The expression "victim" as defined in Section
2(wa) includes all categories of his/her legal
heirs for the purpose of engaging an advocate
under Section 24(8) or to prefer an appeal
under proviso to Section 372 of the Code.
(ii) However, legal heirs comprising only the
wife, husband, parent and child of a deceased
victim are entitled to payment of compensation under Section 357(1)(c) of the
Code. Similarly, only those dependents of a
deceased victim who have suffered loss or
injury as a result of the crime and require
rehabilitation, are eligible to seek compensation as per the Scheme formulated
under Section 357-A of the Code.
Question - (B) (iii) The 'complainant' in a complaint-case who is also a 'victim' and the 'victim' other than a
'complainant' in such case, shall have remedy
of appeal against acquittal under Section
378(4) only, except where he/she succeeds in
establishing the guilt of an accused but is
aggrieved at the conviction for a lesser
offence or imposition of an inadequate
compensation, for which he/she shall be
entitled to avail the remedy of appeal under
proviso to Section 372 of the Code.
(iv) The 'victim', who is not the complainant in a private complaint-case, is not entitled to
prefer appeal against acquittal under proviso
to Section 372 and his/her right to appeal, if
any, continues to be governed by the un-
amended provisions read with Section 378 (4)
of the Code.
(v) those 'victims' of complaint-cases whose right to appeal have been recognized under proviso
to Section 372, are not required to seek 'leave' or 'special leave' to appeal from the High
Court in the manner contemplated under
Section 378(3) & (4) of the Code.
Questions - (vi) The right conferred on a 'victim' to present (C) & (D)
appeal under proviso to Section 372 is a
substantive and independent right which is
neither inferior to nor contingent upon the
filing of appeal by the State in that case.
Resultantly, the condition of seeking 'leave to
appeal' or 'special leave to appeal' as contained in Section 378(3) & (4) cannot be
imposed for the maintainability of appeal by
a 'victim' under proviso to Section 372 of the
Code.
Question - (E) (vii) In view of proviso to Section 372 an appeal preferred by a 'victim' against the order of
acquittal passed by a Magistrate in respect of
a cognizable offence whether bailable or non-
bailable shall lie to the Court of Session, the
State's appeal under Section 378(1)(a) of the
Code against that very order shall also be
entertained and/or transferred to the same
Sessions Court.
CHANDIGARH
CRM-790-MA-2010 (O&M)
Date of Decision: March 18, 2013
CORAM: HON'BLE MR.JUSTICE SURYA KANT
HON'BLE MR.JUSTICE PARAMJEET SINGH
HON'BLE MR.JUSTICE R.P. NAGRATH
(1). The length and width of the right to appeal bestowed on the victim of a crime through the amendment(s) carried out in the Code of Criminal Procedure, 1973 by Act No.5 of 2009 w.e.f. December 31, 2009 is still eluded of unanimity amongst different High Courts. A Division Bench of this Court in Smt. Ram Kaur @ Jaswinder Kaur vs. Jagbir Singh @ Jabi & Ors., 2010(3) RCR (Crl.) 391, also made an attempt to define the expression "victim" within the meaning of Section 2(wa) for the purpose of his right to appeal under proviso to Section 372 CrPC. A learned Single Judge while considering an application seeking leave of this Court to prefer appeal against the order of acquittal passed in relation to the accusations under Sections 279, 337, 338 and 304-A IPC found an apparent conflict between proviso to Section 372 and Section 378 CrPC and vide his order dated September 5, 2011 passed in CRM- 547-MA-2011 opined that :-
"..... as proviso to Section 372 of the Code
unequivocally provides the remedy of appeal to a victim before a Court to which an appeal shall
ordinarily lie against the order of conviction of such a Court while Section 378 of the Code refers to filing of an appeal to the Court of Session from an order of acquittal passed by a Magistrate only in respect of cognizable and non-bailable offences. There would CRM-790-MA-2010 final -3- thus be ambiguity in so far as the remedy of appeal provided to a victim in the cases where the offences are bailable and in which cases the aforesaid
ambiguity amounts to giving with a left hand only to be taken away by the right hand."
(2). Since the Division Bench in Smt. Ram Kaur's case (supra) did not address the afore-mentioned issue, the learned Single Judge referred the matter to a larger Bench. Another learned Single Judge came across yet another issue in Crl. Misc. No. 790-MA of 2010 (O&M), namely, whether a 'victim' under proviso to Section 372 CrPC includes the 'complainant' also and owing to its importance, he too vide order dated May 09, 2012 referred the following question to a larger Bench:- "Whether the word "victim" as mentioned in the
proviso of Section 372 CrPC include complainant also for the purpose of availing the remedy of appeal as given to the victim by aforesaid proviso?"
(3). The above question was framed in an application filed by the complainant seeking special leave to appeal under Section 378(4) against the order of acquittal passed by the Magistrate in a case under Section 138 of Negotiable Instruments Act.
(4). Both the references made by two different learned Single Judges were considered by two of us on July 18, 2012 and having regard to the newly emerging principles of criminal jurisprudence, the Division CRM-790-MA-2010 final -4- Bench formulated four questions (reformulated along with additional questions in para 6) and referred them for determination to a larger Bench.
(5). The continued quest for true answers to the questions so re- phrased, in an arena witnessing a note of discordance amongst different High Courts on one question or the other, led to fairly long hearings with remarkable assistance rendered by a team of bright young lawyers comprising Sarvshri PS Ahluwalia, Deepak Sabharwal and Arjun Sheoran, with an equally meaningful assistance rendered by a battery of State counsel representing the States of Punjab and Haryana, who addressed the issues with totally non-adversarial approach. (6). During the course of hearing, learned counsel for the parties rightly pointed out that besides the re-modulation of four questions which found mention in the reference order dated July 18, 2012, some issues, ancillary but of paramount importance, also deserve to be answered by the larger Bench. We, therefore, formulate the following seven questions that arise for our consideration:- (A) What is the true import and meaning of the expression 'victim' as defined under Section 2(wa) read with proviso to Section 372 Cr.P.C.?
(B) Whether 'complainant' in a private complaint-case, who is also the 'victim' and the 'victim' other than the 'complainant' in such cases are entitled to present CRM-790-MA-2010 final -5- appeal against the order of acquittal under proviso to Section 372 or have to seek 'special leave' to appeal from the High Court under Section 378(4) CrPC?
(C) Whether the 'rights' of a victim under the amended Cr.P.C. are accessory and auxiliary to those perceived to be the exclusive domain of the 'State'?
(D) Whether presentation of appeal against acquittal is a 'right' or an 'obligation' of the 'State' stemming from the Constitution?
(E) Where would the appeal of a 'victim' preferred under proviso to Section 372 lie when the State also prefers appeal against that order of acquittal under Clause (a) of Section 378(1) CrPC?
(F) Whether proviso to Section 372 CrPC inserted w.e.f. December 31, 2009 is prospective or retrospective in nature and whether a revision petition pending
against an order of acquittal before the insertion of the said proviso, can be converted into an appeal and transferred to the Court of competent jurisdiction? (G) What would be the period of limitation for a 'victim' to prefer an appeal under proviso to Section 372 CrPC?
CRM-790-MA-2010 final -6- Legislative History and Emerging Principles of Criminal Jurisprudence:-
International Scenario:
(7). The universalist views on criminal justice system emphasize on the norms collectively recognized and accepted by all of humanity. The internationally accepted norms whereunder an individual's criminal act(s) is accountable are universally binding and applicable across national borders on the premise that crimes committed are not just against individual victims but also against mankind as a whole. The crime against an individual thus transcends and is taken as an assault on humanity itself. It is the concept of the humanity at large as a victim which has essentially characterized 'crimes' on universally- accepted principles. The acceptability of this principle was the genesis of Criminal Justice System with State dominance and jurisdiction to investigate and adjudicate the 'crime'. For long, the criminal law had been viewed on a dimensional plane wherein the Courts were required to adjudicate between the accused and the State. The 'victim' - the de facto sufferer of a crime had no participation in the adjudicatory process and was made to sit outside the Court as a mute spectator. The ethos of criminal justice dispensation to prevent and punish 'crime' would surreptitiously turn its back on the 'victim' of such crime whose cries went unnoticed for centuries in the long corridors of the conventional apparatus. Various international Declarations, domestic legislations and Courts across the world recognized the 'victim' and they CRM-790-MA-2010 final -7- voiced together for his right of representation, compensation and assistance. The UN Declaration of Basic Principles of Justice for the Victims of Crime and Abuse of Power, 1985, which was ratified by a substantial number of countries including India, was a landmark in boosting the pro-victim movement. The Declaration defined a 'victim' as someone who has suffered harm, physical or mental injury, emotional suffering, economic loss, impairment of fundamental rights through acts or omissions that are in violation of criminal laws operative within a State, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the 'victim'.
(8). European Union (EU) also took great strides in granting and protecting the rights of 'victims' through various Covenants including the following:-
i. The position of a victim in the framework of Criminal Law and Procedure, Council of Europe Committee of Ministers to Member States, 1985;
ii. Strengthening victim's right in the EU communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Reasons, European Union, 2011;
iii. Proposal for a Directive of the European Parliament and of the Council establishing "Minimum Standards on the CRM-790-MA-2010 final -8- Rights, Support and Protection of Victims of Crime, European Union, 2011".
(9). The United States of America (USA) had earlier made two enactments on the subject i.e. (i) The Victims of Crime Act, 1984 under which legal assistance is granted to the crime-victims; and (ii) The Victims' Rights and Restitution Act of 1990, followed by meaningful amendments, repeal and insertion of new provisions in both the Statutes through an Act passed by the House of Representatives as well as the Senate on April 22, 2004.
(10). In Australia, the Legislature has enacted South Australia Victims of Crime Act, 2001 while in Canada there are two legislations known as Victims of Crime Act, Prince Edward Island and Victims of Crime Act, British Columbia. Most of these legislations have defined the 'victim' of a crime liberally and have conferred varied rights on such victims.
Indian Perspective:
(11). Much before the United Nations stepped into or the other developed nations legislated for the protection and promotion of victims' rights, the Supreme Court in Rattan Singh vs. State of Punjab, (1979) 4 SCC 719, lamented against complete desertion of a victim in our criminal jurisprudence observing that "The victimization of the family of the convict may well be a reality and is regrettable. It is a weakness of our jurisprudence that the victims of the crime, and the distress of the dependants of the prisoner, do not attract the attention of CRM-790-MA-2010 final -9- the law. Indeed, victim reparation is still the vanishing point of our criminal law. This is a deficiency in the system which must be rectified by the Legislature. We can only draw attention to this matter. Hopefully, the Welfare State will bestow better thought and action to traffic justice in the light of the observations we have made". (12). The Legislature though did not come forward to address the issue but the Law Commission of India, nonetheless, in its 154th Report attributed Chapter-XV on "Victimology" made radical recommendations on the aspect of compensatory justice through a Victim Compensation Scheme. Thereafter came the report of a Committee on the Reforms of Criminal Justice System, commonly known as "Malimath Committee Report, 2003". The Committee was constituted by Government of India with an avowed object of suggesting ways and means for developing a cohesive system in which all the parts work in coordination to achieve the common goal as the people by and large have lost confidence in the criminal justice system and the bewildered victim is crying for attention and justice. The Committee recommended the right of the victim or his legal representative 'to be impleaded as a party in every criminal proceeding where the charge is punishable with seven years imprisonment or more'; the right of voluntary organizations for impleadment in court proceedings in select cases; the victim's right to be represented by an advocate of his choice and if he is not in a position to afford, to provide an advocate at the State's expenses; victim's right to participate in criminal trial; the right to know the status of CRM-790-MA-2010 final - 10 - investigation and take necessary steps in this regard and to be heard at crucial stages of the criminal trial including at the time of grant or cancellation of bail. The Committee further recommended that "the victim shall have a right to prefer an appeal against any adverse order...; he should be provided legal services and that 'victim compensation' is a State obligation in all serious crimes, whether the offender is apprehended or not, convicted or acquitted" and for this object a separate legislation be enacted.
(13). Soon after the Malimath Committee report came the verdict in Jahira Habibullah H. Sheikh & Anr. vs. State of Gujarat & Ors., (2004) 4 SCC 158, ripping apart the ailing criminal justice system in India and ordering re-trial of Best Bakery Case and desirability of further investigation in terms of Section 173(8) CrPC due to the factors like dishonest and faulty investigation, holding of trial in a perfunctory manner, non-production of vital witnesses, prosecuting agency acting unfairly and forcing eye-witnesses to turn hostile, resulting into the acquittal of several accused suspected to be involved in the gruesome murder of as many as 14 people as a result of communal frenzy.
(14). Before we proceed further, let there be a special reference to those decisions of the Hon'ble Supreme Court which built up the victim's right brick by brick, revolutionalised the conventional criminal justice system and sensitized its stakeholders, notwithstanding the fact CRM-790-MA-2010 final - 11 - that statutory initiatives through the desired amendments in the Code of Criminal Procedure, 1973 (in short, 'the Code') were still illusory. (15). In PSR Sadhanantham vs. Arunachalam & Anr., (1980) 3 SCC 141, the Constitution Bench considered the question whether the brother of a victim who had been murdered, possessed the right to petition under Article 136 of the Constitution for special leave to appeal against the acquittal of the accused? After noticing that under the Code, the right of appeal vested in the State is subject to leave to be granted by the High Court and a complainant's right to appeal was also subject to his obtaining 'special leave' to appeal from the High Court, it was held that a petition filed by the private party other than the complainant should be entertained "in those cases only where it is convinced that the public interest justifies an appeal against the acquittal and that the State has refrained from petitioning from special leave for reasons which do not bear on the public interest but are prompted by private influence, want of bona fide and other extraneous considerations".
(16). In Bhagwant Singh vs. Commissioner of Police, (1985) 2 SCC 537, the right of the complainant to be heard before the acceptance of a cancellation report submitted by the police after investigation of the FIR, was accepted laying down that the informant must be given an opportunity of hearing so that he could make his submissions to persuade the Magistrate to take cognizance of the offence and issue due process.
CRM-790-MA-2010 final - 12 - (17). In M/s JK International vs. State Government of NCT of Delhi, (2001) 3 SCC 462, the Supreme Court recognized the right of the complainant at whose instance the police-case was registered, to be heard by the High Court in the proceedings initiated by the accused for quashing those proceedings. It held thus:-
"9. The scheme envisaged in the Code of Criminal procedure (for short the Code) indicates that a
person who is aggrieved by the offence committed, is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police and the charge sheet was laid by them. Even the fact that the court had taken
cognizance of the offence is not sufficient to debar him from reaching the court for ventilating his
grievance. Even in the sessions court, where the Public Prosecutor is the only authority empowered to conduct the prosecution as per Section 225 of the Code, a private person who is aggrieved by the
offence involved in the case is not altogether
debarred from participating in the trial..."
(18). In Puran Shekhar and Anr. vs. Rambilas & Anr., (2001) 6 SCC 338, the locus standi of father of the deceased in a dowry death case, to move the High Court and seek cancellation of bail granted by the Sessions Court was upheld as he was not a stranger. (19). In Delhi Domestic Working Women's Forum vs. Union of India & Ors, (1995) 1 SCC 14, the Supreme Court in exercise of its PIL jurisdiction directed the National Commission for Women to evolve CRM-790-MA-2010 final - 13 - a Scheme to protect rape victims through various measures and cast obligation on the Union of India to implement the Scheme so evolved by the Commission.
(20). Rama Kant Rai vs. Madan Rai & Ors., (2003) 12 SCC 395 was a case where against an order of acquittal passed by the High Court in a murder case, the right of the private party to file an appeal under Article 136 of the Constitution was eloquently recognized especially to meet the pressing demands of justice. (21). In Sakshi vs. Union of India & Ors, (2004) 5 SCC 518, mandatory guidelines for the recording of evidence of victim of offence under Sections 354, 375, 367 & 377 IPC were laid down. (22). In Mosiruddin Munshi vs. Mohammad Siraj & Ors., (2008) 8 SCC 434, the right of the complainant to be heard before an order affecting the criminal proceedings initiated at his instance was recognized and it was held that the FIR could not be quashed by the High Court at the instance of the accused without notice to the original complainant.
(23). Some of the High Courts also dutifully espoused the cause of 'victims' and expanded the jurisprudence to create a space for them at one or the other stage of Court hearings. We may usefully quote the following observations made by a Division Bench of Assam High Court in NC Bose vs. Prabodh Dutta Gupta, AIR 1955 (Assam) 116:- "[I]t seems to me that the person vitally interested in the issue of the prosecution or the trial is the person CRM-790-MA-2010 final - 14 - aggrieved who 'initiates' the proceedings. He may be both civilly and criminally liable if, on account of any unfairness or partiality, the trial or the proceeding ends in wrongful acquittal or discharge of the accused. The Legislature therefore could not have intended to shut out such a person from coming to the High Court and
claiming redress under Section 526 of the Code. The words should be construed to have the widest amplitude so long as the effect of the interpretation is not to open the door to frivolous applications at the instance of intermeddlers or officious persons having no direct interest in the prosecution or trial".
Appeal:
Evolution of Right to Appeal:-
(24). Since the issues to be determined by three-Judge Bench, as mentioned in para 6, are hedging around the 'right to appeal' given to a 'victim', we may briefly notice the evolution of that right under the Indian legal regime.
(25). The Code of Criminal Procedure when originally enacted in the year 1861 did not provide for any right to appeal against acquittal to anyone including the State. It was in the Code of Criminal Procedure of 1898 that Section 417 was inserted enabling the Government to 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 CRM-790-MA-2010 final - 15 - High Court. The Law Commission of India in its 41st Report given in September, 1969 as also in 48th Report pertaining to the Criminal Procedure Bill, 1970, however, recommended to restrict the right of appeal given to the State Government against an order of acquittal by introducing the concept of 'leave to appeal' and that all appeals against acquittal should come to the High Court though it rejected the right to appeal to "the victim of a crime or his relatives". (26). The Code of Criminal Procedure, 1973 came into being on January 25, 1974 repealing the Code of Criminal Procedure, 1898. The recommendations made by the Law Commission of India, referred to above, largely found favour with the Parliament when it inserted an embargo in sub-Section (3) to Section 378 against entertainment of an appeal against acquittal "except with the leave of the High Court". Sub- section (4) of Section 378 retained the condition of maintainability of an appeal at the instance of a complainant against an order of acquittal passed in a complaint-case only if special leave to appeal was granted by the High Court. Save in the manner as permitted by Section 378, no appeal could lie against an order of acquittal in view of the express embargo created by Section 372 according to which "no appeal shall lie from any judgement or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force". The Code of Criminal Procedure (Amendment) Act,
2005:
2005:-
CRM-790-MA-2010 final - 16 - (27). Hon'ble Supreme Court in a string of decisions a few of which are already cited, has recognized time and again one or the other right of the 'victim' including locus standi of his/her family members to appeal against acquittal in the broadest sense. Notwithstanding these decisions or the chorus of such like rights being heard in all civic societies, the Legislature in its wisdom did not deem it necessary to permit a 'victim' to appeal against the acquittal of his wrong-doer even while carrying out sweeping amendments in the Code in the year 2005. The only significant amendment brought into force was in Section 378 whereby the appeals against acquittal in certain cases are now maintainable in the Court of Session without any leave to appeal. The afore-stated amendment has been brought to guard against arbitrary exercise of power and to curb reckless 'acquittals'. Section 377 was also suitably amended enabling an appeal on the ground of inadequacy of sentence to the Court of Session, if the sentence is passed by a Magistrate.
(28). It is important here to dissect Section 378 of the Code as amended in 2005 which reads as under :-
"378. Appeal in case of acquittal - (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 CRM-790-MA-2010 final - 17 - Magistrate in respect of a cognizable and non-
bailable offence;
(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 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.
(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, 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 CRM-790-MA-2010 final - 18 - clause (a)] or an order of acquittal passed by the Court of Session in revision.]
(3) 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 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)."
The Code of Criminal Procedure (Amendment) Act,
2008:-
2008:
CRM-790-MA-2010 final - 19 - (29). The 2008 Amendment Act came into force with a lot of fanfare to recognise not all but only a few including the 'right to appeal' of a victim and made the following amendments or insertions in the Code. It has added a new Section 2(wa) which defines "victim" to mean:-
"a person who has suffered any loss or injury caused by reason of the act or omission for which the
accused person has been charged and the expression "victim" includes his or her guardian or legal heir" (30). The Amendment Act has also inserted a proviso in Section 24(8) enabling the Court to permit a 'victim' to engage an advocate of his/her choice to assist the Prosecution. One more proviso has been added in Section 157(1) to say that "in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and so far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality".
(31). The concept of 'Victim Compensation Scheme' has also been brought on the Statute Book by the same Amendment Act through a newly-added Section 357A which inter alia provides that "every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the CRM-790-MA-2010 final - 20 - victim or his dependents who have suffered loss or injury as a result of the crime and who, require rehabilitation".
(32). Sub-Section (3) of Section 357-A further provides that "If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation". Similarly, its sub-Section (4) enables that "Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation".
(33). The profound and most cherished 'right to appeal' conferred upon and/or earned by the innumerable victims after a protracted struggle and which is free from all shackles, is by way of the proviso added to Section 372 whereunder a 'victim' can prefer an appeal against (i) an order acquitting the accused; (ii) convicting the accused of a lesser offence; and (iii) imposing inadequate compensation. The appeal of the 'victim' lies in the Court to which an appeal ordinarily lies against the order of conviction of such Court. The amended Section 372 of the Code reads as follows:-
"372. No appeal to lie, unless otherwise provided. - No appeal shall lie from any judgment or order of a CRM-790-MA-2010 final - 21 - Criminal Court except as provided for by this Code or any other law for the time being in force:
"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."
(Emphasis applied)
(34). It is instructive and significant to notice at this stage that no amendment has been brought in Section 378 of the Code under the 2008 Amendment Act.
(35). It is also apropos to mention here that the Law Commission of India in its 221st Report given in April, 2009 recommended amendments in Sections 378, 397 and 401 of the Code to provide that (i) in complaint cases also the appeal against an order of acquittal passed by a Magistrate should lie to the Sessions Court subject to the grant of special leave by it; (ii) wherever the District Magistrate or the State do not prefer an appeal against an order of acquittal, the aggrieved person or the informant should have the right to appeal with the leave of the appellate Court; (iii) there should be only one revisional forum of the Sessions Court against the orders passed by the Magistrates instead of CRM-790-MA-2010 final - 22 - two alternative forums; and (iv) the Legislature should specifically categorise reviseable orders instead of leaving the matter to the discretion of the Courts. The suggested amendments, however, are still awaited.
(36). Be that as it may, if synergized, the amended and unamended provisions of the Code pose a serious threat to the well- known rule of harmonious interpretation and lead to some of those unconciliatory eventualities which have been enlisted as the 'questions' that arise for our determination. We now attempt to answer these questions off-course without forgetting that success is far from guaranteed.
(A) What is the true import and meaning of the
expression 'victim' as defined under Section
2(wa) read with proviso to Section 372 Cr.P.C.?
