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2025 DAILYLAW 16709 (PNJ)

PARVEEN KUMARI v. GURMAIL SINGH AND ANR.

CRM-A/247/2024 · 2025-07-28

Namit Kumar

body2025

Judgment text

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CRM-A-247 IN THE HIGH COURT OF PUNJAB AND HARYANA Parveen Kumari Gurmail Singh and another CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR Present: - NAMIT KUMAR, J. 1. 378(4) of the Code of Criminal Procedure, 1973 (hereinafter ‘CR.P.C.’) seeking grant of leave to appeal against the judgment of acquittal dated 21.10.2023, passed by Mukerian, in a case arising from complaint filed by the applicant complainant under Sections 498 2. of applicant started harassing the applicant dowry and she was compelled to leave the matrimonial home assessing all the material available on the record, the learned trial Court acquitted the respondent 3. vs. A. Gnanasekaran Etc. 2025(3) RCR (Criminal) 208 considerable discussion and comparative interpretation of Sections 372 and 378(4) of Cr.P.C., concluded that the victim has a right to file an 247 of 2024 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-A-247 Date of decision: Parveen Kumari Versus Gurmail Singh and another CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR Mr. H.S. Bedi, Advocate, for the applicant. NAMIT KUMAR, J. The present application has been preferred under Section 378(4) of the Code of Criminal Procedure, 1973 (hereinafter ‘CR.P.C.’) seeking grant of leave to appeal against the judgment of acquittal dated 21.10.2023, passed by the learned Judicial Magistrate F Mukerian, in a case arising from complaint filed by the applicant complainant under Sections 498-A, 406 read with Section 109 IPC. The complaint was filed on the of applicant-complainant and son of the respondent started harassing the applicant-complainant for bringing insufficient dowry and she was compelled to leave the matrimonial home assessing all the material available on the record, the learned trial Court acquitted the respondents vide judgment dated The Hon’ble Supreme Court in vs. A. Gnanasekaran Etc. 2025(3) RCR (Criminal) 208 considerable discussion and comparative interpretation of Sections 372 and 378(4) of Cr.P.C., concluded that the victim has a right to file an -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 247 of 2024 (O&M) Date of decision: 28.07.2025 ......Applicant ......Respondents CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR for the applicant. The present application has been preferred under Section 378(4) of the Code of Criminal Procedure, 1973 (hereinafter ‘CR.P.C.’) seeking grant of leave to appeal against the judgment of acquittal dated learned Judicial Magistrate First Class, Mukerian, in a case arising from complaint filed by the applicant- A, 406 read with Section 109 IPC. The complaint was filed on the ground that after marriage complainant and son of the respondents, respondents complainant for bringing insufficient dowry and she was compelled to leave the matrimonial home. After assessing all the material available on the record, the learned trial Court judgment dated 21.10.2023. The Hon’ble Supreme Court in M/s. Celestium Financial vs. A. Gnanasekaran Etc. 2025(3) RCR (Criminal) 208, after considerable discussion and comparative interpretation of Sections 372 and 378(4) of Cr.P.C., concluded that the victim has a right to file an RAVINDER SINGH 2025.08.02 13:22 I attest to the accuracy and integrity of this document CRM-A-247 appeal under Section 372 of Cr.P.C. before the Court of Sessions. Hon’ble Supreme Court has held as u “7.12 The reasons for the above distinction are not far to see and can be elaborated as follows: Firstly, the victim of a crime must have an absolute right to prefer an appeal which cannot be circumscribed by any condition precedent. In the instant 138 of the Act, i.e., a payee or the holder of a cheque is a person who has suffered the impact of the offence committed by a person who is charged of the offence, namely, the accused, whose cheque has been dishonoured. Second with the right of an accused who has suffered a conviction, who, as a matter of right can prefer an appeal under Section the CrPC. A per an appeal under Section 374 as a matter of right and not being subjected to any conditions. Similarly, a victim of a crime, whatever be the nature of the crime, unconditionally must have a right to prefer an Thirdly, it is for this reason that the Parliament thought it fit to insert the proviso to sub condition precedent to be fulfilled by the victim of an offence, which expression also includes the legal representati deceased victim who can prefer an appeal. On the contrary, as against an order of acquittal, the State, through the Public Prosecutor can prefer an appeal even