SUDHIR NIRANJAN CHAKRE Vs. RAJESH RAMDAS WANKHADE

JUDGEMENT

(1.) This is an appeal filed by Shri Sudhir son of deceased Niranjan Chakre, under Section 372 of the Code of Criminal Procedure, challenging the judgment passed by the learned Sessions Judge, Amravati acquitting the respondent-accused of the offence punishable under Section 302 of the Indian Penal Code. While considering the appeal for admission, an issue is cropped up whether parameters which are required to be taken into consideration while considering an application for leave to file appeal against the acquittal, will have to be applied to an appeal filed under Section 372 of the Code of Criminal Procedure. In the case of Balram Khade v. State of Mah. In Criminal Appeal No. 991 of 2001 and Criminal Appeal No. 854 of 2011, there was difference of opinion between the learned Judges (V.M. Kanade & A.M. Thipsay, JJ) of the Division Bench of this Court. Therefore, the matter was referred to the learned third Judge (Roshan Dalvi, J). The learned third Judge i.e. Roshan Dalvi, J concurred with the view taken by Justice Kanade holding that the appeal under Section 372 of the Code of Criminal Procedure as of right and there is no requirement of seeking leave of the Court. Looking to the importance of the matter, this Court had requested Advocate D.V. Chauhan to assist us as Amicus Curiae, in the matter.

(2.) Advocate D.V. Chauhan has rendered his valuable assistance for considering the issue. Mr. Chauhan, learned Advocate, has pointed out that apart from the judgment of this Court, there is a judgment of the Full Bench of the High Court of Punjab & Haryana in case of M/s. Tata Steel Ltd. v. M/s. Atma Tube Products Ltd. And others (unreported CRM-790 MA 2010) which holds that by adding proviso to Section 372 of the Code of Criminal Procedure, the Legislature has granted an unconditional right of appeal to the "victim" as compared to the conditional right given to the State under Section 378(3) of the Code of Criminal Procedure.

(3.) Mr. Chauhan, learned counsel has pointed out the judgment of the Full Bench of the High Court of Gujarat in the case of Bhavuben Dineshbhai Makwana v. State of Gujarat and others in Criminal Appeal No. 238/2012 in which it is held that an appeal by the "Victim", who is not the complainant, against the order of acquittal can be filed without following the procedure contemplated by Section 378 of the Code of Criminal Procedure.