Appeal in criminal cases

M/s.Giridhar & Sai
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MAINTANABILTY OF APPEAL FILED AGAINST AN
ORDER OF ACQUITTAL CONFIRMED BY SESSIONS
COURT INVOKING SECTION 372 Cr.P.C.
-Prasanna Durai
Synopsis
Introduction
Questions framed
Law provisions
Case laws
Legal Concepts
Arguments
NAVJ Discussion
Table before and After Ganapathy Case
Decision of Court
Answers for the questions framed
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600 001;
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9151; Email: giridhar@girisai.com/sai@girisai.com
While dealing with certain appeals and revisions, the Learned Single Judge has
raised a doubt on the maintainability of the appeal by the Complainant against
and order of acquittal, confirmed before the Sessions Court invoking the
provision of Section 372 CrPC.
Reference was made and CJ referred the matter by constituting a Full Bench
to answer the questions. CJ has also opined that it is legally permissible for a
single Judge, can doubt a decision of a Larger Bench and can seek a
Reference.
QUESTIONS FRAMED BY THE SINGLE JUDGE

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1.When a Magistrate acquits an accused in a case instituted upon a private
complaint, like a prosecution under section 138 of the NI Act, where does the
remedy lie for the unsuccessful complainant - Whether to the Court of Session
under the proviso to Section 372 Cr.P.C. or before the High Court under
Section 378(4) and (5) CrPC or are there concurrent remedies available, with
the right to the complainant to elect the forum of choice?
2.If the remedy is under the proviso to Section 372 CrPC should the
complainant seek special leave from the Court of Session and if so, under what
provision of law?
3.What is the period of limitation for filing an appeal against acquittal before
the Court of Session under the proviso to Section 372 Cr.P.C. in a private
complaint case like Section 138 of the NI Act?
4.The appeal will have to be filed under the proviso to Section 372 Cr.P.C.,
then, if such appeal filed by the complainant before the Court of Session is
dismissed and the order of acquittal passed by the Magistrate is upheld, does
the complainant have a remedy to file a revision under Section 397 read with
Section 401 Cr.P.C. before the High Court or file another round of appeal
against such acquittal by the Court of Session before the High Court under
Section
378(4) & (5) CrPC?
5.If the complainant has the revisional remedy before the High Court under
Section 397 read with Section 401 CrPC can the High Court set aside only the
Appellate Court's order or the Trial Court's order or the orders of both the
Courts below?
6.In the event of the larger Bench holding that the complainant who has lost
before the Trial Court and the Court of Session has the remedy to file a
600 001;

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revision under Section 397 read with Section 401 CrPC before the High Court,
then, after setting aside the orders, should the High Court remand the case to
the Court of Session or to the Trial Court for re-trial?
7. In the event of the law laid down by the Full Bench in S. Ganapathy (supra)
being overruled, what impact would such overruling have on the cases which
have been decided by the Courts of Session during the interregnum?
LAW PROVISIONS INVOLVED
Section 372
No appeal shall lie from any judgment or order of a Criminal Court except as
provided for by this Code or 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.
Section 374
374. Appeals from convictions.
(1)Any person convicted on a trial held by a High Court in its extraordinary
original criminal jurisdiction may appeal to the Supreme Court.
(2)Any person convicted on a trial held by a Sessions Judge or an Additional
Sessions Judge or on a trial held by any other Court in which a sentence of
imprisonment for more than seven years has been passed against him or
against any other person convicted at the same trial, may appeal to the High
Court.
(3)Save as otherwise provided in sub- section (2), any person,-
(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions
Judge or Magistrate of the first class, or of the second class, or
(b) Sentenced under section 325, or
600 001;

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(c) In respect of whom an order has been made or a sentence has been passed
under section 360 by any Magistrate, may appeal to the Court of Session.
Section 378
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 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
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 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 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.Appeal under sub- section (1) or sub- section (2) shall be entertained except
with the leave of the High Court.
4.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
600 001;

