B.Venkat Kumar and others vs State of Telangana

K.Surender, J

This appeal is filed by the defacto complainant/victims examined as P.Ws.1, 2 and 3 in the case, aggrieved by the judgment in S.C.No.754 of 2013 dated 24.07.2019 passed by the Assistant Sessions Judge at Medchal, Ranga Reddy District.

Briefly, the case of the prosecution is that the respondents/A1 to A10 were tried for the offence of dacoity using weapons. The respondents/A1 to A10 were charged under Sections 395, 120-B of IPC and Section 25(1B) (A) of Arms Act r/w Section 120-B of IPC. The case was tried by the Assistant Sessions Judge and on the basis of the evidence, learned Assistant Sessions Judge acquitted the accused.

The State has not preferred any appeal against acquittal of accused, however, the present appeal is preferred by the victims/P.Ws.1 to 3 to set aside the judgment of acquittal and convict the respondents/Accused for the offences alleged. Prayer is also made to handover the cash of Rs.61,50,000/- marked as MO.1 during trial, which is in the form of fixed deposit, to the appellants.

Having gone through the record, the learned Assistant Sessions Judge found that the prosecution has failed to prove its case against the accused and the case projected by the prosecution as stated by the witnesses, is doubtful.

Insofar as the disposal of the property i.e., an amount of Rs.61,50,000/-, learned Assistant Sessions Judge found that the amount was not claimed by the accused persons. In the year 2015, P.W.2 had made an application for return of the entire amount of Rs.61,50,000/- which was dismissed. The Court further found that no proof was forthcoming from either P.Ws.1, 2 or 3 for proving that the amount seized from the accused belongs to them and nothing was placed on record to show whether the money was legal and income tax compliant.

This Court had raised an objection that the appellants, either for filed before the Sessions Judge in accordance with the proviso to Section 372 of Cr.P.C.

Learned counsel on record for the appellants submitted that he would not press for reversing the order of acquittal, however, insisted on the prayer for return of the amount of Rs.61,50,000/-(M.O.1) and relied on the judgment of Hon’ble Supreme Court in the case of Mahesh Kumar v. State of Rajasthan1990 Supp Supreme Court Cases 541 (2). Since this court advised the appellants to approach the Sessions Court in accordance with law, time was sought to convince this Court regarding maintainability of the appeal.

Sri Dammalapati Srinivas, learned Senior Counsel appeared on behalf of the appellants. Learned Senior Counsel would submit that the option is left open to the appellants/victims either to approach the Sessions Court or the High Court since the trial was held by the Assistant Sessions Judge, who can impose sentence of a period exceeding seven years up to 10 years. In the event of imposing sentence of more than seven years, appeal would lie to the High Court and if it is up to seven years, would lie to the Session Court. He relied on the judgment of this Court in the case of G.Basavaraj v. State of Andhra Pradesh and another2010 SCC OnLine AP 1298, wherein learned Single Judge of this Court observed that on the basis of the conviction passed by the Assistant Sessions Judge, appeal may lie either to the High Court or to the Sessions Court. In such circumstances, it is for the complainant or victim to choose the forum since there are two options and file Appeal.

Criminal Procedure Code 1973 was repealed and Bharatiya Nagarik Suraksha Sanhita, 2023 had come into effect from 1st July, 2024. However, any appeal pending prior to 01.07.2024 shall be dealt in accordance with Cr.P.C, 1973.

No doubt the sentence which is imposed on the accused if it exceeds seven years, appeal would lie to the High Court. However, specific provision has been made under the proviso to Section 372 Cr.P.C enabling the victim to file an appeal questioning acquittal of the accused or for imposing lesser sentence or inadequate compensation.

Under Section 395 IPC, there is no minimum sentence prescribed and the imprisonment may extend to 10 years. Offence under Section 25(1B)(a) of Arms Act is punishable upto a minimum of one year and can extend up to three years.

The distribution of work to the Assistant Sessions Judge is by the Sessions Judge of the concerned division. In the event of entrusting any Sessions Case when the minimum sentence is above seven years and tried by the Assistant Sessions Judge and in the event of acquittal, the victim could approach the High Court by filing an Appeal. The cases which are entrusted to the Assistant Sessions Judge may be punishable upto seven years or less also.

In the event of filing appeal before the Sessions Court, any grievance on the outcome in Sessions Court can be agitated before the High Court. If the appeal is directly filed in High Court, any appeal against the order of High Court has to be made before Supreme Court. The two important factors of (i) minimum sentence of an offence which was tried by an Assistant Sessions Judge being less than or up to Seven years and (ii) the accused or defacto complainant/victim losing the forum of a Sessions Court to redress their grievance being lost were not considered in G.Basavaraj’s case by the learned Single Judge, if option is left open to the victim to approach the High Court or Sessions Court.

Any judgment which does not deal with an issue in its entirety and results in loss of a valuable statutory right to any of the parties, such judgments cannot bind the coordinate bench. The judgment rendered in G. Basavaraj’s case is not followed by me since the valuable right of approaching the forum of Sessions Court is lost both to the victims and the accused, if option is left open to the victim to approach the High Court directly without approaching the Sessions Court.

The main grievance of the appellants is the amount MO1 that was seized during investigation from the accused and refused to be returned to P.W.2 initially before trial and thereafter confiscating to the State during final disposal of the case.

It is appropriate to return the file to the appellants to approach the Sessions Court and if aggrieved by the order of Sessions Court either of the parties can approach the High Court.

With the said observation, this Criminal Appeal is disposed of granting liberty to the appellants to approach the Sessions Court.