Sharmila vs The State rep by the Inspector of Police
- Court
- Madras High Court
CRL OP No. 31169 of 2026
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 03.11.2026
PRONOUNCED ON : 11.11.2026
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
CRL OP No. 31169 of 2026
CNR:{HCMA012553492026}
AND
CRL A SR NO. 62590 OF 2026
Sharmila
W/o S. Selvamuthukumaran,
D-85, 18th 3rd Cross Street,
Periyar Nagar, Chennai. 600082
Presently residing at
Door No. 84D Block 84,
Central GPRA Quarters,
Indira Nagar, Gochibowli, Hyderabad.
..Petitioner(s)
Vs
1. The State rep by the Inspector of Police
K-11, CMBT Police Station,
Koyambedu, Chennai.
2. Selvamuthukumaran
S/o Sundaram,
No.B5/7, SAF Games Village,
Koyambedu, Chennai.
..Respondent(s)
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CRL OP No. 31169 of 2026
CRL A SR No. 62590 of 2026
CNR:{HCMA012283042026}
Sharmila
..Appellant(s)
Vs
The State rep by
the Inspector of Police
..Respondent(s)
Criminal Original Petition filed under Section 419(4) of BNSS, to grant
Special Leave by permitting the petitioner to prefer an Appeal before this
Honorable Court against the judgment passed by the learned Sessions
Judge, Mahalir Neethimandram Allikulam, Chennai in SC No.417 of
2022 by judgment dated 24-7-2026.
For Petitioner(s): Mr.Swami Subramanian
For Respondent(s): Ms.Sharada Vivek
Additional Public Prosecutor for R1
---
Mr.Abudu Kumar Rajaratnam,
Sr. Counsel. (AMICUS CURIAE)
Order
This Criminal Original Petition has been filed by the
petitioner/victim, seeking special leave to prefer an appeal before this
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Court against the judgment passed by the learned Sessions Judge, Mahalir
Neethimandram, Allikulam, Chennai in S.C.No.417 of 2022 by judgment
dated 24.07.2026.
nd
2. The victim [PW1] in the aforesaid Sessions Case, wherein the 2
respondent herein/accused was tried for the offences under Sections 326 /
307, 498A and 506(ii) of the IPC, has preferred the above appeal,
aggrieved by the judgment of acquittal. She has filed the captioned
petition seeking leave to file an appeal.
3. When this Court asked the learned counsel for the
petitioner/victim as to why he had to seek leave to file an appeal, he cited
the judgment of a learned single Judge [Hon’ble Mr.Justice M. Nirmal
Kumar] of this Court in Crl.A.No.592 of 2016 dated 19.08.2026 , in
Sreekanth vs. Saroja @ Sadhana and another , in which this Court had
observed as follows:
“12.Thus, the Hon’ble Apex Court, in Satya Pal Singh [(2015)
15 SCC 613] and Subash Chand [(2013) 1 SCC 17], held that an
appeal against acquittal, preferred both under Section 378(4) Cr.P.C.
and under the proviso to Section 372 Cr.P.C., can be entertained only
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after obtaining the requisite leave, and such leave can be granted only
by High Court.
13.In view of the above, any appeal against acquittal preferred
by a complainant under Section 378(4) Cr.P.C. or by a victim under
the proviso to Section 372 Cr.P.C. can be filed only before the High
Court, along with an application seeking leave.”
4. Since this Court was prima facie of the view that a victim in a
case instituted on a police report has a right of appeal, in view of the
proviso to Section 372 of the Cr.P.C., this Court had asked the learned
counsel for the petitioner to produce all the relevant judgments and had
also appointed Mr. Abudu Kumar Rajaratnam, learned Senior Counsel, as
Amicus Curiae .
5. The learned counsel for the petitioner and Mr. Abudu Kumar
Rajaratnam, learned Amicus Curiae submitted that the judgment of this
Court in the above referred appeal is contrary to the judgment of the
Hon'ble Supreme Court in Mallikarjun Kodagali v. State of Karnataka,
reported in (2019) 2 SCC 752 and subsequent judgments insofar as the
right of the victim to prefer an appeal in a case constituted on a police
report.
