NAVAL KISHORE MISHRA versus STATE OF U.P. & ORS.

Citation: [2019] 9 S.C.R. 249 · Decided: 05-07-2019 · Supreme Court of India · Bench: SANJAY KISHAN KAUL, K.M. JOSEPH

Judgment (excerpt)

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NAVAL KISHORE MISHRA
v.
STATE OF U.P. & ORS.
(Criminal Appeal No. 979 of 2019)
 JULY 05, 2019
[SANJAY KISHAN KAUL  AND K.M. JOSEPH, JJ.]
Code of Criminal Procedure, 1973: ss. 372 proviso and
378 – Appeal against acquittal – Right of victim to file the appeal
against the acquittal of accused without seeking leave to appeal –
Held: Victim has a right to file the appeal and no leave has to be
sought in such a situation – Appeal has to be dealt as a regular
appeal – It is different from the appeal filed by the State seeking
leave to appeal – Appeal filed by the victim ought not to have been
dismissed at the threshold only on the ground that no leave was
granted to the State to appeal against the order of acquittal.
Mallikarjun 
Kodagalli 
(D) 
through 
legal
representatives v. State of Karnataka & Ors.
(2019) 2 SCC 752 –  relied on.
Case Law Reference
(2019) 2 SCC 752
       relied on
Para 14
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 979 of 2019
From the Judgment and Order dated 23.11.2017 of the High Court
of Judicature at Allahabad in Criminal Misc. Application Defective u/s
372 Cr.P.C. (leave to appeal) No. 61 of 2017
M.Z.Choudhary, Aftab Ali Khan, Syed Imtiyaz Ali, Syed
Mohammed Aatif,  Ms. Afreen Fatima,  Advs. for the Appellant.
Ms. Ruchira Goel, Adv. for the Respondents.
The following Order of the Court was passed :
O R D E R
1. Leave granted.
[2019]  9 S.C.R. 249
            249
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SUPREME COURT REPORTS
[2019] 9 S.C.R.
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.
4. The accused were acquitted by the trial Court in terms of the
Judgment dated 19.12.2016.
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 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.
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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 378 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.
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 app

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