Sukhdev Singh vs Rajwinder Singh and Others

Rekha Mittal, J.—The present petition lays challenge to order dated 17.8.2011 passed by the Additional Sessions Judge, Tarn Taran whereby application filed by the petitioner for permitting him to pursue the criminal appeal filed by appellant Parkash Kaur (since deceased) has been dismissed. Briefly stated, a criminal case FIR No. 119 dated 28.11.2000 under Sections 494, 498-A IPC was registered at Police Station Goindwal Sahib. On competition of investigation, charge sheet was submitted in the Court of Judicial Magistrate at Tarn Taran. The respondents Rajwinder Singh and others arrayed as accused in the said case, were acquitted by the trial Court, vide its decision dated 10.7.2008. During pendency of the proceedings before the trial Court, Sukhwinder Kaur, complainant in the case and daughter of Parkash Kaur passed away. Parkash Kaur challenged acquittal of the respondents by filing an appeal before the Court of Additional Sessions Judge, Tarn Taran. During pendency of the appeal, Parkash Kaur, mother of the petitioner, passed away and the petitioner submitted an application seeking necessary permission as detailed here in above. The appellate Court, vide impugned order dated 17.8.2011 dismissed the application as well as the appeal. A relevant extract from order passed on 17.8.2011 reads as follows:-

The applicant or his mother Parkash Kaur were not competent to file the appeal on 28.8.2008 as a right to file appeal against acquittal in cognizable offence was given to the victim or their legal heirs only by the amending Act 5 of 2009 that was made effective w.e.f. 31.12.2009. A proviso to Section 372 of the Code of Criminal Procedure has no retrospective effect and so in the year 2008, Parkash Kaur had no right to prefer an appeal against acquittal in cognizable case instituted on a police report. Although learned counsel for appellant relied upon the law laid down by Hon''ble Supreme Court of India in Raman Kant Verma vs. State of U.P. & Ors. reported as 2009 (2) ACJ 115 while contending that interested private party can file appeal, but the said judgment only infers to the powers of the Hon''ble Supreme Court of India to hear applications against acquittal by the High Court at the instance of private party, under article 136 of the Constitution only. The Code of Criminal Procedure before amendment prior to 31.12.2009 did not provide for any right to the victim or his legal heir to file an appeal against acquittal. Such right vested with the State only. Hence, permission is not grantable to the applicant to continue with the appeal. As a result, application is dismissed. Appeal stands also dismissed.

Counsel for the petitioner has not disputed that Parkash Kaur was not competent to file an appeal against judgment of acquittal passed by the trial Court as in August, 2008 (the month in which the appeal was filed), the complainant or victim did not have a right to file an appeal against acquittal in a cognizable offence which right was given to the victim for the first time by Amending Act No. 5 of 2009, came into force with effect from 31.12.2009. Counsel for the petitioner is fair enough to concede that she could not lay her hands on any precedent or law that an appeal could be maintained by complainant Sukhwinder Kaur or her mother against acquittal of the respondents before enforcement of Amending Act No. 5 of 2009 whereby a proviso to Section 372 of the Code of Criminal procedure has been incorporated, giving right to a victim to prefer an appeal against acquittal in cognizable case instituted on a police report.

In view of the above, I do not find any error much less illegality or perversity in the order passed by the Additional Session Judge, Tarn Taran. In the result, the petition is dismissed.