Under the circumstances, on the basis of the plain language of the
law and also as interpreted by several High Courts and in addition the
resolution of the General Assembly of the United Nations, it is quite clear
to us that a victim as defined in Section 2(wa) of the Cr.P.C. would be
entitled to file an appeal before the Court to which an appeal ordinarily
lies against the order of conviction. It must follow from this that the
appeal filed by Kodagali before the High Court was maintainable and
ought to have been considered on its own merits.
78. As far as the question of the grant of special leave is concerned,
once again, we need not be overwhelmed by submissions made at the Bar.
The language of the proviso to Section 372 of the Cr.P.C. is quite clear,
particularly when it is contrasted with the language of Section 378(4) of
the Cr.P.C. The text of this provision is quite clear and it is confined to an
order of acquittal passed in a case instituted upon a complaint. The word
‘complaint’ has been defined in Section 2(d) of the Cr.P.C. and refers to
any allegation made orally or in writing to a Magistrate. This has nothing
to do with the lodging or the registration of an FIR, and therefore it is not
at all necessary to consider the effect of a victim being the complainant as
far as the proviso to Section 372 of the Cr.P.C. is concerned.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS._1281-82 _OF 2018
(ARISING OUT OF S.L.P. (CRL.) NOS. 7040-7041 OF 2014)
Mallikarjun Kodagali Vs State of Karnataka & Ors.
Dated:October 12, 2018
Madan B. Lokur, J.
law and also as interpreted by several High Courts and in addition the
resolution of the General Assembly of the United Nations, it is quite clear
to us that a victim as defined in Section 2(wa) of the Cr.P.C. would be
entitled to file an appeal before the Court to which an appeal ordinarily
lies against the order of conviction. It must follow from this that the
appeal filed by Kodagali before the High Court was maintainable and
ought to have been considered on its own merits.
78. As far as the question of the grant of special leave is concerned,
once again, we need not be overwhelmed by submissions made at the Bar.
The language of the proviso to Section 372 of the Cr.P.C. is quite clear,
particularly when it is contrasted with the language of Section 378(4) of
the Cr.P.C. The text of this provision is quite clear and it is confined to an
order of acquittal passed in a case instituted upon a complaint. The word
‘complaint’ has been defined in Section 2(d) of the Cr.P.C. and refers to
any allegation made orally or in writing to a Magistrate. This has nothing
to do with the lodging or the registration of an FIR, and therefore it is not
at all necessary to consider the effect of a victim being the complainant as
far as the proviso to Section 372 of the Cr.P.C. is concerned.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS._1281-82 _OF 2018
(ARISING OUT OF S.L.P. (CRL.) NOS. 7040-7041 OF 2014)
Mallikarjun Kodagali Vs State of Karnataka & Ors.
Dated:October 12, 2018
Madan B. Lokur, J.
Citation: (2019) 2 SCC 752
1. Leave granted.
2. The rights of victims of crime is a subject that has, unfortunately, only
drawn sporadic attention of Parliament, the judiciary and civil society.
Yet, it has made great progress over the years. It is our evolving and
developing jurisprudence that has made this possible. But we still have a
long way to go to bring the rights of victims of crime to the centre stage
and to recognise them as human rights and an important component of
social justice and the rule of law.
3. The travails and tribulations of victims of crime begin with the
trauma of the crime itself and, unfortunately, continue with the difficulties
they face in something as simple as the registration of a First Information
Report (FIR). The difficulties in registering an FIR have been noticed by
a Constitution Bench of this Court in Lalita Kumari v. Government of
Uttar Pradesh.1 The ordeal continues, quite frequently, in the
investigation that may not necessarily be unbiased, particularly in respect
of crimes against women and children. Access to justice in terms of
affordability, effective legal aid and advice as well as adequate and equal
representation are also problems that the victim has to contend with and
which impact on society, the rule of law and justice delivery.
