Full Judgment Text
Crl.Appeal No.979/2019
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.979 OF 2019
(@ Special Leave Petition (Crl.)No.1642 of 2018)
NAVAL KISHORE MISHRA Appellant (s)
VERSUS
STATE OF U.P. & ORS. Respondent(s)
O R D E R
1. Leave granted.
2. We have heard learned counsel for the
respondent-State and learned counsel for the
appellant. The other respondents have been served
but none has entered appearance.
3. The accused-respondents were put to trial in
Sessions trial No.80 of 2014 titled State Vs.
Brindavan & Ors. arising out of criminal case No.53
of 2014 under Sections 452, 302/34 of the Indian
Penal Code.
Signature Not Verified
Digitally signed by
CHARANJEET KAUR
Date: 2019.09.21
10:57:37 IST
Reason:
4. The accused were acquitted by the trial Court
in terms of the Judgment dated 19.12.2016.
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5. The State aggrieved by the said order sought
leave to appeal in Government Appeal No.1947 of
2017. In terms of Section 372 read with Section 378
of the Code of Criminal Procedure, 1973 (“CrPC” for
short) such leave was declined vide order dated
18.04.2017.
6. The appeal filed by the victim, however, came
up before the Court after the aforesaid transpired
and vide impugned order dated 23.11.2017 has been
dismissed on the following ground:
“Since another Bench of this Court has already
refused to grant leave and the government appeal
itself stood dismissed in reference to the
refusal to grant leave, it will not be congruous
to unfold another course keeping pending to this
appeal.”
7. Learned counsel for the State has contended
that the rights of the victim have been enlarged in
terms of the amendment carried out by insertion of
proviso to Section 372 of the CrPC by Amendment Act
5 of 2009 with effect from 31.12.2009. The
provision 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 lie to the Court to which an appeal
ordinarily lies against the order of conviction of such
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Court.
8. We may notice that Section 2(wa) defines victim
as under:
victim” means a person who has suffered any loss or
“
injury caused by reason of the act or omission for
which the accused person has been charged and the
expression “victim” includes him or her guardian or
legal heir.
9. In the present case the victim, thus, includes
him or her guardians or legal heirs. The deceased
was unmarried and the victim is the real brother
and, thus, would fall under the category of legal
heir of the deceased.
10. It is, however, submitted by her that the
question whether the victim would also have to seek
leave as would be a situation envisaged under
Section 378 of the Cr.P.C as in the case of the
State has been considered and is no more res integra
in view of the recent Judgment of this Court in
Mallikarjun Kodagalli (d) through legal
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representatives Vs. State of Karnataka & Ors. where
this Court opined that there is no need for a victim
to apply leave to appeal against the order of
acquittal while preferring an appeal under Section
372 proviso to CrPC.
1 2019(2) SCC 752
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11. In the aforesaid circumstances, it is
contended that since the right to appeal would be
available, it is different from the appeal filed by
the State seeking leave to appeal and, thus, the
appeal filed by the victim in the present case ought
not to have been dismissed at the threshold only on
the ground that no leave has been granted to the
State to appeal against the order of acquittal.
12. The aforesaid plea is naturally supported
by learned counsel appearing for the appellant.
13. We are in agreement with the aforesaid
plea since the extracted portion of the impugned
order shows that the only reason recorded for
dismissing the appeal of the victim (in fact styled
as leave to appeal) was on the ground that leave had
not been granted to the Government to file the
appeal.
14. The legal position enunciated in
Mallikarjun Kodagalli (d) through legal
representatives (supra) would show that the
appellant had a right to file the appeal and infact
no leave has to be sought in such a situation.
Thus, the appeal has to be dealt as a regular
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appeal.
15. In view of the aforesaid, we set aside the
order of the High Court and allow the appeal
remitting the appeal to be considered by the High
Court on merits.
.........................J.
(SANJAY KISHAN KAUL)
.........................J.
(K.M. JOSEPH)
NEW DELHI
JULY 5, 2019
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ITEM NO.44 COURT NO.13 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition for Special Leave to Appeal (Crl.) No.1642/2018
(Arising out of impugned final judgment and order dated 23-11-2017
in Criminal Misc. Application Defective U/s 372 Cr.P.C (leave to
appeal) No.61/2017 passed by the High Court of Judicature at
Allahabad)
NAVAL KISHORE MISHRA Petitioner(s)
VERSUS
STATE OF UTTAR PRADESH & ORS. Respondent(s)
(IA No. 25821/2018 - EXEMPTION FROM FILING O.T.)
Date : 05-07-2019 These matters were called on for hearing today.
CORAM : HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE K.M. JOSEPH
For Petitioner(s) Mr. M.Z. Choudhary, adv.
Mr. Aftab Ali Khan, AOR
Mr. Syed Imtiyaz Ali, Adv.
Mr. Syed Mohammed Aatif, Adv.
Ms. Afreen Fatima, Adv.
For Respondent(s) Ms. Ruchira Goel, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is allowed in terms of the signed
reportable order.
Pending application(s), if any, shall also stand
disposed of.
(POOJA ARORA) (ANITA RANI AHUJA)
COURT MASTER COURT MASTER
(Signed Reportable Order is placed on the file)