if the complainant does not prefer such an appeal, though of course such an appeal is w always necessary for the State or a complainant to prefer an appeal. But when it comes to a victim's right to prefer an appeal, the insistence on seeking special leave to appeal from the High 247 of 2024 (O&M) appeal under Section 372 of Cr.P.C. before the Court of Sessions. Hon’ble Supreme Court has held as under: - “7.12 The reasons for the above distinction are not far to see and can be elaborated as follows: Firstly, the victim of a crime must have an absolute right to prefer an appeal which cannot be circumscribed by any condition precedent. In the instant case, a victim under Section 138 of the Act, i.e., a payee or the holder of a cheque is a person who has suffered the impact of the offence committed by a person who is charged of the offence, namely, the accused, whose cheque has been dishonoured. Secondly, the right of a victim of a crime must be placed on par with the right of an accused who has suffered a conviction, who, as a matter of right can prefer an appeal under Section the CrPC. A person convicted of a crime has the right to prefer an appeal under Section 374 as a matter of right and not being subjected to any conditions. Similarly, a victim of a crime, whatever be the nature of the crime, unconditionally must have a right to prefer an appeal. Thirdly, it is for this reason that the Parliament thought it fit to insert the proviso to sub-section 372 without mandating any condition precedent to be fulfilled by the victim of an offence, which expression also includes the legal representati deceased victim who can prefer an appeal. On the contrary, as against an order of acquittal, the State, through the Public Prosecutor can prefer an appeal even if the complainant does not prefer such an appeal, though of course such an appeal is with the leave of the always necessary for the State or a complainant to prefer an appeal. But when it comes to a victim's right to prefer an appeal, the insistence on seeking special leave to appeal from the Court under Section 378(4) of the CrPC would be contrary -2- appeal under Section 372 of Cr.P.C. before the Court of Sessions. The - “7.12 The reasons for the above distinction are not far to see Firstly, the victim of a crime must have an absolute right to prefer an appeal which cannot be circumscribed by any case, a victim under Section 138 of the Act, i.e., a payee or the holder of a cheque is a person who has suffered the impact of the offence committed by a person who is charged of the offence, namely, the accused, whose ly, the right of a victim of a crime must be placed on par with the right of an accused who has suffered a conviction, who, as a matter of right can prefer an appeal under Section 374 of son convicted of a crime has the right to prefer an appeal under Section 374 as a matter of right and not being subjected to any conditions. Similarly, a victim of a crime, whatever be the nature of the crime, unconditionally must have a Thirdly, it is for this reason that the Parliament thought it fit to section 372 without mandating any condition precedent to be fulfilled by the victim of an offence, which expression also includes the legal representatives of a deceased victim who can prefer an appeal. On the contrary, as against an order of acquittal, the State, through the Public Prosecutor can prefer an appeal even if the complainant does not prefer such an appeal, though of course ith the leave of the court . However, it is not always necessary for the State or a complainant to prefer an appeal. But when it comes to a victim's right to prefer an appeal, the insistence on seeking special leave to appeal from the (4) of the CrPC would be contrary RAVINDER SINGH 2025.08.02 13:22 I attest to the accuracy and integrity of this document CRM-A-247 to what has been intended by the Parliament by insertion of the proviso to Section Fourthl circumscribe the victim's right to prefer an appeal just as it has with regard to a complainant or the State filing an appeal. On the other hand, the Parliament has inserted the proviso to Section 372 so as offence to prefer an appeal on the grounds mentioned therein as compared to a complainant. Fifthly, the involvement of the State in respect of an offence under Section 138 of the Act is conspicuous by its a is because the complaint filed under that provision is in the nature of a private complaint as per Section Section 143 of the Act by an express intention incorporates th provisions of the CrPC in the matter of trial of such a deemed offence tried as a criminal offence. Therefore, the complainant, who is the victim of a dishonour of cheque must be construed to be victim in terms of the proviso to Section 372 read with the definition of victim