(37). The principal debate before us encircles the true meaning and import of the expression "victim" as defined under Section 2(wa) with reference to the right to appeal given to such 'victim' on the grounds enumerated under proviso to Section 372 of the Code. Since a Division Bench of this Court as also various other High Courts have elaborately discussed and opined on this and other allied issues, it would be beneficial at this stage to take a brief note of those decisions. (38). In Ram Kaur @ Jaswinder Kaur's case, FIR was registered on the statement of the appellant (Smt. Ram Kaur) initially under Section 307 read with Section 34 IPC but subsequent to the death CRM-790-MA-2010 final - 23 - of the injured, the offence was converted under Section 302 IPC. The accused were, however, acquitted by the trial court holding that the deceased died in a road accident. The State did not prefer appeal against the order of acquittal but the informant-cum-complainant asserted herself to be a 'victim' within the meaning of Section 2(wa) and filed appeal under proviso to Section 372 without seeking 'special leave' to appeal. Since the status of the appellant as a 'victim' and her consequential right to appeal were disputed, the Division Bench on consideration of the amended provisions of the Code held that :- "A bare perusal of the definition of "victim" reveals that the victim means a person, who has suffered any loss or injury caused by reason of the act or omission of the offender, and further expression "victim" includes his or her guardian or legal heir. The General Assembly of the United Nations in its 96th plenary meeting on 29th November, 1985, made a Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, recognising that millions of people throughout the world suffer harm as a result of crime and the abuse of power and that the rights of these victims have not been adequately recognised and also that frequently their families, witnesses and other who aid them are unjustly subjected to loss, damage or injury. The Assembly affirmed the necessity of adopting national CRM-790-MA-2010 final - 24 - and international norms in order to secure universal and effective recognition of and respect for, the rights of victims of crimes and abuse of power. In the said Declaration, the word "victim" was defined as under:- xxx xxx xxx xxx
xxx xxx xxx xxx
The aforesaid definition of victim has been
discussed in 154th Report of the Law Commission, but the legislation has not adopted the said definition and have given a restricted meaning to the word "victim" means only a person, who has suffered any loss or injury caused by reason of the act or omission of the offender and victim includes his or her guardian or legal heir."
(39). The Bench consequently viewed that "the complainant, who is a near relation of the deceased, cannot be said to be a person who has suffered any loss or injury caused by reason of the act or omission of the offender. Undisputably, she is neither guardian nor legal heir of the deceased. Therefore, in our view, the complainant in the instant case is not the 'victim' who can prefer an appeal under Section 372 of the Code...".
(40). The Delhi High Court had an occasion to define 'victim' within the meaning of Section 2(wa) and the right to appeal of such 'victim' under Section 372 of the Code in (i) Chattar Singh vs. CRM-790-MA-2010 final - 25 - Subhash, 2011(2) AD (Delhi) 252; and (ii) Kareemul Hajazi vs. State of NCT of Delhi & Ors, 2011(2) AD (Delhi) 210. In the first case, the appellant who was the father of the deceased, filed appeal under proviso to Section 372 of the Code against acquittal of the accused in a case under Section 302 IPC etc. and claimed himself to be a 'victim' within the meaning of Section 2(wa) of the Code. In the second case also, the appellant was the father of deceased Nasreen who was married to one of the accused. The primary question that arose for consideration in the first case was whether the appellant (Chattar Singh) could be regarded as a 'victim' for the purpose of proviso to Section 372 of the Code? The Court held that "a victim of crime is a person who suffers any loss or injury as a result of the crime. Although the expression "any loss or injury" is an expansive expression, it appears that it has been used in the context of the person whose suffering is the direct and most proximate result of the crime". The Bench further held that a definition which employs the expression "means and includes" is an exhaustive definition and in the present case Section 2(wa) would refer to a crime victim in the natural and ordinary sense as the person who directly and most proximately suffered the loss or injury but it would also include - (a) his or her heirs in case he or she was dead; or (b) his or her guardian if he or she was a minor or of unsound mind or under some other disability. (41). The Delhi High Court thereafter concentrated on the word "heirs" and after referring to the related case law held that "in the case of Section 2(wa), since the word 'heirs' is preceded by the word 'legal', it CRM-790-MA-2010 final - 26 - must be construed in the legal sense as that is the clear intention of the Legislature. The expression 'legal heirs' in relation to a victim, therefore, clearly refers to a person who is entitled to the property of the victim under the applicable law of inheritance". Applying this principle to the facts of the first case, the Court rejected the appellant's plea of being a 'victim' as his deceased son had left behind his widow and children (Class-I heirs) while the appellant (father) was only a Class-II heir and was not entitled to succeed the estate of the deceased under the Hindu Succession Act, 1956 in the presence of Class-I heirs. In the second case, the father (Karimul Hajazi) of the deceased was held to be a 'victim' on applying the principle of Muslim Law under which the person responsible for the death of another person from whom the first person is otherwise to inherit, would be disqualified from such inheritance and on this analogy the husband of the victim was treated as non-existent and father of the victim was to be her legal heir. (42). In Smt. Ganny Kaur vs. The State (NCT) & Ors., 2007(8) AD (Delhi) 478, the Delhi High Court while dealing with a case of compensation under the Fatal Accidents Act, 1855, held that the principles of succession and inheritance prescribed under personal laws do not apply when compensation is awarded by the State who do not function under any personal law. It was further held that the compensation in such like cases would not be necessarily awarded to the legal heirs only according to the personal law, but equitably to the next of kin.
CRM-790-MA-2010 final - 27 - (43). The Gauhati High Court (Agartala Bench) in Crl.Appeal No.13 of 2011 (Shri Gouranga Debnath vs. State of Tripura & Ors.) decided on August 8, 2011 had an occasion to consider the Division Bench decision of this Court in Smt. Ram Kaur's case and of the Delhi High Court in Chattar Singh's case. There, the appellant was the father of deceased Pooja Debnath who was married to the second respondent (Chandan Das). She was allegedly killed by throttling and the appellant lodged a complaint that the deceased was tortured, mentally and physically, by the second respondent and his parents besides having been pressurised into fetching Rs.50,000/- from him. Since the accused were acquitted in the case under Section 302 read with Section 34 IPC, the appellant claiming himself to be a 'victim' preferred an appeal before the High Court under proviso to Section 372 of the Code. The Gauhati High Court held that "person who has suffered loss due to a crime is obviously a victim" and that "in Section 2(wa) of the Code, there are two parts, one part is related to the victim who has suffered loss and injury and by way of other parts, the Legislature expanded the word 'victim' even to the persons who are the guardian and legal heirs".
(44). The Gauhati High Court while disagreeing with the Delhi High Court, concluded thus :-
"...As the words 'loss' and 'injury' were not defined in the Code, we have to consider that loss and injury, as mental and physical injury and also emotional
CRM-790-MA-2010 final - 28 - sufferings and the deceased being the lone daughter of the petitioner, absence of his daughter due to alleged murder by the accused respondents created a void in the heart of the petitioner and also his family
members. We are also of the view when the allegations against the accused husband of deceased and his
brother are the subject matter of the appeal, if the appeal succeeds, in that case, the family members of legal heirs of the husband of the deceased would not come as 'victim' for preferring appeal."
(45). The Andhra Pradesh High Court in G.Baswaraj vs. State of AP, 2011 (8) RCR (Crl.) 1674 attempted to reconcile Section 378(4) and proviso to Section 372 of the Code and opined that there is no clash or conflict or inconsistency between the two provisions and on harmonious reading thereof it was clear that "a victim irrespective of the fact whether he is complainant or not, has been conferred the right to file appeal against an order recording acquittal by the trial Court, either to the Sessions Court or to the High Court as the case may be. In case, the victim is also the complainant in a case instituted by way of a private complaint, then such person has got two options to file appeal against an order of acquittal recorded by the trial Court, either to the High Court under Section 378(4) CrPC or to the Sessions Court/High Court under proviso to Section 372 CrPC". Thus according to the AP High Court, the CRM-790-MA-2010 final - 29 - complainant of a private complaint who is also a 'victim', has got both the remedies though he can avail of only one option. (46). There is thus lack of unanimity on the constituent and composition of 'legal heirs' of a 'victim' for the purpose of locus to appeal under proviso to Section 372. While the Delhi High Court has taken the view that the expression "legal heir" is referable to the personal law of the 'victim' and whosoever has first preference to succeed the estate under such law, would be the sole 'legal heir' of the 'victim' for the purposes under the Code, the Gauhati High Court has viewed it differently and liberally.
(47). Section 2(wa) of the Code defines 'victim' to mean a person who has suffered any loss or injury caused by the reason of the act or the omission for which the accused person has been charged and the expression "victim" includes his or her 'guardian' or 'legal heir'. We find on its plain reading that the Legislature has classified the 'victim' in two categories i.e. (i) a person who has suffered any loss or injury caused by the act or omission attributed to the accused; and (ii) the 'guardian' or 'legal heirs' of such 'victim'. The correct understanding of the first part of the term "victim" is contingent and is subject to the true scope of the words "loss" or "injury" contained therein. Both these words are not defined in the Code, however, its Section 2(y) says that "words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860) have the meanings respectively assigned to them in that Code".
CRM-790-MA-2010 final - 30 - (48). Section 23 IPC defines "wrongful loss" and it says that "'wrongful loss' is the loss by unlawful means of property to which the person losing it is legally entitled". It is further explained that "a person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property". According to Section 44 IPC, the word "injury" "denotes any harm whatever illegally caused to any person, in body, mind, reputation or property". It is, thus, in the context of offences against property, especially under Section 418 and 'mischief' as defined in Section 425 IPC that the term 'wrongful loss' has been used in the Penal Code. The Legislature while defining 'victim' in Section 2(wa) of the code has used the word 'any loss' before 'or injury' and has not restricted it to 'wrongful loss' only. We, thus, find that the words 'loss' and 'injury' used in Section 2(wa) are synonymous. This view is also fortified by the use of wide term 'any loss' in clause (b) as compared to 'the loss' in clause (c) of Section 357(1) of the Code.
(49). It is so acte clair that a person who has suffered an injury in body or mind or reputation or to his/her property or if such person has been caused loss of property, to which he is legally entitled to, unlawfully at the hands of another person who has been charged as an accused, is the 'victim' within the meaning of Section 2(wa). Similarly, if as a result of the aggravated form of victimization, such 'victim' of first part does not survive, the second part of the definition of 'victim' as defined in Section 2(wa) of the Code substitutes the first part and CRM-790-MA-2010 final - 31 - becomes operative whereupon the guardian (if such 'victim' was a minor or of unsound mind) or the legal heirs of the deceased victim, as the case may be, step-in for the 'victims' for the varied purposes under the Code. (50). It is clearly discernible from the above that broadly three categories of persons have been defined in the term 'victim' in Section 2(wa) of the Code, namely, (i) who has suffered loss or injury; (ii) Guardian of the above category, if sufferer is a minor or of unsound mind; and (iii) legal heirs of the first category if the sufferer dies. (51). The phrase "legal heir" has not been defined in the Code or the IPC. In its literal sense the word "legal" means as something which is established, appointed or authorized by law. Black's Law Dictionary (9th Edition) explains "heir" to mean "a person who, under the laws of intestacy, is entitled to receive an intestate descendant's property - Also termed as 'legal heir'; 'heir at law'; 'lawful heir'..." and that in civil law, 'heir' means "a person who succeeds to the rights and occupies the place of, or is entitled to succeed to the estate of, a descendant, whether by an act of the descendant or by operation of law". The Chambers Dictionary defines the word "heir" (in law) as "a person who actually succeeds to property, title etc. on the death of its previous holder". The Oxford English Dictionary (Indian Edition) also defines the word "heir" to mean "a person legally entitled to the property or rank of another on that person's death". It further defines "heir-at-law" to mean "an heir by right of blood especially to the real property of an intestate". CRM-790-MA-2010 final - 32 - (52). According to Barron's Dictionary of Legal Terms (3rd Edition), the term "heirs" means "strictly those whom statutory law would appoint to inherit an estate should the ancestor die without a Will (intestate); sometimes referred to as 'heirs-at-law', 'rightful heirs', 'legal heirs'. The term is often applied indiscriminately to those who inherit by Will or deed, as well as by operation of law". (53). In Angurbala Mullick vs. Debabrata Mullick, AIR 1951 SC 293, it was held that the word "heirs" cannot normally be limited to "issues" only. It must mean all those persons who are entitled to the property of another under the law of inheritance. In N.Krishnammal vs. R. Ekamabaram & Ors, (1979) 3 SCC 273, the question that arose for consideration was whether the expression "heirs" would mean 'legal heir' and it was ruled that the legal terms such as 'heirs' used in a Will must be construed in legal sense, unless a contrary intention is clearly expressed by the testator.
(54). Vasant Pratap Pandit & Anr. vs. Anant Trimbak Sabnis (Dr.), (1994) 3 SCC 481, explained that the word "heir" may be construed both in a wider as well as in a narrower sense and therefore, which sense would be applicable to the facts of a particular case would depend upon the intention and scheme of the particular legislation in which the question occurred.
(55). A Division Bench of this Court in Gulzara Singh vs. Smt. Tej Kaur, AIR 1961 Punjab 288 (DB), while interpreting Section 22 of the Hindu Adoptions and Maintenance Act, 1956 held that the word CRM-790-MA-2010 final - 33 - "heir" must be construed in the broad and general sense so as to include all those on whom the estate of the deceased dwells whether on intestacy or by means of testamentary instrument like a Will and that such an interpretation promotes and effectuates the cardinal legislative idea or purpose to bring to a close or at least rectify the evil of neglect to Hindu women at the hands of their husbands and after their husbands' death by those who may succeed to or inherit their husbands' estate. (56). We may also refer to some of the Parliamentary legislations where the expression "legal heir" finds mention but without any definition. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 defines "relative" [Section 2(g)] which means "any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death". Such a 'relative' is obligated to maintain a senior citizen as per Sections 4&5 of the 2007 Act. The Advocates' Welfare Fund Act, 2001 (Section 11) cast a duty on the Trust Committee to make payment out of the welfare fund to the members of the fund or their nominees or legal heirs. The Merchant Shipping Act, 1958 (Section 141) also contemplates payment of compensation to a seaman and in the case of a deceased seaman, to the person nominated by him or to his legal heirs. Section 44 of the Delhi Police Act, 1978 also contemplates payment of compensation to a person who has suffered loss or damage to his property or grievous hurt or to the legal heirs of any person who was no more alive. The Income Tax Act, 1961 [Section 10(BC)] permits deduction of an amount received CRM-790-MA-2010 final - 34 - or receivable from the Central or State Government or a local authority by an individual or his legal heir by way of compensation on account of any disaster etc. Similarly, the Consumer Protection Act, 1986 defines a "complainant" to mean a consumer and in case of death of the consumer his legal heir or representative, who are competent to make a complaint [Section 2(1)(v)].
(57). It thus appears that every heir who, in law, is entitled to succeed to the estate of a deceased 'victim' in one or the other eventuality, shall fall within the ambit of Section2(wa) of the Code, even if the estate of such deceased 'victim' is to devolve upon the legal heirs as per the order of preference prescribed under the personal law of such 'victim'. This conclusion of ours is also compatible with the other provisions of the Code.
(58). It is pertinent to take stock of two other provisions of the Code, namely, Sections 357 & 357-A pertaining to "Order to Pay Compensation" and "Victim Compensation Scheme", respectively. Section 357 provides that when a Court imposes a sentence of fine or a sentence of which fine forms a part, the Court may, where such fine is recoverable from a person convicted of any offence for having caused the death of another person, order the whole or any part of the fine so recovered to be applied, inlcuding "in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1885), entitled to recover damages from the person sentenced for the loss resulting to them from such death".
CRM-790-MA-2010 final - 35 - (59). Section 357-A of the Code, on the other hand, contemplates formulation of a Scheme by the Government for providing funds for the purpose of "compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation". The Legislature has consciously prescribed two different categories of eligible persons who are entitled to be compensated under Section 357(1)(c) or Section 357-A of the Code, in the case of the death of a 'victim'.
(60). Section 1-A of the Fatal Accidents Act, 1855 entitles the wife/husband, parent and child, if any, of the person whose death has been caused by wrongful act, neglect or default, to maintain an action and recover damages in respect thereof. It may thus be seen that the persons who are entitled to be compensated by the Court under Section 357(1)(c) for the death of their near and dear ones, could be the spouse, parent or child of such victim but they may not necessarily be entitled to seek compensation within the scheme formulated under Section 357-A unless it is proved that such a claimant was 'dependent' on the deceased and requires 'rehabilitation'. To say it differently, it is nowhere contemplated under the scheme of the Code that the compensation recoverable from an accused or admissible under the Victim Compensation Scheme [Sections 357(1)(c) & 357-A], is payable only to the 'legal heirs' of a deceased victim.
(61). Having held that the Legislature has not linked or preconditioned the admissibility of compensation to the next kin of a CRM-790-MA-2010 final - 36 - victim under Section 357 or Section 357-A with the personal law of such victim, we revert back to the second part of the definition of "victim" under Section 2(wa) of the Code which includes his/her guardian or legal heir within the expression "victim", with special reference to the right to 'engage an advocate' under Section 24(8) or the 'right to appeal' under proviso to Section 372 of the Code.
(62). The Legislature while specifying four categories of the next of kin of the deceased victim, has purposefully couched the language of Section 357(1)(c) in a manner which leaves no grey area for the Court firstly to determine the status of the claimant as a 'legal heir' and then the order of succession amongst different categories of heirs. Similarly, the Legislature did not deem it necessary to use the expression "victim" in Section 357, while in Section 357A, it has shrunk the otherwise widened circumference of the word "victim" by imposing the riders like 'dependent' or his/her requirement for 'rehabilitation'. (63). Since the expression "legal heir" has not been used in Section 2(wa) for the purpose of non-testamentary succession including entitlement to compensation under the Code, it must be safely inferred and construed that both the expressions "guardian" and "legal heir" are relatable to some other rights given to a 'victim' under the Code including the one under proviso to Section 24(8) to 'engage an advocate' with the permission of the Court and the other substantive 'right to appeal' under proviso to Section 372 of the Code. CRM-790-MA-2010 final - 37 - (64). The right to 'engage an advocate' given to a 'victim' draws parity from the right to fair trial guaranteed to an accused and is essentially meant to enable the Court to have the viewpoint of a 'victim' who remained discounted for years and to whom the Legislature unambiguously intends to provide a presence and appearance before the Court. Since the very object of this right is to give restricted participation in trial to the 'victim' and assist the Court to arrive at a just conclusion, it is not necessary nor the Code perceives so that only that 'legal heir' who has preferential entitlement to succeed to the property of an intestate, alone shall be competent to engage such advocate. The 'right to appeal' under proviso to Section 372 at the best enables the Appellate Court to call for the records, re-appraise the evidence and determine - (i) whether acquittal of the accused is justified? Or (ii) whether the accused has been rightly convicted for a lesser offence? Or (iii) whether the compensation determined under Section 357 is inadequate? Such an exercise, in our humble opinion, can be undertaken by the appellate court on presentation of appeal by any 'legal heir' irrespective of his proximity with the deceased under the personal law. Any narrow construction would defeat the very legislative object behind insertion of Section 2(wa) and proviso to Section 372 of the Code and re-introduce the mischief which the Legislature has intended to remove.
(65). It was contended and rightly so that the meaning of the term "victim" or that of his/her "legal heir" deserves to be given widest CRM-790-MA-2010 final - 38 - amplitude to meet with all kinds of peculiar or unforeseen situations, two of which are illustratively given below:-
(a) where a major, unmarried orphan is murdered and the accused person(s)/undertrial(s) was/were acquitted of the charges and the State does not
prefer an appeal against the acquittal.
(b) where the entire family is murdered and the
accused person(s)/under trial was/were acquitted of the charges and the State does not prefer an appeal against the acquittal.
In both the mis-happenings there may not be any person known as 'legal heir' or a 'guardian' to file an appeal against unwarranted acquittal and it will be against all canons of justice to say that the appellate Court in such like situations would be helpless and the offenders will go unpunished. Since the Legislature has finally granted the right to appeal to a 'victim', it is the duty of the Court to trenchantly affirm such right and provide appropriate remedy. (66). We say so also for the reason that the right to 'engage an advocate' or to 'prefer an appeal' under proviso to Section 372 does not ipso facto entitle the appellant to claim compensation as a 'legal heir' or the next of kin of a deceased 'victim'. That being so, every class or category of legal heirs of a deceased 'victim' can have locus to invoke the remedy under proviso to Section 372 of the Code, without reading into CRM-790-MA-2010 final - 39 - Section 2(wa) that if Class-I legal heir of a 'victim' opts out of filing any appeal, the other legal heirs would also suffer from the same disability. (67). The legislative intentment can be given its fullest effect by permitting all legal heirs, irrespective of their classification under the personal law to prefer appeal under proviso to Section 372. Such a purposive interpretation of the expression "legal heir" within the meaning of Section 2(wa) does no violence to nor does it conflict with Section 357 or 357-A of the Code. Even if a Class-II legal heir prefers an appeal say against inadequate compensation, the appellate court in the event of enhancement of compensation shall be obligated to disburse the enhanced amount to those persons only who are entitled to the same under Sections 357(1)(c) or 357-A of the Code, as the case may be. We, therefore, hold that the expression "legal heir" within the meaning of Section 2(wa) of the Code does not exclude other than the Class-I legal heirs of a deceased 'victim' nor the right to 'engage an advocate' or prefer an appeal is restricted to those persons only to whom compensation is payable under Sections 357, 357-A of the Code or under the Fatal Accidents Act, 1855.
(68). The above-stated interpretation saves the Court from legislating and re-writing Section 2(wa) and is otherwise in conformity with the pro-victim jurisprudence advanced by the Supreme Court in PSR Sadhanantham; Ramakanth Rai; M/s JK International and Puran etc. cases.
CRM-790-MA-2010 final - 40 - (69). The multiplicity of appeals by more than one legal heir should hardly be a deterrent to hold otherwise as such like procedural difficulties can be effectively streamlined by the Appellate Court through an appropriate set of rules or instructions to its Registry. For example, if the appeal is preferred by other than a Class-I legal heir, such person can be required to disclose particulars of the Class-I legal heir(s), if any, and hearing of such an appeal can be deferred till the appellate court is satisfied that the Class-I legal heirs have not chosen to prefer appeal despite informed knowledge of the order which can be appealed against under proviso to Section 372 of the Code. More than one appeal, if preferred by different legal heirs, can also be not a cause of concern nor a serious impediment as all such appeals can be clubbed and decided together by passing one consolidated order. (70). It thus finally emerges that the Legislature, before and after amendment of the Code vide Act No.5 of 2009, has recognized and conferred one right or the other on the following categories of persons:- (i) a 'victim' as defined in Section 2(wa) which includes his/her 'legal heirs' can be permitted by the Court under Section 24(8) to engage an Advocate of his/her choice to assist the prosecution and if he/she is aggrieved at the acquittal of an accused (except acquittal in a case instituted on a complaint), the conviction of the accused for a lesser offence or the imposition of inadequate compensation on such accused, such 'victim' (including his/her legal heirs) have got CRM-790-MA-2010 final - 41 - a right under proviso to Section 372 to prefer an appeal to the Court to which an appeal ordinarily lies against the order of conviction of such Court;
(ii) the legal heirs comprising the wife, husband, parent and child of a deceased 'victim' only are entitled to the payment of compensation under Section 357(1)(c) of the Code; (iii) in the case of death of a 'victim', only those of his/her dependants who have suffered loss or injury as a result of the crime and who require rehabilitation, are eligible to seek compensation in terms of the scheme formulated under Section 357-A of the Code;
(iv) While the persons falling within the categories at Sr.No.(ii) & (iii) above shall necessarily include and form part of the persons falling in category No.(i), however, vice versa may not always be true.
