AI Structured Summary
Not yet generated for this judgment
Judgment
DEVENDRA KUMAR UPADHYAYA, C.J.
Heard the learned counsel for the parties.
This petition invokes jurisdiction of this Court under Article 226 of the Constitution of India with the following prayers:
“a. Issue an order, or direction, declaring Proviso to Section 372 of the Cr PC 1973/ Section 413 of the BNSS, 2023 as unconstitutional, ultra vires, void, and in direct violation of Articles 14 and 21 of the Constitution of India.
OR
Clarify and declare the applicability of the proviso to Section 372 of the CrPC 1973/ Section 413 of the BNSS, 2023 as applicable to only privately instituted Complaints and not to Police Complaints and;
b. Set aside the order dated 6.4.2026, passed by the Ld. Additional Sessions Judge/Special Judge-NDPS/ASJ (South) Saket District Courts, Delhi, in CA NO. 464/24 Titled as „Suchitra Mehta VS. State NCT of Delhi & Ors in FIR NO. 247/2016, U/S 509 IPC PS: Neb Sarai, New Delhi.
c. Pass such further or other orders which this Hon‟ble Court may deem fit and proper in the facts and circumstances of the case in the interest of justice.”
The background facts in which the instant petition has been filed are as follows:
An FIR bearing no. 247/2016 was lodged by the respondent no.3 – the first informant, on 11.03.2016, under Section 509 of Indian Penal Code, 1860 [“IPC”] at Police Station [“PS”] Neb Sarai, Delhi, where the petitioner was named as an accused.
After completion of the investigation of the aforesaid FIR, a charge-sheet dated 05.08.2018 was filed against the petitioner, whereafter cognizance was taken by the Court concerned on 19.11.2018. Charge under Section 509 of IPC was framed on 01.04.2019, whereafter the petitioner pleaded “not guilty” and claimed trial.
On conclusion of trial in Criminal Case No. 5024/2018 (CNR No. DLST020313122018), the Judicial Magistrate First Class-03, South District, Saket Courts, Delhi [“Magistrate”], vide order/judgment dated 16.10.2024 acquitted the petitioner of the charge leveled against him under Section 509 IPC.
The complainant – victim instituted an appeal, being CA No. 464/2024, before the Special Judge – NDPS/ASJ (South), Saket Courts, Delhi [“Sessions Judge”], challenging the order of acquittal dated 16.10.2024 passed by the Magistrate. The said appeal has been instituted by the respondent no.3 under the proviso appended to Section 372 of the Code of Criminal Procedure, 1973 [“Cr.P.C.”]/the proviso appended to Section 413 of Bhartiya Nagrik Suraksha Sanhita, 2023 [“BNSS”].
The petitioner raised preliminary objection regarding maintainability of the appeal on the ground that since the order of acquittal has been passed by the Magistrate concerned in a bailable and cognizable offence, the appeal, if any, by the respondent no.3 could be filed only before the High Court, that too, only once leave to appeal is granted as envisaged under Section 378 (4) of the Cr.P.C.
The learned Sessions Judge rejected the objections raised on behalf of the petitioner vide the order dated 06.04.2026, which has been challenged in this petition.
Apart from challenging the order dated 06.04.2026 passed by learned Sessions Judge, the petitioner has also sought a declaration that proviso appended to Section 372 of Cr.P.C./proviso appended to Section 413 of BNSS is unconstitutional being in violation of Article 14 and 21 of the Constitution of India. An alternative prayer has also been made by the petitioner seeking a declaration that proviso appended to Section 372 of Cr.P.C./proviso appended to Section 413 of BNSS is applicable in case of only privately instituted complaint cases and not in case of a police case.
