of litigation and would enable the State to circumvent the limitation imposed by Section 378 of the Code in first seeking leave before filing an appeal against acquittal. He submitted that the State could set-up the victims to prefer appeals long after the period of limitation is over or where due to administrative or other lapses, the State either fails to prefer an appeal or fails to file an application for leave. Again, it is the Legislative prerogative to decide as to what type of litigation is to be heaped upon which Court. While enabling the District Courts to 9 APEAL-ST-G-978.10 entertain appeals against acquittals, the Legislature chose to restrict such appeals to cases in respect of cognizable and non-bailable offences. The corollary was that in case of non-cognizable or bailable offences, which are lighter offences attracting lesser sentences, an appeal would lie before the High Court itself. Thus, appeals against acquittals in cases of serious offences go before the District Court whereas cases where the offences are not serious, land up in the High Court. But this is the choice exercised by the Legislature. Therefore, whether the proviso to Section 372 of the Code opens a flood-gate of litigation or not, is irrelevant for the present purpose. 6. To sum up, since an appeal by a victim is not subject to any limitation in respect of time within which it could be filed, as also any requirement of obtaining prior leave for filing an appeal, the appeal has to be entertained. Hence admit. Call for the R & P.. Since the learned Advocate for the respondents on the record states that he would be representing the respondents, action under Section 390 of Cr.P.C is dispensed with. 10 APEAL-ST-G-978.10 7. Since the appeal has been admitted, there would be no purpose in examining whether leave could be granted to the State for preferring appeal against the same Judgment. Therefore, Criminal Application No.5485 OF 2010 would also have to be allowed and is accordingly allowed and stands disposed of accordingly. (R.C. CHAVAN, J.)