(B) Whether 'complainant' in a private complaint-case, who is also the 'victim' and the 'victim' other than the 'complainant' in such cases are entitled to present complainant'
appeal against the order of acquittal under proviso to Section 372 or have to seek 'special leave' to appeal from the High Court under Section 378(4) CrPC?
(71). Section 378 of the Code provides the remedy of appeal against acquittal of an accused. Its sub-Section (1) authorises the District Magistrate or the State Government, as the case may be, to present an appeal to the Court of Session or the High Court against the order of acquittal passed by a Magistrate or the Court of Session, CRM-790-MA-2010 final - 42 - respectively. The Central Government can also present such appeal under sub-Section (2) in a case in which the offence has been investigated by CBI or any other central agency. Sub-section (3), however, puts a caveat that no appeal under sub-Sections (1) & (2) can be presented to the High Court without its 'leave'. Sub-Section (4) provides that if an order of acquittal is passed in a case instituted upon the complaint, the 'complainant' can present an appeal to the High Court against such acquittal only if the High Court grants 'special leave' to appeal. The Legislature has thus prescribed different conditions for the maintainability of appeal against order of acquittal passed in a 'police-case' vis-à-vis a 'complaint-case' i.e. a case instituted upon a private complaint. No appeal against acquittal in a complaint-case is maintainable to the Court of Session and for an appeal to High Court, the State or Central Government are required to obtain 'leave' of the High Court as mandated by Section 378(3) and if such an appeal is presented by the complainant, he/she is required to seek 'special leave' of the High Court under Section 378(4).
(72). It was vehemently urged that only that 'victim' of a crime who is invariably not rescued by the State machinery and whose complaint is not even registered as FIR (in other than non-cognizable offences), approaches the Judicial Magistrate under Section 200 of the Code by way of a private complaint hence the intensity of his/her 'victimisation' is much more than that of the 'victim' of a police-case, therefore, both the victims should be treated indiscriminately for the CRM-790-MA-2010 final - 43 - purpose of appeal under proviso to Section 372, more-so when sub- Section (4) of Section 378 restricts the right to present appeal only against an order of acquittal. It was also advanced that the Legislature has drawn no distinction between the 'victim' of a police case or that of a complaint case in Section 2(wa) or proviso to Section 372 of the Code. (73). The High Courts are at variance in opining on the aforesaid issue. Some have viewed that the 'victim' under Section 2(wa) is all inclusive and covers victim in a complaint-case also. Reference in this regard may be made to (i) a Single Bench decision of this Court in Mrs. Era Rani Shubh vs. SB Enterprises & Ors., 2012 (2) RCR (Crl.) 522; (ii) order dated 01.05.2012 in Ram Avtar Gupta vs. Ravinder Kumar, Crl. Leave to Appeal No.230 of 2011, passed by a learned Single Judge of the High Court of Judicature for Rajasthan at Jodhpur; and (iii) of Allahabad High Court dated 30.03.2012 passed in Ashok Kumar Srivastava vs. State of UP & Anr., Application under Section 482 CrPC No.5934 of 2012. Contrary to it, (i) Madhya Pradesh High Court in Dharamveer Singh Tomar vs. Ram Raj Singh Tomar, 2011(3) RCR (Crl.) 607; (ii) Bombay High Court in Shanta Ram vs. Deepak, 2012(2) MHLJ 398 as well as in (iii) Balasaheb Rangnath Khade vs. State of Maharashtra & Ors., (2012) Bom CR(Crl.) 632 have held that a complainant, even if he/she is the 'victim', would not fall under the proviso to Section 372 since the appeal to be filed by such victim has been separately contemplated under Section 378(4) of the Code. Uttrakhand High Court in Special CRM-790-MA-2010 final - 44 - Leave to Appeal in Criminal Appeal No. 139 of 2011, Bhagwan Singh v. State of Uttrakhand and another, in its order dated 13.12.2011 viewed that a case of acquittal in a complaint case for non- cognizable and bailable offence falls in clause (b) of sub-Section (1) of Section 378, hence the victim (who was the complainant in a private complaint) could file appeal under proviso to Section 372 to the High Court but with the leave to appeal by the High Court. (74). There is yet a third stand of judicial opinion as well on the issue. The Andhra Pradesh High Court in G.Baswaraj's case, has held that the 'victim' in a complaint case has a right to avail his remedy either under Section 372 or Section 378(4) and it is the prerogative of such victim-cum-complainant as to which remedy he wants to avail. That was a matter arising out of the appeal filed by the complainant in a private complaint under the Negotiable Instruments Act, 1881. (75). There are not one but more than a hundred Legislations1 other than the IPC where the 'victim' and the 'complainant' are two separate entities. The socio-economic Legislations such as (a) Payment of Wages Act; (b) Payment of Gratuity Act; (c) Payment of Bonus Act; (d) Inter-State Migrant Workmen Act; (e) Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act etc. are a few of the ones where the 'complainant' can only be a designated Government official though the 'victim' of violation of these Statutes 1
[List Annexure 'A' to this order]
CRM-790-MA-2010 final - 45 - would either be a workman or a person belonging to the marginalized section of society. The second set of Legislations, being quoted on illustrative basis, are (a) Equal Remuneration Act, 1976; (b) Pre- conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994; (c) Transplantation of Human Organs and Tissues Act, 1994; and (d) Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992 whereunder besides the designated Government official a social and voluntary organization is also authorized to institute complaint though the 'victim' is essentially other than the 'complainant'. What would be the status or locus of a 'complainant' or of the 'victim' in such like cases for the purpose of presenting an appeal under proviso to Section 372 or Section 378(4) of the Code is yet another question that has been raised by the petitioners.
(76). We are not oblivious of yet another category comprising 'victimless' crimes, where the act which violates the law of the land does constitute an 'offence' but there is no visible 'victim' of the crime though such like crimes have depraving effects on the societal morals and values. Such an offence includes situations where an individual acts alone or there are consensual acts of more than one participants. This is, however, not an issue raised before us and need not be further alluded.
(77). A part of the uncertainty, however, has been set at rest by the Hon'ble Supreme Court in a recent decision in Subhash Chand vs. CRM-790-MA-2010 final - 46 - State (Delhi) Administration, (2013) 2 SCC 17, where on an interpretation of Section 378 of the Code, with special reference to its sub-Section (1) (a) & (b), it has been held that there is no distinction in a complaint-case whether such complaint is filed by a 'private person' or a 'public servant' and an appeal against the acquittal in every single complaint-case shall lie under Section 378(4) after seeking 'special leave' of the High Court and even if the acquittal order is passed by a Magistrate in a complaint filed by a public servant or the State Government, no appeal shall lie to the Court of Session under Section 378(1)(a) of the Code. The question of status of such complainant as a 'victim' or his consequential right to prefer an appeal under proviso to Section 372 of the Code, however, was not the subject matter of consideration in that case.
(78). The expression "complainant" is not defined in the Code though its Section 2(d) defines "complaint" to mean "any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report". A person, other than the informant in a police-case, who makes the allegation orally or in writing to the Magistrate is a 'complainant' within the meaning of Section 378(4) of the Code. The words "victim" and "complainant" have been thus used and construed in the Code differently and distinctly. Also a 'victim' can be the 'complainant' but it may not be necessarily that every 'complainant' is a 'victim'. CRM-790-MA-2010 final - 47 - (79). Section 378(4) of the Code enables a complainant to prefer appeal against acquittal of the accused provided that the High Court grants 'special leave' to such appeal. The Legislature has imposed stringent condition on the maintainability of appeal against an order of acquittal in a complaint-case, for the acquittal by the trial court reinforces the presumption of innocence in favour of the accused who has earned acquittal in a case where the complainant himself/herself was the prosecutor unlike the 'victim' in a police-case who does not have any say in the trial. Such being the legislative intentment, there cannot be any scope to doubt that the 'complainant' of Section 378(4) who has failed to establish the complicity can assail such acquittal only with the 'special leave' of the High Court under Section 378(4) only. The fact that the Legislature has brought no changes in this sub-Section fortifies its policy to retain the same legal position as it existed before the Amendment Act, 2008.
(80). However, if such a 'victim-cum-complainant' succeeds in bringing the guilt home against the accused and establishes his/her 'victimisation' but is aggrieved at the conviction for a lesser offence or imposition of inadequate compensation, he/she shall be entitled to invoke the proviso to Section 372 of the Code. We say so for the reason that in such a case the accused no longer enjoys the protection of presumed innocence. The proven 'victim' also has no other remedy to assail the conviction for a lesser offence or imposition of inadequate compensation except the proviso to Section 372. Any different CRM-790-MA-2010 final - 48 - construction would discriminately leave his/her wrong without a remedy. The victims at post-conviction stage constitute one homogenous class and deserve to be treated alike. In such like cases decided by a Magistrate, even the accused has remedy to file appeal to the Sessions court under Section 374(3) of the Code. (81). It may be noted here that the Code postulates different procedures for conducting Magisterial or Sessions trials in complaint- cases. In a Magisterial trial, it is the complainant who follows the accusatorial procedure without getting any assistance from the Public Prosecutor. However, if the complaint pertains to an offence triable exclusively by the Court of Session, after such complaint-case is committed by the Magistrate to the Court of Session under Section 209 of the Code, the Public Prosecutor shall open the case and conduct the trial as provided by Sections 225 and 226. The procedural advantage available to a complainant in the complaint-case triable by the Court of Session, is also inconsequential to take a view different from what has been held above, for in such like cases also the Public Prosecutor will have to bank upon the same set of evidence which the complainant had produced at his own before the Magistrate at the pre-committal stage. (82). What will happen if the 'victim' in a complaint-case is different from the 'complainant' or where such 'victim' cannot otherwise be a 'complainant' due to statutory embargo against the filing of the complaint by some one other than the designated authority of State? Would he/she be entitled to file an appeal under proviso to Section 372 CRM-790-MA-2010 final - 49 - or should he/she be clubbed together with the complainant under Section 378(4) of the Code? We are of the view that the 'victim' in complaint-cases cannot have a remedy superior to that of the complainant of such case and since the Apex Court in the latest decision in Subhash Chand's case (supra) has held that the complainant's remedy, whether he is a private person or a public servant, to question the acquittal lies only in Section 378(4) of the Code, hence the 'victim' will also have to be relegated to that conditional remedy only. Similarly, where a 'victim' is competent to institute a private complaint but permits or consents expressly or implicitly to the filing of such complaint by his family-members, near and dears or an acquaintance, the 'victim' and 'complainant' in such a case cannot be seen differently and would be inseparable, hence the 'victim' will also fall back on Section 378(4) only which specifically refers to filing of appeals against acquittal at the instance of complainant and not under proviso to Section 372 of the Code which has been pre-dominantly incorporated to provide right to appeal to the 'victims' in police-case who are not permitted to participate or have any say during trial. (83). The above discussion thus can be summed up to say that - (i) the 'complainant' in a complaint-case who is a 'victim' also, shall continue to avail the remedy of appeal against acquittal under Section 378(4) only except where he/she succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser CRM-790-MA-2010 final - 50 - offence or imposition of an inadequate compensation, for which he/she shall be entitled to avail the remedy of appeal under proviso to Section 372;
(ii) the 'victim', who is not the complainant in a private complaint-case, is not entitled to prefer appeal against acquittal under proviso to Section 372 and his/her right to appeal, if any, continues to be governed by the un- amended provisions read with Section 378 (4) of the Code;
(iii) the Legislature has given no separate entity to a 'victim' in the complaint-case filed by a public servant under a special Statute and the appeal against
acquittal in such a case can also be availed by the 'complainant' of that case under Section 378(4) of the Code only.
(iv) those 'victims' of complaint-cases whose right to appeal have been recognized under proviso to Section 372, are not required to seek 'leave' or 'special leave' to appeal from the High Court in the manner contemplated
under Section 378(3) & (4), for the Legislature while enacting proviso to Section 372 has prescribed no such fetter nor has it applied the same language used for appeals against acquittals while enacting sub-Section (3) & (4) of Section 378 of the Code.
CRM-790-MA-2010 final - 51 - (C) Whether the 'rights' of a victim under the
amended Cr.P.C. are accessory and auxiliary to
those perceived to be the exclusive domain of
the 'State'?
(84). The answer to this question entirely depends upon the understanding of the two ancillary questions, namely, (i) whether the right of a 'victim' is subordinate or inferior to that of the State? (ii) whether the fetters imposed on the right to appeal against acquittal on the State under Section 378(3) or on a complaint under Section 378(4) also operate on the right of appeal given to a 'victim'? (85). There are as many as three stands of judicial opinion with reference to the first ancillary question. The first category comprises those cases where the Courts have held that the State is superior to the 'victim' and if the State files an appeal challenging the acquittal, the appeal of the 'victim' will not be entertained. This view was taken by a Division Bench of Gujarat High Court in (i) Bhikhabhai Motibhai Chavda vs. State of Gujarat, 2011(6) RCR (Crl.) 1323; and (ii) Jusabhai Ayubbai Miyana vs. State of Gujarat & Ors. Crl.Appeal No.45 of 2012 decided on 24.01.2012. Converse was the view in State of Gujarat vs. Chaudhary (Patel) Pababhai Devabhai & Ors., Criminal Misc. Application No. 4350 of 2011, that the victim having already filed an appeal from the selfsame order of acquittal to which the State was also a party, the subsequent application for leave to appeal filed by the State was not to be entertained. In Bhavuben Dinesh CRM-790-MA-2010 final - 52 - Bhai Makwana vs. State of Gujarat and 9 others Criminal Appeals No. 238 of 2012 and 608 of 2012, another Division Bench of Gujarat High Court referred the matter to the larger Bench for the purpose of deciding (i) whether the appeal filed by the victim under the proviso to Section 372 of the Code, challenging acquittal, or conviction for lesser offence, or awarding inadequate compensation, is not maintainable on the ground that the State has filed an appeal against the same order and for the same purpose? (ii) whether an appeal filed by the State be not entertained on the ground that the appeal preferred by the victim invoking his right under proviso to Section 372 of Code, is admitted by the Court? and (iii) if the victim prefers an appeal before the High Court, challenging the acquittal, should he first seek leave of the Court, as is required in case of appeal being preferred by the State? Overruling both the earlier divergent views of the Division Benches, the Full Bench of Gujarat High Court held that the appeals in both the cases are maintainable. The Full Bench also disagreed with the view taken by this Court in Smt. Ram Kaur's case; the Patna High Court in Guru Prasad Yadav vs. State of Bihar, Crl. APP No. 582 of 2011; and the Bombay High Court in Balasaheb Rangnath Khade's case, and held that:-
"If the victim also happens to be complainant and the appeal is against acquittal, he is required to take leave as provided in Section 378 of the Criminal Procedure Code but if he is not the complainant, he is not CRM-790-MA-2010 final - 53 - required to apply for or obtain any leave. For the appeal against inadequacy of compensation or punishment on a lesser offence, no leave is necessary at the instance of a victim, whether he is the complainant or not."
(86). It may be clarified here that the matter before the Gujarat High Court arose out of an appeal against acquittal in the case investigated by the police, and the word 'complainant' was used in that sense in answer to the question (iii) formulated there. (87). The reason that found favour with the Gujarat High Court to take the afore-quoted view is that if the 'victim' is excluded from the purview of proviso to Section 372, he would have no remedy to challenge inadequate compensation though the award of compensation is one of the vital means for redressing the grievances of a 'victim' as ruled by the Apex Court in (i) Manish Jalan vs. State of Karnataka, (2008) 8 SCC 225; (ii) R.Vijayan vs. Baby & Anr., (2012) 1 SCC 260; and (iii) Roy Fernandes vs. State of Goa & Ors., AIR 2012 SC 1030. (88). The second view, in total contrast to the first one, is of Allahabad High Court in Ajay Misra vs. Rajiv Gupta & Ors. Crl.Misc.Case No.32 of 2011 decided on 23.03.2011, holding that the right of appeal given to a 'victim' is more comprehensive and superior to the right of the State. The third view is that of the Full Bench of Gujarat High Court in Bhavuben Dineshbhai Makwana's case (supra) laying down that the rights of the 'victim' and the State operate CRM-790-MA-2010 final - 54 - in different spheres and neither ousts the other, therefore, filing of appeal by the one will not rob the other of its right to appeal. (89). Right to challenge a conviction or acquittal or any other sentence or order, emanates only from a Statute. The scheme of the Code after various amendments, confers right of appeal only on four categories of persons; (i) accused; (ii) State; (iii) victim; and (iv) complainant in complaint cases, and none else. In tune with what has been discussed above, the correct interpretation, in our opinion, would be that a 'victim' who happens to be the 'complainant' in the police- case, if files appeal against acquittal is not required to take 'leave' under Section 378 of the Code. To this extent we are, therefore, unable to agree, with reverence, to the view taken by the Full Bench of Gujarat High Court and hold that the 'victim' (including a complainant in a police case) is not required to apply for or obtain any leave under Section 378(4) of the Code nor such a 'victim' is required to seek leave in cases where appeal is against inadequacy of compensation and punishment for lesser offence.
(90). It hardly calls for a debate that the varied rights given to the State, the victim or a complainant under Chapter XXIX of the Code are not inter se dependent and each right operates within its own sphere. For example, the State has got a right to appeal on the ground of inadequacy of sentence [Section 377] but a victim (including complainant who is also a victim in police case) has got no such right though he/she can prefer appeal if the accused is convicted for a lesser CRM-790-MA-2010 final - 55 - offence. State has no right to appeal against conviction of an accused for a lesser offence. The legislative scheme thus does not permit an inter se comparison of the rights or duties granted or assigned to a 'victim' or the State under the afore-stated Chapter of the Code. (91). Having held that the right(s) of the 'victim' under the Code including the one translated through proviso to Section 372, are incomparable with and are distinct from those of the State, the second ancillary question, namely, whether the fetters imposed on the right to appeal against acquittal on the State will also operate on the right to appeal given to a 'victim', also stands answered in part. Since the right of a 'victim' to prefer appeal under proviso to Section 372 is independent of and is not contingent upon or subject to the right to appeal of the State under Section 378(1) to (3) of the Code, the condition of seeking 'leave' of the High Court expressly imposed on the State under Section 378(3) cannot be read into proviso to Section 372 where the Legislature consciously did not incorporate such a fetter.
(92). The Court shall always presume that while amending or bringing a new enactment, the Legislature was fully aware of the provisions of the existing Statute. The Parliament had thus full knowledge of the fetters imposed by it on the presentation of appeals by the State or a complaint through Section 378(3) & (4) of the Code, yet it gave the right to appeal to a 'victim' free from any obstacle under proviso to Section 372 of the Code. The legislative policy to grant unconditional right to appeal to a 'victim' is thus writ large. It would CRM-790-MA-2010 final - 56 - indeed not only amount to re-writing the proviso to Section 372 but would also defeat the legislative will if the restrictions expressly embedded in Section 378(3) & (4) are impliedly planted into proviso to Section 372 of the Code also. Since leave to appeal under Section 378(3) is confined only to such appeals which are presented by the State or Central Governments under sub-Section (1)(b) or sub-Section (2)(b) of Section 378 of the Code, with due regard at our command, we are unable to agree with the view taken by the Division Bench of this Court in Smt. Ram Kaur's case (supra) that a 'victim' shall be required to seek leave/special leave to appeal while exercising his/her right to appeal under proviso to Section 372 of the Code and overrule the same to that extent. On the same analogy, we express our inability to agree with the view taken by the Patna High Court in Guru Prasad Yadav's case (supra).
(93). The cumulative effect of the above discussion is that the right(s) of a 'victim' under the amended Code are substantive and not mere brutam fulmen hence these are not accessory or auxiliary to those of the State and are totally incomparable as both the sets of rights or duties operate in different and their respective fields. We thus hold that a 'victim' is not obligated to seek 'leave' or 'special leave' of the High Court for presentation of Appeal under proviso to Section 372 of the Code.
CRM-790-MA-2010 final - 57 - (D) Whether presentation of appeal against acquittal is a 'right' or an 'obligation' of the 'State'
stemming from the Constitution?
(94). The evolution of right to appeal against acquittal discussed in extenso in the earlier part of this order unveils that the right to appeal against acquittal has seen roller-coaster like changes ranging from the 'no right to appeal' [1861] to 'the unconditional right to appeal' [1898] followed by a 'conditional right to appeal' [1973 Code] and again 'unconditional right to appeal' in some of the cases to be filed in the Court of Session [2005] in favour of the State. While the complainant in a case instituted on complaint got a conditional right to appeal against acquittal under Section 378(4) [1973], a 'victim' as defined or explained by us has also now got unconditional right to appeal [2009]. (95). Right to live with human dignity without any fear or actual subjection to any kind of unlawful, unsocial and physical or mental abuse and be a member of the self-regulated civic society too is one of the most cherised fundamental right bestowed on every person under Article 21 of the Constitution. The protection or conferment of certain rights on a victim under the Code therefore cannot be mirrored as a favour shown to him/her by the Legislature. These are only a minuscule part of the fundamental rights of vast magnitude guaranteed under the Constitution. The State as a custodian of the power for enforcement of the rule of law owes a corresponding duty to protect these Fundamental Rights. The State also performs the duty of parens patriae besides CRM-790-MA-2010 final - 58 - making an endeavour to fulfill the promises contained in Articles 38 or 39-A of the Constitution. The right to prosecute a wrong-doer, to bring his guilt home and to compel such guilty person to undergo the awarded sentence is an essential part of the State's enormous duties. The presentation of appeal against an unmerited and reckless acquittal is also an integral duty of a welfare State, who "has an overall control over the law and order and public order of the area under its jurisdiction", even if such a duty has been assigned by the Legislature as a 'right' in the literal sense. State of Rajasthan vs. Sohan Lal & Ors., (2004) 5 SCC 573, lends full support to us in this regard when it holds that "The State does not in pursuing or conducting a criminal case or an appeal, espouse any right of its own but really vindicates the cause of society at large, to prevent recurrence as well as punish offences and offenders respectively, in order to preserve orderliness in society and avert anarchy, by upholding the rule of law".