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6. The learned counsels brought to the notice of this Court the
following cases:
(i) Subash Chand v. State (Delhi Administration [(2013) 2 SCC 17]
(ii) Satya Pal Singh v. State of Madhya Pradesh & Others [(2015) 15
SCC 613];
(iii) Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752;
(iv) K.Rajalingam v. R.Suganthalakshmi [Madras High Court –
Crl.A.Nos.89 & 90 of 2020 and Crl.R.C.Nos.494 & 536 of 2019
dated 28.05.2020];
(v) Joseph Stephen and Others v. Santhanasamy and Others [2022
LiveLaw (SC) 83);
(vi)A.Kaliyaperumal v. Superintendent of Police [2024 SCC OnLine
Mad 4279];
(vii)Asian Paints Ltd. v. Ram Babu & Another [ 2025 LiveLaw (SC)
697];
(viii)Khem Singh (D) through LRs v. State of Uttaranchal & Another
[2025 LiveLaw (SC) 828];
(ix)M/s.Celestium Financial v. A.Gnanasekaran etc., [2025 LiveLaw
(SC) 666];
(x)M/s. Everest Automobiles v. M/s.Rajit Enterprises [2026 LiveLaw
(SC) 155];
(xi)Sreekanth vs. Saroja @ Sadhana and another [Madras High Court -
Crl.A.No.592 of 2016 dated 19.08.2026];
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7. Both the learned counsels would submit that a reading of all the
abovesaid judgments would clearly indicate that there is a distinction
between the 'complainant' and the 'victim', and that a 'complainant' in a
case instituted on a complaint, has to be dealt with differently and cannot
be deemed to be a 'victim', who would be entitled to file an appeal under
the proviso to Section 372 of the Cr.P.C., and that the 'complainant'
would have to file an appeal only before this Court after obtaining leave
in terms of Section 378(4) of the Cr.P.C.
8. At the outset, this Court wishes to make it clear that this case is
not a case instituted on a complaint. The petitioner/appellant is a victim in
a case instituted on a police report. No leave is required for a victim
under the proviso to Section 372 of the Cr.P.C., which is clear on a plain
reading of the said proviso. However, in a case instituted on a complaint,
the question as to whether a complainant who is also a victim is entitled
to file an appeal under the proviso to Section 372 of the Cr.P.C., or not
has been debated not only by this Court, but also by the Hon'ble Supreme
Court in several cases.
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9. There is no need for such a debate in this case, since, as stated
above, the case is instituted on a police report. But this order is
necessitated because of the observations made by my learned brother,
Justice M.Nirmal Kumar, which is extracted above. Due to the said order,
the Registry is now insisting on the filing of a Special Leave Petition in
an appeal against acquittal filed by the victim in a case instituted on
police report also.
10. The learned brother, Justice M.Nirmal Kumar, who had made
the aforesaid observations had relied upon the order passed by the
Hon'ble Supreme Court in M/s.Everest Automobiles's case [supra],
wherein the Hon'ble Supreme Court had doubted the proposition of law
laid down by another Co-ordinate Bench of the Hon'ble Supreme Court in
M/s.Celestium Financial's case [supra], in which the Hon'ble Supreme
Court had held that the complainant in a case instituted on a complaint, if
is a victim, would also be entitled to file an appeal under the proviso to
Section 372 of the Cr.P.C. The Hon'ble Supreme Court in M/s.Everest
Automobiles's case [supra] felt that the above observations are contrary
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to the earlier decisions of the Hon'ble Supreme Court in Satya Pal
Singh's case [supra] and Subhash Chand's case [supra].