The submission of the learned counsel for the petitioner, challenging the proviso appended to Section 372 of Cr.P.C./proviso appended to Section 413 of BNSS, broadly is that the State legislature recognizing that an order of acquittal should not be lightly disturbed, has made a provision under Section 378 (4) of Cr.P.C. which mandates that an appeal against acquittal in a police case can be filed with the leave of the High Court, however, the impugned proviso destroys this protective umbrella by allowing a victim to file an appeal in a lower forum without any just judicial screening and, therefore, it is unreasonable and, thus, hit by Article 14 of the Constitution of India.
It has also been argued on behalf of the petitioner that requirement of seeking leave to appeal is a substantial right available to accused to protect him from vexatious appellate harassment, however, the impugned proviso destroys this right in a police case and permits the victim to challenge an order of acquittal by filing an appeal without seeking leave of the Court. In this view of the matter, the submission is that such a provision is, thus, arbitrary and discriminatory inasmuch as that the proviso has created a situation where the State, though, is required to seek leave to appeal, whereas the victim is permitted to file appeal challenging the order of acquittal without seeking leave to appeal.
Impeaching the impugned order dated 16.04.2026 passed by the learned Sessions Judge rejecting the preliminary objection regarding maintainability of the appeal filed by the respondent no.3 – victim against the order of acquittal, it has been argued on behalf of the petitioner that offence under Section 509 IPC is cognizable and bailable and, therefore, appeal even under the proviso appended to Section 372 of Cr.P.C./proviso appended to Section 413 of BNSS would lie only before the High Court, that too, only if leave to appeal is granted and not before Sessions Court. The submission, thus, is that learned Sessions Judge has completely failed to appreciate this legal aspect and has wrongly rejected the objections raised by the petitioner regarding maintainability of the appeal before him.
It has also been argued that the learned Sessions Judge while passing the impugned order has omitted to appreciate that the proviso appended to Section 372 of Cr.P.C./proviso appended to Section 413 of BNSS is applicable only in private complaint cases and not in State cases which commence on lodging of FIR.
Learned counsel for the petitioner has placed heavy reliance on Mallikarjun Kodagali (Dead) through Lrs. Vs. State of Karnataka and others, (2019) CRL.L.J. 532 (SC).
Opposing the writ petition, on the other hand, learned counsel for the respondent has argued that the proviso appended to Section 372 of Cr.P.C. was inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (Act No. 5 of 2009) which has been in operation w.e.f. 31.12.2009 and by virtue of this amendment right of appeal has been conferred upon the victim of an offence against an order of acquittal or where the accused has been convicted for a lesser offence and/or inadequate compensation has been awarded. It has further been argued on behalf of the respondent that the proviso permits only a victim in terms of definition of this term under Section 2(wa) of the Cr.P.C. to file appeal and in case the complainant is not a victim, the proviso to Section 372 of Cr.P.C. will not be available to such a complainant to file appeal against an order of conviction. In a situation, where the complainant is not a victim, he may file appeal against the order of acquittal only under Section 378 (4) of the Cr.P.C. before the High Court, that too, only in criminal cases instituted upon the complaint and after seeking special leave to appeal from order of acquittal from the High Court.
The submission is that if the legislature in its wisdom has conferred right on the victim to file appeal under the proviso appended to Section 372 of Cr.P.C., the same is to protect the right of victim and such provision is just, reasonable and in consonance with the recognition of right of victims.
Placing reliance on the judgment of Hon’ble Supreme Court in Celestium Financial v. A. Gnanasekaran, 2025 SCC OnLine SC 1320, it has been argued in opposition of the instant writ petition that right of a victim must be placed at par with right of an accused, who has suffered a conviction and as a matter of right can prefer an appeal under Section 372 of the Cr.P.C. without seeking leave of the Court.
On the aforesaid counts, it has also been argued that the learned Sessions Judge has not committed any irregularity or illegality by rejecting the preliminary objections raised by the petitioner in respect of the maintainability of the appeal instituted by the respondent no.3 against the order of acquittal.
We have considered the respective submissions made by the learned counsel for the parties.
