Orissa High Court
Pankaj Behera vs State Of Odisha And Others ….. … on 21 August, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLLP No.60 of 2025
Pankaj Behera ..... Petitioner
Represented By Adv. -
Mr. Saroj Kumar Dash
-versus-
State of Odisha and others ..... Opposite Parties
Represented By Adv. -
Mr. U.R. Jena, AGA
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
ORDER
21.08.2025
Order No.
03. 1. This matter is taken up through Hybrid Arrangement
(Virtual /Physical Mode).
2. Heard the learned counsel for the Petitioner as well as
learned counsel for the State. Perused the application as well as the
prayer made therein.
3. By filing the present petition under Section 378(4) of the
Cr.P.C. read with Section 419(4) of BNSS, 2023, the Petitioner,
who happens to be the Informant in the F.I.R. initially lodged
before Tamando Police Station and, accordingly, Tamando P.S.
Case No.257 of 2024 came to existence, has approached this Court
seeking leave to challenge the judgment of acquittal dated
30.07.2025 passed by the learned J.M.F.C. (L.R. & LTV),
Bhubaneswar in C.T. Case No.596 of 2024/T.R. No.06 of 2025.
4. Learned counsel for the Petitioner, at the outset, contended
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that in terms of provision contained in Section 378(4) of Cr.P.C.,
the Petitioner, who happens to be a complainant, has a right to
approach this Court seeking leave to prefer an appeal before this
Court. He further submitted that the judgment of acquittal at
Annexure-1 is an erroneous judgment and the same has been
passed without taking into consideration the material evidence on
record. As such, the complainant in the C.T. Case has approached
this Court by filing this petition under Section 378(4) of Cr.P.C.
seeking leave to prefer an appeal before this Court.
5. Learned counsel for the State, on the other hand, contended
that the Petitioner was the Informant at whose instance an F.I.R.
was lodged and, accordingly, Tamando P.S. Case No.257 of 2024
was registered for commission of an offence under Sections
420/294/506/34 of the I.P.C. In the aforesaid factual backdrop,
learned counsel for the State contended that the right to appeal of
the Petitioner has been protected in the proviso to Section 372 of
Cr.P.C., under Chapter-XXIX thereof. The proviso to Section 372
of Cr.P.C. provides a right to the victim to prefer an appeal against
an order acquittal passed by the trial court and the appeal shall be
presented before the court to which an appeal would have lied
against the order of conviction. In such view of the matter,
learned counsel for the State contended that the right of the
Petitioner to prefer an appeal before the appellant court is
preserved and protected by the proviso under Section 372 of
Cr.P.C. In such view of the matter, learned counsel for the State
submitted that the present application is misconceived and,
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accordingly, the same should be dismissed as devoid of merit.
6. Heard the learned counsels appearing for the respective
parties and on careful examination of the materials on record as
well as the background facts, this Court observes that the question
that is required to be determined in the present CRLLP is as to
whether the Petitioner can file an appeal under the proviso to
Section 372 of Cr.P.C. or under Section 378(4) of Cr.P.C. In the
aforesaid context, it would be relevant to refer to both the
provisions contained in Code of Criminal Procedure.
Section 372 of Cr.P.C. reads as thus :-
“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:
1[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 378 of Cr.P.C. read as thus :-
“378. Appeal in case of acquittal.–5[(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;
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(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, 1[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) 2[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
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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).”
7. It is an admitted case of both the sides that the trial was
conducted by following the procedure prescribed in the Code of
Criminal Procedure, 1973. Thus, it is not disputed that the
provisions contained in the Code of Criminal Procedure with
regard to filing of the appeal shall apply to the case of the
Petitioner. On perusal of the judgment dated 30.07.2025, it
appears that the trial which was initiated on the basis of the F.I.R.
lodged by the Petitioner initially before the Tamando Police
Station, ended in acquittal against the accused persons. Although
the factual background of the allegation made in the F.I.R.
involves an allegation of cheque bounce, however, the said case
was not registered under Section 138 of the N.I. Act. Therefore,
the case was registered at the instance of the Petitioner treating the
same as plain and simple C.T. Case which has arisen out of an
F.I.R. lodged in the Tamando Police Station. In the aforesaid
factual backdrop, the provision contained in Section 372 of
Cr.P.C. as well as Section 378 of Cr.P.C. is required to be
interpreted.