4. What follows in a trial is often secondary victimisation through
repeated appearances in Court in a hostile or a semi-hostile environment
in the courtroom. Till sometime back, secondary victimisation was in the
form of aggressive and intimidating cross-examination, but a more
humane interpretation of the provisions of the Indian Evidence Act, 1872
has made the trial a little less uncomfortable for the victim of an offence,
particularly the victim of a sexual crime. In this regard, the judiciary has
been proactive in ensuring that the rights of victims are addressed, but a
lot more needs to be done. Today, the rights of an accused far outweigh
1(2014) 2 SCC 1
the rights of the victim of an offence in many respects. There needs to be
some balancing of the concerns and equalising their rights so that the
criminal proceedings are fair to both.2 The Courts have provided solace to
the victim with monetary compensation, but that is not enough.3 There are
victim compensation schemes in force due to the mandate of Section
357A of the Code of Criminal Procedure, 1973 (the Cr.P.C.) but even that
is not enough, though they are being implemented in several parts of the
country. We are of the view that the judiciary is obliged to go and has
gone beyond merely awarding compensation and has taken into
consideration the larger picture from the perspective of the victim of an
offence, relating to infrastructure in court buildings and has recommended
and implemented some recommendations such as the construction of
child friendly courts and courts that address the concerns of vulnerable
witnesses.4 The Courts have done and are continuing to do their best for
the victims of crime.
5. In Sakshi v. Union of India5 this Court passed significant
directions for holding in camera proceedings, providing for a screen
between the accused and the victim and placed restrictions, in a sense, on
2Girish Kumar Suneja v. Central Board of Investigation, (2017) 14 SCC 809
3Hari Singh v. Sukhbir Singh, AIR 1988 SC 2127; Bodhisattwa Gautam v. Subhra
Chakroborty, AIR 1996 SC 922; Ankush Shivaji Gaikwad v. State of Maharashtra,
(2013) 6 SCC 770
4Sampurna Behura v. Union of India, (2018) 4 SCC 433
5(2004) 5 SCC 518
the cross examination of witnesses. It is true that these directions have
been passed in a case relating to sexual offences but the trend of this
Court has been to show concern for the rights of victims of an offence and
to address them.
6. Parliament also has been proactive in recognising the rights of
victims of an offence. One such recognition is through the provisions of
Chapter XXIA of the Cr.P.C. which deals with plea bargaining.
Parliament has recognised the rights of a victim to participate in a
mutually satisfactory disposition of the case. This is a great leap forward
in the recognition of the right of a victim to participate in the proceedings
of a non-compoundable case. Similarly, Parliament has amended the
Cr.P.C. introducing the right of appeal to the victim of an offence, in
certain circumstances. The present appeals deal with this right
incorporated in the proviso to Section 372 of the Cr.P.C.
7. In other words, a considerable amount has been achieved in giving
life to the rights of victims of crime, despite the absence of a cohesive
policy. But, as mentioned above, a lot more still needs to be done.
8. Among the steps that need to be taken to provide meaningful rights
to the victims of an offence, it is necessary to seriously consider giving a
hearing to the victim while awarding the sentence to a convict. A victim
impact statement or a victim impact assessment must be given due
recognition so that an appropriate punishment is awarded to the convict.
In addition, the need for psycho-social support and counselling to a
victim may also become necessary, depending upon the nature of the
offence. It is possible that in a given case the husband of a young married
woman gets killed in a fight or a violent dispute. How is the young widow
expected to look after herself in such circumstances, which could be even
more traumatic if she had a young child? It is true that a victim impact
statement or assessment might result in an appropriate sentence being
awarded to the convict, but that would not necessarily result in ‘justice’ to
the young widow - perhaps rehabilitation is more important to her than
merely ensuring that the criminal is awarded a life sentence. There is now
a need, therefore, to discuss these issues in the context of social justice
and take them forward in the direction suggested by some significant
Reports that we have had occasion to look into and the direction given by
Parliament and judicial pronouncements.
9. The rights of victims, and indeed victimology, is an evolving
jurisprudence and it is more than appropriate to move forward in a
positive direction, rather than stand still or worse, take a step backward. A
voice has been given to victims of crime by Parliament and the judiciary
and that voice needs to be heard, and if not already heard, it needs to be
raised to a higher decibel so that it is clearly heard.
