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June 17, 2017 at 6:01 pm #1760
In a private complaint case, the Magistrate court (called JMFC in Maharashtra) has acquitted the accused person. Can the complainant file an appeal against this acquittal order before the Sessions Court?
June 22, 2017 at 10:58 am #1820
Dr. Ashok DhamijaAdvocate
In most of the cases, the complainant is generally the victim or his relative. And, the Proviso to Section 372 of the Criminal Procedure Code now lays down 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 Court.”
Further, Section 2(wa) of Cr.P.C. defines “victim” as under:
“(wa) “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 his or her guardian or legal heir;”
Therefore, now a legal right has been given to a victim or his / her guardian or legal heir to file appeal against acquittal. So, if the complainant is also the victim or his guardian or legal heir (which is generally the case in most cases), then there is no problem and the complainant can file appeal against acquittal by Magistrate before the Sessions Court.
However, if the complainant is not a victim (or his guardian or legal heir), then he can file an appeal against the order of acquittal under the provisions of Section 378 of Cr.P.C., and sub-sections (4), (5) and (6) thereof are the relevant provisions, but this is a limited right to appeal against acquittal. Section 378 Cr.P.C. is as under:
“378. Appeal in case of acquittal.— (1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5),—
(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, 2[the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal—
(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.
(3) No appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.
(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
(6) If in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2).”
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles.
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