Delhi High Court: Vibhu Bhakru, J. allowed a criminal writ petition filed against the order of the Sessions Judge whereby the Chief Metropolitan Magistrate was directed to conduct a re-trial against the petitioner after altering the charge against him from Section 323 (punishment for voluntarily causing hurt) to Section 325 (punishment for voluntarily causing grievous hurt) of the Penal Code.

The complainant (sister-in-law of the petitioner) accused the petitioner of hitting her with a pipe. FIR was registered and the petitioner was tried before the trial court for the offence punishable under Section 323 IPC, to which charge, the petitioner pleaded guilty. He was accordingly convicted. Aggrieved, the complainant approached the Appellate Court contending that she had suffered grievous injuries and, therefore, the petitioner should have been tried for an offence punishable under Section 325 IPC. The appeal was allowed and the matter remitted back to the trial court, which considered the matter afresh and convicted the petitioner under Section 325 on the ground that he had already pleaded guilty earlier. He was directed to pay compensation of Rs 80,000 to the complainant, which the complainant refused to accept. She again preferred an appeal before the Sessions Judge, which appeal was treated as one under Section 372 CrPC. The Appellate Court allowed the appeal and held that the trial court ought to have altered the charge and conducted a fresh trial. The matter was remanded to the trial court to proceed with the case in accordance with the law. Aggrieved thereby, the petitioner filed the instant petition.

Perusing the complainant’s appeal, the High Court noted that, essentially she was aggrieved by the inadequacy of the sentence imposed on the petitioner. Therefore, the principal question for consideration was — whether such appeal under Section 372 CrPC was maintainable?

The High Court was of the opinion: “The proviso to Section 372 of the CrPC does not contemplate an appeal against an order of a court imposing an inadequate sentence/punishment. It is well settled that there is no inherent right of an appeal and the said right is a statutory right and is available only if it is conferred by a statute.”

In such view of the matter, the High court allowed the instant petition, and held that the appeal filed by the complainant under Section 372 was not maintainable and therefore, the impugned order passed by the Sessions Judge was set aside. [Ashok Malhotra v. State (NCT of Delhi), 2019 SCC OnLine Del 10864, decided on 01-11-2019]

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