11. Justice M.Nirmal Kumar, therefore, observed that in Satya Pal
Singh's case [supra] and Subhash Chand's case [supra], the Hon'ble
Supreme Court had held that even a victim, who prefers an appeal under
proviso to Section 372 of the Cr.P.C., also has to apply for leave from the
High Court; that if there are two conflicting judgments of the Co-ordinate
Benches of the Hon'ble Supreme Court, the High Courts are bound by the
earlier view; and by saying so, the learned Judge, had made the aforesaid
observations.
12. It appears that the other judgments of the Hon'ble Supreme
Court were not brought to the notice of the learned brother, Justice
M.Nirmal Kumar, which would make it very clear that if a victim, in a
case instituted on a police report, prefers an appeal against acquittal, no
leave is required, as he has a right of appeal.
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13. Before we deal with those cases, this Court intends to narrate
the manner in which the provisions were interpreted at various stages by
this Court and the Hon'ble Supreme Court.
(i) In Satya Pal Singh's case [supra], the Hon'ble Supreme Court
was dealing with a case which was instituted on a police report. This
judgment was rendered by two Hon'ble Judges of the Supreme Court. The
Hon'ble Judges held that though the proviso gave a right of appeal to the
victim, the said right is subject to the other provisions of the Cr.P.C.,
which requires leave to be obtained from the High Court to challenge the
judgment of acquittal.
(ii) In Subhash Chand's case [supra], the Hon'ble Supreme Court
had dealt with the amendment made to Section 378(1)(a) of the Cr.P.C.,
which permits the District Magistrate to direct the Public Prosecutor to
present an appeal to the Court of Session from an order of acquittal
passed by the Magistrate in respect of a cognizable and non-bailable
In t
offence. his judgment, neither the right of the victim nor the need for
the victim to seek leave to file an appeal, was dealt with.
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(iii) In M/s.Celestium Financial's case [supra], the Hon'ble
Supreme Court was dealing with a case instituted on a complaint for the
offence under Section 138 of the Negotiable Instrument Act. The Hon'ble
Supreme Court held that even in a case instituted on a complaint, if the
complainant is a victim, he would have a right to prefer an appeal by
virtue of the proviso to Section 372 of the Cr.P.C. This view of the
Hon'ble Supreme Court was doubted in M/s.Everest Automobiles's case
[supra] wherein the Hon'ble Supreme Court had observed that the
distinction between the 'victim' and the 'complainant', has to be borne in
mind.
(iv) In all these cases, except for Satya Pal Singh's case [supra],
the Hon'ble Supreme Court was dealing with cases instituted on a
complaint. In fact, a Full Bench of this Court in S.Ganapathi v.
N.Senthilvel, reported in 2016 (3) MLJ (Crl) 641 , had held that a
complainant can also be a victim and therefore, entitled to prefer an
appeal in terms of the proviso to Section 372 of the Cr.P.C. Another Full
Bench of this Court in K.Rajalingam’s case [supra] had held that a
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complainant, although a victim, cannot be equated with a victim in a
police report and therefore, an appeal against acquittal in a case instituted
on a complaint would lie only to the High Court, after obtaining Special
Leave to Appeal.
(v) After M/s.Celestium Financial's case [supra], another learned
Judge of this Court [Hon’ble Mr.Justice G.K.Ilanthiraiyan] in SPAC
Tapioca Products (I) Limited's case [supra] had held that a complainant
in a case instituted for the offence under Section 138 of the Negotiable
Instruments Act, is entitled to file an appeal before the Sessions Court
and directed the Registry not to number any appeal against acquittal
instituted after 04.07.2025.
(vi) This Court makes it clear that in this case the said issue does
not arise as this Court is not dealing with an appeal against acquittal in a
case instituted on a complaint.
(vii) The learned brother, Justice M.Nirmal Kumar, was dealing
with a case instituted on a complaint. The observations in his order,
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which is extracted above, is that an appeal against acquittal preferred
under the proviso to Section 372 of the Cr.P.C., can be filed only before
the High Court after obtaining leave. The above observation therefore,
suggests that a victim in a case instituted on a police report has to be
treated on par with the complainant and has to seek leave from this Court
to challenge the judgment of acquittal.