8. So far Section 372 of Cr.P.C. is concerned, the provision
which has been extracted above reveals that although the main
section bars an appeal from any judgment or order of the criminal
court except as provided by the Code, however, in the proviso a
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limited scope has been given to the victim to prefer an appeal
against any order passed by the court acquitting the accused or
convicting the accused for a lesser offence or ignoring inadequate
compensation. In such eventuality, an appeal shall lie to the court
to which an appeal is ordinarily preferred against the order of
conviction of such court. In the instant case, the F.I.R. was
registered at the instance of the Petitioner-Informant and the same
has been registered as C.T. case. Accordingly, the trial went
ahead. Therefore, the Petitioner can very well be construed as a
victim in light of the facts narrated in the F.I.R. Thus, it appears
that the Petitioner is indeed covered by the provision under
Section 372 of Cr.P.C.
9. With regard to the provision contained in Section 378(4) of
Cr.P.C., it appears that an appeal has been provided against an
order of acquittal. Learned counsel for the Petitioner, at this
juncture, referred to sub-section(4) of Section 378 of Cr.P.C.
which provides that in the event an order of acquittal is passed in a
case instituted upon a complaint, then, this Court on an application
made by the complainant, shall grant special leave to appeal from
the order of acquittal and, accordingly, the complainant may
present an appeal before this Court. Although learned counsel for
the Petitioner emphasized that the case of the Petitioner is covered
by sub-section (4) of Section 378 of Cr.P.C., however, the same
has been contested by the learned counsel for the State. In reply,
the learned counsel for the State contended that neither the
Petitioner is a complainant in the present case nor the case
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involved in the present petition arises out of a compliant case.
Therefore, the provision contained in sub-section (4) of Section
378 of Cr.P.C. is not applicable to the case of the Petitioner.
10. On careful analysis of the aforesaid factual backdrop and
further keeping in view the provision contained in Section 372 of
Cr.P.C. as well as the provision contained in sub-section (4) of
Section 378 of Cr.P.C., this Court is of the view that the case of
the Petitioner shall be covered by the provision under Section 378
of Cr.P.C. by taking into consideration the fact that the Petitioner
can be termed as a victim in the C.T. Case which was registered
on the basis of an F.I.R.. The provision contained in Section
378(4) of Cr.P.C. would not be applicable to the case of the
Petitioner since the present case does not arise out of a complaint
and the Petitioner cannot be termed as a complainant. In view of
the aforesaid analysis, this Court is of the view that an appeal lies
under the proviso to Section 372 of Cr.P.C. against the judgment
of acquittal dated 30.07.2025 passed in C.T. Case No.596 of 2024,
corresponding to T.R. Case No.6 of 2025 passed by the learned
J.M.F.C. (L.R. & LTV), Bhubaneswar.
11. Accordingly, the present application is disposed by granting
liberty to the Petitioner to file an appeal under the provision of
Section 372 of the Cr.P.C. along with an application for
condonation of delay. In such eventuality, the Appellate Court
shall consider the application for condonation of delay by taking a
lenient view.
12. The certified copy of the impugned judgment be returned to
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the Petitioner on substitution of the authenticated photocopy
thereof.
13. With the aforesaid observation and direction, the CRLLP
stands disposed of.
( A.K. Mohapatra)
Judge
Debasis
Signature Not Verified
Digitally Signed
Signed by: DEBASIS AECH
Reason: Authentication
Location: ORISSA HIGH COURT
Date: 25-Aug-2025 11:42:43
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