(96). In an era of enlightened and well-informed society who justifiably demands its rights or frowns upon the belied promises, it will be too farfetched to say that the 'duty' of the State under Sections 377 or 378 is actually a 'right' exercisable at the discretion of State Executive. The fact that the Legislature has chosen to grant unconditional right to appeal to a 'victim' as compared to the conditional right given to a State under Section 378(3) implies towards the failure of the State machinery in preserving the fair balance upto the expectations of the people. The State therefore no longer enjoys any privileged status as an 'appellant' CRM-790-MA-2010 final - 59 - and hitherto there shall be no legal distinction between an appeal preferred by the 'State' or a 'victim'.
(E) Where would the appeal of a 'victim' preferred under proviso to Section 372 lie when the State
also prefers appeal against that order of
acquittal under Clauses (a) or (b) of Section
378(1) CrPC?
(97). This is indeed a difficult proposition to be solved, for how to provide a uniform appellate forum to a 'victim' when he/she prefers an appeal under proviso to Section 372, and the State also prefers its appeal against the same order under Section 378(1)(b) of the Code? Under proviso to Section 372, the victim's appeal shall lie to the Court to which an appeal lies against the order of conviction of such Court. To say it differently, the victim shall present the appeal in the same Court where the appeal of the accused, had he been convicted, would have been maintainable. Now, if the order of acquittal is passed by the Magistrate in respect of a cognizable but bailable offence, the victim's appeal shall lie to the Court of Session before whom the accused, if convicted, can prefer his appeal under Section 374(3) of the Code. (98). If we turn to Section 378(1)(a), it provides that the District Magistrate may ask 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. Clause (b) of Section 378(1) of the Code enables the State Government to direct the Public Prosecutor to present an appeal to the High Court from an CRM-790-MA-2010 final - 60 - original or appellate order of acquittal passed by any Court other than the High Court [not being an order under Clause (a)]. There is thus no ambiguity that if an order of acquittal is passed by a Magistrate in respect of a cognizable but bailable offence and the State decides to challenge it, the State's appeal shall lie to the High Court only but if the 'victim' prefers appeal against the same order, it shall lie to the Court of Session.
(99). Similarly, the scheme of the Code nowhere discerns that the Legislature ever intended to create two parallel streams for adjudication of appeal(s) against the same order. Contrary to it, Section 372 lays emphasis that no appeal shall lie from any judgement or order except as provided for by this Code. That apart, the literal interpretation of proviso to Section 372 or Section 378(1)(a)&(b) of the Code leads to a piquant, anomalous and absurd situation of utter confusion where the Court of Session would have no choice but to await the outcome of the appeal preferred by the State before the High Court and then perform its bounden duty to follow that decision of the superior Court to negate, for all intents and purposes, the right to appeal of a 'victim' contrary to the legislative object behind insertion of the proviso to Section 372 of the Code.
(100). The following table demonstrates the after-effects of the 2005 and 2009 amendments on Appeals before different Courts:- Order State's Victim Will File
Passed By Appeal lies Appeal Before
before Court Where
CRM-790-MA-2010 final - 61 - Accused Will File
Appeal
1. Magistrate in Sessions Accused will file The appeal of cognizable Court appeal before the State and and non- u/S 378(1)(a) Sessions Court u/s Victim can be bailable 374 (3) therefore clubbed offence victim will file together, hence appeal before the no difficulty
Sessions Court u/s
372 proviso
2. Sessions High Court Accused will file The appeal of u/S 378(1)(b) appeal before the the State and High Court u/s the Victim can
374(2) therefore be clubbed
victim will file together subject
appeal before the to certain
High Court u/s 372 guidelines.
proviso
3. Magistrate in High Court Accused will file Grey Area - How cognizable u/S 378 (1)(b) appeal before to harmonise? and bailable Sessions Court u/s offence 374(2) therefore
victim will file
appeal before the
Sessions Court u/s
372 proviso
(101). Let us now analyse the second part of the proviso added to Section 372. It says that "the victim shall have a right to prefer an appeal.......and such an appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court". The adverbial expression "ordinarily" is suffixed to the Court where convict's appeal shall lie. The marginal discretion or exception of Forum carved out by the Legislature pertains to the appeal preferable by an accused against his conviction and not of the 'victim' which 'shall' lie to the same Court where the appeal against the order of conviction of such Court is maintainable. To say it differently, if there is no change CRM-790-MA-2010 final - 62 - in the appellate forum for the presentation of appeal by a convict, the victim's appeal shall not lie to any other Court except that Court. (102). Caught in the web of apparent conflict, the Uttrakhand High Court in Bhagwan Singh's case (supra), drew force from the word 'ordinarily' mentioned in proviso to Section 372 and made an attempt to reconcile the provisions, holding that the appeal of the 'victim' in the cases at Sr.No.3 of the table given in para 100 of this order, should also lie in the High Court and not in the Sessions Court. The expression "ordinarily" has been construed to mean that the appellate forum made available to a 'victim' under proviso to Section 372 is not mandatory in character and can be changed in exceptional or special circumstances. The said construction assumes as if the proviso to Section 372 says that "the victim shall have a right to prefer an appeal........and such appeal shall ordinarily lie to the Court to which an appeal lies against the order of conviction of such Court". The proviso, however, says otherwise.
(103). The afore-stated shift in the venue of appeal to be preferred by a 'victim' from the Court of Session to the High Court, otherwise runs parallel to the legislative scheme inhering Section 378(1)(a), namely, to provide easier, less cumbersome and less time-consuming process of presenting appeal against the unmerited and reckless acquittals by Magistrates. In fact, the suggested recourse would substantially nullify the effect of the amendment made in Section 378 by Act No.25 of 2005 CRM-790-MA-2010 final - 63 - and will re-introduce the unamended provision whereunder all appeals against acquittal used to be maintainable before the High Court only. (104). Similarly, the victim will be severely prejudiced and tribulated (the accused as well) if his appeal in respect of a 'cognizable' and 'bailable' offence is ordered to lie in the High Court only. Even if the victim is excepted from the rigors of Section 378 (3) or (4), the high cost of litigation in the High Court will dissuade him from appealing. The victim would always be uncertain and at the cross-roads in choosing the forum of appeal which shall depend on the decision of the State to prefer or not its appeal. The very presentation of their respective appeals by the 'victim' and the State before different forums would lead to indecisiveness and adhocism.
(105). The 'draftsman' has inconversantly slipped up while drafting the proviso to Section 372, when he overlooked Section 378(1) as amended by Act No.25 of 2005. Resultantly, the laudable legislative policy behind enabling the District Magistrate to present an appeal to the Sessions Court so as to avoid time taxing procedure of seeking State's sanction for filing an appeal has been put on hold. (106). The only effective modicum to meet with the situation as we perceive can be to interpret and construe Section 378(1)(a) in such a manner that the State's appeal(s) in respect of all the cognizable offences (whether bailable or non-bailable) are presented to the Court of Session, for such a recourse is the least harmful, non-prejudicial and substantively conforms to the legislative vision underlying the CRM-790-MA-2010 final - 64 - amendments carried out in the Code in the years 2005 and 2009. This can be feasible if the word "and" contained in Clause (a) of Section 378(1) of the Code is read as "or" so that the appeal preferred by the State against an order of acquittal passed by the Magistrate in respect of every cognizable offence, whether bailable or not, lies to the Court of Session only. We hasten to add that the action in respect of a non- cognizable offence can be initiated only by filing a private complaint before the Magistrate and against acquittal in such a case the appellate recourse lies under Section 378(4) of the Code.
(107). The Supreme Court in a catena of decisions has ruled that the intention of the Legislature is generally gathered from the language used and the words chosen by it to express its intentment. Conventionally, the Court would not add or mend the language of the Statute or read words into it by substituting some other words or otherwise. Similarly, the Court should endeavour to give meaning to each and every word used by the Legislature as neither the words in a Statute can be brushed aside being surplusage nor they be construed to render a part of the Statute blank. Rather, the Courts always believe that the legislature has inserted every part of the Statute for a purpose and words are not there for mere fustian eloquence. Any construction CRM-790-MA-2010 final - 65 - which renders a word or a provision of a Statute redundant needs to be avoided unless there are compelling reasons.2
(108). The propounders of the rule of literal interpretation always insist that the words of a Statute should first be understood in their natural, ordinary or popular sense and the phrases and sentences be construed according to their unambiguous literal meaning unless such a recourse leads to some absurdity or where the object of the Statute suggests to the contrary. The strict literal expression of the words has thus been taken as the safest key to open up the true intentment of a Statute.3
(109). In those cases where the language used in a Statute is capable of bearing more than one construction, the Court in its attempt to find out the true meaning shall have due regard to the consequences of alternative constructions so as to avoid the resultant hardship, serious inconvenience, injustice, absurdity, inconsistency or a 'straight clash' between two Sections of the same Act. In Venkataramana Devaru vs. State of Mysore, AIR 1958 SC 255, the Supreme Court held that "the rule of construction is well-settled that when there are in an enactment two provisions which cannot be re-conciled with each other, they should be so interpreted that, if possible, effect should be 2
(i) British India General Insurance Co. Ltd. vs. Captain Itbar Singh & Ors., AIR 1959 SC 1331; (ii) Ghanshyamdas vs. Regional Assistant Commissioner of Sale Tax, Nagpur & Ors. AIR 1964 SC 766 and (iii) Shri Balaganeshan Metals vs. MN Shanmugham Chetty, (1987) 2 SCC 707.
3
(i) SA Venkataraman vs. The State, AIR 1958 SC 107; and (ii) Workmen of National and Grindlays Bank Ltd. vs. The National Grindlays Bank Ltd., (1976) 1 SCC 925.
CRM-790-MA-2010 final - 66 - given to both...". Thus, a construction that reduces one of the provisions to a 'useless', 'lumber' or 'dead-letter' is not a harmonious construction as 'to harmonise is not to destroy'. [Ref. (i) JK Cotton Spinning & Weaving Mills Co.Ltd. vs. State of UP & Ors., (1986) 4 SCC 90 [AIR 1961 SC 1170]; and (ii) Calcutta Gas Co. (Prop.) Ltd. vs. State of West Bengal & Ors., AIR 1962 SC 1044].
(110). An equally acceptable principle and oftenly pressed into aid is that when a choice has to be made out of the two given constructions, both of which require reading of some additional words, the Court will naturally prefer the one which is more in consonance with reason or justice. [Ref. Ramaswamy Nadar vs. State of Madras, AIR 1958 SC 56]
(111). New India Sugarmills Ltd. vs. Commissioner of Sale Tax, Bihar, AIR 1963 SC 1207 says that "it is a recognized rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which the best harmonized with the object of the statute, and which effectuate the object of the legislature". Busching Schmitz Pvt. Ltd. vs. PT Menghani, AIR 1977 SC 1569, also ruled that the Court should adopt a project-oriented approach keeping in mind the principle that legislative futility is to be ruled out so long as the interpretative possibility permits.
(112). The Heydon's rule known as the 'Mischief Rule' or the Rule of 'Purposive Construction' also serves as a master-key to remove the ordeal caused by the material words in a Statute which congenitally CRM-790-MA-2010 final - 67 - possess two or more constructions. This rule lays down four guiding principles namely, (i) what was the law before the making of the Act? (ii) what was the mischief or defect for which the law did not provide? (iii) what is the remedy that the Act has provided? and (iv) what is the reason behind the remedy? The Heydon's rule says that after following these principles, the Courts must adopt that construction which shall 'suppress the mischief and advance the remedy'. The quoted rule has been approved by the Hon'ble Supreme Court and consistently followed by the Indian Courts.4
(113). The Court would invariably be reluctant to create casus omissus where there is none, nor shall insert a desired provision in an enactment as it will amount to legislating and not construing the Statute. However, where a vacuum caused in a Statute due to the omission by its draftsman forestalls the Court to construe it consistent with its legislative policy, it becomes the bounden duty of the Court to fill in such gap and secure the object of the Statute. Gladstone vs. Bower (1960) 3 All.ER 353 (CA) very aptly explains that "the Court will always allow the intention of the Statute to override the defects of wording but the Court's ability to do so is limited by recognized canons of interpretation...".
(114). While applying these principles to resolve the incongruity between proviso to Section 372 and Section 378(1)(a) & (b) of the Code, 4
(i) Bengal Immunity Co. vs. State of Bihar, AIR 1955 SC 661; (ii) CIT, MP & Bhopal vs. Sodra Devi, AIR 1957 SC 832. CRM-790-MA-2010 final - 68 - it deserves to be mentioned that there was no clash between Section 378(1) as amended by Act No.25 of 2005 and any other provision till the Code was further amended by Act No.5 of 2009. However, after the addition of proviso to Section 372 whereunder a 'victim' can prefer appeal against acquittal irrespective of the State's right to appeal under Section 378(1) & (2), there is little choice but to shift the appellate forum either for a 'victim' or for the State to ensure maintainability of both the appeals against the same order of acquittal before one Forum only.
(115). As to the fair balance that is needed to be struck between the interests of a 'victim' and those of the State, it appears more appropriate, just, fair and proper not to compel the 'victim' to go to High Court instead the State can be detoured to present its appeal to the Sessions Court even against an order of acquittal passed by a Magistrate in respect of cognizable and bailable offence. The Legislative intent underlying Section 378(1)(a) and 2(a) is to provide a distinct forum of appeals against acquittal passed by the Magistrate in relation to cognizable offences. The recourse so suggested is the most viable substitute which neither jeopardizes the rights of the parties nor dilutes the legislative intention. It also does not traverse through unknown jurisprudential principles as the interpretative power of the Court to notice the omission of a draftsman vis-à-vis the Legislature's intention and to abridge that distance is well recognized. There is CRM-790-MA-2010 final - 69 - adequate jurisprudence bearing directly on the issue that may be briefly noticed at this juncture.
(116). In Ishwar Singh Bindra & Ors. vs. State of UP & Ors., AIR 1968 SC 1450, the word 'and' used in Section 3(b)(i) of the Drugs Act, 1940 between "medicines" and "substances" was the subject matter of consideration and after referring to Stroud's Judicial Dictionary (3rd Edition) and Maxwell on Interpretation of Statutes, it was held that the word 'and' sometimes is to be read as 'or' so as to carry out the real intention of the Legislature.
(117). In Municipal Corporation of Delhi vs. Tek Chand Bhatia, (1980) 1 SCC 158 also, the Hon'ble Supreme Court considered whether the word "or" can be read as "and" and vice versa. Reference was again made to Stroud's Judicial Dictionary (3rd Edition) and Maxwell on Interpretation of Statutes as also some decisions of the House of Lords, to hold that the reading of 'or' as 'and' is not to be resorted to "unless some other part of the same Statute or the clear intention of it requires that to be done".
(118). In OS Singh vs. Union of India, (1996) 7 SCC 37, Rule 3(3)(b) of the IPS (Regulation of Seniority) Rules,1954 was found to be suffering from casus omissus and after discussing the judicial decisions revealing two trends to meet with such like situation, it was held that where the seniority rules are silent in the matter of assignment of year of allotment to a particular type of promotee officer, the order passed by the competent authority assigning the year of allotment to such an CRM-790-MA-2010 final - 70 - officer shall be taken to have been passed in its 'administrative discretion'.
(119). State (Delhi Administration) vs. Dharampal, (2001) 10 SCC 372, is yet another instance of an inadvertent mistake in the phrasing of Section 378 as noticed and rectified by the Apex Court in the following paragraph :-
"28. It must also be noted that sub-section (6) of Section 378 is identical to sub-section (5) of Section 417. Thus under Section 378 also the State Government cannot maintain an appeal if special leave to appeal is refused to the complainant. In this behalf there is no change. Section 417(1) specifically provided that it was "subject to provisions of sub-section (5)". Section 417(1) similarly provide that it is "subject to sub-sections (3) and (5)". Sub-section (3) is the newly added provision which now provides that an appeal by the State or Central
Government cannot be entertained without leave of the High Court. However the reference to sub-section (6) in sub-section (1) is clearly an inadvertent mistake. As pointed out above sub-section (5) of Section 378 applies only to application for special leave by a complainant. Sub-section (5) of Section 378 has no application to an appeal by the State Government or to an application for leave under sub-section (3). What the Legislature clearly CRM-790-MA-2010 final - 71 - intended was to continue to provide that an appeal by the State Government would not be maintainable if special leave to appeal had been refused to a
complainant. Thus sub-section (1) of Section 378 was to be subject to provisions of sub-section (6) and not sub- section (5) as inadvertently provided therein. Inadvertently the figure (5) in Section 417(1) was continued, without noticing that now under Section 378 the relevant provision was sub-section (6). In our view it is clear that the figure (5) in Section 378(1) is inadvertently retained. Thus in Section 378(1) the figure (6) will have to be read in place of the
figure (5)."
(Emphasis applied)
(120). In the light of the above discussion, we hold that while in view of proviso to Section 372 an appeal preferred by a 'victim' against the order of acquittal passed by a Magistrate in respect of a cognizable offence whether bailable or non-bailable shall lie to the Court of Session, the State's appeal under Section 378(1)(a) of the Code against that order shall also be entertained and/or transferred to the same Sessions Court. (F) Whether proviso to Section 372 CrPC inserted w.e.f. December 31, 2009 is prospective or
retrospective in nature and whether a revision
petition pending against an order of acquittal
before the insertion of the said proviso, can be CRM-790-MA-2010 final - 72 - converted into an appeal and transferred to the
Court of competent jurisdiction?
(121). The right to appeal was vested for the first time in a 'victim' under proviso to Section 372 of the Code inserted by the Code of Criminal Procedure (Amendment) Act, 2008. Section 1(2) of this Act loudly states that "it shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different provisions of this Act". The aforesaid Act [except its Sections 5, 6 & 21(b)] was indisputably enforced by the Central Government w.e.f. December 31, 2009 through a Gazette Notification.
(122). Section 29 of the Amendment Act, 2008 pertaining to amendment of Section 372 of the Code states that "In Section 372 of the principal Act, the following proviso shall be inserted, namely:-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.".
(123). The legislative intent that provisions of the Amendment Act, 2008 including its Section 29 reproduced above, shall come into force from a future date is very explicit and doubtless to call for any further discussion. A piece of legislation cannot commence or become effective unless it is brought into operation either by the Legislature itself or by CRM-790-MA-2010 final - 73 - its delegate, who is authorised to enforce it, as explained by the Supreme Court in (i) State of Orissa vs. Chandrashekhar Singh Bhoi etc., (1969) 2 SCC 334; and (ii) Union of India & Ors. vs. Sukumar Sengupta & Ors., (1990) Suppl. SCC 545.
(124). It is equally well-established that every Statute shall be presumed prospective in operation unless the Legislature expressly or by necessary implication gives retrospective effect to it. No such inference can possibly be drawn, even remotely, in the instant case. Otherwise also, it is one of the cardinal principles of statutory interpretation that a Statute dealing with substantive rights shall be prospective unless there are words in the Statute sufficient to show the intention of the Legislature to affect existing rights. Osborn's Concise Law Dictionary says that "a new law ought to regulate what is to follow, not the past". These principles have been laid down and reiterated in a string of decisions including in (i) Keshavan Madhava Menon vs. State of Bombay, AIR 1951 SC 128; (ii) Arjan Singh vs. State of Punjab, AIR 1970 SC 703; (iii) Ex.Capt.KC Arora & Anr. vs. State of Haryana & Ors, (1984) 3 SCC 281; and (iv) State of Madhya Pradesh vs. Rameshwar Rathod, (1990) 4 SCC 21.
(125). These very principles apply in the case of an amendment in a Statute. If the amendment intends to create a substantive right or if it affects the vested right, it shall ordinarily be prospective in nature though an amendment in the procedural law like relating to form and limitation can be applied retrospectively. These principles have been CRM-790-MA-2010 final - 74 - extensively discussed and summed up by the Hon'ble Supreme Court in a recent decision in Ramesh Kumar Soni vs. State of Madhya Pradesh, 2013 STPL (Web) 161 SC.
(126). Since right to appeal is a substantive right and it cannot be inferred by implication unless the Statute expressly provides so, the only inescapable conclusion would be to hold that the right to appeal given to a 'victim' under proviso to Section 372 of the Code is prospective and has become enforceable w.e.f. December 31, 2009 only. A 'victim' is entitled to prefer appeal in respect of any type of order referred to in the proviso to Section 372 if such order has been passed on or after December 31, 2009 irrespective of the date of registration of FIR or the date of occurrence etc. To be more specific, it is clarified that it is the date of passing of the order to be appealed from and not any other fact situation, which shall determine the right to appeal of a 'victim'. As a corollary thereto, it is held that the remedy availed by a 'victim' including revision petition against acquittal of the accused by an order passed before December 31, 2009, cannot be converted into an appeal under proviso to Section 372 and it shall have to be dealt with in accordance with the parameters settled for exercising revisional jurisdiction by a superior Court.
(G) What would be the period of limitation for a 'victim' to prefer an appeal under proviso to
Section 372 CrPC?
CRM-790-MA-2010 final - 75 - (127). Various High Courts have experienced difficulty in determining the period of limitation for an appeal preferable by a victim under proviso to Section 372 of the Code. A Division Bench of Patna High Court in Raghunath Yadav vs. State of Bihar, 2011 (6) RCR (Crl.) 133, has viewed that since the period of limitation for filing an appeal against the acquittal under Section 378 is ninety days and no period of limitation has been provided for filing an appeal under Section 372 by a 'victim', the same period of limitation as provided under Article 114 of the Limitation Act will be applicable for filing an appeal under Section 372 of the Code also. The Full Bench of Gujarat High Court in Bhavuben Dineshbhai Makwana's case (supra) too, with reference to Article 114(a) of the Limitation Act, has held that the period of ninety days should be the reasonable period for a 'victim' to file an appeal as the said period is the longest period of limitation for filing an appeal against an order of acquittal prescribed by the Legislature. (128). The Delhi High Court in Kareemul Hajazi's case (supra), however, thought differently and after referring to certain precedents laying down that 'in the absence of prescription of the limitation period, the statutory authority must exercise its jurisdiction within a reasonable period', it decided to bring the 'victim' at par with the 'accused' for the purpose of period of limitation to prefer appeal and held that since an accused is required to prefer appeal to the High Court within sixty days as prescribed under Section 374 of the Code read with CRM-790-MA-2010 final - 76 - Article 115(b)(i) of the Limitation Act, the period of limitation for the appeal of a 'victim' shall also be the same i.e. sixty days. (129). One of the well-recognized principles of criminal jurisprudence is that 'crime never dies'. The maxim 'nullum tempus qut locus occurrit regi' [lapse of time is no bar to Crown in proceedings against offenders] is an age-old rule embedded in criminal justice delivery system. The public policy behind this rule is that a criminal offence is considered as a wrong committed against the State and the Society though it is committed against an individual. The aforesaid rule of prudence has been duly acknowledged by the Parliament as it has prescribed no period of limitation for filing an appeal under proviso to Section 372 of the Code against an order of acquittal. (130). Article 114 of the Schedule to the Limitation Act, 1963, however, prescribes period of limitation for State's appeal against order of acquittal and it reads as under:-
Print Page
heirs for the purpose of engaging an advocate
under Section 24(8) or to prefer an appeal
under proviso to Section 372 of the Code.
