TUKLAL YADAV  VS. STATE OF JHARKHAND 19 SEPTEMBER,2018

TUKLAL YADAV  VS. STATE OF JHARKHAND 19 SEPTEMBER,2018

Citation	Laws (JHAR)2018-19-9
Date of Judgment	19 Sept,2018
Court	Jharkhand High Court
Case Type	Cr. Appeal
Appellant	TuklalYadav
Respondent	State of Jharkhand
Bench	H.C.Mishra, J, Mr.JusticeB.B.Mangalmurthi, Mr.Justice, Anil Kumar Chaudhary
Referred	Section 372,378 Cr. P.C, 498A,304B I.P.C, Rule 152 of the High Court Of Jharkhand Rules,2001

Facts  of the case

• The cluster of appeals arose out of the appellate judgments which are passed by the different Courts of Session Judges; these are Cr. Appeal (S.J) No.1281 of 2016, Cr. Appeal (S.J) No.2066 of 2017, Cr. Appeal (S.J) No.2229 of 2017 and Cr. Appeal (S.J) No.825 of 2014.
• These appeals were listed before the Hon’ble single judge for the adjudication of the matter. The said judge referred the matters to the division bench for adjudication under Rule 152 of the High Court of Jharkhand Rules,2001 which states that all acquittal appeals should be listed before the division bench for admission and if that appeal is admitted by the court of division bench then it shall be processed for further hearing.  
• With regard to this transfer of matters to the division bench, an objection was raised by the learned counsel for the state.
• The Counsel for the stateside contended that appeals should lie before the single judge and not before the division bench according to the provision mentioned under Section 372 of Cr. P.C   because these are the acquittal appeals that arose out from the appellate orders that were passed by the Session Courts
• The said Section 372 of the Cr.P.C., states that No appeal to lie unless otherwise provided. – No appeal shall lie from any judgment or order of a Criminal Court except as provided by this Code or by any other law for the time being in force.
• And it grants the victim the right to appeal against any order that is passed by the court for acquittal or conviction for a lesser offense.
•  Further, it has been contended that the said provision of Cr. P.C. has been inserted by an Amendment Act in Section 372 which became effective from 31.12.2009. while on the other hand, the Jharkhand Rules were of the year 2001and it is a very known Principle of law that the provisions of rules cannot overrule the settled provisions of the Acts.
• It was further argued that how the appeals against the order of conviction were listed before the Single Judge, in the same manner, appeals against the order of acquittal should also be listed before the single judge only as per the provision of Section 372 of Cr.P.C.
• Supreme Court by laying down the law in the case of Satya Pal vs.State of Madhya Pradesh and others.  Had cleared the confusion regarding the victim’s right to prefer an appeal to the High Court against the acquittal without obtaining leave from the High Court which is necessary to take under Section 378(3)Cr.P.C. the Apex court cleared this confusion by stating that victims’ right to appeal is an absolute right and there is no need to obtain a special leave.
• By referring the matters to the division bench the division bench also had confusion regarding some procedures such as whether the application for leave to appeal has to be filed separately like an independent application if the form of Cr.M.P or it can be filed in the way in which interlocutory applications are filed.
• Further another question arose for consideration in two appeals, these are (Criminal Appeal Nos.1281 of 2016 and 2229 of 2017) which arose from the complaint cases, and with regard to this the question was whether, in case of acquittal, these cases would also be governed by the provision of section 372 of the Cr. P.C. read section 378(3) of Cr. P.C. or they would only be governed by Section 378(4)Cr. P.C.
• The division bench of the High Court of Jharkhand was of the view that the complainant who was a victim in these cases was aggrieved by the order of acquittal, had the remedy under Section 372 of the Cr.P.C and not under the said proviso of Section 378 of the Cr.P.C. However with regard to this there is a settled principle given by the Apex Court through the judgment in the case of Subhash Chand Vs. State (Delhi)(Administration)reported in the year 2013, the law that was laid down by this case is that the complainant in such cases could only file the special to appeal against the acquittal order of any type only in the High Court and not in any Session Court.
• However, in some of the districts acquittal appeals were being entertained by the session judge by relying upon the judgment of the Baidya Lakhan Bhagats case. While in some districts complainants were asked by the court of session judge to get an application for special leave to appeal from the High Court as per the law laid down by the Supreme Court in Subhash Chands case.
• With regards to all the contrary decisions that were taken by the Division Bench of the said Court, the court found that it would be appropriate to refer the matters to the larger Bench to clear all the confusion and lay down the uniform law that should further be followed uniformly by all the states.
• The following matters were referred to the Larger Bench to clear all the confusion by laying down the uniform law :

1. Whether acquittal appeals arising out of the appellate judgments passed by the session judge court should be heard by a Division Bench or by Single Judge.
2. Whether applications for leave or special leave to appeal under Section 378(3) Cr.P.C and Section 378 (4) Cr.P.C have to be filed separately as independent applications or can be filed by way of interlocutory applications 
3. Whether acquittal appeals should necessarily be registered as Accquittal Appeals and not as Criminal Appeals.
4. Whether the order that is passed by Single Judge referring the acquittal appeals against the orders passed by Session Courts as per Rule 152 of the High Court of Jharkhand Rules, is following Section 372 Cr.P.C or whether such appeals may lie to the courts to which appeals ordinarily lies that is the Single Judge according to the Section 372 Cr.P.C
5. Whether there is a need to amend Rule 152 of the High Court of Jharkhand Rules,2001 following the amendment of Section 372 of Cr.P.C.
6. Whether the appeals against the order of acquittal in complaint cases can be filed before the Session Court under Section 372 Cr.P.C or the complainant to appeal, the High Court has to get an application for special leave to appeal. 
7. Whether the applications for leave or special leave to appeal, in the appeal for acquittal against the order passed by session courts are to be decided by the Division Bench as it is done presently or it should be decided by the single judge under Section 372 Cr.P.C, and that court can also the court which is deciding the main appeal have the jurisdiction to decide whether leave or special leave to appeal has to be granted or not in a particular case. 

