Asha Devi vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

The present Criminal Revision has been preferred by the revisionist, questioning the judgement dated 17th May 2016, as rendered by the Sessions Judge, Almora in Criminal Appeal No. 20 of 2015, Asha Devi v. Harish Chandra Pandey and another, whereby the Appeal of the revisionist was dismissed as not maintainable and consequently the judgement of acquittal as rendered by the Court of Chief Judicial Magistrate in Criminal Appeal No. 564 of 2013, State v. Harish Chandra Pandey under Sections 498A and 506 of IPC to be read with Section 3/4 of Dowry Prohibition Act, 1961 has been upheld.

The only legal question, which has been argued by the learned counsel for the revisionist is that if the judgement of the Appellate Court is taken into consideration it was holding that the Appeal preferred by the revisionist under the proviso of Section 372 of Cr.P.C., as 'not maintainable', on the ground that the same was not accompanied with an application for Leave to Appeal, whether this reasoning of dismissal of appeal could be sustained or not; or whether under the changed circumstances of the law and the judicial interpretation on which the parties have relied whether the revisionist at the time of preferring of an Appeal against the order of acquittal dated 30th June 2016, she was, at all required to file an application for leave to appeal in order to make it sustainable before the Sessions Court in view of the provisions contained under proviso to Section 372 of Cr.P.C.

Before venturing into the technicalities of the issues, as raised by the learned counsel for the parties to the criminal revision, the learned counsel for the respondent has appraised this Court with regards to certain factual backdrops under which the controversy has reached upto the stage of the present Criminal Revision before this Court under Section 397 to be read with Section 401 of Cr.P.C.

The precise argument, which has been argued by the learned Senior Counsel, Mr. R.P. Nautiyal, appearing on behalf of the respondent No. 2, is to the effect that the marriage between the revisionist and the respondent No. 2 is said to have been solemnized on 28th April 1998; but on account of the fact that there was a deliberate desertion which he alleges to be at the behest of the revisionist, the respondent No. 2, is said to have had initiated a proceedings under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, which was allowed in his favour and ultimately adjudicated upon by the judgement dated 18th April 1999, and the proceedings under Section 9 of Hindu Marriage Act, 1955, later on it was ultimately culminated into the decree for dissolution of marriage by invoking provisions contained under Section 13 (1-a)(1-b) of the Hindu Marriage Act, 1955.

It is contended by the learned Senior Counsel for respondent No. 2, that it was thereafter the dissolution of marriage that an FIR was registered on 31st March 2012, by the revisionist contending thereof the commission of an offence under Sections 498A, 506 of IPC and 3/4 of the Dowry Prohibition Act, 1961, as many as against the five accused persons, were named in the FIR. While, simultaneously, in the proceedings on the criminal side which was pending consideration before the Court, a decree of divorce of marriage in the proceedings which was culminated after the registration of the proceedings under Section 9 of the Hindu Marriage Act was granted on 23rd February 2006 and the matrimony amongst them i.e. parties to revision was dissolved. But the fact remains that the proceedings on the criminal side as a consequence of registration of the FIR proceeded and it resulted into passing of an order of acquittal on 3rd January 2005, whereby all the accused persons were acquitted of the charges under Sections 498A, 506 and 3/4 of the Dowry Prohibition Act in the proceedings which was decided on 30th June 2015, by the judgement of the Court of Chief Judicial Magistrate, in Original Case No. 564 of 2013, State v. Harish Chandra Pandey which was decided on revival of the proceedings in pursuance to the judgement rendered by the coordinate Bench in Criminal Revision No. 43 of 2005, Asha Devi v. State of Uttarakahnd, which was partially allowed by the judgement of this Court dated 1st August 2013, partially allowing the criminal revision remitting the matter for its fresh decision.