(ii) However, legal heirs comprising only the
wife, husband, parent and child of a deceased
victim are entitled to payment of compensation under Section 357(1)(c) of the
Code. Similarly, only those dependents of a
deceased victim who have suffered loss or
injury as a result of the crime and require
rehabilitation, are eligible to seek compensation as per the Scheme formulated
under Section 357-A of the Code.
Question - (B) (iii) The 'complainant' in a complaint-case who is also a 'victim' and the 'victim' other than a
'complainant' in such case, shall have remedy
of appeal against acquittal under Section
378(4) only, except where he/she succeeds in
establishing the guilt of an accused but is
aggrieved at the conviction for a lesser
offence or imposition of an inadequate
compensation, for which he/she shall be
entitled to avail the remedy of appeal under
proviso to Section 372 of the Code.
(iv) The 'victim', who is not the complainant in a private complaint-case, is not entitled to
prefer appeal against acquittal under proviso
to Section 372 and his/her right to appeal, if
any, continues to be governed by the un-
amended provisions read with Section 378 (4)
of the Code.
(v) those 'victims' of complaint-cases whose right to appeal have been recognized under proviso
to Section 372, are not required to seek 'leave' or 'special leave' to appeal from the High
Court in the manner contemplated under
Section 378(3) & (4) of the Code.
Questions - (vi) The right conferred on a 'victim' to present (C) & (D)
appeal under proviso to Section 372 is a
substantive and independent right which is
neither inferior to nor contingent upon the
filing of appeal by the State in that case.
Resultantly, the condition of seeking 'leave to
appeal' or 'special leave to appeal' as contained in Section 378(3) & (4) cannot be
imposed for the maintainability of appeal by
a 'victim' under proviso to Section 372 of the
Code.
Question - (E) (vii) In view of proviso to Section 372 an appeal preferred by a 'victim' against the order of
acquittal passed by a Magistrate in respect of
a cognizable offence whether bailable or non-
bailable shall lie to the Court of Session, the
State's appeal under Section 378(1)(a) of the
Code against that very order shall also be
entertained and/or transferred to the same
Sessions Court.
Punjab-Haryana High Court
M/S. Tata Steel Ltd vs M/S. Atma Tube Products Ltd. & Ors on 18 March, 2013
HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH
CRM-790-MA-2010 (O&M)
Date of Decision: March 18, 2013
CORAM: HON'BLE MR.JUSTICE SURYA KANT
HON'BLE MR.JUSTICE PARAMJEET SINGH
HON'BLE MR.JUSTICE R.P. NAGRATH
(1). The length and width of the right to appeal bestowed on the victim of a crime through the amendment(s) carried out in the Code of Criminal Procedure, 1973 by Act No.5 of 2009 w.e.f. December 31, 2009 is still eluded of unanimity amongst different High Courts. A Division Bench of this Court in Smt. Ram Kaur @ Jaswinder Kaur vs. Jagbir Singh @ Jabi & Ors., 2010(3) RCR (Crl.) 391, also made an attempt to define the expression "victim" within the meaning of Section 2(wa) for the purpose of his right to appeal under proviso to Section 372 CrPC. A learned Single Judge while considering an application seeking leave of this Court to prefer appeal against the order of acquittal passed in relation to the accusations under Sections 279, 337, 338 and 304-A IPC found an apparent conflict between proviso to Section 372 and Section 378 CrPC and vide his order dated September 5, 2011 passed in CRM- 547-MA-2011 opined that :-
"..... as proviso to Section 372 of the Code
unequivocally provides the remedy of appeal to a victim before a Court to which an appeal shall
ordinarily lie against the order of conviction of such a Court while Section 378 of the Code refers to filing of an appeal to the Court of Session from an order of acquittal passed by a Magistrate only in respect of cognizable and non-bailable offences. There would CRM-790-MA-2010 final -3- thus be ambiguity in so far as the remedy of appeal provided to a victim in the cases where the offences are bailable and in which cases the aforesaid
ambiguity amounts to giving with a left hand only to be taken away by the right hand."
(2). Since the Division Bench in Smt. Ram Kaur's case (supra) did not address the afore-mentioned issue, the learned Single Judge referred the matter to a larger Bench. Another learned Single Judge came across yet another issue in Crl. Misc. No. 790-MA of 2010 (O&M), namely, whether a 'victim' under proviso to Section 372 CrPC includes the 'complainant' also and owing to its importance, he too vide order dated May 09, 2012 referred the following question to a larger Bench:- "Whether the word "victim" as mentioned in the
proviso of Section 372 CrPC include complainant also for the purpose of availing the remedy of appeal as given to the victim by aforesaid proviso?"
(3). The above question was framed in an application filed by the complainant seeking special leave to appeal under Section 378(4) against the order of acquittal passed by the Magistrate in a case under Section 138 of Negotiable Instruments Act.
(4). Both the references made by two different learned Single Judges were considered by two of us on July 18, 2012 and having regard to the newly emerging principles of criminal jurisprudence, the Division CRM-790-MA-2010 final -4- Bench formulated four questions (reformulated along with additional questions in para 6) and referred them for determination to a larger Bench.
(5). The continued quest for true answers to the questions so re- phrased, in an arena witnessing a note of discordance amongst different High Courts on one question or the other, led to fairly long hearings with remarkable assistance rendered by a team of bright young lawyers comprising Sarvshri PS Ahluwalia, Deepak Sabharwal and Arjun Sheoran, with an equally meaningful assistance rendered by a battery of State counsel representing the States of Punjab and Haryana, who addressed the issues with totally non-adversarial approach. (6). During the course of hearing, learned counsel for the parties rightly pointed out that besides the re-modulation of four questions which found mention in the reference order dated July 18, 2012, some issues, ancillary but of paramount importance, also deserve to be answered by the larger Bench. We, therefore, formulate the following seven questions that arise for our consideration:- (A) What is the true import and meaning of the expression 'victim' as defined under Section 2(wa) read with proviso to Section 372 Cr.P.C.?
(B) Whether 'complainant' in a private complaint-case, who is also the 'victim' and the 'victim' other than the 'complainant' in such cases are entitled to present CRM-790-MA-2010 final -5- appeal against the order of acquittal under proviso to Section 372 or have to seek 'special leave' to appeal from the High Court under Section 378(4) CrPC?
(C) Whether the 'rights' of a victim under the amended Cr.P.C. are accessory and auxiliary to those perceived to be the exclusive domain of the 'State'?
(D) Whether presentation of appeal against acquittal is a 'right' or an 'obligation' of the 'State' stemming from the Constitution?
(E) Where would the appeal of a 'victim' preferred under proviso to Section 372 lie when the State also prefers appeal against that order of acquittal under Clause (a) of Section 378(1) CrPC?
(F) Whether proviso to Section 372 CrPC inserted w.e.f. December 31, 2009 is prospective or retrospective in nature and whether a revision petition pending
against an order of acquittal before the insertion of the said proviso, can be converted into an appeal and transferred to the Court of competent jurisdiction? (G) What would be the period of limitation for a 'victim' to prefer an appeal under proviso to Section 372 CrPC?
CRM-790-MA-2010 final -6- Legislative History and Emerging Principles of Criminal Jurisprudence:-
International Scenario:
(7). The universalist views on criminal justice system emphasize on the norms collectively recognized and accepted by all of humanity. The internationally accepted norms whereunder an individual's criminal act(s) is accountable are universally binding and applicable across national borders on the premise that crimes committed are not just against individual victims but also against mankind as a whole. The crime against an individual thus transcends and is taken as an assault on humanity itself. It is the concept of the humanity at large as a victim which has essentially characterized 'crimes' on universally- accepted principles. The acceptability of this principle was the genesis of Criminal Justice System with State dominance and jurisdiction to investigate and adjudicate the 'crime'. For long, the criminal law had been viewed on a dimensional plane wherein the Courts were required to adjudicate between the accused and the State. The 'victim' - the de facto sufferer of a crime had no participation in the adjudicatory process and was made to sit outside the Court as a mute spectator. The ethos of criminal justice dispensation to prevent and punish 'crime' would surreptitiously turn its back on the 'victim' of such crime whose cries went unnoticed for centuries in the long corridors of the conventional apparatus. Various international Declarations, domestic legislations and Courts across the world recognized the 'victim' and they CRM-790-MA-2010 final -7- voiced together for his right of representation, compensation and assistance. The UN Declaration of Basic Principles of Justice for the Victims of Crime and Abuse of Power, 1985, which was ratified by a substantial number of countries including India, was a landmark in boosting the pro-victim movement. The Declaration defined a 'victim' as someone who has suffered harm, physical or mental injury, emotional suffering, economic loss, impairment of fundamental rights through acts or omissions that are in violation of criminal laws operative within a State, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the 'victim'.
(8). European Union (EU) also took great strides in granting and protecting the rights of 'victims' through various Covenants including the following:-
i. The position of a victim in the framework of Criminal Law and Procedure, Council of Europe Committee of Ministers to Member States, 1985;
ii. Strengthening victim's right in the EU communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Reasons, European Union, 2011;
iii. Proposal for a Directive of the European Parliament and of the Council establishing "Minimum Standards on the CRM-790-MA-2010 final -8- Rights, Support and Protection of Victims of Crime, European Union, 2011".
(9). The United States of America (USA) had earlier made two enactments on the subject i.e. (i) The Victims of Crime Act, 1984 under which legal assistance is granted to the crime-victims; and (ii) The Victims' Rights and Restitution Act of 1990, followed by meaningful amendments, repeal and insertion of new provisions in both the Statutes through an Act passed by the House of Representatives as well as the Senate on April 22, 2004.
(10). In Australia, the Legislature has enacted South Australia Victims of Crime Act, 2001 while in Canada there are two legislations known as Victims of Crime Act, Prince Edward Island and Victims of Crime Act, British Columbia. Most of these legislations have defined the 'victim' of a crime liberally and have conferred varied rights on such victims.
Indian Perspective:
(11). Much before the United Nations stepped into or the other developed nations legislated for the protection and promotion of victims' rights, the Supreme Court in Rattan Singh vs. State of Punjab, (1979) 4 SCC 719, lamented against complete desertion of a victim in our criminal jurisprudence observing that "The victimization of the family of the convict may well be a reality and is regrettable. It is a weakness of our jurisprudence that the victims of the crime, and the distress of the dependants of the prisoner, do not attract the attention of CRM-790-MA-2010 final -9- the law. Indeed, victim reparation is still the vanishing point of our criminal law. This is a deficiency in the system which must be rectified by the Legislature. We can only draw attention to this matter. Hopefully, the Welfare State will bestow better thought and action to traffic justice in the light of the observations we have made". (12). The Legislature though did not come forward to address the issue but the Law Commission of India, nonetheless, in its 154th Report attributed Chapter-XV on "Victimology" made radical recommendations on the aspect of compensatory justice through a Victim Compensation Scheme. Thereafter came the report of a Committee on the Reforms of Criminal Justice System, commonly known as "Malimath Committee Report, 2003". The Committee was constituted by Government of India with an avowed object of suggesting ways and means for developing a cohesive system in which all the parts work in coordination to achieve the common goal as the people by and large have lost confidence in the criminal justice system and the bewildered victim is crying for attention and justice. The Committee recommended the right of the victim or his legal representative 'to be impleaded as a party in every criminal proceeding where the charge is punishable with seven years imprisonment or more'; the right of voluntary organizations for impleadment in court proceedings in select cases; the victim's right to be represented by an advocate of his choice and if he is not in a position to afford, to provide an advocate at the State's expenses; victim's right to participate in criminal trial; the right to know the status of CRM-790-MA-2010 final - 10 - investigation and take necessary steps in this regard and to be heard at crucial stages of the criminal trial including at the time of grant or cancellation of bail. The Committee further recommended that "the victim shall have a right to prefer an appeal against any adverse order...; he should be provided legal services and that 'victim compensation' is a State obligation in all serious crimes, whether the offender is apprehended or not, convicted or acquitted" and for this object a separate legislation be enacted.
(13). Soon after the Malimath Committee report came the verdict in Jahira Habibullah H. Sheikh & Anr. vs. State of Gujarat & Ors., (2004) 4 SCC 158, ripping apart the ailing criminal justice system in India and ordering re-trial of Best Bakery Case and desirability of further investigation in terms of Section 173(8) CrPC due to the factors like dishonest and faulty investigation, holding of trial in a perfunctory manner, non-production of vital witnesses, prosecuting agency acting unfairly and forcing eye-witnesses to turn hostile, resulting into the acquittal of several accused suspected to be involved in the gruesome murder of as many as 14 people as a result of communal frenzy.
(14). Before we proceed further, let there be a special reference to those decisions of the Hon'ble Supreme Court which built up the victim's right brick by brick, revolutionalised the conventional criminal justice system and sensitized its stakeholders, notwithstanding the fact CRM-790-MA-2010 final - 11 - that statutory initiatives through the desired amendments in the Code of Criminal Procedure, 1973 (in short, 'the Code') were still illusory. (15). In PSR Sadhanantham vs. Arunachalam & Anr., (1980) 3 SCC 141, the Constitution Bench considered the question whether the brother of a victim who had been murdered, possessed the right to petition under Article 136 of the Constitution for special leave to appeal against the acquittal of the accused? After noticing that under the Code, the right of appeal vested in the State is subject to leave to be granted by the High Court and a complainant's right to appeal was also subject to his obtaining 'special leave' to appeal from the High Court, it was held that a petition filed by the private party other than the complainant should be entertained "in those cases only where it is convinced that the public interest justifies an appeal against the acquittal and that the State has refrained from petitioning from special leave for reasons which do not bear on the public interest but are prompted by private influence, want of bona fide and other extraneous considerations".
(16). In Bhagwant Singh vs. Commissioner of Police, (1985) 2 SCC 537, the right of the complainant to be heard before the acceptance of a cancellation report submitted by the police after investigation of the FIR, was accepted laying down that the informant must be given an opportunity of hearing so that he could make his submissions to persuade the Magistrate to take cognizance of the offence and issue due process.
CRM-790-MA-2010 final - 12 - (17). In M/s JK International vs. State Government of NCT of Delhi, (2001) 3 SCC 462, the Supreme Court recognized the right of the complainant at whose instance the police-case was registered, to be heard by the High Court in the proceedings initiated by the accused for quashing those proceedings. It held thus:-
"9. The scheme envisaged in the Code of Criminal procedure (for short the Code) indicates that a
person who is aggrieved by the offence committed, is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police and the charge sheet was laid by them. Even the fact that the court had taken
cognizance of the offence is not sufficient to debar him from reaching the court for ventilating his
grievance. Even in the sessions court, where the Public Prosecutor is the only authority empowered to conduct the prosecution as per Section 225 of the Code, a private person who is aggrieved by the
offence involved in the case is not altogether
debarred from participating in the trial..."
(18). In Puran Shekhar and Anr. vs. Rambilas & Anr., (2001) 6 SCC 338, the locus standi of father of the deceased in a dowry death case, to move the High Court and seek cancellation of bail granted by the Sessions Court was upheld as he was not a stranger. (19). In Delhi Domestic Working Women's Forum vs. Union of India & Ors, (1995) 1 SCC 14, the Supreme Court in exercise of its PIL jurisdiction directed the National Commission for Women to evolve CRM-790-MA-2010 final - 13 - a Scheme to protect rape victims through various measures and cast obligation on the Union of India to implement the Scheme so evolved by the Commission.
(20). Rama Kant Rai vs. Madan Rai & Ors., (2003) 12 SCC 395 was a case where against an order of acquittal passed by the High Court in a murder case, the right of the private party to file an appeal under Article 136 of the Constitution was eloquently recognized especially to meet the pressing demands of justice. (21). In Sakshi vs. Union of India & Ors, (2004) 5 SCC 518, mandatory guidelines for the recording of evidence of victim of offence under Sections 354, 375, 367 & 377 IPC were laid down. (22). In Mosiruddin Munshi vs. Mohammad Siraj & Ors., (2008) 8 SCC 434, the right of the complainant to be heard before an order affecting the criminal proceedings initiated at his instance was recognized and it was held that the FIR could not be quashed by the High Court at the instance of the accused without notice to the original complainant.
(23). Some of the High Courts also dutifully espoused the cause of 'victims' and expanded the jurisprudence to create a space for them at one or the other stage of Court hearings. We may usefully quote the following observations made by a Division Bench of Assam High Court in NC Bose vs. Prabodh Dutta Gupta, AIR 1955 (Assam) 116:- "[I]t seems to me that the person vitally interested in the issue of the prosecution or the trial is the person CRM-790-MA-2010 final - 14 - aggrieved who 'initiates' the proceedings. He may be both civilly and criminally liable if, on account of any unfairness or partiality, the trial or the proceeding ends in wrongful acquittal or discharge of the accused. The Legislature therefore could not have intended to shut out such a person from coming to the High Court and
claiming redress under Section 526 of the Code. The words should be construed to have the widest amplitude so long as the effect of the interpretation is not to open the door to frivolous applications at the instance of intermeddlers or officious persons having no direct interest in the prosecution or trial".
Appeal:
Evolution of Right to Appeal:-
(24). Since the issues to be determined by three-Judge Bench, as mentioned in para 6, are hedging around the 'right to appeal' given to a 'victim', we may briefly notice the evolution of that right under the Indian legal regime.
(25). The Code of Criminal Procedure when originally enacted in the year 1861 did not provide for any right to appeal against acquittal to anyone including the State. It was in the Code of Criminal Procedure of 1898 that Section 417 was inserted enabling the Government to 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 CRM-790-MA-2010 final - 15 - High Court. The Law Commission of India in its 41st Report given in September, 1969 as also in 48th Report pertaining to the Criminal Procedure Bill, 1970, however, recommended to restrict the right of appeal given to the State Government against an order of acquittal by introducing the concept of 'leave to appeal' and that all appeals against acquittal should come to the High Court though it rejected the right to appeal to "the victim of a crime or his relatives". (26). The Code of Criminal Procedure, 1973 came into being on January 25, 1974 repealing the Code of Criminal Procedure, 1898. The recommendations made by the Law Commission of India, referred to above, largely found favour with the Parliament when it inserted an embargo in sub-Section (3) to Section 378 against entertainment of an appeal against acquittal "except with the leave of the High Court". Sub- section (4) of Section 378 retained the condition of maintainability of an appeal at the instance of a complainant against an order of acquittal passed in a complaint-case only if special leave to appeal was granted by the High Court. Save in the manner as permitted by Section 378, no appeal could lie against an order of acquittal in view of the express embargo created by Section 372 according to which "no appeal shall lie from any judgement or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force". The Code of Criminal Procedure (Amendment) Act,
2005:
2005:-
CRM-790-MA-2010 final - 16 - (27). Hon'ble Supreme Court in a string of decisions a few of which are already cited, has recognized time and again one or the other right of the 'victim' including locus standi of his/her family members to appeal against acquittal in the broadest sense. Notwithstanding these decisions or the chorus of such like rights being heard in all civic societies, the Legislature in its wisdom did not deem it necessary to permit a 'victim' to appeal against the acquittal of his wrong-doer even while carrying out sweeping amendments in the Code in the year 2005. The only significant amendment brought into force was in Section 378 whereby the appeals against acquittal in certain cases are now maintainable in the Court of Session without any leave to appeal. The afore-stated amendment has been brought to guard against arbitrary exercise of power and to curb reckless 'acquittals'. Section 377 was also suitably amended enabling an appeal on the ground of inadequacy of sentence to the Court of Session, if the sentence is passed by a Magistrate.
(28). It is important here to dissect Section 378 of the Code as amended in 2005 which reads as under :-
"378. Appeal in case of acquittal - (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 CRM-790-MA-2010 final - 17 - Magistrate in respect of a cognizable and non-
bailable offence;
(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 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.
(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, 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 CRM-790-MA-2010 final - 18 - clause (a)] or an order of acquittal passed by the Court of Session in revision.]
(3) 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 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)."
The Code of Criminal Procedure (Amendment) Act,
2008:-
2008:
CRM-790-MA-2010 final - 19 - (29). The 2008 Amendment Act came into force with a lot of fanfare to recognise not all but only a few including the 'right to appeal' of a victim and made the following amendments or insertions in the Code. It has added a new Section 2(wa) which defines "victim" to mean:-
"a person who has suffered any loss or injury caused by reason of the act or omission for which the
accused person has been charged and the expression "victim" includes his or her guardian or legal heir" (30). The Amendment Act has also inserted a proviso in Section 24(8) enabling the Court to permit a 'victim' to engage an advocate of his/her choice to assist the Prosecution. One more proviso has been added in Section 157(1) to say that "in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and so far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality".
(31). The concept of 'Victim Compensation Scheme' has also been brought on the Statute Book by the same Amendment Act through a newly-added Section 357A which inter alia provides that "every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the CRM-790-MA-2010 final - 20 - victim or his dependents who have suffered loss or injury as a result of the crime and who, require rehabilitation".
(32). Sub-Section (3) of Section 357-A further provides that "If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation". Similarly, its sub-Section (4) enables that "Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation".
(33). The profound and most cherished 'right to appeal' conferred upon and/or earned by the innumerable victims after a protracted struggle and which is free from all shackles, is by way of the proviso added to Section 372 whereunder a 'victim' can prefer an appeal against (i) an order acquitting the accused; (ii) convicting the accused of a lesser offence; and (iii) imposing inadequate compensation. The appeal of the 'victim' lies in the Court to which an appeal ordinarily lies against the order of conviction of such Court. The amended Section 372 of the Code reads as follows:-
"372. No appeal to lie, unless otherwise provided. - No appeal shall lie from any judgment or order of a CRM-790-MA-2010 final - 21 - Criminal Court except as provided for by this Code or any other law for the time being in force:
"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."
(Emphasis applied)
(34). It is instructive and significant to notice at this stage that no amendment has been brought in Section 378 of the Code under the 2008 Amendment Act.
(35). It is also apropos to mention here that the Law Commission of India in its 221st Report given in April, 2009 recommended amendments in Sections 378, 397 and 401 of the Code to provide that (i) in complaint cases also the appeal against an order of acquittal passed by a Magistrate should lie to the Sessions Court subject to the grant of special leave by it; (ii) wherever the District Magistrate or the State do not prefer an appeal against an order of acquittal, the aggrieved person or the informant should have the right to appeal with the leave of the appellate Court; (iii) there should be only one revisional forum of the Sessions Court against the orders passed by the Magistrates instead of CRM-790-MA-2010 final - 22 - two alternative forums; and (iv) the Legislature should specifically categorise reviseable orders instead of leaving the matter to the discretion of the Courts. The suggested amendments, however, are still awaited.
(36). Be that as it may, if synergized, the amended and unamended provisions of the Code pose a serious threat to the well- known rule of harmonious interpretation and lead to some of those unconciliatory eventualities which have been enlisted as the 'questions' that arise for our determination. We now attempt to answer these questions off-course without forgetting that success is far from guaranteed.