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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).
Section 397
Calling for records to exercise powers of revision.
(1)The High Court or any Sessions Judge may call for and examine the record
of any proceeding before any inferior Criminal Court situate within its or his
local jurisdiction for the purpose of satisfying itself or himself as to the
correctness, legality or propriety of any finding, sentence or order,- recorded or
passed, and as to the regularity of any proceedings of such inferior Court, and
may, when calling for such record, direct that the execution of any sentence or
order be suspended, and if the accused is in confinement, that he be released
on bail or on his own bond pending the examination of the record.
Explanation.- All Magistrates whether Executive or Judicial, and whether
exercising original or appellate jurisdiction, shall be deemed to be inferior to the
Sessions Judge for the purposes of this sub- section and of section 398.
(2) The powers of revision conferred by sub- section (1) shall not be exercised
in relation to any interlocutory order passed in any appeal, inquiry, trial or
other proceeding.
(3)If an application under this section has been made by any person either to
the High Court or to the Sessions Judge, no further application by the same
person shall be entertained by the other of them.
Section 401
High Court’s Powers of revisions.
(1) In the case of any proceeding the record of which has been called for by itself
or Which otherwise comes to its knowledge, the High Court may, in its
discretion, exercise any of the powers conferred on a Court of Appeal by
600 001;

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sections 386, 389, 390 and 391 or on a Court of Session by section 307 and,
when the Judges composing the Court of revision are equally divided in
opinion, the case shall be disposed of in the manner provided by section 392.
(2)No order under this section shall be made to the prejudice of the accused or
other person unless he has had an opportunity of being heard either
personally or by pleader in his own defence.
(3)Nothing in this section shall be deemed to authorise a High Court to convert
a finding of acquittal into one of conviction.
(4)Where under this Code an appeal lies and no appeal is brought, no
proceeding by way of revision shall be entertained at the instance of the party
who could have appealed.
(5)Where under this Code tan appeal lies but an application for revision has
been made to the High Court by any person and the High Court Is satisfied
that such application was made under the erroneous belief that no appeal lies
thereto and that it is necessary in the interests of justice
so to do, the High Court may treat the application for revision as a petition of
appeal and deal with the same accordingly.
Case Laws
Damodar S. Prabhu Vs. Sayed Babalal.H. (2010) 5 SCC 663 - (3 Judge)
Dealt with complainant - 138 NI Act case
Section 143 of NIAct –138 complaints to be dealt by JM, First Class
Further legal proceedings:
 Conviction –>appeal U/s. 374 (3)(a) –>Sessions Court –>Revision U/s.
397/401 –>High Court –>Special Leave U/A 136 –>Supreme Court
 Acquittal –>appeal U/s. 378 (4) –>High Court -> Special Leave U/A
136 –>Supreme Court
600 001;

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Subash Chand Vs. State (Delhi Administration) (2013) 2 SCC 17 Complainant
can only file appeal with a special leave before the High Court U/s. 378 and not
before the Sessions Court.
The Judgment also explains about Section 378 (1) to (6).
Distinguishes Section 2 (r)–Police Report and Section 173 (2) –Charge Sheet.
Section 2(d) complaint –does not include police report.
Who is the Complainant?
In any non-cognizable offence a report given after investigation by police officer
is a COMPLAINT and the Police Officer is the COMPLAINANT and he can file
appeal U/s. 378(4) before the High Court and not to Sessions Court. “Thus,
whether a case instituted on a complaint and an order of acquittal is passed, whether
the offence be bailable or non – bailable, cognizable or non – cognizable, the
complainant can file an application under section 378 (4) for special leave to appeal
against it in High Court”
Satya Pal Singh Vs. State Of Madhya Pradesh And Others (2015)15 SCC 613 -
(2 Judge)
Victim and Complainant –same or different footing
Dealt with victim in police report - Victim includes the complainant (same
footing) and he can avail remedy U/s. 372
Victim need to apply leave to appeal against the order of acquittal while
preferring appeal U/s. 372 of Cr.P.C.
Ganapathy v. N. Senthilvel (2016) 4 CTC 119 (3 Judge)
Follows most of Satyapal Judgment but
 Conviction –>appeal U/s. 374 (3)(a) –>Sessions Court
600 001;

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-> appeal U/s. 372 –>Sessions Court (for enhancement)
–>Revision U/s. 397/401 –>High Court –>Special Leave U/A 136 –>
Supreme Court
 Acquittal –>appeal U/s. 372 –>Sessions Court
-> appeal U/s. 378 (4) –>HighCourt
–>Revision U/s. 397/401 –>High Court –>Special Leave U/A 136 –>
Supreme Court
Grave mistake that DAMODAR case was not taken note at all.
Mallikarjun Kodagali (dead) rep. By legal rep. Vs. State Of Karnataka and others
(2019) 2 SCC 752
Victim and complainant stand in different footing because the Complainant
has nothing to do with police report, FIR.
Complainant has to file appeal against acquittal U/s. 378(4) before HC with
special leave.
Victim need not apply leave to appeal against the order of acquittal while
preferring appeal U/s. 372.
Naval Kishore Mishra Vs. State Of U.P And Others (2019) 13 SCC182
Dealt with victim in police report.
Victim need not apply leave to appeal against the order of acquittal while
preferring appeal U/s. 372 of Cr.P.C.
To correct the error; for applying the maxim, a prejudice is to be proved.
600 001;
LEGAL CONCEPTS
ACTUS CURIE NEMINEM GRAVABIT
“The act of the court shall prejudice no one”