It is contended by the respondent's counsel that as against the order of acquittal, a Criminal Revision was preferred by the revisionist and ultimately the Criminal Revision which was preferred by the revisionist was numbered as CRLR No. 43 of 2005, Asha Devi v. State of Uttarakhand, the same came up for consideration before the co-ordinate Bench of this Court and the coordinate Bench of this Court, in fact, by the judgement dated 1st August 2013 had acquitted four accused persons named in the proceedings, but as far as the respondent/husband is concerned, the matter was remitted back to the learned trial Court for afresh trial and re-determination of the allegations, as levelled against him in the FIR as Case Crime No. 2 of 2000, registered on 31st March 2000 by the revisionist.

It has been informed by the learned counsel for the respondent that being aggrieved against the order of remand dated 1st August 2013, whereby the co-ordinate Bench of this Court has affirmed the order as far as it related to the trying of an offence against the respondent/husband an SLP was preferred by the respondent before the Hon'ble Apex Court and the Hon'ble Apex Court had dismissed the SLP vide its judgement dated 23rd March 2015, but only with a rider attached to it that when as consequences of the judgement rendered on 1st August 2013 in Criminal Revision No. 43 of 2005, Asha Devi v. State of Uttarakhand, when the proceedings of the Criminal Case No. 564 of 2013 revived back before the trial Court for trying of an offence as against the respondent/husband only, as directed by the judgement dated 1st August 2013 the findings recorded by the judgement of the High Court in Criminal Revision No. 43 of 2005, Asha Devi v. State of Uttarakhand, will not be read or the trial Court will not be influenced while adjudication to be rendered by the learned trial Court while trying the offences as against the respondent-husband. Consequently, on the revival of the trial in pursuance to the judgement dated 1st August 2013 of the High Court to be read with the judgement dated 23rd March 2016 of the Hon'ble Apex Court, when the proceedings of the trial revived, the learned trial Court yet again, by the judgement dated 30th June 2016 had acquitted the respondent-husband from the offences under Section 498A, 506 and 3/4 of the Dowry Prohibition Act.

Being aggrieved against this judgement of the acquittal dated 30th June 2016, the revisionist has preferred a Criminal Appeal by invoking the provisions contained under Section 372 of Cr.P.C. and particularly, the reference has been made to the right of appeal, which has been granted as against an order of acquittal as contemplated under the proviso of Section 372 of Cr.P.C., which has more or less stipulated that an Appeal against an acquittal would be maintainable as an independent provision and as of right for the redressal of grievances against an order of acquittal, rendered by the trial Court and it was an independent provision and an independent right which was statutorily created by the insertion of the proviso made by the Act No. 5 of 2009, with effect from 31st December 2009.

It has been argued by the learned counsel for the revisionist that an Appeal against the acquittal as it has been contemplated under proviso to Section 372 of Cr.P.C., it has had to be decided in the light of the provisions contained under Section 378 of Cr.P.C. that deals with the manner in which the Appeal against an acquittal has to be considered by the Courts. The revisionist's Appeal being Criminal Appeal No. 20 of 2015, Asha Devi v. Harish Chandra was considered by the learned Sessions Judge, Almora and by the impugned judgement dated 17th May 2016 by interpreting the implications of the pronouncements laid down by the Hon'ble Apex Court in some of the ratios, as propounded and referred to, particularly, the judgement of Satya Pal Singh's case reported in 2015 (7) Supreme 354, Satya Pal Singh v. State of M.P. and Ors., as decided on 6th October 2015, it has laid down that the appeal against an acquittal under the proviso to Section 372 of Cr.P.C. is altogether an independent provisions and only rider which has been attached to it, is that the appeal against an acquittal under the proviso to Section 372 of Cr.P.C. has to be dealt with in a fashion provided as if it is an appeal under Section 378 of Cr.P.C. Reference may be had to ratio as propounded by para Nos. 10, 11, 12 and 13 the aforesaid judgement, which are as follow:-

"10. The proviso to Section 372 of Cr.P.C. was amended by Act No.5 of 2009. The said proviso confers a statutory right upon the victim, as defined under Section 2(wa) of Cr.P.C. to prefer an appeal against an order passed by the trial court either acquitting the accused or convicting him/her for a lesser offence or imposing inadequate compensation. In this regard, the Full Bench of Delhi High Court in the case referred to supra has elaborately dealt with the legislative history of insertion of the proviso to Section 372 of Cr.P.C. by Act No. 5 of 2009 with effect from 31.12.2009. The relevant provision of Section 372 of Cr.P.C. reads thus:

"372. No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:

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."

