K. Rajalingam Vs R. Suganthalakshmi (Madras High Court)
Conclusion: As against an order of acquittal passed by a Magistrate on a complaint, an appeal will lie only before the High Court, under Section 378 (4) of Cr.PC. In such cases, the complainant has to seek for Special leave under Section 378 (5) of Cr.PC.Since the decision rendered in S. Ganapathy V. N. Senthilvel ((2016) 4 CTC 119) was per- incuriam, the consequence of this judgement which had resulted in orders being passed and which had become final / acted upon by the parties, could never be allowed to be re-opened.
Held: The decision rendered by High Court in S. Ganapathy V. N. Senthilvel ((2016) 4 CTC 119) was doubted by the Single Judge while dealing with Criminal Revision Case Nos.494 & 536 of 2019 and Crl. A. SR. Nos. 25084 and 25112 of 2019. The doubt raised was to the maintainability of the appeal by the complainant against an order of acquittal confirmed before the Court of Sessions invoking the proviso to Section 372 of the Criminal Procedure Code. Reference had been sought for on the seminal question as to whether the remedy lied as against an order of acquittal passed by a Magistrate on a complaint whether it was under proviso to Section 372 of the Criminal Procedure Code or under Section 378(4) of Criminal Procedure Code. So the issue arose was when a Magistrate acquits an accused in a case instituted upon a private complaint, like a prosecution under Section 138 of the NI Act, where did the remedy lie for the unsuccessful complainant – Whether to the Court of Session under the proviso to Section 372 Cr.P.C. or before the High Court under Section 378(4) and (5) P.C. or were there concurrent remedies available, with the right to the complainant to elect the forum of choice? It was held that Right of Appeal is always a creature of the statute. The same is clear from the very language of Section 372 of Cr.PC, which categorically states that “no Appeal shall lie from any judgement or order of a Criminal Court except as provided for by the Code or by another Law for the time being in force.” When this provision stood as such before the coming into force of Act 5 of 2009, it was only the State which can file an Appeal against acquittal in all cases which arises out of a “Police Report”. The “victim” did not have such a right and the only remedy that was available for a victim at that point of time was to file a Criminal Revision Petition against such acquittals. It must be borne in mind that even before the amendment came into force, the complainant was provided with an independent right of Appeal against acquittal under Section 378(4) of Cr.PC. Therefore, the complainant was treated differently under the Code. The Parliament thought it fit to recognize the rights of a victim in a criminal case which arises out of a “Police Report”. The victims were left high and dry in all cases of acquittals arising out of a “Police Report” and even if the victims filed a revision petition against acquittals, the scope of interference was very limited than the scope of an Appeal. This necessitated the Parliament to bring in the amendment which specifically catered to the rights of a victim to a crime. Even though, S.Ganapathi ( supra) judgement per- incuriam, the consequence of this judgement which had resulted in orders being passed and which had become final / acted upon by the parties, could never be allowed to be re-opened. This was more so in cases where it had been subsequently affirmed or reversed by this Court. The parties did have an opportunity to put forth their case before this Court and this Court also had an opportunity to look into the merits of the case and pass final orders. The parties had sufficient opportunity to put forth their case up to this Court and therefore, the same could be allowed to be reopened by virtue of this Judgement. Therefore, the way forward as a consequence of this judgement could be provided only for pending cases.
FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT
The decision rendered by the Full Bench of this Court in S. Ganapathy V. N. Senthilvel ((2016) 4 CTC 119) was doubted by the learned single Judge while dealing with Criminal Revision Case Nos.494 & 536 of 2019 and Crl. A. SR. Nos.25084 and 25112 of 2019. The doubt raised is to the maintainability of the appeal by the complainant against an order of acquittal confirmed before the Court of Sessions invoking the proviso to Section 372 of the Criminal Procedure Code. The incidental issue is on the question of leave to be obtained. As a corollary, the learned single Judge, framed some more issues as well. This reference has been sought for on the seminal question as to whether the remedy lies as against an order of acquittal passed by a Magistrate on a complaint whether it is under proviso to Section 372 of the Criminal Procedure Code or under Section 378(4) of Criminal Procedure Code. The issues framed are profitably quoted hereunder.