(A) What is the true import and meaning of the
expression 'victim' as defined under Section
2(wa) read with proviso to Section 372 Cr.P.C.?
(37). The principal debate before us encircles the true meaning and import of the expression "victim" as defined under Section 2(wa) with reference to the right to appeal given to such 'victim' on the grounds enumerated under proviso to Section 372 of the Code. Since a Division Bench of this Court as also various other High Courts have elaborately discussed and opined on this and other allied issues, it would be beneficial at this stage to take a brief note of those decisions. (38). In Ram Kaur @ Jaswinder Kaur's case, FIR was registered on the statement of the appellant (Smt. Ram Kaur) initially under Section 307 read with Section 34 IPC but subsequent to the death CRM-790-MA-2010 final - 23 - of the injured, the offence was converted under Section 302 IPC. The accused were, however, acquitted by the trial court holding that the deceased died in a road accident. The State did not prefer appeal against the order of acquittal but the informant-cum-complainant asserted herself to be a 'victim' within the meaning of Section 2(wa) and filed appeal under proviso to Section 372 without seeking 'special leave' to appeal. Since the status of the appellant as a 'victim' and her consequential right to appeal were disputed, the Division Bench on consideration of the amended provisions of the Code held that :- "A bare perusal of the definition of "victim" reveals that the victim means a person, who has suffered any loss or injury caused by reason of the act or omission of the offender, and further expression "victim" includes his or her guardian or legal heir. The General Assembly of the United Nations in its 96th plenary meeting on 29th November, 1985, made a Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, recognising that millions of people throughout the world suffer harm as a result of crime and the abuse of power and that the rights of these victims have not been adequately recognised and also that frequently their families, witnesses and other who aid them are unjustly subjected to loss, damage or injury. The Assembly affirmed the necessity of adopting national CRM-790-MA-2010 final - 24 - and international norms in order to secure universal and effective recognition of and respect for, the rights of victims of crimes and abuse of power. In the said Declaration, the word "victim" was defined as under:- xxx xxx xxx xxx
xxx xxx xxx xxx
The aforesaid definition of victim has been
discussed in 154th Report of the Law Commission, but the legislation has not adopted the said definition and have given a restricted meaning to the word "victim" means only a person, who has suffered any loss or injury caused by reason of the act or omission of the offender and victim includes his or her guardian or legal heir."
(39). The Bench consequently viewed that "the complainant, who is a near relation of the deceased, cannot be said to be a person who has suffered any loss or injury caused by reason of the act or omission of the offender. Undisputably, she is neither guardian nor legal heir of the deceased. Therefore, in our view, the complainant in the instant case is not the 'victim' who can prefer an appeal under Section 372 of the Code...".
(40). The Delhi High Court had an occasion to define 'victim' within the meaning of Section 2(wa) and the right to appeal of such 'victim' under Section 372 of the Code in (i) Chattar Singh vs. CRM-790-MA-2010 final - 25 - Subhash, 2011(2) AD (Delhi) 252; and (ii) Kareemul Hajazi vs. State of NCT of Delhi & Ors, 2011(2) AD (Delhi) 210. In the first case, the appellant who was the father of the deceased, filed appeal under proviso to Section 372 of the Code against acquittal of the accused in a case under Section 302 IPC etc. and claimed himself to be a 'victim' within the meaning of Section 2(wa) of the Code. In the second case also, the appellant was the father of deceased Nasreen who was married to one of the accused. The primary question that arose for consideration in the first case was whether the appellant (Chattar Singh) could be regarded as a 'victim' for the purpose of proviso to Section 372 of the Code? The Court held that "a victim of crime is a person who suffers any loss or injury as a result of the crime. Although the expression "any loss or injury" is an expansive expression, it appears that it has been used in the context of the person whose suffering is the direct and most proximate result of the crime". The Bench further held that a definition which employs the expression "means and includes" is an exhaustive definition and in the present case Section 2(wa) would refer to a crime victim in the natural and ordinary sense as the person who directly and most proximately suffered the loss or injury but it would also include - (a) his or her heirs in case he or she was dead; or (b) his or her guardian if he or she was a minor or of unsound mind or under some other disability. (41). The Delhi High Court thereafter concentrated on the word "heirs" and after referring to the related case law held that "in the case of Section 2(wa), since the word 'heirs' is preceded by the word 'legal', it CRM-790-MA-2010 final - 26 - must be construed in the legal sense as that is the clear intention of the Legislature. The expression 'legal heirs' in relation to a victim, therefore, clearly refers to a person who is entitled to the property of the victim under the applicable law of inheritance". Applying this principle to the facts of the first case, the Court rejected the appellant's plea of being a 'victim' as his deceased son had left behind his widow and children (Class-I heirs) while the appellant (father) was only a Class-II heir and was not entitled to succeed the estate of the deceased under the Hindu Succession Act, 1956 in the presence of Class-I heirs. In the second case, the father (Karimul Hajazi) of the deceased was held to be a 'victim' on applying the principle of Muslim Law under which the person responsible for the death of another person from whom the first person is otherwise to inherit, would be disqualified from such inheritance and on this analogy the husband of the victim was treated as non-existent and father of the victim was to be her legal heir. (42). In Smt. Ganny Kaur vs. The State (NCT) & Ors., 2007(8) AD (Delhi) 478, the Delhi High Court while dealing with a case of compensation under the Fatal Accidents Act, 1855, held that the principles of succession and inheritance prescribed under personal laws do not apply when compensation is awarded by the State who do not function under any personal law. It was further held that the compensation in such like cases would not be necessarily awarded to the legal heirs only according to the personal law, but equitably to the next of kin.
CRM-790-MA-2010 final - 27 - (43). The Gauhati High Court (Agartala Bench) in Crl.Appeal No.13 of 2011 (Shri Gouranga Debnath vs. State of Tripura & Ors.) decided on August 8, 2011 had an occasion to consider the Division Bench decision of this Court in Smt. Ram Kaur's case and of the Delhi High Court in Chattar Singh's case. There, the appellant was the father of deceased Pooja Debnath who was married to the second respondent (Chandan Das). She was allegedly killed by throttling and the appellant lodged a complaint that the deceased was tortured, mentally and physically, by the second respondent and his parents besides having been pressurised into fetching Rs.50,000/- from him. Since the accused were acquitted in the case under Section 302 read with Section 34 IPC, the appellant claiming himself to be a 'victim' preferred an appeal before the High Court under proviso to Section 372 of the Code. The Gauhati High Court held that "person who has suffered loss due to a crime is obviously a victim" and that "in Section 2(wa) of the Code, there are two parts, one part is related to the victim who has suffered loss and injury and by way of other parts, the Legislature expanded the word 'victim' even to the persons who are the guardian and legal heirs".
(44). The Gauhati High Court while disagreeing with the Delhi High Court, concluded thus :-
"...As the words 'loss' and 'injury' were not defined in the Code, we have to consider that loss and injury, as mental and physical injury and also emotional
CRM-790-MA-2010 final - 28 - sufferings and the deceased being the lone daughter of the petitioner, absence of his daughter due to alleged murder by the accused respondents created a void in the heart of the petitioner and also his family
members. We are also of the view when the allegations against the accused husband of deceased and his
brother are the subject matter of the appeal, if the appeal succeeds, in that case, the family members of legal heirs of the husband of the deceased would not come as 'victim' for preferring appeal."
(45). The Andhra Pradesh High Court in G.Baswaraj vs. State of AP, 2011 (8) RCR (Crl.) 1674 attempted to reconcile Section 378(4) and proviso to Section 372 of the Code and opined that there is no clash or conflict or inconsistency between the two provisions and on harmonious reading thereof it was clear that "a victim irrespective of the fact whether he is complainant or not, has been conferred the right to file appeal against an order recording acquittal by the trial Court, either to the Sessions Court or to the High Court as the case may be. In case, the victim is also the complainant in a case instituted by way of a private complaint, then such person has got two options to file appeal against an order of acquittal recorded by the trial Court, either to the High Court under Section 378(4) CrPC or to the Sessions Court/High Court under proviso to Section 372 CrPC". Thus according to the AP High Court, the CRM-790-MA-2010 final - 29 - complainant of a private complaint who is also a 'victim', has got both the remedies though he can avail of only one option. (46). There is thus lack of unanimity on the constituent and composition of 'legal heirs' of a 'victim' for the purpose of locus to appeal under proviso to Section 372. While the Delhi High Court has taken the view that the expression "legal heir" is referable to the personal law of the 'victim' and whosoever has first preference to succeed the estate under such law, would be the sole 'legal heir' of the 'victim' for the purposes under the Code, the Gauhati High Court has viewed it differently and liberally.
(47). Section 2(wa) of the Code defines 'victim' to mean a person who has suffered any loss or injury caused by the reason of the act or the omission for which the accused person has been charged and the expression "victim" includes his or her 'guardian' or 'legal heir'. We find on its plain reading that the Legislature has classified the 'victim' in two categories i.e. (i) a person who has suffered any loss or injury caused by the act or omission attributed to the accused; and (ii) the 'guardian' or 'legal heirs' of such 'victim'. The correct understanding of the first part of the term "victim" is contingent and is subject to the true scope of the words "loss" or "injury" contained therein. Both these words are not defined in the Code, however, its Section 2(y) says that "words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860) have the meanings respectively assigned to them in that Code".
CRM-790-MA-2010 final - 30 - (48). Section 23 IPC defines "wrongful loss" and it says that "'wrongful loss' is the loss by unlawful means of property to which the person losing it is legally entitled". It is further explained that "a person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property". According to Section 44 IPC, the word "injury" "denotes any harm whatever illegally caused to any person, in body, mind, reputation or property". It is, thus, in the context of offences against property, especially under Section 418 and 'mischief' as defined in Section 425 IPC that the term 'wrongful loss' has been used in the Penal Code. The Legislature while defining 'victim' in Section 2(wa) of the code has used the word 'any loss' before 'or injury' and has not restricted it to 'wrongful loss' only. We, thus, find that the words 'loss' and 'injury' used in Section 2(wa) are synonymous. This view is also fortified by the use of wide term 'any loss' in clause (b) as compared to 'the loss' in clause (c) of Section 357(1) of the Code.
(49). It is so acte clair that a person who has suffered an injury in body or mind or reputation or to his/her property or if such person has been caused loss of property, to which he is legally entitled to, unlawfully at the hands of another person who has been charged as an accused, is the 'victim' within the meaning of Section 2(wa). Similarly, if as a result of the aggravated form of victimization, such 'victim' of first part does not survive, the second part of the definition of 'victim' as defined in Section 2(wa) of the Code substitutes the first part and CRM-790-MA-2010 final - 31 - becomes operative whereupon the guardian (if such 'victim' was a minor or of unsound mind) or the legal heirs of the deceased victim, as the case may be, step-in for the 'victims' for the varied purposes under the Code. (50). It is clearly discernible from the above that broadly three categories of persons have been defined in the term 'victim' in Section 2(wa) of the Code, namely, (i) who has suffered loss or injury; (ii) Guardian of the above category, if sufferer is a minor or of unsound mind; and (iii) legal heirs of the first category if the sufferer dies. (51). The phrase "legal heir" has not been defined in the Code or the IPC. In its literal sense the word "legal" means as something which is established, appointed or authorized by law. Black's Law Dictionary (9th Edition) explains "heir" to mean "a person who, under the laws of intestacy, is entitled to receive an intestate descendant's property - Also termed as 'legal heir'; 'heir at law'; 'lawful heir'..." and that in civil law, 'heir' means "a person who succeeds to the rights and occupies the place of, or is entitled to succeed to the estate of, a descendant, whether by an act of the descendant or by operation of law". The Chambers Dictionary defines the word "heir" (in law) as "a person who actually succeeds to property, title etc. on the death of its previous holder". The Oxford English Dictionary (Indian Edition) also defines the word "heir" to mean "a person legally entitled to the property or rank of another on that person's death". It further defines "heir-at-law" to mean "an heir by right of blood especially to the real property of an intestate". CRM-790-MA-2010 final - 32 - (52). According to Barron's Dictionary of Legal Terms (3rd Edition), the term "heirs" means "strictly those whom statutory law would appoint to inherit an estate should the ancestor die without a Will (intestate); sometimes referred to as 'heirs-at-law', 'rightful heirs', 'legal heirs'. The term is often applied indiscriminately to those who inherit by Will or deed, as well as by operation of law". (53). In Angurbala Mullick vs. Debabrata Mullick, AIR 1951 SC 293, it was held that the word "heirs" cannot normally be limited to "issues" only. It must mean all those persons who are entitled to the property of another under the law of inheritance. In N.Krishnammal vs. R. Ekamabaram & Ors, (1979) 3 SCC 273, the question that arose for consideration was whether the expression "heirs" would mean 'legal heir' and it was ruled that the legal terms such as 'heirs' used in a Will must be construed in legal sense, unless a contrary intention is clearly expressed by the testator.
(54). Vasant Pratap Pandit & Anr. vs. Anant Trimbak Sabnis (Dr.), (1994) 3 SCC 481, explained that the word "heir" may be construed both in a wider as well as in a narrower sense and therefore, which sense would be applicable to the facts of a particular case would depend upon the intention and scheme of the particular legislation in which the question occurred.
(55). A Division Bench of this Court in Gulzara Singh vs. Smt. Tej Kaur, AIR 1961 Punjab 288 (DB), while interpreting Section 22 of the Hindu Adoptions and Maintenance Act, 1956 held that the word CRM-790-MA-2010 final - 33 - "heir" must be construed in the broad and general sense so as to include all those on whom the estate of the deceased dwells whether on intestacy or by means of testamentary instrument like a Will and that such an interpretation promotes and effectuates the cardinal legislative idea or purpose to bring to a close or at least rectify the evil of neglect to Hindu women at the hands of their husbands and after their husbands' death by those who may succeed to or inherit their husbands' estate. (56). We may also refer to some of the Parliamentary legislations where the expression "legal heir" finds mention but without any definition. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 defines "relative" [Section 2(g)] which means "any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death". Such a 'relative' is obligated to maintain a senior citizen as per Sections 4&5 of the 2007 Act. The Advocates' Welfare Fund Act, 2001 (Section 11) cast a duty on the Trust Committee to make payment out of the welfare fund to the members of the fund or their nominees or legal heirs. The Merchant Shipping Act, 1958 (Section 141) also contemplates payment of compensation to a seaman and in the case of a deceased seaman, to the person nominated by him or to his legal heirs. Section 44 of the Delhi Police Act, 1978 also contemplates payment of compensation to a person who has suffered loss or damage to his property or grievous hurt or to the legal heirs of any person who was no more alive. The Income Tax Act, 1961 [Section 10(BC)] permits deduction of an amount received CRM-790-MA-2010 final - 34 - or receivable from the Central or State Government or a local authority by an individual or his legal heir by way of compensation on account of any disaster etc. Similarly, the Consumer Protection Act, 1986 defines a "complainant" to mean a consumer and in case of death of the consumer his legal heir or representative, who are competent to make a complaint [Section 2(1)(v)].
(57). It thus appears that every heir who, in law, is entitled to succeed to the estate of a deceased 'victim' in one or the other eventuality, shall fall within the ambit of Section2(wa) of the Code, even if the estate of such deceased 'victim' is to devolve upon the legal heirs as per the order of preference prescribed under the personal law of such 'victim'. This conclusion of ours is also compatible with the other provisions of the Code.
(58). It is pertinent to take stock of two other provisions of the Code, namely, Sections 357 & 357-A pertaining to "Order to Pay Compensation" and "Victim Compensation Scheme", respectively. Section 357 provides that when a Court imposes a sentence of fine or a sentence of which fine forms a part, the Court may, where such fine is recoverable from a person convicted of any offence for having caused the death of another person, order the whole or any part of the fine so recovered to be applied, inlcuding "in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1885), entitled to recover damages from the person sentenced for the loss resulting to them from such death".
CRM-790-MA-2010 final - 35 - (59). Section 357-A of the Code, on the other hand, contemplates formulation of a Scheme by the Government for providing funds for the purpose of "compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation". The Legislature has consciously prescribed two different categories of eligible persons who are entitled to be compensated under Section 357(1)(c) or Section 357-A of the Code, in the case of the death of a 'victim'.
(60). Section 1-A of the Fatal Accidents Act, 1855 entitles the wife/husband, parent and child, if any, of the person whose death has been caused by wrongful act, neglect or default, to maintain an action and recover damages in respect thereof. It may thus be seen that the persons who are entitled to be compensated by the Court under Section 357(1)(c) for the death of their near and dear ones, could be the spouse, parent or child of such victim but they may not necessarily be entitled to seek compensation within the scheme formulated under Section 357-A unless it is proved that such a claimant was 'dependent' on the deceased and requires 'rehabilitation'. To say it differently, it is nowhere contemplated under the scheme of the Code that the compensation recoverable from an accused or admissible under the Victim Compensation Scheme [Sections 357(1)(c) & 357-A], is payable only to the 'legal heirs' of a deceased victim.
(61). Having held that the Legislature has not linked or preconditioned the admissibility of compensation to the next kin of a CRM-790-MA-2010 final - 36 - victim under Section 357 or Section 357-A with the personal law of such victim, we revert back to the second part of the definition of "victim" under Section 2(wa) of the Code which includes his/her guardian or legal heir within the expression "victim", with special reference to the right to 'engage an advocate' under Section 24(8) or the 'right to appeal' under proviso to Section 372 of the Code.
(62). The Legislature while specifying four categories of the next of kin of the deceased victim, has purposefully couched the language of Section 357(1)(c) in a manner which leaves no grey area for the Court firstly to determine the status of the claimant as a 'legal heir' and then the order of succession amongst different categories of heirs. Similarly, the Legislature did not deem it necessary to use the expression "victim" in Section 357, while in Section 357A, it has shrunk the otherwise widened circumference of the word "victim" by imposing the riders like 'dependent' or his/her requirement for 'rehabilitation'. (63). Since the expression "legal heir" has not been used in Section 2(wa) for the purpose of non-testamentary succession including entitlement to compensation under the Code, it must be safely inferred and construed that both the expressions "guardian" and "legal heir" are relatable to some other rights given to a 'victim' under the Code including the one under proviso to Section 24(8) to 'engage an advocate' with the permission of the Court and the other substantive 'right to appeal' under proviso to Section 372 of the Code. CRM-790-MA-2010 final - 37 - (64). The right to 'engage an advocate' given to a 'victim' draws parity from the right to fair trial guaranteed to an accused and is essentially meant to enable the Court to have the viewpoint of a 'victim' who remained discounted for years and to whom the Legislature unambiguously intends to provide a presence and appearance before the Court. Since the very object of this right is to give restricted participation in trial to the 'victim' and assist the Court to arrive at a just conclusion, it is not necessary nor the Code perceives so that only that 'legal heir' who has preferential entitlement to succeed to the property of an intestate, alone shall be competent to engage such advocate. The 'right to appeal' under proviso to Section 372 at the best enables the Appellate Court to call for the records, re-appraise the evidence and determine - (i) whether acquittal of the accused is justified? Or (ii) whether the accused has been rightly convicted for a lesser offence? Or (iii) whether the compensation determined under Section 357 is inadequate? Such an exercise, in our humble opinion, can be undertaken by the appellate court on presentation of appeal by any 'legal heir' irrespective of his proximity with the deceased under the personal law. Any narrow construction would defeat the very legislative object behind insertion of Section 2(wa) and proviso to Section 372 of the Code and re-introduce the mischief which the Legislature has intended to remove.
(65). It was contended and rightly so that the meaning of the term "victim" or that of his/her "legal heir" deserves to be given widest CRM-790-MA-2010 final - 38 - amplitude to meet with all kinds of peculiar or unforeseen situations, two of which are illustratively given below:-
(a) where a major, unmarried orphan is murdered and the accused person(s)/undertrial(s) was/were acquitted of the charges and the State does not
prefer an appeal against the acquittal.
(b) where the entire family is murdered and the
accused person(s)/under trial was/were acquitted of the charges and the State does not prefer an appeal against the acquittal.
In both the mis-happenings there may not be any person known as 'legal heir' or a 'guardian' to file an appeal against unwarranted acquittal and it will be against all canons of justice to say that the appellate Court in such like situations would be helpless and the offenders will go unpunished. Since the Legislature has finally granted the right to appeal to a 'victim', it is the duty of the Court to trenchantly affirm such right and provide appropriate remedy. (66). We say so also for the reason that the right to 'engage an advocate' or to 'prefer an appeal' under proviso to Section 372 does not ipso facto entitle the appellant to claim compensation as a 'legal heir' or the next of kin of a deceased 'victim'. That being so, every class or category of legal heirs of a deceased 'victim' can have locus to invoke the remedy under proviso to Section 372 of the Code, without reading into CRM-790-MA-2010 final - 39 - Section 2(wa) that if Class-I legal heir of a 'victim' opts out of filing any appeal, the other legal heirs would also suffer from the same disability. (67). The legislative intentment can be given its fullest effect by permitting all legal heirs, irrespective of their classification under the personal law to prefer appeal under proviso to Section 372. Such a purposive interpretation of the expression "legal heir" within the meaning of Section 2(wa) does no violence to nor does it conflict with Section 357 or 357-A of the Code. Even if a Class-II legal heir prefers an appeal say against inadequate compensation, the appellate court in the event of enhancement of compensation shall be obligated to disburse the enhanced amount to those persons only who are entitled to the same under Sections 357(1)(c) or 357-A of the Code, as the case may be. We, therefore, hold that the expression "legal heir" within the meaning of Section 2(wa) of the Code does not exclude other than the Class-I legal heirs of a deceased 'victim' nor the right to 'engage an advocate' or prefer an appeal is restricted to those persons only to whom compensation is payable under Sections 357, 357-A of the Code or under the Fatal Accidents Act, 1855.
(68). The above-stated interpretation saves the Court from legislating and re-writing Section 2(wa) and is otherwise in conformity with the pro-victim jurisprudence advanced by the Supreme Court in PSR Sadhanantham; Ramakanth Rai; M/s JK International and Puran etc. cases.
CRM-790-MA-2010 final - 40 - (69). The multiplicity of appeals by more than one legal heir should hardly be a deterrent to hold otherwise as such like procedural difficulties can be effectively streamlined by the Appellate Court through an appropriate set of rules or instructions to its Registry. For example, if the appeal is preferred by other than a Class-I legal heir, such person can be required to disclose particulars of the Class-I legal heir(s), if any, and hearing of such an appeal can be deferred till the appellate court is satisfied that the Class-I legal heirs have not chosen to prefer appeal despite informed knowledge of the order which can be appealed against under proviso to Section 372 of the Code. More than one appeal, if preferred by different legal heirs, can also be not a cause of concern nor a serious impediment as all such appeals can be clubbed and decided together by passing one consolidated order. (70). It thus finally emerges that the Legislature, before and after amendment of the Code vide Act No.5 of 2009, has recognized and conferred one right or the other on the following categories of persons:- (i) a 'victim' as defined in Section 2(wa) which includes his/her 'legal heirs' can be permitted by the Court under Section 24(8) to engage an Advocate of his/her choice to assist the prosecution and if he/she is aggrieved at the acquittal of an accused (except acquittal in a case instituted on a complaint), the conviction of the accused for a lesser offence or the imposition of inadequate compensation on such accused, such 'victim' (including his/her legal heirs) have got CRM-790-MA-2010 final - 41 - a right under proviso to Section 372 to prefer an appeal to the Court to which an appeal ordinarily lies against the order of conviction of such Court;
(ii) the legal heirs comprising the wife, husband, parent and child of a deceased 'victim' only are entitled to the payment of compensation under Section 357(1)(c) of the Code; (iii) in the case of death of a 'victim', only those of his/her dependants who have suffered loss or injury as a result of the crime and who require rehabilitation, are eligible to seek compensation in terms of the scheme formulated under Section 357-A of the Code;
(iv) While the persons falling within the categories at Sr.No.(ii) & (iii) above shall necessarily include and form part of the persons falling in category No.(i), however, vice versa may not always be true.