Hence all these questions of Law were referred to the Larger Bench and these questions were addressed to the bench by learned Counsels from both sides. 

Arguments

Learned counsels Sri Indrajit Sinha, Sri Sachin Kumar, Sri Vishal Kumar Tiwary, Sri K.S. Nanda, from the side of the appellants, and Sri Pankaj Kumar, from the side of the state.

The learned counsels contended that the questions which are raised in this case have already been addressed by the Apex Court in Satyapal Singh’s case 

In the said case the father of the deceased had approached the high court against an order of acquittal under the provision of section 372 of Cr.P.C .The high court had disposed of the appeal without even examining whether leave to file an appeal under the said provision of section 378 of Cr.P.C could be granted to the appellant or not. the Apex court in its judgment considered the report of the law commission on victim’s rights and compensation and held that the victim had a statutory right to prefer an appeal against the acquittal order or conviction order for a  lesser offense or an order imposing inadequate compensation under the provision of section 372 Cr.P.C.

However, the ApexCourt also held that this right must be read along with its main enactment which is section 372 itself, and together with sub-section 3 of section 378 Cr.P.C.that will be rendered nugatory.

Therefore the Apex Court held that the victim including the legal heir and others has a right to question the correctness of the judgment and order of acquittal by preferring an appeal to the High Court under Section 372 cr.p.c 

With regards to question no 3 which was referred to the larger bench the learned counsels contended that the complainant can apply for special leave to appeal against an acquittal order.

The counsel contended that even though section 372 of Cr.P.C lays down that no appeal shall lie from the judgment of the High Court 

The learned counsels presented many arguments with regard to the referred questions and to get answers to those referred questions they cited many leading cases related to those questions

Judgment

When all these questions of the law came before the full bench of the Jharkhand high court with regards to the above-mentioned question no 1,2,3 that was referred to this court said that to decide these questions Sections 372,378 of Cr..P.C and Rule 152 of the High Court of Jharkhand Rules,2001, that need to be referred here. 

Thus, by going through the said provisions under Cr.P.C and the leading cases related to it the court was able to lay down the correct position of law with regard to those three questions these courts decision are as follows

• In cases of appellate judgment passed by session courts the informant whether he is a victim of the case or not has no right to challenge the order under section 372 of Cr.P.C 
• The appeals arising out of original judgments or orders of acquittal, or conviction for a lesser offense, or imposing inadequate compensation, that is passed by Session Court, shall lie to the High Court, according to section 372 Cr. P.C in but only after obtaining the leave under section 373 of the Cr.P.C And according to Section 372 of the Cr.P.C, read with Rule 36 (ii) of the High Court of Jharkhand Rules, 2001, the appeals shall lie before the Division Bench of the High Court.
•  As a necessary corollary, the appeals arising out of judgments or orders passed by the Court of Magistrates, whether against acquittal, convicting for a lesser offence, or imposing inadequate compensation, filed by the victims as defined under Section2 (wa) of the Cr.P.C, shall lie before the Courts of Session, in which case, leave to appeal is not required. If such orders/judgments are also affirmed by the Courts of Session, there shall be no further appeal to the High Court under the Proviso to SECTION 372 of the Cr.P.C., because of the expression in the Proviso “such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court”, there being no provision for any appeal to the High Court against the orders / judgments of conviction passed by the Magistrates.
• And they also stated that the Rules 35 (1) (f) and 36 (ii) brought by the amendment in the year 2005, in the High Court of Jharkhand Rules 2001, Rule 152 of the High Court Rules, which had originally been framed in the year 2001 itself, needs to be declared redundant, as the new Rules 35 (1) (f) and 36 (ii) take care of the situation.

After that with regard to the referred question no 4, the court clarifies that the victim, who is not the complainant in a private complaint case, shall not be entitled to prefer an appeal against acquittal under Section 372.

Further with regard to the referred question no 6. The court by clearing the confusion of the division bench stated that after going through all the considerations of the learned counsels we are of the view that application for leave or special leave under Section 378 of Cr.P.C cannot be filed separately there is no need to file it separately as an independent application rather it can be filed by the way of interlocutory application to avoid the multiplicity of cases.

Then by answering question no 5 of the referred question, the court stated that they agree with the views of the learned counsels that is the bench that decides the main appeal should have the right to decide whether the leave or special leave should be granted or not.

With regard to question no 7 the court stated that an application for leave to appeal under Section 378 Cr.P.C. shall only be maintainable in the appeals that are arising out from the original judgments passed by the session courts and it will lie before a division bench.

The court further held that according to all the answers that were given by the court to the referred questions those clusters of appeals are not maintainable as per the answers, because all these appeals rise from the appellate judgment by different session courts, so the court dismissed all the appeals and also all the filed I. A which was filed was also dismissed.

Hence it was held that if the appeal is arising out of the original judgment then orders of acquittal or conviction for a lesser offense passed by the court. if the substantive sentence of fewer than ten years of imprisonment that have been passed by the court then, in that case, an appeal will lie before the single judge of this court, and when the appeal is regarding the offense punishable with ten years of imprisonment or more then that then in such case the appeal will lie before the Division Bench of the said High Court.

THIS ARTICLE ON CASE ANALYSIS IS WRITTEN BY HIDATUL FATIMA LAW STUDENT AT ALIGARH MUSLIM UNIVERSITY AND AN INTERN UNDER LEGAL VIDHYA.