The Delhi High Court has held that a victim of an offence can prefer an appeal against an order of acquittal or conviction for a lesser offence under the proviso to Section 372 of the Code of Criminal Procedure (CrPC), without being required to seek leave to appeal, unlike the State or a complainant challenging an order of acquittal.

A Division Bench comprising Chief Justice Devendra Kumar Upadhyaya and Justice Tejas Karia dismissed a plea challenging the constitutional validity of the proviso to Section 372 of CrPC, and the corresponding proviso to Section 413 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

“…the submission made on behalf of the petitioner for assailing the constitutional validity of the proviso appended to Section 372 of Cr.P.C./proviso appended to Section 413 of BNSS allegedly being violative of Article 14 and 21 of the Constitution of India, in our opinion, is highly misconceived,” the Court observed.

It also rejected an alternative prayer to declare that the proviso is applicable only to privately instituted complaint cases and not to police complaints.

The Court observed that such a declaration cannot be granted as the proviso does not restrict right to prefer an appeal against an order passed by the Court acquitting the accused or convicting an accused for lesser offence or imposing inadequate compensation only in a case which arises out of a private complaint.

“By making the alternative prayer, the petitioner seeks to read something which the legislature itself has not provided for in the statute. Thus, the said prayer can also not be granted,” the Bench said.

The case arose from an FIR registered under Section 509 of IPC against a man. After trial, the Magistrate Court acquitted him on October 16, 2024.

The complainant-victim thereafter filed an appeal before the Sessions Court challenging the acquittal. The man objected to its maintainability, contending that since the offence was cognizable and bailable, an appeal against acquittal could lie only before the High Court and only after obtaining leave under Section 378 of CrPC.

The Sessions Court rejected the preliminary objection. Thereafter, the man approached the High Court, challenging the Sessions Court's order as well as the constitutional validity of the victim's statutory right to appeal.

It was his case that Section 378 of CrPC provides an important safeguard against disturbing an acquittal and requires the State to obtain leave before challenging an acquittal.

He contended that the impugned proviso casts a discrimination between the right of a victim and right of the State to challenge an order of acquittal.

He submitted that in case the State has to challenge an order of acquittal passed by a Magistrate in respect of a cognizable and bailable offence, it can file an appeal under Section 378 of the Cr.P.C.

However, it was argued, that the State for filing the said appeal has to undergo the rigors of seeking leave to appeal, whereas a victim can challenge an order of acquittal in a cognizable and bailable offence by filing an appeal under the proviso.

According to the man, the said position creates an anomalous situation where, in the matter of right to appeal the State is discriminated vis-à-vis the victim.

Calling it “absolutely fallacious”, the Court rejected the submissions, including the argument that a victim must also be required to go through the rigors of seeking leave to appeal in case the victim intends to challenge an order of acquittal.

The Bench relied on the Supreme Court's decision in Celestium Financial, observing that a clear distinction has been drawn between the rights of the State, a complainant and a victim in challenging an acquittal.

The Court noted that it has been held that where a complainant is not a victim and seeks to challenge an acquittal in a complaint case, the requirement of special leave under Section 378(4) of CrPC continues to apply.

However, where the complainant is also the victim, the person can invoke the proviso to Section 372 of CrPC and exercise the right of appeal as a victim without seeking special leave.

The Bench also referred to the Supreme Court's ruling in Khem Singh v. State of Uttarakhand, which held that the proviso to Section 372 of CrPC was inserted to confer an independent right of appeal upon victims, irrespective of whether they were complainants.

“We, thus, do not find any force in the arguments made on behalf of the petitioner challenging the constitutional validity of the proviso appended to Section 372 of the Cr.P.C./proviso appended to Section 413 of the BNSS, 2023,” the Court said.

It added: “We also do not find any irregularity or illegality in the impugned order dated 06.04.2026 passed by the learned Sessions Judge, whereby the preliminary objections regarding the maintainability of the appeal filed by the respondent no.3 against the order of acquittal, have been rejected.”

Title: SHIVDHAR UPADHYAY v. UNION OF INDIA AND ANR

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