Conflicting opinions on victim’s right to appeal; matter referred to a larger Bench

Allahabad High Court: Whether the victim in a criminal complaint case against the acquittal order can prefer appeal before the Sessions Judge or such appeal would lie before the High Court under Section 372 CrPC or with the leave of Court under Section 378(4) CrPC – this was the matter under consideration in the instant case. While disagreeing with the Single Bench decisions in Ashok Kumar Srivastava v. State of Uttar Pradesh, 2012 SCC OnLine All 630 and Ved Prakash Yadav v. State of Uttar Pradesh, Criminal Revision No. 3539 of 2015, the Single Bench of Om Prakash, J. has referred the matter to a larger bench for an authoritative pronouncement on the issue.

In the instant case, the applicant had filed a complaint under Section 138 of the Negotiable Instrument Act against the opposite party because two cheques issued by the opposite party were dishonoured. The Magistrate after trial acquitted the opposite party. The applicant thereafter filed a criminal appeal which was dismissed on the grounds that the appeal against acquittal in a complaint case would not be maintainable before the Sessions Judge and the acquittal order can be challenged only before the High Court under Section 378(4) CrPC with the leave of the Court. The High Court, previously in Ashok Kumar Srivastava, and Ved Prakash Yadav, had held that the appeal against the order of acquittal, by the complainant as well as the victim was maintainable before the Sessions Judge under Section 372 CrPC, and they shall not be compelled to seek the leave of the High Court.

The Court, in the instant case, opined that the complainant against an order of acquittal can only approach the High Court under Section 378(4) CrPC and appeal will not be maintainable before the Sessions Judge under Section 372 CrPC. Further, the Court was of the opinion that if victim is someone other than the complainant, he may prefer appeal under Section 372 CrPC without leave of the Court, but only before the High Court. Expressing its inability to subscribe to the views expressed in Ashok Kumar Srivastava and Ved Prakash Yadav, the Court placed the matter before the Chief Justice under the High Court Rules for constituting a larger Bench to resolve the conflict. [Anil Kumar Agarwal v. State of Uttar Pradesh, 2017 SCC OnLine All 215, decided on January 25, 2017]

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