under Section 2(wa) of the CrPC.” 4. overruling, a two Judge bench of the Hon’ble Supreme Court in Directorate of Revenue Intelligence vs. Raj Kumar Arora Appeal No. decided on 17.04.2025 shall be applicable retrospectively. Supreme Court has held as under 247 of 2024 (O&M) to what has been intended by the Parliament by insertion of the proviso to Section 372 of the CrPC. Fourthly, the Parliament has not amended Section 378 to circumscribe the victim's right to prefer an appeal just as it has with regard to a complainant or the State filing an appeal. On the other hand, the Parliament has inserted the proviso to Section 372 so as to envisage a superior right for the victim of an offence to prefer an appeal on the grounds mentioned therein as compared to a complainant. Fifthly, the involvement of the State in respect of an offence under Section 138 of the Act is conspicuous by its a is because the complaint filed under that provision is in the nature of a private complaint as per Section Section 143 of the Act by an express intention incorporates th provisions of the CrPC in the matter of trial of such a deemed offence tried as a criminal offence. Therefore, the complainant, who is the victim of a dishonour of cheque must be construed to be victim in terms of the proviso to Section 372 read with the definition of victim under Section 2(wa) of the CrPC.” Further still, applying the doctrine of prospective overruling, a two Judge bench of the Hon’ble Supreme Court in Directorate of Revenue Intelligence vs. Raj Kumar Arora Appeal No. 1319 Of 2013 with Criminal Appeal No. 272 of 2014 decided on 17.04.2025 has clarified that as a rule of thumb, judgments shall be applicable retrospectively. In the said judgment, the Hon’ble Supreme Court has held as under: - “91. The declaration of a statute dealing with substantive rights, by the legislature, is considered to be prospective unless it is expressly or by necessary implication made to have retrospective operation. The legal maxim "Nova Constitutio Futuris Forman Imponere Debet, Non -3- to what has been intended by the Parliament by insertion of the y, the Parliament has not amended Section 378 to circumscribe the victim's right to prefer an appeal just as it has with regard to a complainant or the State filing an appeal. On the other hand, the Parliament has inserted the proviso to to envisage a superior right for the victim of an offence to prefer an appeal on the grounds mentioned therein as Fifthly, the involvement of the State in respect of an offence under Section 138 of the Act is conspicuous by its absence. This is because the complaint filed under that provision is in the nature of a private complaint as per Section 200 of the CrPC and Section 143 of the Act by an express intention incorporates the provisions of the CrPC in the matter of trial of such a deemed offence tried as a criminal offence. Therefore, the complainant, who is the victim of a dishonour of cheque must be construed to be victim in terms of the proviso to Section 372 read with the definition of victim under Section 2(wa) of the CrPC.” Further still, applying the doctrine of prospective overruling, a two Judge bench of the Hon’ble Supreme Court in Directorate of Revenue Intelligence vs. Raj Kumar Arora in Criminal 1319 Of 2013 with Criminal Appeal No. 272 of 2014 has clarified that as a rule of thumb, judgments In the said judgment, the Hon’ble tute dealing with substantive rights, by the legislature, is considered to be prospective unless it is expressly or by necessary implication made to have retrospective operation. The legal maxim "Nova Constitutio Futuris Forman Imponere Debet, Non RAVINDER SINGH 2025.08.02 13:22 I attest to the accuracy and integrity of this document CRM-A-247 247 of 2024 (O&M) Praeteritis" indicating that a new law ought to regulate what is to follow and not the past, carries with it a presumption of prospectivity and this presumption is generally said to operate unless the contrary is shown by an express provision in the statute or if is otherwise discernible through necessary implication.This is because such statutes would have the consequence of affecting vested rights, impose new burdens or impair existing obligations. However, when a decision rendering an opinion interpretation of a penal provision is subsequently overruled by the decision of a larger bench, the consequence of the overruling is starkly different and by default, retrospective. This is because it is settled law that the law declared by this Court normally assumed to be the law from the inception. 