i. When a Magistrate acquits an accused in a case instituted upon a private complaint, like a prosecution under Section 138 of the NI Act, where does the remedy lie for the unsuccessful complainant – Whether to the Court of Session under the proviso to Section 372 Cr.P.C. or before the High Court under Section 378(4) and (5) P.C. or are there concurrent remedies available, with the right to the complainant to elect the forum of choice?
ii. If the remedy is under the proviso to Section 372 Cr.P.C., should the complainant seek special leave from the Court of Session and if so, under what provision of law?
iii. What is the period of limitation for filing an appeal against acquittal before the Court of Session under the proviso to Section 372 Cr.P.C. in a private complaint case like Section 138 of the NI Act?
iv. If the answer to Question No.i under reference is that the appeal will have to be filed under the proviso to Section 372 Cr.P.C., then, if such appeal filed by the complainant before the Court of Session is dismissed and the order of acquittal passed by the Magistrate is upheld, does the complainant have a remedy to file a revision under Section 397 read with Section 401 Cr.P.C. before the High Court or file another round of appeal against such acquittal by the Court of Session before the High Court under Section 378(4) & (5) Cr.P.C.?
v. If the complainant has the revisional remedy before the High Court under Section 397 read with Section 401 Cr.P.C., can the High Court set aside only the Appellate Court’s order or the Trial Court’s order or the orders of both the Courts below?
vi. In the event of the larger Bench holding that the complainant who has lost before the Trial Court and the Court of Session has the remedy to file a revision under Section 397 read with Section 401 Cr.P.C. before the High Court, then, after setting aside the orders, should the High Court remand the case to the Court of Session or to the Trial Court for re-trial?
vii. In the event of the law laid down by the Full Bench in S. Ganapathy (supra) being overruled, what impact would such overruling have on the cases which have been decided by the Courts of Session during the interregnum?
2. The Honourable Chief Justice, after going through the issues framed and the reasons assigned by the learned single Judge and after taking note of the law laid down qua the framing of the issues in exercise of the powers vested under Order I Rule 6 read with Rule 7 of the High Court of Madras, Appellate Side, 1965, referred the matter by constituting a Full Bench consisting of three of us to answer the questions raised. The Honourable Chief Justice accordingly opined that it is legally permissible for a single Judge, who doubts a decision of the Larger Bench to seek for a Reference. This Reference has been made consciously after taking note of the subsequent decisions of the Apex Court governing the field wherein one of the judgments which took into consideration the earlier judgment of the Apex Court, which weighed heavily in the minds of the Full Bench.
3. Having gone through the questions referred and keeping in mind Order 1 Rule 6 read with Rule 7 of the Rules of High court of Madras Appellate Side Rules, 1965, we believe that we can go into all the issues referred to us including the incidental questions apart from the legality of the decision rendered in Ganapathy V. N.Senthilvel ((2016) 4 CTC 119) and the consequences arising out of the same. With the said understanding, let us proceed further.
4. The question that was raised before the Full Bench in S. Ganapathy’s case(supra) was whether the word ‘victim’ is synonymous with the word ‘complainant’ with specific reference to proviso to Sections 372 and 378(4) of the Criminal Procedure Code. The Full Bench, placing reliance upon the judgment of the Apex Court in Satya Pal Singh V. State of Madhya Pradesh and others ((2015) 15 Supreme Court Cases 613), which arose out of a Police Report, pursuant to a First Information Report lodged and registered, held that the term victim also includes a complainant and he can also avail of the remedy under proviso to Section 372 of Cr.P.C. And file an appeal against an order of acquittal.
5. Unfortunately, it was not brought to the notice of the Full Bench the decision rendered by the Apex Court in Damodar S. Prabhu V. Sayed Babalal H. ((2010) 5 Supreme Court Cases 663), which directly considered the very issue. The following paragraph would be apposite.
“20. It may be noted here that Section 143 of the Act makes an offence under Section 138 triable by a Judicial Magistrate First Class (JMFC). After trial, the progression of further legal proceedings would depend on whether there has been a conviction or an acquittal.
