Supreme Court of India

NAVAL KISHORE MISHRA versus STATE OF U.P. & ORS. on 5 July 2019

Cites 1, Cited by 0

[2019] 9 S.C.R. 249

NAVAL KISHORE MISHRA

v.

STATE OF U.P. & ORS.

(Criminal Appeal No. 979 of 2019)

JULY 05, 2019

[SANJAY KISHAN KAUL AND K.M. JOSEPH, JJ.]

Code of Criminal Procedure, 1973: ss. 372 proviso and378 – Appeal against acquittal – Right of victim to file the appealagainst the acquittal of accused without seeking leave to appeal –Held: Victim has a right to file the appeal and no leave has to besought in such a situation – Appeal has to be dealt as a regularappeal – It is different from the appeal filed by the State seekingleave to appeal – Appeal filed by the victim ought not to have beendismissed at the threshold only on the ground that no leave wasgranted to the State to appeal against the order of acquittal.

Mallikarjun Kodagalli (D) through legalrepresentatives v. State of Karnataka & Ors.(2019) 2 SCC 752 – relied on.

Case Law Reference

(2019) 2 SCC 752 relied onPara 14

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 979 of 2019

From the Judgment and Order dated 23.11.2017 of the High Courtof Judicature at Allahabad in Criminal Misc. Application Defective u/s372 Cr.P.C. (leave to appeal) No. 61 of 2017

M.Z.Choudhary, Aftab Ali Khan, Syed Imtiyaz Ali, SyedMohammed Aatif, Ms. Afreen Fatima, Advs. for the Appellant.

Ms. Ruchira Goel, Adv. for the Respondents.

The following Order of the Court was passed :

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O R D E R

1. Leave granted.

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A2. We have heard learned counsel for the respondent-State andlearned counsel for the appellant. The other respondents have been servedbut none has entered appearance.

3. The accused-respondents were put to trial in Sessions trial No.80of 2014 titled State Vs. Brindavan & Ors. arising out of criminal caseBNo.53 of 2014 under Sections 452, 302/34 of the Indian Penal Code.

4. The accused were acquitted by the trial Court in terms of theJudgment dated 19.12.2016.

5. The State aggrieved by the said order sought leave to appeal inGovernment Appeal No.1947 of 2017. In terms of Section 372 readCwith Section 378 of the Code of Criminal Procedure, 1973 (“CrPC” forshort) such leave was declined vide order dated 18.04.2017.

6. The appeal filed by the victim, however, came up before theCourt after the aforesaid transpired and vide impugned order dated23.11.2017 has been dismissed on the following ground:D

Since another Bench of this Court has already refused to grantleave and the government appeal itself stood dismissed inreference to the refusal to grant leave, it will not be congruousto unfold another course keeping pending to this appeal.”

7. Learned counsel for the State has contended that the rights ofEthe victim have been enlarged in terms of the amendment carried out byinsertion of proviso to Section 372 of the CrPC by Amendment Act 5 of2009 with effect from 31.12.2009. The provision reads as under :

“Provided that the victim shall have a right to prefer an appealagainst any order passed by the Court acquitting the accusedFor convicting for a lesser offence or imposing inadequatecompensation, and such appeal shall lie to the Court to whichan appeal ordinarily lies against the order of conviction ofsuch Court.

8. We may notice that Section 2(wa) defines victim as under:

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“victim” means a person who has suffered any loss orinjury caused by reason of the act or omission for which theaccused person has been charged and the expression“victim” includes him or her guardian or legal heir.

9. In the present case the victim, thus, includes him or her guardiansor legal heirs. The deceased was unmarried and the victim is the realbrother and, thus, would fall under the category of legal heir of thedeceased.

10. It is, however, submitted by her that the question whether thevictim would also have to seek leave as would be a situation envisagedunder Section 378 of the Cr.P.C as in the case of the State has beenconsidered and is no more res integra in view of the recent Judgment ofthis Court in Mallikarjun Kodagalli (d) through legal representatives Vs.State of Karnataka & Ors.[1] where this Court opined that there is noneed for a victim to apply leave to appeal against the order of acquittalwhile preferring an appeal under Section 372 proviso to CrPC.

11. In the aforesaid circumstances, it is contended that since theright to appeal would be available, it is different from the appeal filed bythe State seeking leave to appeal and, thus, the appeal filed by the victimin the present case ought not to have been dismissed at the thresholdonly on the ground that no leave has been granted to the State to appealagainst the order of acquittal.

12. The aforesaid plea is naturally supported by learned counselappearing for the appellant.

13. We are in agreement with the aforesaid plea since the extractedportion of the impugned order shows that the only reason recorded fordismissing the appeal of the victim (in fact styled as leave to appeal)was on the ground that leave had not been granted to the Government tofile the appeal.

14. The legal position enunciated in Mallikarjun Kodagalli (d)through legal representatives(supra) would show that the appellanthad a right to file the appeal and in fact no leave has to be sought in sucha situation. Thus, the appeal has to be dealt as a regular appeal.

15. In view of the aforesaid, we set aside the order of the HighCourt and allow the appeal remitting the appeal to be considered by theHigh Court on merits.

Nidhi Jain

Matter remitted to High Court

12019(2) SCC 752

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