The submission made on behalf of the petitioner in respect of challenging the constitutional validity of the proviso appended to Section 372 of Cr.P.C./proviso appended to Section 413 of BNSS, is that the impugned proviso casts a discrimination between the right of a victim and right of the State to challenge an order of acquittal. The contention is that in case the State has to challenge an order of acquittal passed by a Magistrate in respect of a cognizable and bailable offence, it can file an appeal under Section 378 of the Cr.P.C., however, the State for filing the said appeal has to undergo the rigors of seeking leave to appeal under sub-section 3 of Section 378 of the Cr.P.C., whereas a victim can challenge an order of acquittal in a cognizable and bailable offence by filing an appeal under the proviso appended to Section 372 of the Cr.P.C. without being required to undergo the said rigor as envisaged under Section 378(3) of the Cr.P.C. The submission, thus, is for this reason the proviso creates an anomalous situation where, in the matter of right to appeal the State is discriminated vis-à-vis the victim. It is further stated that, in fact, to remove such a discriminatory provision even a victim must also be required to go through the rigors of seeking leave to appeal in case the victim intends to challenge an order of acquittal. The aforesaid submission, in our considered opinion, is absolutely fallacious.
Hon’ble Supreme Court in Celestium Financial (supra) after discussing the various related provisions which confer right of appeal against the order of acquittal on (i) the State, (ii) the victim and (iii) the complainant, has clearly concluded that right of a victim of an offence to prefer an appeal cannot be equated with the right of State or the complainant to prefer an appeal. Paragraph 8 of the judgment in Celestium Financial (supra) records such legal principle, which is quoted hereunder:
“8.The right to prefer an appeal is no doubt a statutory right and the right to prefer an appeal by an accused against a conviction is not merely a statutory right but can also be construed to be a fundamental right under Articles 14 and 21 of the Constitution. If that is so, then the right of a victim of an offence to prefer an appeal cannot be equated with the right of the State or the complainant to prefer an appeal. Hence, the statutory rigours for filing of an appeal by the State or by a complainant against an order of acquittal cannot be read into the proviso to Section 372 of the CrPC so as to restrict the right of a victim to file an appeal on the grounds mentioned therein, when none exists.”
Celestium Financial (supra) has also observed that by adding proviso to Section 372 of the Cr.P.C., the Parliament did not intend to circumscribe the victim’s right to prefer an appeal. The Hon’ble Supreme Court has further observed that the Parliament has inserted the proviso to Section 372 of the Cr.P.C. recognizing the superior right of the victim of an offence to prefer an appeal against the order of acquittal. Celestium Financial (supra) has even gone on to conclude that a victim of a crime must have an absolute right to prefer an appeal which cannot be circumscribed by any condition precedent and such right of victim has to be placed at par with the right of an accused to file appeal against an order of conviction, who enjoys a right to prefer an appeal under Section 374 of the Cr.P.C. as a matter of right. The Hon’ble Supreme Court has observed that since a person who is a convict of a crime has been conferred with the right to prefer an appeal as a matter of right and not being subjected to any condition, similarly a victim of a crime must have a right to prefer an appeal unconditionally.
