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Appeal against acquittal by Magistrate in private complaints can only be moved in High Court u/Section 378, CrPC: Madras HC corrects course

A Full Bench of the High Court on Thursday found that a 2016 Ruling to the contrary was rendered per incuriam. As a result, the Full Bench has also issued directions to correct the practical fallout of the 2016 ruling.

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The Madras High Court has ruled that a challenge to an acquittal order passed by a Magistrate Court in a private criminal complaint must be moved before the High Court under Section 378 (4) of the Code of Criminal Procedure (CrPC). (K Rajalingam and ors v. R Suganthaalakshmi and ors. - Madras High Court FB Judgment)

The Full Bench of Justices MM Sundresh, V Bharathidasan and Anand Venkatesh passed the ruling while holding that the contrary ruling of another Full Bench of the High Court in S.Ganapathy v. N.Senthilvel was per-incuriam.

The Court explained that the legal path when it comes to challenging acquittal orders by the trial court for a private complainant (such as a complainant in a cheque bouncing case) is different from that of a victim in a police report.

Unlike a complainant, a victim can file an appeal against an order of acquittal before the Sessions Court under the proviso to Section 372 of the CrPC. When it comes to private complaints, however, the Court has now clarified as follows,

"As against an order of acquittal passed by a Magistrate on a complaint, an appeal will lie only before the High Court, under Section 378 (4) of Cr.PC. In such cases, the complainant has to seek for Special leave under Section 378 (5) of Cr.PC."
Madras High Court

The lead judgment was authored by Justice Sundresh on behalf of Justice Bharathidasan and himself.

In his concurring judgment, Justice Venkatesh notes that a victim in a case rooted in a Police Report and a complainant in a case arising out of a private complaint have been given a separate path to work out their right of appeal.

"One cannot cross over into the path of the other and the Hon'ble Supreme Court has only reiterated the scheme that is already available under the Code of criminal procedure", he observed.

Notably he also adds that "almost all the High Courts (13 High Courts) have held that a complainant can file an Appeal against acquittal only before the High Court under Section 378 (4) of Cr.PC."

Why the 2016 S Ganapathy judgment came under doubt

Justice PN Prakash of the High Court had referred the issue for a larger Bench to decide after he doubted the correctness of the 2016 S Ganapathy judgment.

The S Ganapathy had been passed while placing substantial reliance on the Supreme Court's Division Bench ruling in Satya Pal Singh V. State of Madhya Pradesh and others (2015).

In the Satya Pal case, the Court had found that the term victim also includes a complainant. Therefore, it was held that a complainant can also invoke the proviso to Section 372 of CrPC and file an appeal against an order of acquittal.

However, Justice Prakash found that the S Ganapathy judgment had been passed without considering an earlier three-judge Bench ruling of the Supreme Court in Damodar S. Prabhu v. Sayed Babalal H (2010).

Contrary to the ruling in the Satya Pal case, the top Court in Damodar S Prabhu ruled, "In the case of acquittal by the JMFC (as is the case in private complaints), the complainant could appeal to the High Court under Section 378(4) of the CrPC, and thereafter for special leave to appeal to the Supreme Court under Article 136. In such an instance, therefore, there will be three levels of proceedings."

Further, the High Court also noted that an allied ruling had been passed last year by the Supreme Court in Mallikarjun Kodagali (Dead) Represented through Legal Representatives v. State of Karnataka, whereby it was held that a victim in a final Report filed by the police before the Court stands on a different footing than that of the complainant, who initiates action through a complaint.

Therefore, it was held that an appeal by the victim is maintainable under the proviso to Section 372 of CrPC sans a special leave, which is otherwise required under Section 378(4) of Criminal Procedure Code (including for private complainants).

The Court, therefore, concluded,

"The decision rendered in S.Ganapathi case is declared as a judgement per-incuriam, since it has been decided without reference to the binding authority in Damodar S.Prabhu and Subash Chand. That apart it is no longer a good law by virtue of the judgement of the Hon’ble Supreme Court in Mallikarjun Kodagali."
Madras High Court

Undoing the mistake of the S Ganapathy case

Following the S Ganapathy ruling in 2016, the High Court had directed the Registry to transfer all the pending appeals before it to Sessions Courts, including pleas challenging acquittal orders in private complaint cases.

Having ruled that the S Ganapathy case was per incuriam, the Court now set out to rectify its error by invoking the rule of restitution with the principle of actus curiae neminem gravabit.

The Court observed, "When a mistake is committed by a Court, a duty is imposed upon it to do complete justice while rectifying it. This doctrine is a common law principle."

The Court, therefore, issued the following directions:

  • Appeals remanded to the Sessions Court pursuant to S Ganapathi should be transferred back to the file of the High Court. The same effect will be given even for cases where the original appeal was filed before the Sessions Court and is pending.

  • Where the Sessions Court has confirmed an acquittal order passed by the Magistrate and a revision petition by the complainant is before the High Court, the order of Sessions Court must be disregarded. The revision petition filed before the High Court must be treated as an appeal by virtue of Section 401(5) of the CrPC.

  • Where, an acquittal order has been confirmed by the Sessions Court and it has not become final or it has not been acted upon by the parties and the complainant wants to challenge the same, he shall file a criminal appeal before the High Court, disregarding the order passed by the Sessions Court. The limitation period to move the appeal shall be calculated from the date on which the Sessions Court order was made ready. In such cases, the complainant has to seek for a Special leave under Section 378 (5) of CrPC

  • Where the Sessions Court has reversed an acquittal order passed by the Magistrate and the same has been challenged by the accused before the High Court through a revision petition, the same should be treated as an appeal pending before the High Court against the order of acquittal. The order passed by the Sessions Court would be disregarded.

  • Where the Sessions Court has reversed the order of acquittal passed by the Magistrate and convicted the accused and this order has not become final or the same has not been acted upon, the accused person has to necessarily challenge the said order by filing a criminal revision petition before this Court by quoting this Full Bench judgement. After notice is served on the complainant and he enters an appearance, the same should be treated as an appeal pending before the High Court against the order of acquittal, by disregarding the Sessions Court order. .

The Court clarified, further, that the following kinds of cases cannot be re-opened by virtue of this judgment, i.e.

  • In cases where, either after remand or by means of filing, an appeal has been finally decided by the Sessions Court and the same has not been challenged or it has been acted upon.

  • In cases where the order of the Sessions Court was put to challenge before the High Court, either by and final orders have been passed by the High Court Court.

In these two scenarios, the Bench stated that the order passed by the Sessions Court will be final between the parties.

Read the Judgment:

K Rajalingam and ors v. R Suganthaalakshmi and ors. - Madras HC FB Judgment.pdf
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