The said amendment to the provision of Section 372 of Cr.P.C. was prompted by 154th Law Commission Report. The said Law Commission Report has undertaken a comprehensive review of Cr.P.C. and its recommendations were found to be very appropriate in amending the Cr.P.C. particularly in relation to provisions concerning arrest, custody and remand, procedure to be followed in summons and warrant-cases, compounding of offences and special protection in respect of women and inquiry and trial of persons of unsound mind. Further, the Law Commission in its report has noted the relevant aspect of the matter namely that the victims are the worst sufferers in a crime and they do not have much role in the Court proceedings. They need to be given certain rights and compensation so that there is no distortion of the criminal justice system. The said report of the Law Commission has also taken note of the views of the criminologist, penologist and reformers of criminal justice system at length and has focused on victimology, control of victimization and protection of the victims of crimes and the issues of compensation to be awarded in favour of them. Therefore, the Parliament on the basis of the aforesaid Report of the Law Commission, which is victim oriented in approach, has amended certain provisions of the Cr.P.C. and in that amendment the proviso to Section 372 of Cr.P.C. was added to confer the statutory right upon the victim to prefer an appeal before the High Court against acquittal order, or an order convicting the accused for the lesser offence or against the order imposing inadequate compensation.

The Full Bench of the High Court of Delhi after examining the relevant provisions under Section 2(wa)and proviso to Section 372 of Cr.P.C., in the light of their legislative history has held that the right to prefer an appeal conferred upon the victim or relatives of the victim by virtue of proviso to Section 372is an independent statutory right. Therefore, it has held that there is no need for the victim in terms of definition under Section 2(wa) of Cr.P.C. to seek the leave of the High Court as required under sub-Section (3) of Section 378 of Cr.P.C. to prefer an appeal under proviso to Section 372 of Cr.P.C. The said view of the High Court is not legally correct for the reason that the substantive provision of Section 372 of Cr.P.C. clearly provides that no appeal shall lie from any judgment and order of a Criminal Court except as provided for by Cr.P.C. Further, sub-Section (3) to Section 378 of Cr.P.C. provides that for preferring an appeal to the High Court against an order of acquittal it is necessary to obtain its leave. We have to refer to the rules of interpretation of statutes to find out what is the effect of the proviso to Section 372 of Cr.P.C., it is well established that the proviso of a statute must be given an interpretation limited to the subject-matter of the enacting provision. Reliance is placed on the decision of this Court rendered by four Judge Bench in Dwarka Prasad v. Dwarka Das Saraf[2], the relevant para 18 of which reads thus:

"18. ... A proviso must be limited to the subject-matter of the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment.

"Words are dependent on the principal enacting words to which they are tacked as a proviso. They cannot be read as divorced from their context" (Thompson v. Dibdin, 1912 AC 533). If the rule of construction is that prima facie a proviso should be limited in its operation to the subject-matter of the enacting clause, the stand we have taken is sound. To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction."

(emphasis laid by this Court)

Further, a three Judge Bench of this Court by majority of 2:1 in the case of S. Sundaram Pillai v. V.R. Pattabiraman[3] has elaborately examined the scope of proviso to the substantive provision of the Section and rules of its interpretation. The relevant paras are reproduced hereunder: "30. Sarathi in Interpretation of Statutes at pages 294-295 has collected the following principles in regard to a proviso:

(a) When one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject-matter of the proviso.

(b) A proviso must be construed with reference to the preceding parts of the clause to which it is appended.

(c) Where the proviso is directly repugnant to a section, the proviso shall stand and be held a repeal of the section as the proviso speaks the latter intention of the makers.

