AMIN SHUSHILABEN CHANDRAKANT Vs. AMIN BHASKAR PURSHOTTAM

JUDGEMENT

(1.) The vires of sec. 417(3) of the Code of Criminal Procedure (alluded to as Code in the course of this judgment) have been called into question by the original accused (respondents Nos. 1 to 7 who were acquitted by the trial Court) in this appeal against their acquittal instituted by the original complainant with special leave granted by the High Court under the said provision. Upon the vires being challenged a notice was issued to the Attorney General and the matter was referred to the Division Bench.

(2.) The history of the events leading to this reference may be briefly traced. Respondent No. 1 Amin Bhaskar Purshottam and six others were prosecuted on a complaint instituted by appellant Amin Sushilaben Chandrakant for offences under secs. 342 323 and 114 of the Indian Penal Code in the Court of the learned Joint Judicial Magistrate First Class Patan in Criminal Case No. 3485 of 1967. Respondents Nos. 1 to 7 were acquitted by the learned trial Magistrate. The appellant feeling aggrieved applied to the High Court for special leave to appeal against the order of acquittal under sub-sec. (3) of sec. 417 of the Code. Special leave was granted and the appeal was thereafter admitted. At the threshold of the hearing of the appeal on merits respondents Nos. 1 to 7 the accused in the trial Court have raised the question regarding the vires of sub-sec. (3) of sec. 417 of the Code.

(3.) The challenge has taken two forms. First the question has been approached from the stand point of the accused. It is complained that it results in denial of equal protection of laws to the accused. The second approach that has been made is from the point of view of the complainant. It is submitted that a hostile discrimination arises inasmuch as the right to prefer the appeal is given to the complainant who instituted the original complaint while no such right is conferred on the victim of the offence who himself may not have acted as the formal complainant.