(B) Whether 'complainant' in a private complaint-case, who is also the 'victim' and the 'victim' other than the 'complainant' in such cases are entitled to present complainant'
appeal against the order of acquittal under proviso to Section 372 or have to seek 'special leave' to appeal from the High Court under Section 378(4) CrPC?
(71). Section 378 of the Code provides the remedy of appeal against acquittal of an accused. Its sub-Section (1) authorises the District Magistrate or the State Government, as the case may be, to present an appeal to the Court of Session or the High Court against the order of acquittal passed by a Magistrate or the Court of Session, CRM-790-MA-2010 final - 42 - respectively. The Central Government can also present such appeal under sub-Section (2) in a case in which the offence has been investigated by CBI or any other central agency. Sub-section (3), however, puts a caveat that no appeal under sub-Sections (1) & (2) can be presented to the High Court without its 'leave'. Sub-Section (4) provides that if an order of acquittal is passed in a case instituted upon the complaint, the 'complainant' can present an appeal to the High Court against such acquittal only if the High Court grants 'special leave' to appeal. The Legislature has thus prescribed different conditions for the maintainability of appeal against order of acquittal passed in a 'police-case' vis-à-vis a 'complaint-case' i.e. a case instituted upon a private complaint. No appeal against acquittal in a complaint-case is maintainable to the Court of Session and for an appeal to High Court, the State or Central Government are required to obtain 'leave' of the High Court as mandated by Section 378(3) and if such an appeal is presented by the complainant, he/she is required to seek 'special leave' of the High Court under Section 378(4).
(72). It was vehemently urged that only that 'victim' of a crime who is invariably not rescued by the State machinery and whose complaint is not even registered as FIR (in other than non-cognizable offences), approaches the Judicial Magistrate under Section 200 of the Code by way of a private complaint hence the intensity of his/her 'victimisation' is much more than that of the 'victim' of a police-case, therefore, both the victims should be treated indiscriminately for the CRM-790-MA-2010 final - 43 - purpose of appeal under proviso to Section 372, more-so when sub- Section (4) of Section 378 restricts the right to present appeal only against an order of acquittal. It was also advanced that the Legislature has drawn no distinction between the 'victim' of a police case or that of a complaint case in Section 2(wa) or proviso to Section 372 of the Code. (73). The High Courts are at variance in opining on the aforesaid issue. Some have viewed that the 'victim' under Section 2(wa) is all inclusive and covers victim in a complaint-case also. Reference in this regard may be made to (i) a Single Bench decision of this Court in Mrs. Era Rani Shubh vs. SB Enterprises & Ors., 2012 (2) RCR (Crl.) 522; (ii) order dated 01.05.2012 in Ram Avtar Gupta vs. Ravinder Kumar, Crl. Leave to Appeal No.230 of 2011, passed by a learned Single Judge of the High Court of Judicature for Rajasthan at Jodhpur; and (iii) of Allahabad High Court dated 30.03.2012 passed in Ashok Kumar Srivastava vs. State of UP & Anr., Application under Section 482 CrPC No.5934 of 2012. Contrary to it, (i) Madhya Pradesh High Court in Dharamveer Singh Tomar vs. Ram Raj Singh Tomar, 2011(3) RCR (Crl.) 607; (ii) Bombay High Court in Shanta Ram vs. Deepak, 2012(2) MHLJ 398 as well as in (iii) Balasaheb Rangnath Khade vs. State of Maharashtra & Ors., (2012) Bom CR(Crl.) 632 have held that a complainant, even if he/she is the 'victim', would not fall under the proviso to Section 372 since the appeal to be filed by such victim has been separately contemplated under Section 378(4) of the Code. Uttrakhand High Court in Special CRM-790-MA-2010 final - 44 - Leave to Appeal in Criminal Appeal No. 139 of 2011, Bhagwan Singh v. State of Uttrakhand and another, in its order dated 13.12.2011 viewed that a case of acquittal in a complaint case for non- cognizable and bailable offence falls in clause (b) of sub-Section (1) of Section 378, hence the victim (who was the complainant in a private complaint) could file appeal under proviso to Section 372 to the High Court but with the leave to appeal by the High Court. (74). There is yet a third stand of judicial opinion as well on the issue. The Andhra Pradesh High Court in G.Baswaraj's case, has held that the 'victim' in a complaint case has a right to avail his remedy either under Section 372 or Section 378(4) and it is the prerogative of such victim-cum-complainant as to which remedy he wants to avail. That was a matter arising out of the appeal filed by the complainant in a private complaint under the Negotiable Instruments Act, 1881. (75). There are not one but more than a hundred Legislations1 other than the IPC where the 'victim' and the 'complainant' are two separate entities. The socio-economic Legislations such as (a) Payment of Wages Act; (b) Payment of Gratuity Act; (c) Payment of Bonus Act; (d) Inter-State Migrant Workmen Act; (e) Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act etc. are a few of the ones where the 'complainant' can only be a designated Government official though the 'victim' of violation of these Statutes 1
[List Annexure 'A' to this order]
CRM-790-MA-2010 final - 45 - would either be a workman or a person belonging to the marginalized section of society. The second set of Legislations, being quoted on illustrative basis, are (a) Equal Remuneration Act, 1976; (b) Pre- conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994; (c) Transplantation of Human Organs and Tissues Act, 1994; and (d) Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992 whereunder besides the designated Government official a social and voluntary organization is also authorized to institute complaint though the 'victim' is essentially other than the 'complainant'. What would be the status or locus of a 'complainant' or of the 'victim' in such like cases for the purpose of presenting an appeal under proviso to Section 372 or Section 378(4) of the Code is yet another question that has been raised by the petitioners.
(76). We are not oblivious of yet another category comprising 'victimless' crimes, where the act which violates the law of the land does constitute an 'offence' but there is no visible 'victim' of the crime though such like crimes have depraving effects on the societal morals and values. Such an offence includes situations where an individual acts alone or there are consensual acts of more than one participants. This is, however, not an issue raised before us and need not be further alluded.
(77). A part of the uncertainty, however, has been set at rest by the Hon'ble Supreme Court in a recent decision in Subhash Chand vs. CRM-790-MA-2010 final - 46 - State (Delhi) Administration, (2013) 2 SCC 17, where on an interpretation of Section 378 of the Code, with special reference to its sub-Section (1) (a) & (b), it has been held that there is no distinction in a complaint-case whether such complaint is filed by a 'private person' or a 'public servant' and an appeal against the acquittal in every single complaint-case shall lie under Section 378(4) after seeking 'special leave' of the High Court and even if the acquittal order is passed by a Magistrate in a complaint filed by a public servant or the State Government, no appeal shall lie to the Court of Session under Section 378(1)(a) of the Code. The question of status of such complainant as a 'victim' or his consequential right to prefer an appeal under proviso to Section 372 of the Code, however, was not the subject matter of consideration in that case.
(78). The expression "complainant" is not defined in the Code though its Section 2(d) defines "complaint" to mean "any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report". A person, other than the informant in a police-case, who makes the allegation orally or in writing to the Magistrate is a 'complainant' within the meaning of Section 378(4) of the Code. The words "victim" and "complainant" have been thus used and construed in the Code differently and distinctly. Also a 'victim' can be the 'complainant' but it may not be necessarily that every 'complainant' is a 'victim'. CRM-790-MA-2010 final - 47 - (79). Section 378(4) of the Code enables a complainant to prefer appeal against acquittal of the accused provided that the High Court grants 'special leave' to such appeal. The Legislature has imposed stringent condition on the maintainability of appeal against an order of acquittal in a complaint-case, for the acquittal by the trial court reinforces the presumption of innocence in favour of the accused who has earned acquittal in a case where the complainant himself/herself was the prosecutor unlike the 'victim' in a police-case who does not have any say in the trial. Such being the legislative intentment, there cannot be any scope to doubt that the 'complainant' of Section 378(4) who has failed to establish the complicity can assail such acquittal only with the 'special leave' of the High Court under Section 378(4) only. The fact that the Legislature has brought no changes in this sub-Section fortifies its policy to retain the same legal position as it existed before the Amendment Act, 2008.
(80). However, if such a 'victim-cum-complainant' succeeds in bringing the guilt home against the accused and establishes his/her 'victimisation' but is aggrieved at the conviction for a lesser offence or imposition of inadequate compensation, he/she shall be entitled to invoke the proviso to Section 372 of the Code. We say so for the reason that in such a case the accused no longer enjoys the protection of presumed innocence. The proven 'victim' also has no other remedy to assail the conviction for a lesser offence or imposition of inadequate compensation except the proviso to Section 372. Any different CRM-790-MA-2010 final - 48 - construction would discriminately leave his/her wrong without a remedy. The victims at post-conviction stage constitute one homogenous class and deserve to be treated alike. In such like cases decided by a Magistrate, even the accused has remedy to file appeal to the Sessions court under Section 374(3) of the Code. (81). It may be noted here that the Code postulates different procedures for conducting Magisterial or Sessions trials in complaint- cases. In a Magisterial trial, it is the complainant who follows the accusatorial procedure without getting any assistance from the Public Prosecutor. However, if the complaint pertains to an offence triable exclusively by the Court of Session, after such complaint-case is committed by the Magistrate to the Court of Session under Section 209 of the Code, the Public Prosecutor shall open the case and conduct the trial as provided by Sections 225 and 226. The procedural advantage available to a complainant in the complaint-case triable by the Court of Session, is also inconsequential to take a view different from what has been held above, for in such like cases also the Public Prosecutor will have to bank upon the same set of evidence which the complainant had produced at his own before the Magistrate at the pre-committal stage. (82). What will happen if the 'victim' in a complaint-case is different from the 'complainant' or where such 'victim' cannot otherwise be a 'complainant' due to statutory embargo against the filing of the complaint by some one other than the designated authority of State? Would he/she be entitled to file an appeal under proviso to Section 372 CRM-790-MA-2010 final - 49 - or should he/she be clubbed together with the complainant under Section 378(4) of the Code? We are of the view that the 'victim' in complaint-cases cannot have a remedy superior to that of the complainant of such case and since the Apex Court in the latest decision in Subhash Chand's case (supra) has held that the complainant's remedy, whether he is a private person or a public servant, to question the acquittal lies only in Section 378(4) of the Code, hence the 'victim' will also have to be relegated to that conditional remedy only. Similarly, where a 'victim' is competent to institute a private complaint but permits or consents expressly or implicitly to the filing of such complaint by his family-members, near and dears or an acquaintance, the 'victim' and 'complainant' in such a case cannot be seen differently and would be inseparable, hence the 'victim' will also fall back on Section 378(4) only which specifically refers to filing of appeals against acquittal at the instance of complainant and not under proviso to Section 372 of the Code which has been pre-dominantly incorporated to provide right to appeal to the 'victims' in police-case who are not permitted to participate or have any say during trial. (83). The above discussion thus can be summed up to say that - (i) the 'complainant' in a complaint-case who is a 'victim' also, shall continue to avail the remedy of appeal against acquittal under Section 378(4) only except where he/she succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser CRM-790-MA-2010 final - 50 - offence or imposition of an inadequate compensation, for which he/she shall be entitled to avail the remedy of appeal under proviso to Section 372;
(ii) the 'victim', who is not the complainant in a private complaint-case, is not entitled to prefer appeal against acquittal under proviso to Section 372 and his/her right to appeal, if any, continues to be governed by the un- amended provisions read with Section 378 (4) of the Code;
(iii) the Legislature has given no separate entity to a 'victim' in the complaint-case filed by a public servant under a special Statute and the appeal against
acquittal in such a case can also be availed by the 'complainant' of that case under Section 378(4) of the Code only.
(iv) those 'victims' of complaint-cases whose right to appeal have been recognized under proviso to Section 372, are not required to seek 'leave' or 'special leave' to appeal from the High Court in the manner contemplated
under Section 378(3) & (4), for the Legislature while enacting proviso to Section 372 has prescribed no such fetter nor has it applied the same language used for appeals against acquittals while enacting sub-Section (3) & (4) of Section 378 of the Code.
CRM-790-MA-2010 final - 51 - (C) Whether the 'rights' of a victim under the
amended Cr.P.C. are accessory and auxiliary to
those perceived to be the exclusive domain of
the 'State'?
(84). The answer to this question entirely depends upon the understanding of the two ancillary questions, namely, (i) whether the right of a 'victim' is subordinate or inferior to that of the State? (ii) whether the fetters imposed on the right to appeal against acquittal on the State under Section 378(3) or on a complaint under Section 378(4) also operate on the right of appeal given to a 'victim'? (85). There are as many as three stands of judicial opinion with reference to the first ancillary question. The first category comprises those cases where the Courts have held that the State is superior to the 'victim' and if the State files an appeal challenging the acquittal, the appeal of the 'victim' will not be entertained. This view was taken by a Division Bench of Gujarat High Court in (i) Bhikhabhai Motibhai Chavda vs. State of Gujarat, 2011(6) RCR (Crl.) 1323; and (ii) Jusabhai Ayubbai Miyana vs. State of Gujarat & Ors. Crl.Appeal No.45 of 2012 decided on 24.01.2012. Converse was the view in State of Gujarat vs. Chaudhary (Patel) Pababhai Devabhai & Ors., Criminal Misc. Application No. 4350 of 2011, that the victim having already filed an appeal from the selfsame order of acquittal to which the State was also a party, the subsequent application for leave to appeal filed by the State was not to be entertained. In Bhavuben Dinesh CRM-790-MA-2010 final - 52 - Bhai Makwana vs. State of Gujarat and 9 others Criminal Appeals No. 238 of 2012 and 608 of 2012, another Division Bench of Gujarat High Court referred the matter to the larger Bench for the purpose of deciding (i) whether the appeal filed by the victim under the proviso to Section 372 of the Code, challenging acquittal, or conviction for lesser offence, or awarding inadequate compensation, is not maintainable on the ground that the State has filed an appeal against the same order and for the same purpose? (ii) whether an appeal filed by the State be not entertained on the ground that the appeal preferred by the victim invoking his right under proviso to Section 372 of Code, is admitted by the Court? and (iii) if the victim prefers an appeal before the High Court, challenging the acquittal, should he first seek leave of the Court, as is required in case of appeal being preferred by the State? Overruling both the earlier divergent views of the Division Benches, the Full Bench of Gujarat High Court held that the appeals in both the cases are maintainable. The Full Bench also disagreed with the view taken by this Court in Smt. Ram Kaur's case; the Patna High Court in Guru Prasad Yadav vs. State of Bihar, Crl. APP No. 582 of 2011; and the Bombay High Court in Balasaheb Rangnath Khade's case, and held that:-
"If the victim also happens to be complainant and the appeal is against acquittal, he is required to take leave as provided in Section 378 of the Criminal Procedure Code but if he is not the complainant, he is not CRM-790-MA-2010 final - 53 - required to apply for or obtain any leave. For the appeal against inadequacy of compensation or punishment on a lesser offence, no leave is necessary at the instance of a victim, whether he is the complainant or not."
(86). It may be clarified here that the matter before the Gujarat High Court arose out of an appeal against acquittal in the case investigated by the police, and the word 'complainant' was used in that sense in answer to the question (iii) formulated there. (87). The reason that found favour with the Gujarat High Court to take the afore-quoted view is that if the 'victim' is excluded from the purview of proviso to Section 372, he would have no remedy to challenge inadequate compensation though the award of compensation is one of the vital means for redressing the grievances of a 'victim' as ruled by the Apex Court in (i) Manish Jalan vs. State of Karnataka, (2008) 8 SCC 225; (ii) R.Vijayan vs. Baby & Anr., (2012) 1 SCC 260; and (iii) Roy Fernandes vs. State of Goa & Ors., AIR 2012 SC 1030. (88). The second view, in total contrast to the first one, is of Allahabad High Court in Ajay Misra vs. Rajiv Gupta & Ors. Crl.Misc.Case No.32 of 2011 decided on 23.03.2011, holding that the right of appeal given to a 'victim' is more comprehensive and superior to the right of the State. The third view is that of the Full Bench of Gujarat High Court in Bhavuben Dineshbhai Makwana's case (supra) laying down that the rights of the 'victim' and the State operate CRM-790-MA-2010 final - 54 - in different spheres and neither ousts the other, therefore, filing of appeal by the one will not rob the other of its right to appeal. (89). Right to challenge a conviction or acquittal or any other sentence or order, emanates only from a Statute. The scheme of the Code after various amendments, confers right of appeal only on four categories of persons; (i) accused; (ii) State; (iii) victim; and (iv) complainant in complaint cases, and none else. In tune with what has been discussed above, the correct interpretation, in our opinion, would be that a 'victim' who happens to be the 'complainant' in the police- case, if files appeal against acquittal is not required to take 'leave' under Section 378 of the Code. To this extent we are, therefore, unable to agree, with reverence, to the view taken by the Full Bench of Gujarat High Court and hold that the 'victim' (including a complainant in a police case) is not required to apply for or obtain any leave under Section 378(4) of the Code nor such a 'victim' is required to seek leave in cases where appeal is against inadequacy of compensation and punishment for lesser offence.
(90). It hardly calls for a debate that the varied rights given to the State, the victim or a complainant under Chapter XXIX of the Code are not inter se dependent and each right operates within its own sphere. For example, the State has got a right to appeal on the ground of inadequacy of sentence [Section 377] but a victim (including complainant who is also a victim in police case) has got no such right though he/she can prefer appeal if the accused is convicted for a lesser CRM-790-MA-2010 final - 55 - offence. State has no right to appeal against conviction of an accused for a lesser offence. The legislative scheme thus does not permit an inter se comparison of the rights or duties granted or assigned to a 'victim' or the State under the afore-stated Chapter of the Code. (91). Having held that the right(s) of the 'victim' under the Code including the one translated through proviso to Section 372, are incomparable with and are distinct from those of the State, the second ancillary question, namely, whether the fetters imposed on the right to appeal against acquittal on the State will also operate on the right to appeal given to a 'victim', also stands answered in part. Since the right of a 'victim' to prefer appeal under proviso to Section 372 is independent of and is not contingent upon or subject to the right to appeal of the State under Section 378(1) to (3) of the Code, the condition of seeking 'leave' of the High Court expressly imposed on the State under Section 378(3) cannot be read into proviso to Section 372 where the Legislature consciously did not incorporate such a fetter.
(92). The Court shall always presume that while amending or bringing a new enactment, the Legislature was fully aware of the provisions of the existing Statute. The Parliament had thus full knowledge of the fetters imposed by it on the presentation of appeals by the State or a complaint through Section 378(3) & (4) of the Code, yet it gave the right to appeal to a 'victim' free from any obstacle under proviso to Section 372 of the Code. The legislative policy to grant unconditional right to appeal to a 'victim' is thus writ large. It would CRM-790-MA-2010 final - 56 - indeed not only amount to re-writing the proviso to Section 372 but would also defeat the legislative will if the restrictions expressly embedded in Section 378(3) & (4) are impliedly planted into proviso to Section 372 of the Code also. Since leave to appeal under Section 378(3) is confined only to such appeals which are presented by the State or Central Governments under sub-Section (1)(b) or sub-Section (2)(b) of Section 378 of the Code, with due regard at our command, we are unable to agree with the view taken by the Division Bench of this Court in Smt. Ram Kaur's case (supra) that a 'victim' shall be required to seek leave/special leave to appeal while exercising his/her right to appeal under proviso to Section 372 of the Code and overrule the same to that extent. On the same analogy, we express our inability to agree with the view taken by the Patna High Court in Guru Prasad Yadav's case (supra).
(93). The cumulative effect of the above discussion is that the right(s) of a 'victim' under the amended Code are substantive and not mere brutam fulmen hence these are not accessory or auxiliary to those of the State and are totally incomparable as both the sets of rights or duties operate in different and their respective fields. We thus hold that a 'victim' is not obligated to seek 'leave' or 'special leave' of the High Court for presentation of Appeal under proviso to Section 372 of the Code.
CRM-790-MA-2010 final - 57 - (D) Whether presentation of appeal against acquittal is a 'right' or an 'obligation' of the 'State'
stemming from the Constitution?
(94). The evolution of right to appeal against acquittal discussed in extenso in the earlier part of this order unveils that the right to appeal against acquittal has seen roller-coaster like changes ranging from the 'no right to appeal' [1861] to 'the unconditional right to appeal' [1898] followed by a 'conditional right to appeal' [1973 Code] and again 'unconditional right to appeal' in some of the cases to be filed in the Court of Session [2005] in favour of the State. While the complainant in a case instituted on complaint got a conditional right to appeal against acquittal under Section 378(4) [1973], a 'victim' as defined or explained by us has also now got unconditional right to appeal [2009]. (95). Right to live with human dignity without any fear or actual subjection to any kind of unlawful, unsocial and physical or mental abuse and be a member of the self-regulated civic society too is one of the most cherised fundamental right bestowed on every person under Article 21 of the Constitution. The protection or conferment of certain rights on a victim under the Code therefore cannot be mirrored as a favour shown to him/her by the Legislature. These are only a minuscule part of the fundamental rights of vast magnitude guaranteed under the Constitution. The State as a custodian of the power for enforcement of the rule of law owes a corresponding duty to protect these Fundamental Rights. The State also performs the duty of parens patriae besides CRM-790-MA-2010 final - 58 - making an endeavour to fulfill the promises contained in Articles 38 or 39-A of the Constitution. The right to prosecute a wrong-doer, to bring his guilt home and to compel such guilty person to undergo the awarded sentence is an essential part of the State's enormous duties. The presentation of appeal against an unmerited and reckless acquittal is also an integral duty of a welfare State, who "has an overall control over the law and order and public order of the area under its jurisdiction", even if such a duty has been assigned by the Legislature as a 'right' in the literal sense. State of Rajasthan vs. Sohan Lal & Ors., (2004) 5 SCC 573, lends full support to us in this regard when it holds that "The State does not in pursuing or conducting a criminal case or an appeal, espouse any right of its own but really vindicates the cause of society at large, to prevent recurrence as well as punish offences and offenders respectively, in order to preserve orderliness in society and avert anarchy, by upholding the rule of law".