(d) Where the section is doubtful, a proviso may be used as a guide to its interpretation: but when it is clear, a proviso cannot imply the existence of words of which there is no trace in the section.

(e) The proviso is subordinate to the main section.

(f) A proviso does not enlarge an enactment except for compelling reasons.

(g) Sometimes an unnecessary proviso is inserted by way of abundant caution.

(h) A construction placed upon a proviso which brings it into general harmony with the terms of section should prevail.

(i) When a proviso is repugnant to the enacting part, the proviso will not prevail over the absolute terms of a later Act directed to be read as supplemental to the earlier one.

(j) A proviso may sometimes contain a substantive provision.

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In Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai it was held that the main object of a proviso is merely to qualify the main enactment. In Madras and Southern Mahrata Railway Co. Ltd. v. Bezwada Municipality Lord Macmillan observed thus:

"The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case."

The above case was approved by this Court in CIT v. Indo Mercantile Bank Ltd. where Kapur, J. held that the proper function of a proviso was merely to qualify the generality of the main enactment by providing an exception and taking out, as it were, from the main enactment a portion which, but for the proviso, would fall within the main enactment. In Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subbash Chandra Yograj Sinha Hidayatullah, J., as he then was, very aptly and succinctly indicated the parameters of a proviso thus:

"As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule."

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While interpreting a proviso care must be taken that it is used to remove special cases from the general enactment and provide for them separately.

In short, generally speaking, a proviso is intended to limit the enacted provision so as to except something which would have otherwise been within it or in some measure to modify the enacting clause. Sometimes a proviso may be embedded in the main provision and becomes an integral part of it so as to amount to a substantive provision itself." (emphasis supplied) Thus, from a reading of the abovesaid legal position laid down by this Court in the cases referred to supra, it is abundantly clear that the proviso to Section 372 of Cr.P.C. must be read along with its main enactment i.e., Section 372itself and together with sub-Section (3) to Section 378 of Cr.P.C. otherwise the substantive provision ofSection 372 of Cr.P.C. will be rendered nugatory, as it clearly states that no appeal shall lie from any judgment or order of a Criminal Court except as provided by Cr.P.C.

Thus, to conclude on the legal issue:

"whether the appellant herein, being the father of the deceased, has statutory right to prefer an appeal to the High Court against the order of acquittal under proviso to Section 372 of Cr.P.C. without obtaining the leave of the High Court as required under sub-Section (3) to Section 378 of Cr.P.C.", this Court is of the view that the right of questioning the correctness of the judgment and order of acquittal by preferring an appeal to the High Court is conferred upon the victim including the legal heir and others, as defined under Section 2(wa) of Cr.P.C., under proviso to Section 372, but only after obtaining the leave of the High Court as required under sub-Section (3) to Section 378 of Cr.P.C. The High Court of M.P. has failed to deal with this important legal aspect of the matter while passing the impugned judgment and order."

The Appeal of the revisionist when it came up for consideration before the learned Appellate Court, the same had been dismissed by the learned Appeal Court, holding it to be not maintainable on the pretext that the Appeal was not accompanied with the application for Leave to Appeal in view of the second question, which has been formulated to be answered by the learned Appellate Court, while deciding the Appeal. In response to it, the argument which has been extended by the learned counsel for the revisionist is to the effect that the pronouncements rendered in Satyapal Singh's case (Supra), as it has already been held that a right of an appeal against an acquittal under proviso to Section 372 of Cr.P.C., being an independent and an absolute right, it will not be camouflaged by any provisions, which causes for its interpretation in a fashion that an appeal against an acquittal in the light of the provisions contained under Section 378 of Cr.P.C.would only be tenable when there happens to be an application for Leave to Appeal.