M/s.Giridhar & Sai
Advocates
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For error made after conscious consideration, this maxim does not apply.
i.e. if an error is made after considering the precedents, then it isn’t an error.
A.R.Antulay Vs. R.S.Nayak And Others (1998) 2 SCC 602
The maxim applies by application of a rule of nunc-pro-tunc which means, if
owing to the delay in what the court should done earlier but did later, a party
suffers to the events occurring in interregnum, the court has power to remedy
it.
The maxim applies to a different and narrow area. Here the Court did not see
the precedent so it has to be cured.
nunc-pro-tunc –now for then
Krishna Swamy S. PD. And Anr v Union Of India
Unintentional mistakes can be rectified by court.
RESTITUTION
When a mistake is done by the court, it has to be rectified and it is the duty of
the court to provide for complete justice.
Southern Eastern Coal Field Ltd Vs. State Of Madhya Pradesh And Ors.
(2003) 8 SCC 648.
Restitution means restoring to the party on the modification, variation or
reversal of a decree or order, what has been lost to him in execution of decree
or order of the court or indirect consequence of the order or decree.
Zafar Khan And Others V Board Of Revenue And Others (1985) 1 SCR 287.
- Return or restoration of something to rightful owner.
- Compensation for benefits derived out of wrong done to another.
- Compensation or reparation for the loss caused to another.
- Nothing wrong in effort being made to restore the parties to the same
position in which they would have been if interim order is not passed.
600 001;

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The Section 144 of CPC statutorily recognizes Restitution. The scope is wide to
include modification, variation or reversal or setting aside of a decree or order.
144. Application for restitution.-
(1)Where and in so far as a decree is varied or reversed, the Court of first
instance shall, on the application of any party entitled to any benefit by
way of restitution or otherwise, cause such restitution to be made as will,
so far as may be, place the parties in the position which they would have
occupied but for such decree or such part thereof as has been varied or
reversed; and, for this purpose, the Court may make any orders, including
orders for the refund of costs and for the payment of interest, damages,
compensation and-mesne profits, which are properly consequential on
such variation or reversal.
(2)No suit shall be instituted for the purpose of obtaining any restitution or
other relief which could be obtained by application under sub-section (1).
A.A.Nadar Vs. S.P. Rathinasami (1971) 1MLJ 220
Restitution is an inherent power of the court.
Principles of restitution is applied to myriad situation not strictly falling within
section 144 CPC.
VOID OR NULLITY
NULLITY
Nullity is the result of order or decision becoming void (following void).
Decision lacks inherent jurisdiction.
VOID
If a decision is made by a higher forum which is termed as per incuriam
i.e. being ignorant of precedent, subsequent decision is termed as void.
This order has to be challenged though void.
GANAPATHY case is Void since it did not see DAMODAR Case
Anitha International Vs. Thungabadra Sugar Works Mazdoor Sangh And Others
(2016) 9 SCC 44).
It is not open to Party to a lis or 3rd party, to determine on their own, that the
order passed by court is valid or void.
600 001;

M/s.Giridhar & Sai
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They have to approach to the court to set aside the order, on the grounds as
may be available in law.
Till then the law is valid and non-performance or violation of order is liable to
entail punishment.
In this case the earlier order of the court was found to be without jurisdiction
after 6 years but the order subsisted for 6 years.
BINDING NATURE
Kantaru Rajeevaru (Sabarimala Temple Review) vs. Indian Young Lawyers
Association through its legal secretary and others (2020) 2 SCC 1
ARTICLE 141: Law declared by Supreme Court to be binding on all courts
ARTICLE 144: Civil and judicial authorities to act in aid of the Supreme
Court. All authorities, civil and judicial, in the territory of India shall act in
aid of the Supreme Court
Hence, the already decided judgments like DAMODAR and SUBASH
CHAND cases were in binding nature for the similar cases. However,
ignoring the same and arrived for this judgment.
ARGUMENTS
PETITIONER
 Decision has to be declared as “per incurium”
 Reliance of SATYAPAL CASE is not correct.
 The section 372 and 378 travel in different spheres.
 Judgment given by Sessions Court must be treated as nullity.
 Settled and concluded cases need not be reopened.
AMICUS
600 001;

