Naval Kishore Mishra vs The State Of Uttar Pradesh

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.979 OF 2019 (@ Special Leave Petition (Crl.)No.1642 of 2018)

NAVAL KISHORE MISHRA Appellant (s)

VERSUS

STATE OF U.P. & ORS. Respondent(s)

O R D E R

1. Leave granted.

2. We have heard learned counsel for the

respondent-State and learned counsel for the

appellant. The other respondents have been served

but none has entered appearance.

3. The accused-respondents were put to trial in

Sessions trial No.80 of 2014 titled State Vs.

Brindavan & Ors. arising out of criminal case No.53

of 2014 under Sections 452, 302/34 of the Indian

Penal Code.

Signature Not Verified Digitally signed by POOJA ARORA Date: 2019.07.10 17:33:19 IST Reason:

4. The accused were acquitted by the trial Court

in terms of the Judgment dated 19.12.2016. Crl.Appeal No.979/2019 2

5. The State aggrieved by the said order sought

leave to appeal in Government Appeal No.1947 of

2017. In terms of Section 372 read with Section 378

of the Code of Criminal Procedure, 1973 (“CrPC” for

short) such leave was declined vide order dated

18.04.2017.

6. The appeal filed by the victim, however, came

up before the Court after the aforesaid transpired

and vide impugned order dated 23.11.2017 has been

dismissed on the following ground:

“Since another Bench of this Court has already refused to grant leave and the government appeal itself stood dismissed in reference to the refusal to grant leave, it will not be congruous to unfold another course keeping pending to this appeal.”

7. Learned counsel for the State has contended

that the rights of the victim have been enlarged in

terms of the amendment carried out by insertion of

proviso to Section 372 of the CrPC by Amendment Act

5 of 2009 with effect from 31.12.2009. The

provision reads 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 Crl.Appeal No.979/2019 3

Court.

8. We may notice that Section 2(wa) defines victim

as under:

“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 him or her guardian or legal heir.

9. In the present case the victim, thus, includes

him or her guardians or legal heirs. The deceased

was unmarried and the victim is the real brother

and, thus, would fall under the category of legal

heir of the deceased.

10. It is, however, submitted by her that the

question whether the victim would also have to seek

leave as would be a situation envisaged under

Section 278 of the Cr.P.C as in the case of the

State has been considered and is no more res integra

in view of the recent Judgment of this Court in

Mallikarjun Kodagalli (d) through legal

representatives Vs. State of Karnataka & Ors.1 where

this Court opined that there is no need for a victim

to apply leave to appeal against the order of

acquittal while preferring an appeal under Section

372 proviso to CrPC.

1 2019(2) SCC 752 Crl.Appeal No.979/2019 4

11. In the aforesaid circumstances, it is

contended that since the right to appeal would be

available, it is different from the appeal filed by

the State seeking leave to appeal and, thus, the

appeal filed by the victim in the present case ought

not to have been dismissed at the threshold only on

the ground that no leave has been granted to the

State to appeal against the order of acquittal.

12. The aforesaid plea is naturally supported

by learned counsel appearing for the appellant.

13. We are in agreement with the aforesaid

plea since the extracted portion of the impugned

order shows that the only reason recorded for

dismissing the appeal of the victim (in fact styled

as leave to appeal) was on the ground that leave had

not been granted to the Government to file the

appeal.

14. The legal position enunciated in

Mallikarjun Kodagalli (d) through legal

representatives (supra) would show that the

appellant had a right to file the appeal and infact

no leave has to be sought in such a situation.

Thus, the appeal has to be dealt as a regular Crl.Appeal No.979/2019 5

appeal.

15. In view of the aforesaid, we set aside the

order of the High Court and allow the appeal

remitting the appeal to be considered by the High

Court on merits.

.........................J. (SANJAY KISHAN KAUL)

.........................J. (K.M. JOSEPH)

NEW DELHI JULY 5, 2019 Crl.Appeal No.979/2019 6

ITEM NO.44 COURT NO.13 SECTION II

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition for Special Leave to Appeal (Crl.) No.1642/2018 (Arising out of impugned final judgment and order dated 23-11-2017 in Criminal Misc. Application Defective U/s 372 Cr.P.C (leave to appeal) No.61/2017 passed by the High Court of Judicature at Allahabad)

NAVAL KISHORE MISHRA Petitioner(s)

VERSUS

STATE OF UTTAR PRADESH & ORS. Respondent(s)

(IA No. 25821/2018 - EXEMPTION FROM FILING O.T.)

Date : 05-07-2019 These matters were called on for hearing today.

CORAM : HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE K.M. JOSEPH

For Petitioner(s) Mr. M.Z. Choudhary, adv.

Mr. Aftab Ali Khan, AOR Mr. Syed Imtiyaz Ali, Adv.

Mr. Syed Mohammed Aatif, Adv.

Ms. Afreen Fatima, Adv.

For Respondent(s) Ms. Ruchira Goel, AOR

UPON hearing the counsel the Court made the following O R D E R Leave granted.

The appeal is allowed in terms of the signed reportable order.

Pending application(s), if any, shall also stand disposed of.

(POOJA ARORA) (ANITA RANI AHUJA) COURT MASTER COURT MASTER

(Signed Reportable Order is placed on the file)