In response to it, the counsel for the revisionist has also made reference to a judgement rendered by the Hon'ble Apex Court in Criminal Appeal No. 979 of 2019, Naval Kishore Mishra v. State of Uttar Pradesh, where the Hon'ble Apex Court, while dealing with the impact of conjoint reading of Sections 372 of Cr.P.C. its proviso which was to be read with Section 378 of Cr.P.C. has held that in order to make an appeal maintainable under the proviso to Section 372 of Cr.P.C., as introduced with effect from 31st December 2009, any appeal, which is preferred thereafter by the victim need not be accompanied with an application for leave to appeal. In support thereto, he makes a reference to a judgement of the Hon'ble Apex Court, rendered in Naval Kishore's case, as rendered in Criminal Appeal No. 979 of 2019, Naval Kishore Mishra v. State of U.P. & Ors., which was decided by the Hon'ble Apex Court on 5th July 2019, particularly, a reference is made to paras 8 and 10 of the said judgement, which are as follows:-

"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.

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. 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 372proviso to CrPC."

In order to elucidate his argument further from the view of the observations made in paras 8 and 10 of the Naval Kishore Mishra's case (supra), it was in turn based upon the judgement rendered by the Hon'ble Apex Court in Mallikarjun's case, as decided on 12th October 2018, which has been reported in 2019 (2) SCC 752, Mallikarjun Kodagali (dead) represented through legal representatives v. State of Karnataka and others. In particular, the learned counsel for the revisionist has drawn attention of this Court to the contents of para 69 onwards, where the conclusion has been drawn by the Hon'ble Apex Court with regards to the interpretation and the effect of the proviso to Section 372 of Cr.P.C. and ultimately when the provisions contained under Section 372 of Cr.P.C. it has laid down that it has to be read in consonance with the provisions of Section 378 of the Code of Criminal Procedure, it has been laid down that a right of an appeal under proviso to Section 372 of Cr.P.C. is an independent right all together and it is in contrast to the language of Section 378 (4) of Cr.P.C. and hence, it is quite clear and confine that an appeal against an acquittal judgement passed by the trial Court, no application for leave to appeal is necessary for preferring an appeal.

In view of the findings, which have been recorded in para 80 to be read with para 82 of the judgement of Mallikarjun's case (Supra), wherein while placing reliance of the Full Bench judgement rendered by the Delhi High Court, referred in para 11 of Satya Pal Singh's case (supra) and after considering the legislative history of the provisions contained under Section 372 of Cr.P.C., it has yet again reiterated the fact that preferring of an appeal under the proviso to Section 372 of Cr.P.C. it is an absolutely an independent statutory right and for preferring of such an appeal against a judgement of acquittal, the leave to appeal would not be necessary, as it would amount to an infringement of absolute independent right created under Section 372 of the Code of Criminal Procedure and its proviso if logically interpreted. Thus extraction of the procedure under Section 378 of Cr.P.C. which has been made applicable by the proviso to Section 372 of Cr.P.C. so far it relates to the obligations contained under sub Section (5) of Section 378 of Cr.P.C. for filing an application for leave to appeal against an order of acquittal would not be attracted.

"80. Sections 372 and 378 of Code of Criminal Procedure read as under:

"372. No appeal to lie unless otherwise provided.-No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:

[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.]

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Appeal in case of acquittal.-(1) Save as otherwise provided in Sub-section (2), and subject to the provisions of Sub-sections (3) and

(5),-

(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under Clause (a) or an order of acquittal passed by the Court of Session in revision.

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may, subject to the provisions of Sub-section (3), also direct the Public Prosecutor to present an appeal-

(a). to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under Clause (a) or an order of acquittal passed by the Court of Session in revision.

(3) No appeal to the High Court Under Sub-section (1) or Sub-section (2) shall be entertained except with the leave of the High Court.

(4) If such 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.

(5) No application Under Sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.

(6) If, in any case, the application Under Sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie Under Sub-section (1) or Under Sub-section (2).

The proviso to Section 372 was added by way of amendment inserted by Act 5 of 2009 with effect from 31.12.2009.

