MANJURBHAI SULEMANBHAI GAHAversusSTATE OF GUJARAT

     R/CR.MA/13539/2025                              ORDER DATED: 16/07/2026




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 13539
                          of 2025

                          In R/CRIMINAL APPEAL/1636/2026

                                    With
                      R/CRIMINAL APPEAL NO. 1636 of 2026
================================================================
                          MANJURBHAI SULEMANBHAI GAHA
                                      Versus
                            STATE OF GUJARAT & ORS.
================================================================
Appearance:
MR P S DATTA(11324) for the Applicant(s) No. 1
MS ROMA I FIDELIS(3529) for the Respondent(s) No. 2,3
NIKET N MODI(9498) for the Respondent(s) No. 3
MR KRUTIK PARIKH, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
================================================================

 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                                 Date : 16/07/2026

                                     ORDER


ORDER IN CRIMINAL MISC. APPLICATION


        Heard learned counsel for the respective parties.
        Leave to appeal is granted.


ORDER IN CRIMINAL APPEAL


1.      ADMIT. Learned Additional Public Prosecutor waives service of
notice of admission for respondent No.1 – State of Gujarat and learned
counsel Ms.Roma Fidelis, waives service of notice of admission for
respondent Nos.2 and 3 – original accused.


2.      The present appeal is filed by the appellant – original


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     R/CR.MA/13539/2025                            ORDER DATED: 16/07/2026




complainant under Section 378 of the Criminal Procedure Code, 1973
(hereinafter referred to as ‘the Code’ for short) against the judgment
and order dated 02.04.2025 passed by the learned Principal Senior
Civil Judge & Additional Chief Judicial Magistrate, Rajula (hereinafter
be referred to as “the Trial Court) in Criminal Case No.73 of 2017,
whereby the learned trial Court has acquitted the respondents -
accused for the offence under Sections 504, 506(2), 114 etc of the
Indian Penal Code and under Section 147(D) and 147(E) of the G.P.
Act.


3.      The appellant - original complainant had filed the complainant
against the respondent accused under Sections 504, 506(2), 114 etc
of the Indian Penal Code and under Section 147(D) and 147(E) of the
G.P. Act. During the course of investigation and after considering the
documents, the police found sufficient material and filed charge-sheet
in the trial Court. The trial Court recorded the plea and as the accused
pleaded not guilty to the offence, therefore, as the offence was triable
by the trial Court, the trial was proceeded and the impugned
judgment and order was delivered by the trial Court on 02.04.2025
acquitting the respondents-accused from the charges levelled against
them.


4.      Heard learned counsel appearing for the respective parties.


5.      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 Officer 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


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     R/CR.MA/13539/2025                                     ORDER DATED: 16/07/2026




Administration), reported in (2013) 2 SCC 17, wherein, the Hon’ble
Supreme Court has observed and held in para-18 as under :

        “18. If we analyse Section 378(1)(a) & (b), it is clear that the State
        Government cannot direct the Public Prosecutor to file an appeal against an
        order of acquittal passed by a Magistrate in respect of a cognizable and
        non- bailable offence 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 offence can only
        be filed 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 offence from the control of the State
        Government. Therefore, in all other cases where orders of acquittal are
        passed appeals can be filed by the Public Prosecutor as directed by the
        State Government to the High Court."


6.      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 file an appeal under Section
        372 of Cr.P.C. before the Court of Sessions.”


7.      In the case of Celestium Financial Vs. A. Gyanasekaran
(supra), 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:

         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,



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     R/CR.MA/13539/2025                                      ORDER DATED: 16/07/2026




         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 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 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 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 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 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.”


8.      In the decision in case of M/s. Everest Automobiles Vs. M/s.
Rajit Enterprises dated 12.02.2026 passed in Special Leave to



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      R/CR.MA/13539/2025                                    ORDER DATED: 16/07/2026




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. Gnanasekaran1”. 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 file an appeal
         under the proviso to Section 372 of the Code of Criminal Procedure, 19732.
         It was further held that such appeal could be filed 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.”


9.       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.


10.      In view of the said submissions and the decisions of different
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 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 certified copies of
the order impugned and record & proceedings, if lying with this Court,


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           R/CR.MA/13539/2025                                                        ORDER DATED: 16/07/2026




   to the concerned lower Appellate Court, forthwith.


   11.        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
   clarified that this Court has not gone into the merits of the matter at
   this stage.

                                                                      (HEMANT M. PRACHCHHAK,J)

   Dolly




Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: DOLLYBEN CHETANBHAI VADUKAR(HC01392), PRIVATE SECRETARY, at High Court of Gujarat on 17/07/2026 17:25:51




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