10. With this background, we need to consider the questions that arise
before us consequent to the introduction of the proviso to Section 372 of
the Cr.P.C. with effect from 31st December, 2009. The questions are
somewhat limited: Whether a ‘victim’ as defined in the Cr.P.C. has a right
of appeal in view of the proviso to Section 372 of the Cr.P.C. against an
order of acquittal in a case where the alleged offence took place prior to
31st December, 2009 but the order of acquittal was passed by the Trial
Court after 31st December, 2009? Our answer to this question is in the
affirmative. The next question is: Whether the ‘victim’ must apply for
leave to appeal against the order of acquittal? Our answer to this question
is in the negative.
Factual narrative
11. The appellant (Kodagali – now dead but represented by his legal
representatives) was the victim of an attack on the night of 6th February,
2009. He lodged a First Information Report with the police and after
investigations, necessary proceedings were taken before the District and
Sessions Judge, Bagalkot against the accused persons under several
sections of the Indian Penal Code (the IPC).
12. In S.C. No. 49 of 2010 the District and Sessions Judge, Bagalkot
(Karnataka) acquitted the accused by a judgment and order dated 28th
October, 2013.
13. Aggrieved thereby, Kodagali preferred an appeal in the High Court
being Criminal Appeal No. 100016 of 2014. The appeal was preferred
under the proviso to Section 372 of the Cr.P.C. but it was dismissed as not
maintainable by a judgment and order dated 10th June, 2014. It was held
by the High Court that the proviso to Section 372 of the Cr.P.C. came into
the statute book with effect from 31st December, 2009 but the incident had
occurred well before that date. Therefore, the appeal was not
maintainable. Reliance was placed by the High Court on National
Commission for Women v. State of Delhi and another6
14. Kodagali then preferred another appeal in the High Court being
Criminal Appeal No. 100119 of 2014. This appeal was filed under the
provisions of Section 378(4) of the Cr.P.C. By a judgment and order
dated 4th July, 2014 the High Court held that the appeal was not
maintainable. The view taken by the High Court was on a plain reading
of Section 378(4) of the Cr.P.C., namely, that the appeal was not filed in a
case instituted upon a complaint before a Magistrate.
6(2010) 12 SCC 599
15. Under these circumstances, Kodagali is before us challenging the
judgment and orders dated 10th June, 2014 and 4th July, 2014. It is his
contention that he has been left with no remedy against the acquittal of
the accused. His submission is that one of the accused is a Member of the
Legislative Assembly and it is for this reason that the State did not
challenge the acquittal. It is not necessary for us to go into the merits of
the controversy or the allegations made by Kodagali. Suffice it to say, we
are only concerned with the question whether the appeal filed by
Kodagali under the proviso to Section 372 of the Cr.P.C. was
maintainable or not.
Victims of crime and their rights
16. In recent times, four Reports have dealt with the rights of victims
of crime and the remedies available to them. The first Report in this
sequence is the 154th Report of the Law Commission of India of August
1996. While this Report did not specifically deal with the right of a victim
of crime to file an appeal, it did discuss issues of victims of crime,
compensation to be paid to the victim and rehabilitation of the victim
including the establishment of a Victim Assistance Fund.
17. The second important Report is the March 2003 Report of the
Committee on Reforms of Criminal Justice System commonly known as
the Report of the Justice Malimath Committee. In the Chapter on
Adversarial Rights, it is recommended under the sub-heading of Victims
Right to Appeal as follows:
“2.21. The victim or his representative who is a party to the trial
should have a right to prefer an appeal against any adverse order
passed by the trial court. In such an appeal he could challenge the
acquittal, or conviction for a lesser offence or inadequacy of
sentence, or in regard to compensation payable to the victim. The
appellate court should have the same powers as the trial court in
regard to assessment of evidence and awarding of sentence.”
18. Thereafter, in the substantive Chapter on Justice to Victims, it is
noted that victims of crime, in many jurisdictions, have the right to
participate in the proceedings and to receive compensation for injury
suffered. It was noted as follows:
“6.3 Basically two types of rights are recognized in many
jurisdictions particularly in continental countries in respect of
victims of crime. They are, firstly, the victim’s right to participate
in criminal proceedings (right to be impleaded, right to know,
right to be heard and right to assist the court in the pursuit of
truth) and secondly, the right to seek and receive compensation
from the criminal court itself for injuries suffered as well as
appropriate interim reliefs in the course of proceedings.”
