J&K HC Says Injured Man Cannot Appeal Police-Case Acquittal, But Reopens Trial After Just 3 Witnesses In 7½ Years

The petitioner, an injured person in an alleged assault, sought special leave under Section 417(2) of the J&K Code of Criminal Procedure to appeal the respondents’ acquittal.

The case arose from a police-registered FIR and charge-sheet concerning an alleged assault on 17 September 2005.

During approximately 7½ years of trial, the prosecution examined only three witnesses; the injured witness’s cross-examination remained incomplete, and the petitioner, another injured witness, was not examined.

The trial court acquitted the accused on 26 July 2016.

Section 417(2) of the J&K Code permits a complainant in a case instituted upon complaint to seek special leave to appeal an acquittal; it does not confer that right on a victim in a police case.

Section 404 of the J&K Code, corresponding to Section 372 of the Central Code, provides that no criminal appeal lies except as provided by the Code or another law.

The victim’s appeal proviso added to Section 372 of the Central Code in 2009 was not added to the J&K Code.

Relying on Mahabir & Ors. v. State of Haryana, Criminal Appeal Nos. 5560–5561 of 2024, 2025 INSC 120, the Court applied the principle that a right of appeal is substantive and cannot be extended retrospectively absent express provision or necessary implication.

Section 561-A preserves the High Court’s inherent power to prevent abuse of process and secure the ends of justice.

Because the prosecution arose from a police charge-sheet, the petitioner was not a complainant entitled to seek special leave under Section 417(2).

The absence of a corresponding victim-appeal amendment in the J&K Code meant that the petitioner could not rely on the 2009 proviso to Section 372 of the Central Code.

Separately, the prolonged trial had produced only limited evidence, with the injured witnesses’ testimony incomplete or absent.

The Court attributed the failure to the prosecution, investigating agency, and trial court, and held that intervention under Section 561-A was warranted to prevent a failure of justice.

Exercising its inherent jurisdiction under Section 561-A, however, it reopened and remanded the case for trial in accordance with law, directing the trial court to endeavour to conclude the proceedings within six months of receiving the order.