Khoob Chand vs State of U.P. and Others

Ravindra Singh, J.—Heard Sri Atul Srivastava, Learned Counsel for the appellant and learned A.G.A. for the State of U. P.

This appeal has been preferred under the proviso of Section 372, Cr. P.C. against the judgment and order dated 22.5.2010, passed by the learned A.C.J.M.-III, Gautam Buddh Nagar in Criminal Case No. 955 of 2010 by which the O.P. Nos. 2 to 9 have been acquitted for the offence punishable under Sections 147, 452, 323. 324 and 325, I.P.C.

This appeal has been preferred by the appellant Khoob Chand who had lodged the F.I.R. of the present case at P.S. Dadari on 28.1.1986 at 12.45 p.m. in Case Crime No. 30A of 1986 under the proviso of Section 372, Cr. P.C. It has been inserted by the Cr. P.C. (Amendment) Act, 2008 (Act No. 5 of 2009). The proviso of Section 372, Cr. P.C. reads as under :

Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall He to the Court to which an appeal ordinarily lies against the order of conviction of such Court.

The proviso confers the right to victim to prefer the appeal against any order passed by the Court acquitting the accused or convicting for lesser offence for imposing inadequate compensation and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. In present case the order of acquittal has been passed by the court of learned A.C.J.M.-III, Gautam Buddh Nagar, if the order of conviction is passed by such court, its appeal ordinarily lies in the Court of Sessions. The proviso of Section 372, Cr. P.C. does not permit to prefer the appeal before this Court by bye-passing the Court of Sessions. The appeal against the order of the acquittal passed by learned A.C.J.M.-III, Gautam Buddh Nagar shall lie in the Court of Sessions at Gautam Buddh Nagar. This appeal does not lie to this Court, therefore this appeal is not maintainable.

The Reporting Section of this Court has not gone through the proviso of Section 372, Cr. P.C. and without making any remarks of objection, the appeal has been reported.

This appeal is disposed of as non-maintain able to this Court with a liberty to file fresh appeal before the Court of Sessions concerned.

Let a certified copy of this order be communicated to the Reporting Section of this Court.