19. Following up on this, and extending the rights of victims of crime,
it was observed in paragraph 6.5 that “The right of the victim should
extend to prefer an appeal against any adverse order passed by the trial
court. The appellate court should have the same powers to hear appeals
against acquittal as it now has to entertain appeal against conviction.
There is no credible and fair reason why appeals against acquittals should
lie only to the High Court.”
20. On this basis, the Justice Malimath Committee made the following
recommendation enabling the victim of a crime to prefer an appeal. The
recommendation (made in the Chapter having the same heading) reads as
follows:
“The victim shall have a right to prefer an appeal against any
adverse order passed by the court acquitting the accused,
convicting for a lesser offence, imposing inadequate sentence, or
granting inadequate compensation. Such appeal shall lie to the
court to which an appeal ordinarily lies against the order of
conviction of such court.”
21. The third Report worth considering is the July 2007 Report of the
Committee on the Draft National Policy on Criminal Justice also known
as the Professor Madhava Menon Committee. While this Committee does
not specifically deal with providing a right of appeal to the victim of a
crime, it does refer to victim orientation to criminal justice and providing
for a balance between the constitutional rights of an accused person and a
victim of crime. One of the suggestions given by the Committee is to
permit the impleadment of a victim in the trial proceedings. Obliquely
therefore, it follows that if a victim is impleaded as a party to the trial
proceedings, the victim would certainly have a right to file an appeal
against an adverse order, particularly an order of acquittal.
22. The fourth Report that deserves a mention is the 221st Report of the
Law Commission of India April 2009. In this Report, the
recommendation of the Law Commission of India was to the effect that as
the law stands, an aggrieved person cannot file an appeal against an order
of acquittal. However, a revision petition can be filed. The powers of a
revisional court are limited and the process involved is cumbersome and
it also involves a wastage of money and time. It was, therefore,
recommended by the Law Commission that against an order of acquittal
passed by a Magistrate, a victim should be entitled to file an appeal
before the revisional court. It was also recommended that in complaint
cases also an appeal should be provided in the Sessions Court instead of
the High Court. In all such cases, the aggrieved person or complainant
should have the right to prefer an appeal, though with the leave of the
Appellate Court. The view of the Law Commission was expressed in the
following words:
“2.9 All appeals against orders of acquittal passed by Magistrates
were being filed in High Court prior to amendment of section 378
by Act 25 of 2005. Now, with effect from 23.06.2006, appeals
against orders of acquittal passed by Magistrates in respect of
cognizable and non-bailable offences in cases filed on police
report are being filed in the Sessions Court, vide clause (a) of
sub-section (1) of the said section. But, appeal against order of
acquittal passed in any case instituted upon complaint continues
to be filed in the High Court, if special leave is granted by it on
an application made to it by the complainant, vide sub-section (4)
of the said section.
2.10 Section 378 needs change with a view to enable filing of
appeals in complaint cases also in the Sessions Court, of course,
subject to the grant of special leave by it.
2.11 Further, at present, against orders of acquittal passed by
Magistrates (where the offence is cognizable and non-bailable) or
by Sessions Courts, appeal in cases filed on police reports can be
filed only at the instance of the District Magistrate or the State
Government, as the case may be, vide sub-section (1) of section
378. In such matters, the aggrieved person or the informant
cannot himself file an appeal. However, he can prefer a revision.
If the revisional Court finds that the accused has been wrongly
acquitted, it cannot convict him in view of sub-section (3) of
section 401, but it has to remand the case. It is a cumbersome
process and involves wastage of money and time. This provision
also needs a change and in such matters also, where the District
Magistrate or the State does not direct the Public Prosecutor to
prefer appeal against an order of acquittal, the aggrieved person
or the informant should have the right to prefer appeal, though
with the leave of the Appellate Court. This will also give an
opportunity to the aggrieved person to challenge the findings of
fact recorded by lower court. Also, this will introduce more
transparency and accountability in the lower judiciary, as at
present, the percentage of acquittal is quite high.”
23. It is, apparently, on the basis of all these Reports and other material
that Section 372 of the Cr.P.C. was amended on 30th December, 2009 with
effect from 31st December, 2009. Section 372 of the Cr.P.C. as it stands
today reads as follows:
“372. No appeal to lie unless otherwise provided. - No appeal
shall lie from any judgment or order of a Criminal Court except
as provided for by this Code or by 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.”
