Victim can file an appeal against the acquittal of accused



By Azeez Nazar Sabri

In a far reaching and landmark judgment in the matter of Mallikarjun Kodagali ( Dead) represented through Legal Representatives Versus State of Karnataka & Ors. ( Criminal Appeal Nos. 1281-82 of 2018) Supreme Court has held that victim of a crime has right to appeal against the order of acquittal without apply for leave to appeal against the order of acquittal. 

The appellant ( Kodagali- represented by his legal representatives after his death) was victim of an attack on the night of February, 2009. He lodged a First Information Report ( FIR) with the police and after investigations, necessary proceedings were taken before the District and Sessions Judge, Bagalkot against the accused persons under several sections of the Indian Penal Code (IPC).

The District and Session Judge, Bagalkot acquitted the accused by a judgment and order dated 28th October, 2013.Aggrieved by the order of Session Court Kodagali preferred an appeal in the High Court. The appeal was filed under Section 372 of the Cr.P.C, but the same was dismissed as not maintainable by a judgment and order dated 10th June, 2014. It was held by the High Court that proviso to Section 372 of the Cr. P.C  came into the statute book with effect from 31st December,2009 but the incident had occurred well before that date. Therefore, the appeal was not maintainable. 

Kodagali then preferred another appeal in the High Court being Criminal Appeal No. 100119 of 2014. This appeal was filed under the provisions of Section 378( 4) of the Cr.P.C. By a judgment and order dated 04th July, 2014 the High Court held that the appeal was not maintainable. The view taken by the High Court was on a plain reading of Section 378 (4) of the Cr. P.C, namely that the appeal was not filed in a case instituted upon a complaint before a Magistrate. Thereafter, Kodagali filed appeal in the Supreme Court.
The contention of the victim was that he has been left with no remedy against the acquittal of the accused. His submission was that one of the accused is member of legislative assemble and it is for this reason that the State did not challenge the acquittal. 

The substantial questions before Supreme Court were:
1.       Whether a “Victim” as defined in the Cr.P.C. has a right of appeal in view of the proviso to section 372 of the Cr. P.C against an order of acquittal in a case where the alleged offence took place prior to December, 2009 but the order of acquittal was passed by the Trial Court after 31st December, 2009?

2.       Whether the “Victim” must apply for leave to appeal against the order of acquittal?

The answer to first question is YES. The answer to second question is NO. Meaning thereby the Victim can file an appeal against the acquittal of the accused without seeking leave to appeal.    

Email : azeez_nazar@rediffmail.com

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