MANJULABEN W/O KAMLESHKUMAR PARMARversusSTATE OF GUJARAT

    R/CR.A/1842/2026                                   ORDER DATED: 07/08/2026




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1842 of 2026

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               MANJULABEN W/O KAMLESHKUMAR PARMAR
                               Versus
                      STATE OF GUJARAT & ORS.
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Appearance:
AVANI V PATEL(8016) for the Appellant(s) No. 1
MS JIRGA JHAVERI ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                                Date : 07/08/2026

                                    ORDER


1. The present appeal is                 led by the appellant original
complainant            under   Section     413    of   Bharatiya        Nagarik
Suraksha Sanhita (hereinafter referred to as ‘B.N.S.S.’ for
short) against the judgment and order dated 23.02.2026
passed by the learned 4th Additional Sessions Judge, Kalol
Dist. Gandhinagar (hereinafter be referred to as “the Trial
Court”) in Criminal Appeal No. 46 of 2024 whereby the Trial
Court has dismissed the said Appeal and con rmed the order
passed by the Learned Additional Chief Judicial Magistrate,
Kalol   dated 13.05.2024 in Criminal Case No. 1018 of 2017
whereby the learned Additional Chief Judicial Magistrate has
acquitted the respondent Nos. 2 to 5 herein from the charges
under Sections 498-A, 114 of Indian Penal Code and Section 3
and 7 of the Dowry Prohibition Act.

2. It appears from the record that respondent No.2 is husband


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    R/CR.A/1842/2026                                 ORDER DATED: 07/08/2026




of the appellant and the marriage of the appellant with
respondent No.2 was solemnized on 05.05.2009 as per Hindu
rites and rituals. After about two years of marriage, she gave
birth to a daughter, namely “Aaradhya”, who is presently
residing with her. Thereafter, respondent No.2 allegedly
subjected her to continuous physical and mental harassment.
The respondent No.2 intended to obtain a divorce from the
appellant and was maintaining an illicit relationship with
respondent No.3. Due to such conduct and harassment, the
appellant refused to return to her matrimonial home. It was
further alleged that respondent No.2 demanded dowry of
Rs.4,00,000/- from the appellant and that respondents No.3 to
5 abetted and supported him in subjecting her to harassment
and cruelty. Accordingly, complaint came to be lodged by the
appellant before Kalol Taluka Police Station vide C.R. No.43
of 2007 against the respondents for the o@ences punishable
under Sections 498-A and 114 of the IPC and Sections 3 and 7
of the Dowry Prohibition Act.

3. Heard learned counsel appearing for the respective parties.

4. This matter is required to be transferred in view of the
decision of the High Court of Chhattisgarh rendered in the
case of State of Chhattisgarh, Through Its Station House
O icer Vs. Mohanlal Bagde, reported in [2019] SCC
OnLine Chh 102 wherein, the Court has referred the earlier
decision of the Hon’ble Supreme Court rendered in case of of
Subhash         Chand   vs   State          (Delhi     Administration),
reported in (2013) 2 SCC 17, wherein, the Hon’ble
Supreme Court has observed and held in para-18 as under :



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    R/CR.A/1842/2026                                ORDER DATED: 07/08/2026




      “18. If we analyse Section 378(1)(a) & (b), it is clear that the State
      Government cannot direct the Public Prosecutor to #le an appeal
      against an order of acquittal passed by a Magistrate in respect of a
      cognizable and non- bailable o*ence because of the categorical bar
      created by Section 378(1)(b). Such appeals, that is appeals against
      orders of acquittal passed by a Magistrate in respect of a
      cognizable and non-bailable o*ence can only be #led in the
      Sessions Court at the instance of the Public Prosecutor as directed
      by the District Magistrate. Section 378(1)(b) uses the words "in any
      case" but leaves out orders of acquittal passed by a Magistrate in
      respect of a cognizable and non-bailable o*ence from the control of
      the State Government. Therefore, in all other cases where orders
      of acquittal are passed appeals can be #led by the Public
      Prosecutor as directed by the State Government to the High
      Court."


4.1 Even, considering the fact that the victim has a right to
 le an appeal under Section 372 of Cr.P.C. before the Court of
Sessions, present appeal is required to be transferred to the
concerned Sessions Court.