Decision in the case of the National Commission for Women
24. In National Commission for Women, the victim, a young lady
aged 21 years committed suicide on or about 14th April, 2003. She left
behind a note in which she stated that the accused had physical relations
with her and held out a promise of marriage but later backed off. He had
exploited her and therefore she was committing suicide.
25. The Trial Judge relied on the dying declaration and convicted the
accused by his judgment and order dated 21st April, 2008. The accused
preferred an appeal in the Delhi High Court which acquitted him of an
offence under Section 306 of the IPC while maintaining his conviction
under Section 376 of the IPC. The sentence was reduced to that already
undergone which was about five years and six months. The judgment and
order of the High Court is dated 9th February, 2009.
26. Feeling aggrieved by the decision of the High Court, the National
Commission for Women preferred a petition for special leave to appeal
admittedly invoking the inherent powers of this Court. In that context
this Court held that in view of Section 372 of the Cr.P.C. no appeal shall
lie from a judgment or order by a criminal Court except as provided by
the Cr.P.C. or by any other law which authorises an appeal. The proviso
to Section 372 of the Cr.P.C. gives a limited right to the victim to file an
appeal in the High Court against any order of a criminal Court acquitting
the accused or convicting him for a lesser offence or the imposition of
inadequate compensation. This Court then observed as follows:
“The proviso may not thus be applicable as it came in the year
2009 (long after the present incident) and, in any case, would
confer a right only on a victim and also does not envisage an
appeal against an inadequate sentence.”
27. It was further held that an appeal being the creation of a statute, it
would not be maintainable under any inherent power. Article 136 of the
Constitution does confer discretionary power on this Court to entertain a
petition at the behest of the State or an affected private individual but to
permit anybody or an organisation pro bono publico to file an appeal
would be a dangerous doctrine and would cause utter confusion in the
criminal justice system. On this basis it was held that the special leave
petition filed by the National Commission for Women was not
maintainable.
28. The thrust of the decision of this Court, which appears to have been
misunderstood by the High Court, is with regard to entertaining a petition
under Article 136 of the Constitution by a third party. As far as criminal
matters are concerned, this Court undoubtedly held that permitting a third
party to prefer a petition under Article 136 of the Constitution would be
dangerous and would cause confusion. The reasoning of this Court was
not directed towards the proviso to Section 372 of the Cr.P.C. It is only
in passing that this Court observed that on the facts of the case, the
proviso to Section 372 of the Cr.P.C. might not be applicable since it
came into the statute book after the incident.
29. The decision of this Court in National Commission for Women is
quite clearly distinguishable and reliance on this decision by the High
Court is inapposite.
Decisions of the Full Bench
30. The interpretation of the proviso to Section 372 of the Cr.P.C. has
been considered in Full Bench decisions rendered by a few High Courts.
31. Among the first few Full Bench decisions that addressed this issue
was the judgment of the Gujarat High Court in Bhavuben Dineshbhai
Makwana v. State of Gujarat & Ors.7 The questions framed for
consideration in this case were:
(i) Whether an appeal filed by the victim, invoking his right
under proviso to Sec. 372 of Cr.P.C, challenging acquittal, or
conviction for a 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 should not be
entertained, on the ground that the appeal preferred by the victim
7MANU/GJ/1137/2012 - Criminal Appeal No. 238 of 2012, decided on 23rd October,
2012
invoking his right under proviso to Sec. 372 of Cr.P.C., against
the same order, is admitted by the Court?
(iii) If the victim prefers an appeal before this Court, challenging
the acquittal, invoking his right under proviso to Sec. 372 of
Cr.P.C., whether that appellant is required to first seek leave of
the Court, as is required in case of appeal being preferred by the
State?
32. While discussing these issues, the Full Bench observed that the
Legislature had conferred a substantive statutory right of appeal and such
a right could not be diluted by a judicial pronouncement since the right of
a party to file an appeal is an independent, substantial and statutory right.