(96). In an era of enlightened and well-informed society who justifiably demands its rights or frowns upon the belied promises, it will be too farfetched to say that the 'duty' of the State under Sections 377 or 378 is actually a 'right' exercisable at the discretion of State Executive. The fact that the Legislature has chosen to grant unconditional right to appeal to a 'victim' as compared to the conditional right given to a State under Section 378(3) implies towards the failure of the State machinery in preserving the fair balance upto the expectations of the people. The State therefore no longer enjoys any privileged status as an 'appellant' CRM-790-MA-2010 final - 59 - and hitherto there shall be no legal distinction between an appeal preferred by the 'State' or a 'victim'.
(E) Where would the appeal of a 'victim' preferred under proviso to Section 372 lie when the State
also prefers appeal against that order of
acquittal under Clauses (a) or (b) of Section
378(1) CrPC?
(97). This is indeed a difficult proposition to be solved, for how to provide a uniform appellate forum to a 'victim' when he/she prefers an appeal under proviso to Section 372, and the State also prefers its appeal against the same order under Section 378(1)(b) of the Code? Under proviso to Section 372, the victim's appeal shall lie to the Court to which an appeal lies against the order of conviction of such Court. To say it differently, the victim shall present the appeal in the same Court where the appeal of the accused, had he been convicted, would have been maintainable. Now, if the order of acquittal is passed by the Magistrate in respect of a cognizable but bailable offence, the victim's appeal shall lie to the Court of Session before whom the accused, if convicted, can prefer his appeal under Section 374(3) of the Code. (98). If we turn to Section 378(1)(a), it provides that the District Magistrate may ask 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. Clause (b) of Section 378(1) of the Code enables the State Government to direct the Public Prosecutor to present an appeal to the High Court from an CRM-790-MA-2010 final - 60 - original or appellate order of acquittal passed by any Court other than the High Court [not being an order under Clause (a)]. There is thus no ambiguity that if an order of acquittal is passed by a Magistrate in respect of a cognizable but bailable offence and the State decides to challenge it, the State's appeal shall lie to the High Court only but if the 'victim' prefers appeal against the same order, it shall lie to the Court of Session.
(99). Similarly, the scheme of the Code nowhere discerns that the Legislature ever intended to create two parallel streams for adjudication of appeal(s) against the same order. Contrary to it, Section 372 lays emphasis that no appeal shall lie from any judgement or order except as provided for by this Code. That apart, the literal interpretation of proviso to Section 372 or Section 378(1)(a)&(b) of the Code leads to a piquant, anomalous and absurd situation of utter confusion where the Court of Session would have no choice but to await the outcome of the appeal preferred by the State before the High Court and then perform its bounden duty to follow that decision of the superior Court to negate, for all intents and purposes, the right to appeal of a 'victim' contrary to the legislative object behind insertion of the proviso to Section 372 of the Code.
(100). The following table demonstrates the after-effects of the 2005 and 2009 amendments on Appeals before different Courts:- Order State's Victim Will File
Passed By Appeal lies Appeal Before
before Court Where
CRM-790-MA-2010 final - 61 - Accused Will File
Appeal
1. Magistrate in Sessions Accused will file The appeal of cognizable Court appeal before the State and and non- u/S 378(1)(a) Sessions Court u/s Victim can be bailable 374 (3) therefore clubbed offence victim will file together, hence appeal before the no difficulty
Sessions Court u/s
372 proviso
2. Sessions High Court Accused will file The appeal of u/S 378(1)(b) appeal before the the State and High Court u/s the Victim can
374(2) therefore be clubbed
victim will file together subject
appeal before the to certain
High Court u/s 372 guidelines.
proviso
3. Magistrate in High Court Accused will file Grey Area - How cognizable u/S 378 (1)(b) appeal before to harmonise? and bailable Sessions Court u/s offence 374(2) therefore
victim will file
appeal before the
Sessions Court u/s
372 proviso
(101). Let us now analyse the second part of the proviso added to Section 372. It says that "the victim shall have a right to prefer an appeal.......and such an appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court". The adverbial expression "ordinarily" is suffixed to the Court where convict's appeal shall lie. The marginal discretion or exception of Forum carved out by the Legislature pertains to the appeal preferable by an accused against his conviction and not of the 'victim' which 'shall' lie to the same Court where the appeal against the order of conviction of such Court is maintainable. To say it differently, if there is no change CRM-790-MA-2010 final - 62 - in the appellate forum for the presentation of appeal by a convict, the victim's appeal shall not lie to any other Court except that Court. (102). Caught in the web of apparent conflict, the Uttrakhand High Court in Bhagwan Singh's case (supra), drew force from the word 'ordinarily' mentioned in proviso to Section 372 and made an attempt to reconcile the provisions, holding that the appeal of the 'victim' in the cases at Sr.No.3 of the table given in para 100 of this order, should also lie in the High Court and not in the Sessions Court. The expression "ordinarily" has been construed to mean that the appellate forum made available to a 'victim' under proviso to Section 372 is not mandatory in character and can be changed in exceptional or special circumstances. The said construction assumes as if the proviso to Section 372 says that "the victim shall have a right to prefer an appeal........and such appeal shall ordinarily lie to the Court to which an appeal lies against the order of conviction of such Court". The proviso, however, says otherwise.
(103). The afore-stated shift in the venue of appeal to be preferred by a 'victim' from the Court of Session to the High Court, otherwise runs parallel to the legislative scheme inhering Section 378(1)(a), namely, to provide easier, less cumbersome and less time-consuming process of presenting appeal against the unmerited and reckless acquittals by Magistrates. In fact, the suggested recourse would substantially nullify the effect of the amendment made in Section 378 by Act No.25 of 2005 CRM-790-MA-2010 final - 63 - and will re-introduce the unamended provision whereunder all appeals against acquittal used to be maintainable before the High Court only. (104). Similarly, the victim will be severely prejudiced and tribulated (the accused as well) if his appeal in respect of a 'cognizable' and 'bailable' offence is ordered to lie in the High Court only. Even if the victim is excepted from the rigors of Section 378 (3) or (4), the high cost of litigation in the High Court will dissuade him from appealing. The victim would always be uncertain and at the cross-roads in choosing the forum of appeal which shall depend on the decision of the State to prefer or not its appeal. The very presentation of their respective appeals by the 'victim' and the State before different forums would lead to indecisiveness and adhocism.
(105). The 'draftsman' has inconversantly slipped up while drafting the proviso to Section 372, when he overlooked Section 378(1) as amended by Act No.25 of 2005. Resultantly, the laudable legislative policy behind enabling the District Magistrate to present an appeal to the Sessions Court so as to avoid time taxing procedure of seeking State's sanction for filing an appeal has been put on hold. (106). The only effective modicum to meet with the situation as we perceive can be to interpret and construe Section 378(1)(a) in such a manner that the State's appeal(s) in respect of all the cognizable offences (whether bailable or non-bailable) are presented to the Court of Session, for such a recourse is the least harmful, non-prejudicial and substantively conforms to the legislative vision underlying the CRM-790-MA-2010 final - 64 - amendments carried out in the Code in the years 2005 and 2009. This can be feasible if the word "and" contained in Clause (a) of Section 378(1) of the Code is read as "or" so that the appeal preferred by the State against an order of acquittal passed by the Magistrate in respect of every cognizable offence, whether bailable or not, lies to the Court of Session only. We hasten to add that the action in respect of a non- cognizable offence can be initiated only by filing a private complaint before the Magistrate and against acquittal in such a case the appellate recourse lies under Section 378(4) of the Code.
(107). The Supreme Court in a catena of decisions has ruled that the intention of the Legislature is generally gathered from the language used and the words chosen by it to express its intentment. Conventionally, the Court would not add or mend the language of the Statute or read words into it by substituting some other words or otherwise. Similarly, the Court should endeavour to give meaning to each and every word used by the Legislature as neither the words in a Statute can be brushed aside being surplusage nor they be construed to render a part of the Statute blank. Rather, the Courts always believe that the legislature has inserted every part of the Statute for a purpose and words are not there for mere fustian eloquence. Any construction CRM-790-MA-2010 final - 65 - which renders a word or a provision of a Statute redundant needs to be avoided unless there are compelling reasons.2
(108). The propounders of the rule of literal interpretation always insist that the words of a Statute should first be understood in their natural, ordinary or popular sense and the phrases and sentences be construed according to their unambiguous literal meaning unless such a recourse leads to some absurdity or where the object of the Statute suggests to the contrary. The strict literal expression of the words has thus been taken as the safest key to open up the true intentment of a Statute.3
(109). In those cases where the language used in a Statute is capable of bearing more than one construction, the Court in its attempt to find out the true meaning shall have due regard to the consequences of alternative constructions so as to avoid the resultant hardship, serious inconvenience, injustice, absurdity, inconsistency or a 'straight clash' between two Sections of the same Act. In Venkataramana Devaru vs. State of Mysore, AIR 1958 SC 255, the Supreme Court held that "the rule of construction is well-settled that when there are in an enactment two provisions which cannot be re-conciled with each other, they should be so interpreted that, if possible, effect should be 2
(i) British India General Insurance Co. Ltd. vs. Captain Itbar Singh & Ors., AIR 1959 SC 1331; (ii) Ghanshyamdas vs. Regional Assistant Commissioner of Sale Tax, Nagpur & Ors. AIR 1964 SC 766 and (iii) Shri Balaganeshan Metals vs. MN Shanmugham Chetty, (1987) 2 SCC 707.
3
(i) SA Venkataraman vs. The State, AIR 1958 SC 107; and (ii) Workmen of National and Grindlays Bank Ltd. vs. The National Grindlays Bank Ltd., (1976) 1 SCC 925.
CRM-790-MA-2010 final - 66 - given to both...". Thus, a construction that reduces one of the provisions to a 'useless', 'lumber' or 'dead-letter' is not a harmonious construction as 'to harmonise is not to destroy'. [Ref. (i) JK Cotton Spinning & Weaving Mills Co.Ltd. vs. State of UP & Ors., (1986) 4 SCC 90 [AIR 1961 SC 1170]; and (ii) Calcutta Gas Co. (Prop.) Ltd. vs. State of West Bengal & Ors., AIR 1962 SC 1044].
(110). An equally acceptable principle and oftenly pressed into aid is that when a choice has to be made out of the two given constructions, both of which require reading of some additional words, the Court will naturally prefer the one which is more in consonance with reason or justice. [Ref. Ramaswamy Nadar vs. State of Madras, AIR 1958 SC 56]
(111). New India Sugarmills Ltd. vs. Commissioner of Sale Tax, Bihar, AIR 1963 SC 1207 says that "it is a recognized rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which the best harmonized with the object of the statute, and which effectuate the object of the legislature". Busching Schmitz Pvt. Ltd. vs. PT Menghani, AIR 1977 SC 1569, also ruled that the Court should adopt a project-oriented approach keeping in mind the principle that legislative futility is to be ruled out so long as the interpretative possibility permits.
(112). The Heydon's rule known as the 'Mischief Rule' or the Rule of 'Purposive Construction' also serves as a master-key to remove the ordeal caused by the material words in a Statute which congenitally CRM-790-MA-2010 final - 67 - possess two or more constructions. This rule lays down four guiding principles namely, (i) what was the law before the making of the Act? (ii) what was the mischief or defect for which the law did not provide? (iii) what is the remedy that the Act has provided? and (iv) what is the reason behind the remedy? The Heydon's rule says that after following these principles, the Courts must adopt that construction which shall 'suppress the mischief and advance the remedy'. The quoted rule has been approved by the Hon'ble Supreme Court and consistently followed by the Indian Courts.4
(113). The Court would invariably be reluctant to create casus omissus where there is none, nor shall insert a desired provision in an enactment as it will amount to legislating and not construing the Statute. However, where a vacuum caused in a Statute due to the omission by its draftsman forestalls the Court to construe it consistent with its legislative policy, it becomes the bounden duty of the Court to fill in such gap and secure the object of the Statute. Gladstone vs. Bower (1960) 3 All.ER 353 (CA) very aptly explains that "the Court will always allow the intention of the Statute to override the defects of wording but the Court's ability to do so is limited by recognized canons of interpretation...".
(114). While applying these principles to resolve the incongruity between proviso to Section 372 and Section 378(1)(a) & (b) of the Code, 4
(i) Bengal Immunity Co. vs. State of Bihar, AIR 1955 SC 661; (ii) CIT, MP & Bhopal vs. Sodra Devi, AIR 1957 SC 832. CRM-790-MA-2010 final - 68 - it deserves to be mentioned that there was no clash between Section 378(1) as amended by Act No.25 of 2005 and any other provision till the Code was further amended by Act No.5 of 2009. However, after the addition of proviso to Section 372 whereunder a 'victim' can prefer appeal against acquittal irrespective of the State's right to appeal under Section 378(1) & (2), there is little choice but to shift the appellate forum either for a 'victim' or for the State to ensure maintainability of both the appeals against the same order of acquittal before one Forum only.
(115). As to the fair balance that is needed to be struck between the interests of a 'victim' and those of the State, it appears more appropriate, just, fair and proper not to compel the 'victim' to go to High Court instead the State can be detoured to present its appeal to the Sessions Court even against an order of acquittal passed by a Magistrate in respect of cognizable and bailable offence. The Legislative intent underlying Section 378(1)(a) and 2(a) is to provide a distinct forum of appeals against acquittal passed by the Magistrate in relation to cognizable offences. The recourse so suggested is the most viable substitute which neither jeopardizes the rights of the parties nor dilutes the legislative intention. It also does not traverse through unknown jurisprudential principles as the interpretative power of the Court to notice the omission of a draftsman vis-à-vis the Legislature's intention and to abridge that distance is well recognized. There is CRM-790-MA-2010 final - 69 - adequate jurisprudence bearing directly on the issue that may be briefly noticed at this juncture.
(116). In Ishwar Singh Bindra & Ors. vs. State of UP & Ors., AIR 1968 SC 1450, the word 'and' used in Section 3(b)(i) of the Drugs Act, 1940 between "medicines" and "substances" was the subject matter of consideration and after referring to Stroud's Judicial Dictionary (3rd Edition) and Maxwell on Interpretation of Statutes, it was held that the word 'and' sometimes is to be read as 'or' so as to carry out the real intention of the Legislature.
(117). In Municipal Corporation of Delhi vs. Tek Chand Bhatia, (1980) 1 SCC 158 also, the Hon'ble Supreme Court considered whether the word "or" can be read as "and" and vice versa. Reference was again made to Stroud's Judicial Dictionary (3rd Edition) and Maxwell on Interpretation of Statutes as also some decisions of the House of Lords, to hold that the reading of 'or' as 'and' is not to be resorted to "unless some other part of the same Statute or the clear intention of it requires that to be done".
(118). In OS Singh vs. Union of India, (1996) 7 SCC 37, Rule 3(3)(b) of the IPS (Regulation of Seniority) Rules,1954 was found to be suffering from casus omissus and after discussing the judicial decisions revealing two trends to meet with such like situation, it was held that where the seniority rules are silent in the matter of assignment of year of allotment to a particular type of promotee officer, the order passed by the competent authority assigning the year of allotment to such an CRM-790-MA-2010 final - 70 - officer shall be taken to have been passed in its 'administrative discretion'.
(119). State (Delhi Administration) vs. Dharampal, (2001) 10 SCC 372, is yet another instance of an inadvertent mistake in the phrasing of Section 378 as noticed and rectified by the Apex Court in the following paragraph :-
"28. It must also be noted that sub-section (6) of Section 378 is identical to sub-section (5) of Section 417. Thus under Section 378 also the State Government cannot maintain an appeal if special leave to appeal is refused to the complainant. In this behalf there is no change. Section 417(1) specifically provided that it was "subject to provisions of sub-section (5)". Section 417(1) similarly provide that it is "subject to sub-sections (3) and (5)". Sub-section (3) is the newly added provision which now provides that an appeal by the State or Central
Government cannot be entertained without leave of the High Court. However the reference to sub-section (6) in sub-section (1) is clearly an inadvertent mistake. As pointed out above sub-section (5) of Section 378 applies only to application for special leave by a complainant. Sub-section (5) of Section 378 has no application to an appeal by the State Government or to an application for leave under sub-section (3). What the Legislature clearly CRM-790-MA-2010 final - 71 - intended was to continue to provide that an appeal by the State Government would not be maintainable if special leave to appeal had been refused to a
complainant. Thus sub-section (1) of Section 378 was to be subject to provisions of sub-section (6) and not sub- section (5) as inadvertently provided therein. Inadvertently the figure (5) in Section 417(1) was continued, without noticing that now under Section 378 the relevant provision was sub-section (6). In our view it is clear that the figure (5) in Section 378(1) is inadvertently retained. Thus in Section 378(1) the figure (6) will have to be read in place of the
figure (5)."
(Emphasis applied)
(120). In the light of the above discussion, we hold that while in view of proviso to Section 372 an appeal preferred by a 'victim' against the order of acquittal passed by a Magistrate in respect of a cognizable offence whether bailable or non-bailable shall lie to the Court of Session, the State's appeal under Section 378(1)(a) of the Code against that order shall also be entertained and/or transferred to the same Sessions Court. (F) Whether proviso to Section 372 CrPC inserted w.e.f. December 31, 2009 is prospective or
retrospective in nature and whether a revision
petition pending against an order of acquittal
before the insertion of the said proviso, can be CRM-790-MA-2010 final - 72 - converted into an appeal and transferred to the
Court of competent jurisdiction?
(121). The right to appeal was vested for the first time in a 'victim' under proviso to Section 372 of the Code inserted by the Code of Criminal Procedure (Amendment) Act, 2008. Section 1(2) of this Act loudly states that "it shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different provisions of this Act". The aforesaid Act [except its Sections 5, 6 & 21(b)] was indisputably enforced by the Central Government w.e.f. December 31, 2009 through a Gazette Notification.
(122). Section 29 of the Amendment Act, 2008 pertaining to amendment of Section 372 of the Code states that "In Section 372 of the principal Act, the following proviso shall be inserted, namely:-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.".
(123). The legislative intent that provisions of the Amendment Act, 2008 including its Section 29 reproduced above, shall come into force from a future date is very explicit and doubtless to call for any further discussion. A piece of legislation cannot commence or become effective unless it is brought into operation either by the Legislature itself or by CRM-790-MA-2010 final - 73 - its delegate, who is authorised to enforce it, as explained by the Supreme Court in (i) State of Orissa vs. Chandrashekhar Singh Bhoi etc., (1969) 2 SCC 334; and (ii) Union of India & Ors. vs. Sukumar Sengupta & Ors., (1990) Suppl. SCC 545.
(124). It is equally well-established that every Statute shall be presumed prospective in operation unless the Legislature expressly or by necessary implication gives retrospective effect to it. No such inference can possibly be drawn, even remotely, in the instant case. Otherwise also, it is one of the cardinal principles of statutory interpretation that a Statute dealing with substantive rights shall be prospective unless there are words in the Statute sufficient to show the intention of the Legislature to affect existing rights. Osborn's Concise Law Dictionary says that "a new law ought to regulate what is to follow, not the past". These principles have been laid down and reiterated in a string of decisions including in (i) Keshavan Madhava Menon vs. State of Bombay, AIR 1951 SC 128; (ii) Arjan Singh vs. State of Punjab, AIR 1970 SC 703; (iii) Ex.Capt.KC Arora & Anr. vs. State of Haryana & Ors, (1984) 3 SCC 281; and (iv) State of Madhya Pradesh vs. Rameshwar Rathod, (1990) 4 SCC 21.
(125). These very principles apply in the case of an amendment in a Statute. If the amendment intends to create a substantive right or if it affects the vested right, it shall ordinarily be prospective in nature though an amendment in the procedural law like relating to form and limitation can be applied retrospectively. These principles have been CRM-790-MA-2010 final - 74 - extensively discussed and summed up by the Hon'ble Supreme Court in a recent decision in Ramesh Kumar Soni vs. State of Madhya Pradesh, 2013 STPL (Web) 161 SC.
(126). Since right to appeal is a substantive right and it cannot be inferred by implication unless the Statute expressly provides so, the only inescapable conclusion would be to hold that the right to appeal given to a 'victim' under proviso to Section 372 of the Code is prospective and has become enforceable w.e.f. December 31, 2009 only. A 'victim' is entitled to prefer appeal in respect of any type of order referred to in the proviso to Section 372 if such order has been passed on or after December 31, 2009 irrespective of the date of registration of FIR or the date of occurrence etc. To be more specific, it is clarified that it is the date of passing of the order to be appealed from and not any other fact situation, which shall determine the right to appeal of a 'victim'. As a corollary thereto, it is held that the remedy availed by a 'victim' including revision petition against acquittal of the accused by an order passed before December 31, 2009, cannot be converted into an appeal under proviso to Section 372 and it shall have to be dealt with in accordance with the parameters settled for exercising revisional jurisdiction by a superior Court.
(G) What would be the period of limitation for a 'victim' to prefer an appeal under proviso to
Section 372 CrPC?
CRM-790-MA-2010 final - 75 - (127). Various High Courts have experienced difficulty in determining the period of limitation for an appeal preferable by a victim under proviso to Section 372 of the Code. A Division Bench of Patna High Court in Raghunath Yadav vs. State of Bihar, 2011 (6) RCR (Crl.) 133, has viewed that since the period of limitation for filing an appeal against the acquittal under Section 378 is ninety days and no period of limitation has been provided for filing an appeal under Section 372 by a 'victim', the same period of limitation as provided under Article 114 of the Limitation Act will be applicable for filing an appeal under Section 372 of the Code also. The Full Bench of Gujarat High Court in Bhavuben Dineshbhai Makwana's case (supra) too, with reference to Article 114(a) of the Limitation Act, has held that the period of ninety days should be the reasonable period for a 'victim' to file an appeal as the said period is the longest period of limitation for filing an appeal against an order of acquittal prescribed by the Legislature. (128). The Delhi High Court in Kareemul Hajazi's case (supra), however, thought differently and after referring to certain precedents laying down that 'in the absence of prescription of the limitation period, the statutory authority must exercise its jurisdiction within a reasonable period', it decided to bring the 'victim' at par with the 'accused' for the purpose of period of limitation to prefer appeal and held that since an accused is required to prefer appeal to the High Court within sixty days as prescribed under Section 374 of the Code read with CRM-790-MA-2010 final - 76 - Article 115(b)(i) of the Limitation Act, the period of limitation for the appeal of a 'victim' shall also be the same i.e. sixty days. (129). One of the well-recognized principles of criminal jurisprudence is that 'crime never dies'. The maxim 'nullum tempus qut locus occurrit regi' [lapse of time is no bar to Crown in proceedings against offenders] is an age-old rule embedded in criminal justice delivery system. The public policy behind this rule is that a criminal offence is considered as a wrong committed against the State and the Society though it is committed against an individual. The aforesaid rule of prudence has been duly acknowledged by the Parliament as it has prescribed no period of limitation for filing an appeal under proviso to Section 372 of the Code against an order of acquittal. (130). Article 114 of the Schedule to the Limitation Act, 1963, however, prescribes period of limitation for State's appeal against order of acquittal and it reads as under:-
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