(viii) The said observation is not in conformity with the law laid
down by the Hon'ble Supreme Court. As stated above, certain other
judgments of the Hon'ble Supreme Court were not brought to the notice
of the learned brother, Justice M.Nirmal Kumar.
(ix) In Mallikarjun Kodagali's case [supra], this very question
came up for consideration. In that judgment, authored by three Hon'ble
Judges, the Hon'ble Supreme Court after referring to various provisions
and decisions of various Courts including Satya Pal Singh's case
[supra], had held as follows:
“74. 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
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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 of the Cr.P.C. must be given life, to
benefit the victim of an offence.
75. 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) of the
Cr.P.C. 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.
76. 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 of the
Cr.P.C. is quite clear, particularly when it is contrasted with the
language of Section 378(4) of the Cr.P.C. 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) of the Cr.P.C. 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 of the Cr.P.C. is concerned.”
(x) Following this judgment, the Hon'ble Supreme Court in Joseph
Stephen's case [supra] had held as follows:
“10. Now so far as issue no.2, namely, in a case where no
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appeal is brought though appeal lies under the Code, whether revision
application still to be entertained at the instance of the party who could
have appealed, the answer lies in sub-section (4) of Section 401
Cr.P.C. itself. Sub-section (4) of Section 401 Cr.P.C. reads as under:
“(4) Where under this Code an appeal lies and no appeal
is brought, no proceeding by way of revision shall be
entertained at the instance of the party who could have
appealed.”
10.1 It cannot be disputed that now after the amendment in
Section 372 Cr.P.C. after 2009 and insertion of proviso to Section 372 Cr.P.C.,
a victim has a statutory right of appeal against the order of acquittal.
Therefore, no revision shall be entertained at the instance of the victim against
the order of acquittal in a case where no appeal is preferred and the victim is to
be relegated to file an appeal. Even the same would be in the interest of the
victim himself/herself as while exercising the revisional jurisdiction, the scope
would be very limited, however, while exercising the appellate jurisdiction,
the appellate Court would have a wider jurisdiction than the revisional
jurisdiction. Similarly, in a case where an order of acquittal is passed in any
case instituted upon complaint, the complainant (other than victim) can prefer
an appeal against the order of acquittal as provided under sub-section (4) of
Section 378 Cr.P.C., subject to the grant of special leave to appeal by the High
Court.
10.2 As observed by this Court in the case of Mallikarjun
Kodagali (supra), so far as the victim is concerned, the victim has not to pray
for grant of special leave to appeal, as the victim has a statutory right of appeal
under Section 372 proviso and the proviso to Section 372 does not stipulate
any condition of obtaining special leave to appeal like sub- section (4) of
Section 378 Cr.P.C. in the case of a complainant and in a case where an order
of acquittal is passed in any case instituted upon complaint. The right provided
to the victim to prefer an appeal against the order of acquittal is an absolute
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right. Therefore, so far as issue no.2 is concerned, namely, in a case where the
victim and/or the complainant, as the case may be, has not preferred and/or
availed the remedy of appeal against the order of acquittal as provided under
Section 372 Cr.P.C. or Section 378(4) , as the case may be, the revision
application against the order of acquittal at the instance of the victim or the
complainant, as the case may be, shall not be entertained and the victim or the
complainant, as the case may be, shall be relegated to prefer the appeal as
provided under Section 372 or Section 378(4) , as the case may be. Issue no.2
is therefore answered accordingly.” [emphasis supplied]
(xi) Similarly, in Asian Paints Limited's case [supra], the Hon'ble
Court had held as follows:
“49. The law on the issue has been enunciated by the 3-Judge
Bench, by a majority of 2:1, in Mallikarjun Kodagali (supra), which
squarely applies to the instant matter. The exposition on the term
‘victim’ by 3 learned Judges in Paragraph 23 of Jagjeet Singh (supra)
has already been taken note of by us hereinabove, with which we
respectfully concur.