Celestium Financial (supra) clearly draws distinction between right to file appeal against an order of acquittal by the State, by the victim and by the complainant. Discussing the said distinction Celestium Financial (supra) concludes that if a complainant who is not a victim intends to file an appeal under Section 378 of the Cr.P.C., the necessity of seeking special leave to appeal would arise, however, if a victim, whether he is a complainant or not, intends to file appeal under the proviso appended to Section 372 of the Cr.P.C., then the requirement of seeking special leave to appeal would not arise. Paragraphs 7.11 and 7.12 of the judgment in Celestium Financial (supra) are relevant to be referred to, which read as under:
“7.11.A reading of section 378 would clearly indicate that in case the complainant intends to file an appeal against the order of acquittal, his right is circumscribed by certain conditions precedent. When an appeal is to be preferred by a complainant, the first question is, whether, the complainant is also the victim or only an informant. If the complainant is not a victim and the case is instituted upon a complaint, then sub-section (4) requires that the complainant must seek special leave to appeal from an order of acquittal from the High Court. As noted under sub-section (6), if the application under sub-section (4) for grant of special leave to appeal from the order of acquittal is refused, no appeal from that order of acquittal would lie, inter alia, under sub-section (1) of Section 378. However, if the complainant is also a victim, he could proceed under the proviso to Section 372, in which case the rigour of sub-section (4) of Section 378, which mandates obtaining special leave to appeal, would not arise at all, as he can prefer an appeal as a victim and as a matter of right. Thus, if a victim who is a complainant, proceeds under Section 378, the necessity of seeking special leave to appeal would arise but if a victim whether he is a complainant or not, files an appeal in terms of proviso to Section 372, then the mandate of seeking special leave to appeal would not arise.
7.12.The reasons for the above distinction are not far to see and can be elaborated as follows:
Firstly, the victim of a crime must have an absolute right to prefer an appeal which cannot be circumscribed by any condition precedent. In the instant case, a victim under Section 138 of the Act, i.e., a payee or the holder of a cheque is a person who has suffered the impact of the offence committed by a person who is charged of the offence, namely, the accused, whose cheque has been dishonoured.
Secondly, the right of a victim of a crime must be placed on par with the right of an accused who has suffered a conviction, who, as a matter of right can prefer an appeal under Section 374of the CrPC. A person convicted of a crime has the right to prefer an appeal under Section 374 as a matter of right and not being subjected to any conditions. Similarly, a victim of a crime, whatever be the nature of the crime, unconditionally must have a right to prefer an appeal.
Thirdly, it is for this reason that the Parliament thought it fit to insert the proviso to sub-section 372 without mandating any condition precedent to be fulfilled by the victim of an offence, which expression also includes the legal representatives of a deceased victim who can prefer an appeal.
On the contrary, as against an order of acquittal, the State, through the Public Prosecutor can prefer an appeal even if the complainant does not prefer such an appeal, though of course such an appeal is with the leave of the court. However, it is not always necessary for the State or a complainant to prefer an appeal. But when it comes to a victim's right to prefer an appeal, the insistence on seeking special leave to appeal from the High Court under Section 378(4) of the CrPC would be contrary to what has been intended by the Parliament by insertion of the proviso to Section 372 of the CrPC.
Fourthly, the Parliament has not amended Section 378 to circumscribe the victim's right to prefer an appeal just as it has with regard to a complainant or the State filing an appeal. On the other hand, the Parliament has inserted the proviso to Section 372 so as to envisage a superior right for the victim of an offence to prefer an appeal on the grounds mentioned therein as compared to a complainant.
Fifthly, the involvement of the State in respect of an offence under Section 138 of the Act is conspicuous by its absence. This is because the complaint filed under that provision is in the nature of a private complaint as per Section 200 of the CrPC and Section 143 of the Act by an express intention incorporates the provisions of the CrPC in the matter of trial of such a deemed offence tried as a criminal offence. Therefore, the complainant, who is the victim of a dishonour of cheque must be construed to be victim in terms of the proviso to Section 372 read with the definition of victim under Section 2(wa) of the CrPC.”
Similar view has been taken by Hon’ble Supreme Court in Khem Singh v. State of Uttarakhand, 2025 SCC OnLine SC 1778. We may also note certain observations made by Hon’ble Supreme Court in Khem Singh (supra), where it has been noticed that the proviso to Section 372 Cr.P.C. was inserted by the Central legislature in order to give an independent right to a victim to prefer an appeal and further that the object and purpose of giving an independent right to a victim to prefer appeal is particularly in a case where the complainant may not file an appeal and the State also would decide not to prefer an appeal against the order of acquittal or award of lesser sentence to the accused. It is apposite to extract observations made by Hon’ble Supreme Court in Khem Singh (supra) in paragraphs 9.1 and 9.2, which are as under:
“9.1.As already noted, the proviso to Section 372 CrPC was inserted in the statute book only with effect from 31.12.2009. The object and reason for such insertion must be realised and must be given its full effect to by a court. In view of the aforesaid discussion, we hold that the victim of an offence has the right to prefer an appeal under the proviso to Section 372 CrPC, irrespective of whether he is a complainant or not. Even if the victim of an offence is a complainant, he can still proceed under the proviso to Section 372 CrPC and need not advert to sub-section (4) of Section 378 CrPC.