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 Reference cannot be sustained.
 Victim and complainant can be treated in same footing.
RESPONDENT
 A decision referred by the Court cannot be over turned and the parties
inter se are bound by the same.
 Having undertaken the process of adjudication, it is not open to them to
contend to the contrary.
DISCUSSION (NAVJ)
Appeal has been transferred to Sessions Court from High Court after the
GANAPATHY case.
U/s. 372 in police report, only State can file appeal before the High Court and
victim can file only revision i.e. less scope but now victim can file an appeal.
Judgment in GANAPATHY case is per incuriam and did not follow
DAMODHAR case and SUBASH CHAND case.
GANAPATHY CASE relied upon SATYA PAL SINGH case where case does not
deal with private complaint.
PRIOR TO THE FB JUDGMENT IN GANAPATHY VS. N.SENTHILVEL
S.
No.
Trial
Court
Court of
Sessions
High Court Supreme
Court
1. Acquittal
Appeal under Section
378 (4) Cr.P.C against
the acquittal by the
Magistrate’s Court
Acquittal by the
SLP under
Article 136 of
COI against
the order
passed by the
600 001;

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Magistrate’s Court can
either be confirmed or
the Accused can be
convicted
High Court
2. Conviction Appeal under
Section 374(3) (a)
Cr.P.C against
the conviction --
in
such an Appeal,
the conviction by
the Magistrate
Court can either
be confirmed or
reversed (i.e., the
Accused is
acquitted)
Revision under
Sections 397 r/w 401
Cr.PC against
confirmation of
conviction or acquittal
by the Court of
Sessions.
Conviction by the
Court of Sessions can
either be confirmed or
the Accused can be
acquitted.
Acquittal by the Court
of Sessions can either
be confirmed or the
acquittal can be set
aside and the case be
remanded.
SLP under
Article 136 of
COI against
the order
passed by the
High Court
600 001;
SUBSEQUENT TO THE FB JUDGEMENT IN GANAPATHY
VS.N.SENTHILVEL 2016
S.
No.
Magistrate
Court
Court of
Sessions
High Court Supreme
Court
1. Acquittal Appeal under
Section 372
Revision under
Sections 397 r/w. 401 SLP under

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Cr.PC against
the acquittal -In
such an Appeal,
the acquittal by
the Magistrate's
Court can either
be confirmed or
reversed (i.e., the
Accused is
convicted)
Cr.PC against
confirmation of
acquittal or conviction
by the Court of
Sessions. Conviction
by the Court of Session
would have either been
confirmed or the
Accused would have
been acquitted
of Sessions would have
either been confirmed
or the acquittal would
have been set aside
and the case
remanded. Another
Appeal (instead of
Revision) under
Section 378 (4) Cr.PC
against acquittal by
the Court of Sessions
was also a possibility
Article 136 of
COI against
the order
passed
by the High
Court..
2. Conviction Appeal under
Section 374 (3)
(a) Cr.PC against
the conviction -
In
such an Appeal,
Revision under
Cr.PC against
confirmation of
conviction or acquittal
by the Court of
SLP under
Article 136 of
COI against
the order
passed by the
High Court.
600 001;

M/s.Giridhar & Sai
Advocates
_
the conviction by
the Magistrate's
Court can either
be confirmed or
reversed (i.e., the
Accused is
acquitted)
Appeal under
Section 372
Cr.PC seeking
enhancement of
sentence - In
such an Appeal,
the sentence by
the Magistrate's
Court could be
enhanced or the
Appeal dismissed
Sessions.
Conviction by the
Court of Sessions
would have either been
confirmed or the
Accused would have
been acquitted.
of Sessions would have
either been confirmed
or the acquittal would
have been set aside
and the case remanded
Revision under
Cr.PC against
enhancement of
sentence or refusal to
enhance by the Court
of Sessions
600 001;
DECISION
Page 57 of FB Judgment:
26.5: Cases which are pending before the respective Sessions Courts filed at
the instance of the Complainants aggrieved over the orders of the acquittal,
they are to be transferred back to the High Court and to be decided by a
Learned Single Judge. As they have already been taken on file, special leave
u/s 378 (5) of Cr.P.C. need not be sought. However, those cases which are

