Nirmal Jeet Rana vs Amar Singh

Atul Kumar Jain, J.—In this matter, I have heard the parties on the interpretation of proviso to Section 372, Cr.P.C. in relation to Section 378(4), Cr.P.C. It is agreed position that as per the amended proviso to Section 372, Cr.P.C. the victim has been given a remedy of appeal against every acquittal order passed by the magistrate Court and his appeal in such type of matters can be heard by the concerned Sessions Judge.

Section 372, Cr.P.C. was amended on 31.12.2009 by adding a proviso to it by Amendment Act 5 of 2009 (Section 29). Law of procedure may be applicable retrospectively as was held in the following rulings:

(1) union of india (UOI) Vs. Sukumar Pyne,

(2) G.P. Nayyar Vs. State (Delhi Administration),

(3) Rao Shiv Bahadur Singh and Another Vs. The State of Vindhya Pradesh,

The appellant-complainant has challenged in this appeal the acquittal order in Criminal Case or Section 138 of N.I. Act, 1881 which was passed by the learned Addl. Civil Judge (J.D.) and Metropolitan Magistrate (N.I. Act Cases) No. 1, Jodhpur in Criminal Regular Case No. 712/2010, whereby the learned lower Court acquitted the accused-respondent Amar Singh from the charge under Sec. 138 of N.I. Act, 1881.

Such type of appeal could have been and should have been filed in the Sessions Court, Jodhpur Metropolitan first and only thenafter the aggrieved party could have challenged the order of Sessions Judge, Jodhpur Metropolitan in this Court. So after hearing both the parties, I am of the opinion that while Section 378(4) of Cr.P.C., confers jurisdiction of hearing appeal against acquittal on the High Court, the amended proviso to Section 372 Cr.P.C. does so on the Sessions Court. But it is equally true that where the jurisdiction is conferred on two Courts, the aggrieved party should ordinarily first approach the inferior of the two Courts unless exceptional grounds for taking the matter directly before the superior Court are made out.

In the present matter, the propriety requires that the appellant-complainant should have gone to the Sessions Court first and only thenafter, if aggrieved, he should have approached this Court. This Court does not encourage the trend of filing of appeals directly before this Court when the matter could have been heard and disposed of by the Sessions Court under proviso to Section 372, Cr. P.C.

It is pertinent to note here that amended proviso to Section 372 of Cr. P.C. was not brought to the notice of the Hon''ble Supreme Court when Subhash Chand Vs. State (Delhi Administration), was decided by their Lordships of Hon''ble Supreme Court. Same is the case with the order dt. 19.01.2011 passed by this High Court in S.B.Cr. Revision Petition No. 875/2010 Manju Kawadiya vs. Ghanshyam Sahu where also provisions of amended proviso of Section 372 of Cr. P.C. were not brought to the notice of the High Court. The Judgment of Hon''ble Mr. Justice Sandeep Mehta of the Rajasthan High Court, Jodhpur in S.B. Criminal Leave to Appeal No. 74/2012-Nathu Ram Bansal vs. State of Rajasthan dt. 28.02.2013 is also no help here because unfortunately that judgment has also not considered the impact of the amended proviso to Section 372, Cr.P.C. in proper perspective. So the aforesaid rulings also do not come in the way of process of filing of appeal by victim against acquittal order passed by Magistrate before the concerned Sessions Judge. On the other hand, I get support from 2012(4) Cr. L.R. (Raj.) 2015) Laxmi Lal Menaria vs. Rajendra Kumar (Judgment dt. 01.05.2012) wherein Hon''ble Mr. Justice Dalip Singh of the Rajasthan High Court has held that once the Section 372, Cr. P.C. has been amended, the appeal against acquittal by the Magistrate would lie to the Court of Sessions and leave to appeal in such matters should not be granted by the High Court ordinarily.

Resultantly, the petition for leave to appeal of the complainant Nirmal Jeet Rana is hereby returned to the petitioner for presentation before the Court of Sessions Judge, Jodhpur Metropolitan. The office shall return the original application/appeal to the petitioner after making proper endorsements on it and after retaining a true copy thereof. The petitioner shall thenafter immediately present the same, if the choses to do so to the concerned Sessions Judge, who will entertain and decide the same on merits as expeditiously as possible. The parties are directed to appear before learned Sessions Judge, Jodhpur Metropolitan for this purpose on 18.04.2013 at 10.00 a.m.

The delay caused and time consumed by this Court in disposing the matter will not affect prejudicially to the appellant under the law of limitation and this delay will be ignored by the lower Court under this order. The petition for leave to appeal is hereby disposed of accordingly.