John vs Shibu Cherian and Others

V.K. Mohanan, J.—The appellant is the de facto complainant and CW1 in C.C. No. 1719 of 2004 of the court of the Judicial First Class Magistrate-I, Ernakulam. In this appeal, his challenge is against the acquittal recorded by the learned Magistrate u/s 248(1) of the Cr.P.C. by which the accused therein, who are the respondents herein, are acquitted of all the offences punishable under Sections 114, 143, 147, 148, 448, 427, 506(ii) read with Section 149of I.P.C. The above calendar case was instituted on receiving the report from the Police after investigation in Crime No. 304 of 2003 of the Mulanthuruthy Police Station in which the allegation is that the first accused abetted accused Nos. 2 to 14 to scare off CWs. 1 to 3 and to force them to sell that property and thus, according to the de facto complainant, A2 to A14 formed themselves into an unlawful assembly and in furtherance of their common object, at 7 p.m. on 30.11.2003, they trespassed into the property of the de facto complainant and damaged the window glass of the house by throwing stones and bricks and they tried to damage the front door of the said house and they have partially demolished the compound wall of the said house wherein the de facto complainant and others were residing at that time. Thus, according to the de facto complainant, the accused has caused a loss of 5000/- to him. It is also alleged that the accused intimidated and threatened to kill the charge witnesses including CW1. It is also alleged that first accused abetted A2 to A14 for the commission of the above offences. During the trial, Pws. 1 to 9 were examined, Exts. Pl to P4 were marked and Mos. 1 to 3 material objects were identified and marked. It is, after the consideration of the above evidence and materials, the learned Magistrate acquitted the accused of all the charges levelled against them. It is the above order of acquittal sought to be challenged in this appeal.

As there was delay in filing the appeal, the petition to condone the delay of 57 days was filed and on receiving the notice, the respondents/accused appeared through Advocate Sri. Sooraj T. Elenjikal and after hearing both sides, the delay was condoned and thus the appeal has come up for admission today.

Mr. Sooraj T. Elenjikal, counsel appearing for the respondents has taken a preliminary objection against the maintainability of the appeal itself on the basis of proviso to Section 372of Cr.P.C. which objection, according to me, is sustainable. The judgment sought to be challenged is connected with the case instituted upon a police report and therefore, the provisions contained u/s 372are not applicable. Recently, an amendment is brought to Section 372of Cr.P.C., which came into force with effect from 31.12.2009 and thereby, a proviso is introduced to Section 372of Cr.P.C. which reads as follows:-

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.

Thus, in the light of the above proviso to Section 372of Cr.P.C., the remedy is available to the victim to file an appeal before the court in which the appeal will ordinarily lie against the order of conviction. Thus, according to the, the present appeal preferred by the de facto complainant before this Court is not maintainable. It is also relevant to note that prior to the above amendment, this Court used to entertain the revision petition in deserving cases against the order of acquittal at the instance of the de facto complainant. The reason stated in the affidavit in support of the above delay petition is that the appellant himself has filed a revision petition before this Court and the Registry has raised an objection stating that the remedy is to file an appeal. It is, thereafter, the present appeal is preferred. However, on receiving the appeal memorandum, the Registry has failed to take note of the amendment brought to Section 372of Cr.P.C.

In the light of the above facts and circumstances, according to me, the appeal is not maintainable and accordingly, the same is dismissed. But, I have no hesitation to observe that the dismissal of this appeal will not stand in the way of the appellant to work out his remedy in accordance with the procedure and law. I am also sure that the time taken due to the pendency of the matter before this Court by way of revision and appeal, will not stand in the way of condoning the delay, if the proposed proceedings is otherwise in time and proper. The original of the impugned order product in this appeal shall be returned to the appellant on proper receipt.

This Criminal Appeal is accordingly dismissed.