M/s.Giridhar & Sai
Advocates
_
merely numbered alone but notice not issued and taken on file, shall be
transferred to HC and special leave is to be obtained.
6.Cases (Revisions) where the matters are pending before HC, filed by
Complainant, after suffering a judgment confirming the order passed by the
Trial Court, are to the treated as appeals filed by the Complainants by ignoring
the judgment of the Sessions Court. A complainant cannot be put at fault and
to be made clear that the pending revisions are to be treated as appeals and
even for these cases, there is no need of a special leave.
7.Cases where revision filed by the Accused after conviction by the Sessions
Court by reversing the order of acquittal, they are to be treated as appeals by
the Complainant. Therefore there should be a transposition of parties by
converting the revisions as appeals by treating them as the one filed by the
complainants and even in these cases, no fresh leave is required.
8.The revisions already disposed by HC pertaining to the cases decided by the
Court of Session in tune with Ganapathy case, they have attained finality and
no further orders are required.
9.In cases where the appeals filed before the Sessions Court are dismissed, the
Complainants can file an appeal under Section 378 (4) CrpC against the order
of the Session Court. Limitation will be calculated from the date on which the
order of Sessions Court was made ready and a special leave is mandatory.
27. In cases where a finality is reached, judgment has been given effect to, a
party is not entitled to contend that judgment of the Session Court has
become nullity.
ANSWERS FOR THE QUESTIONS FRAMED
1. When a Magistrate acquits an accused in a case instituted upon a private
600 001;

M/s.Giridhar & Sai
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complaint, like a prosecution under section 138 of the NI Act, where does the
remedy lie for the unsuccessful complainant - Whether to the Court of Session
under the proviso to Section 372 Cr.P.C. or before the High Court under
Section 378(4) and (5) CrPC or are there concurrent remedies available, with
the right to the complainant to elect the forum of choice? – Section 378 (4)
before High Court.
2.If the remedy is under the proviso to Section 372 CrPC should the
complainant seek special leave from the Court of Session and if so, under what
provision of law? –Not Applicable since 1st question’s answer will overrule this.
3.What is the period of limitation for filing an appeal against acquittal before
the Court of Session under the proviso to Section 372 Cr.P.C. in a private
complaint case like Section 138 of the NI Act? – Not Applicable since 1st
question’s answer will overrule this.
4.The appeal will have to be filed under the proviso to Section 372 Cr.P.C.,
then, if such appeal filed by the complainant before the Court of Session is
dismissed and the order of acquittal passed by the Magistrate is upheld, does
the complainant have a remedy to file a revision under Section 397 read with
Section 401 Cr.P.C. before the High Court or file another round of appeal
against such acquittal by the Court of Session before the High Court under
Section
Courts below? –Not Applicable since 1st question’s answer will overrule
600 001;
1st378(4) & (5) CrPC? – Not Applicable since question’s answer will
overrule this.
5. If the complainant has the revisional remedy before the High Court under
Section 397 read with Section 401 CrPC can the High Court set aside only the
Appellate Court's order or the Trial Court's order or the orders of both the

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this.
6.In the event of the larger Bench holding that the complainant who has lost
before the Trial Court and the Court of Session has the remedy to file a revision
under Section 397 read with Section 401 CrPC before the High Court, then,
after setting aside the orders, should the High Court remand the case to the
Court of Session or to the Trial Court for re-trial? – Not Applicable since 1st
question’s answer will overrulethis.
7.In the event of the law laid down by the Full Bench in S. Ganapathy (supra)
being overruled, what impact would such overruling have on the cases which
have been decided by the Courts of Session during the interregnum?
Key points of discussion
 Acquittal –Appeal filed before SC –transfer to HC
 Acquittal –Appeal confirmed –HC Revision –to be treated as appeals
(ignoring the SC Judgment)
 Acquittal –Appeal in Sessions: changed to conviction –Revision –to be
treated as Appeals by Complainant.
 Revisions already disposed by HC –attained finality –no further orders
 Trial Court order –Appeal dismissed by SC –Appeal can be filed before
HC.
Frame work of Appeals
Thank you.
600 001;
Conviction
|
Appeal to Sessions Court
|
Revision to High Court
|
Special Leave to Supreme Court
Acquittal
|
Appeal to High Court
|
Special Leave to Supreme Court

Appeal in criminal cases

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