9.2.We find that on the recommendation made by the Law Commission, the Parliament inserted the proviso in order to give an independent right to a victim to prefer an appeal under the circumstances mentioned under the proviso. This is de hors an appeal that could be filed by the complainant under Section 378(4) CrPC. The object and purpose of giving an independent right to a victim to prefer an appeal is particularly in a case where a complainant may not file an appeal and the State also would decide not to prefer an appeal as against the acquittal or award of a lesser sentence to an accused. If we bear in mind the object with which the amendment has been made by the Parliament, we find that the victim has every right to prefer an appeal as against a conviction for a lesser offence or for imposing inadequate compensation or even in the case of an acquittal of an accused as stated in the proviso to Section 372 CrPC.
There is no doubt that in the instant cases they are cases of acquittal of the accused bythe High Court.”
Thus, the submission made on behalf of the petitioner for assailing the constitutional validity of the proviso appended to Section 372 of Cr.P.C./proviso appended to Section 413 of BNSS allegedly being violative of Article 14 and 21 of the Constitution of India, in our opinion, is highly misconceived.
An alternative prayer has also been made by the petitioner seeking a declaration that proviso appended to Section 372 of Cr.P.C./proviso appended to Section 413 of BNSS is applicable to privately instituted complaint cases and not to police complaints. Such a declaration, in our opinion, cannot be granted by the Court for the reason that the proviso appended to Section 372 of Cr.P.C./proviso appended to Section 413 of BNSS does not restrict right to prefer an appeal against an order passed by the Court acquitting the accused or convicting an accused for lesser offence or imposing inadequate compensation, only in a case which arises out of a private complaint. By making the alternative prayer, the petitioner seeks to read something which the legislature itself has not provided for in the statute. Thus, the said prayer can also not be granted.
We may also note that though learned counsel for the petitioner has placed heavy reliance on the judgment of Hon’ble Supreme Court in Mallikarjun Kodagali (supra), however, the observations made in the said judgment, which have been relied upon by the learned counsel for the petitioner do not help the petitioner in any manner.
For example, reliance has been placed by learned counsel for the petitioner on paragraph 78 of the judgment in Mallikarjun Kodagali (supra), which is as under:
“78.As far as the question of the grant of special leave is concerned, once again, we need not be overwhelmed by submissions made at the Bar. The language of the proviso to Section 372 CrPC is quite clear, particularly when it is contrasted with the language of Section 378(4) CrPC. The text of this provision is quite clear and it is confined to an order of acquittal passed in a case instituted upon a complaint. The word “complaint” has been defined in Section 2(d) CrPC and refers to any allegation made orally or in writing to a Magistrate. This has nothing to do with the lodging or the registration of an FIR, and therefore it is not at all necessary to consider the effect of a victim being the complainant as far as the proviso to Section 372 CrPC is concerned.”
We are unable to appreciate as to how the observation made in paragraph 78 of Mallikarjun Kodagali (supra) helps the cause being sought to be espoused on behalf of the petitioner. In the said paragraph the Hon’ble Supreme Court notices the distinction between the language of the proviso appended to Section 372 of the Cr.P.C. and Section 378(4) of the Cr.P.C. Hon’ble Supreme Court has observed that Section 378(4) of the Cr.P.C. is confined to an order of acquittal passed in a case instituted upon a complaint and therefore, the same has nothing to do with the lodging or registration of an FIR.