5. It would also be appropriate to refer to the decision of the
High Court of Punjab & Haryana rendered in case of
Mohanlal Vs. Gaurav Kumar and Anr., reported in 2025
PHHC 162308, wherein the Court has observed and held in
para-3 as under :

      “3. 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
      #le an appeal under Section 372 of Cr.P.C. before the Court of
      Sessions.”


6. In the case of Celestium Financial Vs. A.Gnanasekaran
Etc. reported in 2025 (3) GLH 747 the Hon’ble Supreme
Court has held and observed in para – 7.12 as under:-

       “7.12      The reasons for the above distinction are not far to see
       and can be elaborated as follows:




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R/CR.A/1842/2026                               ORDER DATED: 07/08/2026




   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
   su*ered the impact of the o*ence committed by a person who is
   charged of the o*ence, 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 su*ered a conviction, who,
   as a matter of right can prefer an appeal under Section 374 of 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 #t to
   insert the proviso to sub-section 372 without mandating any
   condition precedent to be ful#lled by the victim of an o*ence,
   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 such an appeal is with 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 High Court under Section 378(4)
   of the CrPC would be contrary 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 #ling 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 o*ence
   to prefer an appeal on the grounds mentioned therein as
   compared to a complainant.

   Fifthly, the involvement of the State in respect of an o*ence
   under Section 138 of the Act is conspicuous by its absence. This is
   because the complaint #led 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 o*ence tried
   as a criminal o*ence. 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 de#nition of
   victim under Section 2(wa) of the CrPC.”




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    R/CR.A/1842/2026                              ORDER DATED: 07/08/2026




7. In the decision in case of M/s. Everest Automobiles Vs.
M/s. Rajit Enterprises dated 12.02.2026 passed in Special
Leave to Appeal No.12350 of 2024 the Hon’ble Apex Court
observed as under:-

      “Reliance is placed by the learned counsel for the petitioner on the
      recent judgment of this Court in “Celestium Financial vs. A.
      Gnanasekaran”. By way of the said judgment, a co-ordinate Bench
      of this Court held that a complainant in a case arising under
      Section 138 of the Negotiable Instruments Act, 1881, is a ‘victim’
      who would be entitled to #le an appeal under the proviso to
      Section 372 of the Code of Criminal Procedure, 19732. It was
      further held that such appeal could be #led against an order of
      acquittal under the proviso to Section 372 of the Code without
      seeking special leave to appeal under Section 378(4) of the Code.
      However, this judgment did not take into account the earlier
      decisions of this Court in Satya Pal Singh vs. State of M.P. and
      Subhash Chand vs. State (Delhi Administration), which have a
      bearing on both the aspects that were considered in the
      aforestated judgment, as they held to the contrary.”


8. Learned Additional Public Prosecutor has pointed out that
the matter in the case of Celestium Financial Vs. A.
Gyanasekaran (supra) is now pending at large before the
Hon’ble Supreme Court in case of M/s. Everest Automobiles
Vs. M/s. Ranjit Enterprises in Special Leave to Appeal (Crl.)
No. 12350/2024 wherein the Hon’ble Supreme Court has
observed that it is desirable that a larger Bench gives an
authoritative pronouncement on this issue as it has far-
reaching consequences.

9. In view of the said submissions and the decisions of
di@erent Courts as well as the Hon’ble Supreme Court as
aforesaid, this appeal is disposed of with a direction to the
Registry to transfer the appeal to the concerned Sessions
Court. After it is transferred to the concerned Sessions Court,
it has to be treated as an Appeal under the proviso under


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       R/CR.A/1842/2026                                                               ORDER DATED: 07/08/2026




Section 372 of the Code / Section 413 of BNSS and numbered
accordingly and issue notice to the parties. The Registry is
directed to transfer the entire record of the case, including
the certi ed copies of the order impugned and record &
proceedings, if lying with this Court, to the concerned lower
Appellate Court, forthwith.

10. Considering that the matter has been pending for
considerable time, the learned lower Appellate Court is
required to make endeavour to dispose of the matter as
expeditiously as possible. It is clari ed that this Court has not
gone into the merits of the matter at this stage.



                                                                        (HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: SURESHKUMAR MOTIBHAI SOLANKI(HC00208), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 11/08/2026 18:18:53




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