GOVIND MATHUR, J. - (1.) NOTICING conflicting views of different Benches of this Court a Single Bench by order dated 27.4.2013 referred the following question for its adjudication by a Larger Bench : - "In a case instituted upon a complaint, whether the complainant is entitled to challenge the judgment of acquittal of the accused recorded by a Magistrate by filing an appeal before the Sessions Court under the proviso to Section 372 Cr.P.C. or that such acquittal can be assailed only by bringing a special leave to appeal application to the High Court under Section 378(4) Cr.P.C. -
(2.) SHRI Pradeep Shah, learned counsel appearing on behalf of petitioner Shri Dhanne Singh submits that a plain reading of sub -section (4) of Section 378 Code of Criminal Procedure indicates that in a case instituted upon a complaint, the right to appeal is subject to grant of special leave by the High Court. It is asserted that as per proviso to Section 372 Code of Criminal Procedure, the remedy of appeal is available only to the 'victim' and not to the 'complainant' of a complaint case. To substantiate the submission, he has placed reliance upon several judgments including a judgment of Hon'ble Supreme Court rendered in Subhash Chand v. State (Delhi Administration), 2013 2 SCC 17.
(3.) LEARNED Public Prosecutor Shri J.P.Bhardwaj has also supported the argument advanced by Shri Pradeep Shah. Heard learned counsels. Section 378 of the Code of Criminal Procedure pertains to appeal in a case of acquittal. As per subsection (4) of the section aforesaid, if an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. By Amendment Act No.5 of 2009 vide Section 29 thereof a proviso to Section 372 Code of Criminal Procedure was added providing a right to appeal to the victim against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal lies to the Court to which an appeal ordinarily lies against the order of conviction of such court. It is important to notice that the remedy provided under sub -section (4) of Section 378 Code of Criminal Procedure is to a 'complainant' in a complaint case and under proviso to Section 372 Code of Criminal Procedure, it is for a 'victim'.;