Naval Kishore Mishra v. State of U.P. & Ors.
The following Order of the Court was passed :
O R D E R
1. Leave granted.
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2. We have heard learned counsel for the respondent-S tate 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.
4. The accused were acquitted by the trial Court in terms of the
Judgment dated 19.12.2016.
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 Cour t has already refused to grant
leave and the government appeal itself stood dismissed in
reference to the r efusal to grant leave, it will not be congr uous
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 :
“Pr ovided that the victim shall have a right to pr efer an appeal
against any or der passed by the Cour t 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 or dinarily lies against the or der of conviction of
such 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 .
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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 S tate has been
considered and is no more res integra in view of the recent Judgment of
this Court in Mallikarjun Kodagalli (d) through legal representatives Vs.
State of Karnataka & Ors .1 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.
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 r epresentatives(supra) would show that the appellant
had a right to file the appeal and in fact no leave has to be sought in such
a situation. Thus, the appeal has to be dealt as a regular 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.
Nidhi Jain Matter remitted to High Court
NAVAL KISHORE MISHRA v. STATE OF U.P. & ORS.
12019(2) SCC 752