Similarly, the observations made by the Hon’ble Supreme Court in paragraph 96 has also been relied upon by the learned counsel for the petitioner which reads as under:
”96. One also cannot be oblivious to the fact that one of the bedrocks of our criminal jurisprudence is that every person is presumed innocent unless found guilty. This presumption of innocence gets strengthened when the person is acquitted. Therefore, the legislature felt that before a person who has been acquitted after a protracted trial is called to face proceedings in the High Court in an appeal, the High Court should look into the matter and first decide whether there are sufficient reasons to grant leave to file appeal or not. This is, in a manner of speaking a preliminary hearing to decide whether the matter is worth looking into or not. I see no reason why such scrutiny should not be done in appeals filed by the victim. The victim cannot be placed on a higher pedestal than the State or the complainant.”
It is to be noticed that the observations made in paragraph 96 in Mallikarjun Kodagali (supra) comprise only the minority view of Deepak Gupta, J.(as his lordship then was). The majority view of Madan B. Lokur and S. Abdul Nazeer, JJ. clearly states that the victim as defined in Section 2(wa) of the Cr.P.C., would be entitled to file an appeal before the Court to which appeal ordinarily lies against order of conviction. The Majority view further states that, “there is no doubt that the proviso to Section 372 of the Cr.P.C. must be given life, to benefit the victim of an offence”. Further observation by the majority view in Mallikarjun Kodagali (supra) is that the proviso to Section 372 Cr.P.C. should be given a meaning which is realistic, liberal, progressive and beneficial to the victim of an offence.
Paragraphs 75, 76 and 77 of Mallikarjun Kodagali (supra) which contain the majority view are extracted herein below:
“75.In our opinion, the proviso to Section 372 CrPC must also be given a meaning that is realistic, liberal, progressive and beneficial to the victim of an offence. There is a historical reason for this, beginning with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly of the United Nations in the 96th Plenary Session on 29-11-1985. The Declaration is sometimes referred to as the Magna Carta of the rights of victims. One of the significant declarations made was in relation to access to justice for the victim of an offence through the justice delivery mechanisms, both formal and informal. In the Declaration it was stated as follows:
“4.Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.
5.Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.
6.The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:
(a)Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information;
(b)Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system;
(c)Providing proper assistance to victims throughout the legal process;
(d)Taking measures to minimise inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;
(e)Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.
7.Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilised, where appropriate, to facilitate conciliation and redress for victims.”
76.Putting the Declaration to practice, it is quite obvious that the victim of an offence is entitled to a variety of rights. Access to mechanisms of justice and redress through formal procedures as provided for in national legislation, must include the right to file an appeal against an order of acquittal in a case such as the one that we are presently concerned with. Considered in this light, there is no doubt that the proviso to Section 372 CrPC must be given life, to benefit the victim of an offence.
77.Under the circumstances, on the basis of the plain language of the law and also as interpreted by several High Courts and in addition the resolution of the General Assembly of the United Nations, it is quite clear to us that a victim as defined in Section 2(wa) CrPC would be entitled to file an appeal before the Court to which an appeal ordinarily lies against the order of conviction. It must follow from this that the appeal filed by Kodagali before the High Court was maintainable and ought to have been considered on its own merits.”
We, thus, do not find any force in the arguments made on behalf of the petitioner challenging the constitutional validity of the proviso appended to Section 372 of the Cr.P.C./proviso appended to Section 413 of the BNSS, 2023.
We also do not find any irregularity or illegality in the impugned order dated 06.04.2026 passed by the learned Sessions Judge, whereby the preliminary objections regarding the maintainability of the appeal filed by the respondent no.3 against the order of acquittal, have been rejected.
In view of the discussions made and reasons given above, the writ petition lacks merit, which is hereby dismissed along with pending application(s), if any.
There will be no order as to costs.