SAROJAMMA C HUCHEGONDAR Vs. ESHWARAPPA

JUDGEMENT

(1.) THE accused is acquitted of committing an offence punishable u/ss. 504. 323 and 506 of I. P. C. P. 'w. 1 is the victim-complainant. P. W. 1 died after recording of evidence and before passing of judgment by the trial Court. The LR of P. W. 1 has filed the appeal with an application seeking leave. Section 378 (4) declares that in a case of an acquittal instituted on private complaint with the leave of the Court, the complainant can file an appeal to the High Court. It is also well settled that in the cases prosecuted upon police report when the State does not file an appeal, the victim with the leave of the Court can prefer an appeal.

(2.) THE decision of the Calcutta High Court reported in AIR 1967 Cal 442 in on the death of Monmathanath Haider his heirs and sons sachindra Nath Haider v. Niranjan Mondal. is relied on to contend that in an appeal filed by the complainant against the order of acquittal, when complainant dies after filing the appeal, the LRs. , can come on record to prosecute the appeal. But when the complainant dies before filing an appeal, the L. Rs. of the complainant cannot file an appeal nor entitled to seek leave to file an appeal.

(3.) THE ratio laid down by the Calcutta High court is based on sound logic and reason. A case prosecuted by the State in the event of an acquittal, the State has right to file an appeal. But as an extraordinary measure in the interests of justice, it is recognised in law that the complainant or victim can file an appeal with the leave of the Court, if the State does not choose to file an appeal. The right conferred upon the complainant is purely personal and individualistic right. It is solely the choice of the victim-complainant to decide whether an appeal to be filed seeking leave of the court, if complainant dies before filing such appeal. The L. Rs. . cannot claim the right in equity, but in a case where the complainant had already filed an appeal, it means that the complainant has exercised choice given in law. Therefore, the L. Rs. . could come on record and prosecute the appeal.