92. The operation of a newly enacted statute or rule must not be confused with the effect of a judgment. or decision which interprets a statute or provision declares the meaning of the statute as it should be construed from the date of its enactment. In other words, the judgment declares what the legislature had said at the time when the law was promulgated and therefore, it has retrospective effect. On the contrary, it is the statute or the rule which is presumed to be prospective unless expressly made retrospective. What follows from the same, is that a decision or judgment enunciating a principle of law is applicable to all cases irrespective of the pendency before different forums since what has been enunciated is the meaning of the law which existed from the inception of the concerned statute or provision. What has been declared to be the law of the land must be held to have always been the law of the land. This conclusion also stems from the rationale that the duty of the -4- tis" indicating that a new law ought to regulate what is to follow and not the past, carries with it a presumption of prospectivity and this presumption is generally said to operate unless the contrary is shown by an express provision in the statute or if the retrospectivity is otherwise discernible through necessary implication.This is because such statutes would have the consequence of affecting vested rights, impose new burdens or impair existing obligations. However, when a decision rendering an opinion as regards the interpretation of a penal provision is subsequently overruled by the decision of a larger bench, the consequence of the overruling is starkly different and by This is because it is settled law that Court is retrospective and is normally assumed to be the law from the inception. 92. The operation of a newly enacted statute or rule must not be confused with the effect of a judgment. A judgement or decision which interprets a statute or provision thereof declares the meaning of the statute as it should be construed from the date of its enactment. In other words, the judgment declares what the legislature had said at the time when the law was promulgated and therefore, it On the contrary, it is the statute or the rule which is presumed to be prospective unless expressly made retrospective. What follows from the same, is that a decision or judgment enunciating a principle of law is applicable to all cases irrespective of the stage of pendency before different forums since what has been enunciated is the meaning of the law which existed from the inception of the concerned statute or provision. What has been declared to be the law of the land must be held to e law of the land. This conclusion also stems from the rationale that the duty of the court is not to RAVINDER SINGH 2025.08.02 13:22 I attest to the accuracy and integrity of this document CRM-A-247 rendered by a Rajender CRM 5. Hon’ble Supreme Court in Directorate of Revenue Intelligence (supra) Satish Kumar vs. Jugal Kishor on 02.07.2025 treat the present leave to appeal as an appeal filed under Section 372 of the Cr.P.C. and entrust t merits. 6. and the record of the case to the learned Sessions Judge, forthwith . 7. applications, if any, also stand disposed of. 28.07.2025 R.S. 247 of 2024 (O&M) "pronounce a new law but to maintain and expound the old one". (emphasis added) Reliance in this regard can also be placed on the judgment rendered by a Co-ordinate bench of this Court in Rajender CRM-A-826-2025 decided on 07.07.2025. Therefore, in view of the judgments rendered by the Hon’ble Supreme Court in Celestium Financial (supra) Directorate of Revenue Intelligence (supra) Satish Kumar vs. Jugal Kishor in CRM on 02.07.2025, the learned Sessions Judge, treat the present leave to appeal as an appeal filed under Section 372 of the Cr.P.C. and entrust the same to appropriate Court for its disposal on The Registry is directed to send the complete paper book and the record of the case to the learned Sessions Judge, Disposed of, accordingly. Pending miscellaneous applications, if any, also stand disposed of. Whether speaking/reasoned Whether Reportable -5- "pronounce a new law but to maintain and expound the Reliance in this regard can also be placed on the judgment ordinate bench of this Court in Raj Kumar vs. 2025 decided on 07.07.2025. Therefore, in view of the judgments rendered by the Celestium Financial (supra) and Directorate of Revenue Intelligence (supra) as well as this Court in CRM-A-2700-MA-2018 decided the learned Sessions Judge, Hoshiarpur, is directed to treat the present leave to appeal as an appeal filed under Section 372 of he same to appropriate Court for its disposal on The Registry is directed to send the complete paper book and the record of the case to the learned Sessions Judge, Hoshiarpur, Disposed of, accordingly. Pending miscellaneous (NAMIT KUMAR) JUDGE : Yes/No : Yes/No RAVINDER SINGH 2025.08.02 13:22 I attest to the accuracy and integrity of this document