My only difference of opinion is with regard to the conclusion drawn in the judgment of my learned brother that the victim, even in appeal filed in the High Court, is not required to seek leave of the High Court. In my considered view, this matter is, in fact, no longer res integra. This Court has specifically dealt with this issue in Satya Pal Singh v. State of M.P. and Ors. (2015) 15 SCC 613, wherein it held as follows:

"10. The Full Bench of the High Court of Delhi in Ram Phal v. State, after examining the relevant provisions Under Section 2(wa) and the proviso to Section 372 Code of Criminal Procedure, in the light of their legislative history has held that the right to prefer an appeal conferred upon the victim or relatives of the victim by virtue of the proviso to Section 372 is an independent statutory right. Therefore, it has held that there is no need for the victim in terms of definition Under Section 2(wa) Code of Criminal Procedure to seek the leave of the High Court as required Under Sub-section (3) of Section 378 Code of Criminal Procedure to prefer an appeal under the proviso to Section 372 Code of Criminal Procedure. The said view of the High Court is not legally correct for the reason that the substantive provision of Section 372 Code of Criminal Procedure clearly provides that no appeal shall lie from any judgment and order of a criminal court except as provided for by Code of Criminal Procedure. Further, Sub-section (3) of Section 378 Code of Criminal Procedure provides that for preferring an appeal to the High Court against an order of acquittal it is necessary to obtain its leave.

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Thus, to conclude on the legal issue:

'whether the Appellant herein, being the father of the deceased, has statutory right to prefer an appeal to the High Court against the order of acquittal under the proviso to Section 372 Code of Criminal Procedure without obtaining the leave of the High Court as required Under Sub-section (3) of Section 378 Code of Criminal Procedure?

this Court is of the view that the right of questioning the correctness of the judgment and order of acquittal by preferring an appeal to the High Court is conferred upon the victim including the legal heir and others as defined Under Section 2(wa) Code of Criminal Procedure, under the proviso to Section 372, but only after obtaining the leave of the High Court as required Under Sub-section (3) of Section 378 Code of Criminal Procedure. The High Court of M.P. has failed to deal with this important legal aspect of the matter while passing the impugned judgment and order."

In view of the aforesaid reasoning and in view of the ratio as propounded by the Hon'ble Apex Court in the light of the judgement of the Full Bench of Delhi High Court, this Court too is of the view that the appeal under the proviso to Section 372 of Cr.P.C., since it has been held out to be an absolute legal right vested with the victim as per dictum of Hon'ble Apex Court, it cannot be eclipsed by attracting the pre-conditions contained under sub-Section (5) of Section 378 of Cr.P.C. for filing of an application for leave to appeal, is an appeal preferred against judgement of acquittal. Consequently, this Court is of the view that since an appeal against an acquittal has been contemplated in relation to all the judgements of acquittal which are rendered after the incorporation of the proviso to Section 372 of Cr.P.C. as made with effect from 31st December 2009, any appeal, which is preferred under Section 372 of Cr.P.C. would not require an application for leave to appeal and since in the instant case also, the appeal, which has been preferred against an order of acquittal, happens to be after the cut-off of the amendment, which was incorporated in the introduction to the proviso of Section 372 of Cr.P.C. since acquitted being of dated 13th June 2015, no application for leave to appeal was mandatory, hence the dismissal of appeal on that premise only holding to be not maintainable cannot be sustained, hence the Appellate Court's order is quashed and the matter is remitted back to the Sessions Court, Almora to decide the Criminal Appeal No. 20 of 2014, Asha Devi v. Harish Chandra Pandey on its own merits, without forcing for filing of an application for leave to appeal. Consequently, the revision is allowed. The matter is remitted back to the learned Sessions Court to decide the appeal on its own merits as expeditiously as possible.

Subject to above observation, the Criminal Revision is allowed and impugned judgement dated 17th May 2016, as rendered by the Sessions Judge, Almora, in Criminal Appeal No. 0000020 of 2015, Asha Devi v. Harish Chandra Pandey and another, is hereby quashed, and the matter is remitted back to the learned Appellate Court to decide the Criminal Appeal on its own merits.