50. We may also indicate that the view taken by us that the right
of a victim to prefer an appeal as granted under the proviso to Section
372 of the CrPC, which was inserted vide Section 29 of Act V of 2009,
with effect from 31.12.2009, is not restricted by any other provision of
the CrPC . It serves the salutary purpose of safeguarding the rights of
the victim. Upon detailed discussion, a Co-ordinate Bench of this
Court in Mahabir v State of Haryana , 2025 SCC OnLine SC 184
observed:
‘53. Therefore, by the aforesaid provision a right
has been created in favour of the victim, which was not
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existing earlier in the Code, i.e., that a 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.
The plain reading of the statement of objects and
reasons for introducing the proviso to Section 372 CrPC
makes it clear that it wanted to confer certain rights on
the victims. It has been noted therein that the victims
are the worst sufferers in a crime, and they don't have
much role in the court proceedings. They need to be
given certain “rights” and compensation, so that there is
no distortion of the criminal justice system. This, by
itself, is clear that the object of adding this proviso is to
create a right in favour of the victim to prefer an appeal
as a matter of right. It not only extends to challenge the
order of acquittal, but such appeal can also be filed by
the victim if the accused is convicted for a lessor
offence or if the inadequate compensation has been
imposed.
54. Thus, it is clear as per the golden rule of
interpretation, that the ‘proviso’ is a substantive
enactment, and is not merely excepting something out
of or qualifying what was excepting or goes before.
Therefore, by adding the ‘proviso’ in Section 372 of
CrPC by this amendment, a right has been created in
favour of the victim.’ (emphasis supplied)”
(xii) Therefore, the consistent view taken by the Hon'ble Supreme
Court after referring to Satya Pal Singh's case [supra] also, is that the
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victim in a case instituted on police report, has a right of appeal against
acquittal in terms of the proviso to Section 372 of the Cr.P.C.
14. All the above judgments have not been brought to the notice of
the learned brother, Justice M.Nirmal Kumar. This Court is bound by the
aforesaid law laid down by the Hon’ble Supreme Court in Mallikarjun
Kodagali’s case [supra], Joseph Stephen's case [supra] and Asian Paints
Limited's case [supra]. Hence, there cannot be any doubt or quarrel with
the proposition that a victim in a case instituted on a police report, has a
right of appeal against the judgment of acquittal and need not obtain
leave. The observations of the learned brother, Justice M.Nirmal Kumar,
to the contrary in Crl.A.No.592 of 2016, therefore, is not in conformity
with the judgments of the Hon’ble Supreme Court and hence, those
observations are not binding on this Court. Therefore, the Registry shall
not insist upon leave petitions to entertain an appeal filed by the victim in
a case instituted on a police report. As regards appeals against acquittal in
cases instituted on a complaint, since there are different views, this Court
expresses no opinion in this case, as that is not the issue before this Court.
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15. In view of the above observations, this Court holds that the
instant Criminal Original Petition is redundant and hence, the same is
closed. The Registry is directed to number the appeal and list the same
for hearing in the usual course.
16. This Court records its appreciation for the valuable assistance
rendered by Mr.Swami Subramanian, learned counsel for the petitioner
and Mr.Abudu Kumar Rajaratnam, learned Amicus Curiae.
11.11.2026
Index : yes/no
Speaking /Non-speaking order
Neutral citation : yes/no
Issue Order copy by 13.11.2026
ars
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To
1. The Sessions Judge,
Mahalir Neethimandram,
Allikulam, Chennai
2. The Inspector of Police,
K-11, CMBT Police Station,
Koyambedu,
Chennai - 600 107
3. The Public Prosecutor,
High Court, Madras.
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CRL OP No. 31169 of 2026
SUNDER MOHAN J.
ars
Pre-delivery order in
CRL OP No. 31169 of 2026
AND
CRL A SR NO. 62590 OF 2026
11.11.2026
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