Anil Kumar Choudhary - (1.) The facts of the case is that the complainant filed Complaint Case No.1215 of 2010 for the offence punishable under Section 420/465/467/120B of the Indian Penal Code before the Judicial Magistrate, 1st Class, Giridih against the private respondents. The accused of the case was acquitted vide judgment dated 20.02.2018 passed by the Judicial Magistrate, 1st Class, Giridih. The complainant preferred Criminal Appeal No.40 of 2018 in the court of Additional Sessions Judge-VIII, Giridih. Learned Sessions Judge, Giridih keeping in view the judgment of Full Bench of this Court in the case of Tuklal Yadav vs. State of Jharkhand reported in 2018(4)JLJR 245; para-40 of which reads as under:- "40 ....... The complainant, whether the State or a private person, who is also the victim as defined under Section 2 (wa) of the Cr.P.C., if aggrieved by the judgment/ order of acquittal passed by the Trial Court, shall have the only remedy against the order/judgment of acquittal passed by the Trial Court, to seek special leave of the High Court under Section 378 (4) of the Cr.P.C., and in case the special leave is granted, to file appeal in the High Court itself." dismissed the appeal being not maintainable.
(2.) Learned counsel for the appellant drawing attention of this court to the judgment of Hon'ble Supreme Court of India in the case of Mallikarjun Kodagali (Dead) through Lrs. vs. State of Karnataka and Others (AIR 2018 Supreme Court 5206), para-77 and 78 of which read as under:- 77. "Under the circumstances, on the basis of the plain language of the law and also as interpreted by several High Courts and in addition the resolution of the General Assembly of the United Nations, it is quite clear to us that a victim as defined in Section 2(wa) of the Cr.P.C. would be entitled to file an appeal before the Court to which an appeal ordinarily lies against the order of conviction. It must follow from this that the appeal filed by Kodagali before the High Court was maintainable and ought to have been considered on its own merits." 78. "As far as the question of the grant of special leave is concerned, once again, we need not be overwhelmed by submissions made at the Bar. The language of the proviso to Section 372 of the Cr.P.C. is quite clear, particularly when it is contrasted with the language of Section 378(4) of the Cr.P.C. The text of this provision is quite clear and it is confined to an order of acquittal passed in a case instituted upon a complaint. The word 'complaint' has been defined in Section 2(d) of the Cr.P.C. and refers to any allegation made orally or in writing to a Magistrate. This has nothing to do with the lodging or the registration of an FIR, and therefore it is not at all necessary to consider the effect of a victim being the complainant as far as the proviso to Section 372 of the Cr.P.C. is concerned." (Emphasis Supplied) and also drawing attention of the court to the judgment of Hon'ble Supreme Court of India in the case of Naval Kishore Mishra vs. State of Uttar Pradesh reported in AIR ONLINE 2019 SC 418, para-14 of which reads as under:- 14. "The legal position enunciated in Mallikarjun Kodagalli (d) though 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 appeal." (Emphasis Supplied) submits that the Hon'ble Supreme Court of India has taken a view contrary to the view of the Full Bench of this Court in the case of Tuklal Yadav (supra). Learned counsel for the appellant fairly submits that in view of paragraph no.77 of the judgment of Mallikarjun Kodagali (supra), the appeal against the judgment of acquittal passed by the Judicial Magistrate, 1st Class, Giridh, will lie before the Sessions Judge, Giridh as that is the court to which an appeal against conviction by the Judicial Magistrate, 1st Class, Giridh ordinarily lies. Hence, this appeal is not maintainable before this Court but it is further submitted that a technicality may arose as the learned Additional Sessions Judge has already dismissed the appeal of course, not on merit but on the ground of it being not maintainable, hence, Praveen Shankar Dayal, learned counsel for the appellant submits that the appellant be accorded leave to withdraw the appeal and present it again before the Sessions Judge, Giridih in view of the aforesaid change in law by way of judicial pronouncements.
(3.) In Mallikarjun Kodagali (supra), the majority that is two of the Hon'ble Judges out of three constituting the bench held that the victim as defined under Section 2 (wa) of the Cr.P.C. will be entitled to file an appeal to which an appeal ordinarily lies against the order of conviction and in this case the appellate forum being the Sessions Judge, there is no requirement of the special leave under Section 378 (4) Cr.P.C. Hence, the prayer of the appellant is allowed. Leave is granted to the petitioner to withdraw this appeal to present a fresh appeal before Sessions Judge, Giridih which is to be considered by the Sessions Judge on its merit, without being prejudiced by this order.;