33. Analysing the proviso to Section 372 of the Cr.P.C. and juxtaposing
it with Section 377 of the Cr.P.C. the Full Bench noted that the victim has
no right to prefer an appeal against “inadequacy of sentence”, a right
available only to the State and the State does not have any right to file
any appeal against “inadequacy of compensation”, a right available only
to a victim. Noting the availability of different rights, it was held:
“In light of different types of right of appeal provided to the
victim and to the State/Prosecution, it will not be proper to hold
that the right of either of them is dependent upon the other. To put
it differently, only victim can file an appeal against an order of
imposing ‘inadequate compensation’ in addition to his right of
appeal against acquittal and convicting the accused for a lesser
offence and therefore, to club his right and make it dependent
upon the exercise of right of appeal at the instance of the State
would be not only be unworkable, but would run contrary to the
scheme and lead to absurdity.”
34. The Full Bench then concluded that the correct position in law
would be that the right to file an appeal by the victim of an offence is an
independent and statutory right not subservient to the rights of the State
to file an appeal. It was further concluded that each victim has an
independent right of appeal and in a given case, the grievance of different
victims may be completely different. It was held as follows:
“In our opinion, the correct law, as emerging from the scheme of
the Code, would be that the right of a victim to prefer an appeal
(on limited grounds enumerated in proviso to Sec. 372 of the
Code) is a separate and independent statutory right and is not
dependent either upon or is subservient to right of appeal of the
State. In other words, both the victim and the State/prosecution
can file appeals independently without being dependent on the
exercise of the right by the other. Moreover, from the act or
omission for which the accused has been charged, there may be
more than one victim and the loss suffered by the victims may
vary from one victim to the other victims. Therefore, each of such
victims will have separate right of appeal and in such appeals, the
grievance of each of the appellant may be different. For instance,
in an act of arson when a joint property of different persons has
been set on fire, the loss suffered by each of the co-sharers may
be different. In such a case, each co-sharer has a separate right of
appeal and such right of one does not depend even on the filing of
such appeal by another victim.”
35. The first two questions were accordingly answered by the Gujarat
High Court by holding that the appeals filed by the victim were
maintainable.
36. On the third question, the Full Bench noted that if the victim
restricts the appeal to the grievance to inadequacy of the compensation or
punishment for a lesser offence, it does not become an appeal against
acquittal but the appeal is really directed against “any other sentence or
order not being an order of acquittal” within the meaning of Art. 115(b)
of the Limitation Act, 1963 and thus, no question of taking special leave
arises. The Full Bench took the view that for the purposes of Section
378(4) of the Cr.P.C. a victim who is not a complainant will not come
within the purview of that section and would not be required to take
recourse to the provision of special leave as provided therein. It was held:
“Therefore, in the case before us, the legislature while conferring
the right of appeal upon the victim, who is not a complainant, not
having imposed any condition of taking leave or special leave, we
cannot infer such condition and impose the same upon the victim,
although, the legislature was quite conscious of existence of such
provision in case of an appeal by a complainant and has retained
that provision without consequential amendment thereby making
its intention clear that the provision of special leave is not
applicable to an appeal preferred by a victim against acquittal if
he is not the complainant.”
The third question was then answered in the following words:
“If the victim also happens to be the complainant and the appeal
is against acquittal, he is required to take leave as provided in
Sec. 378 of the Criminal Procedure Code but if he is not the
complainant, he is not 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.”
37. In our opinion, the Gujarat High Court made an artificial and
unnecessary distinction between a victim as a victim and a victim as a
complainant in respect of filing an appeal against an order of acquittal.
The proviso to Section 372 of the Cr.P.C. does not introduce or
incorporate any such distinction.
38. The next significant decision has been rendered by the Division
Bench of the Calcutta High Court in Mahafuja Banu v. Md. Asadul
Islam & State.8 In this case, the prosecutrix lodged a complaint on 13th
December, 2003 and the judgment and order of acquittal was delivered by
the Trial Court on 22nd December, 2009. An appeal to the High Court was
(presumably) filed only after 31st December, 2009. While considering the
maintainability of the appeal, the High Court referred to the decision of
the Gujarat High Court in Bhavuben Dineshbhai Makwana.
39. Reference was also made to a Division Bench decision of the
Agartala Bench of the Gauhati High Court in Gouranga Debnaih v. State
of Tripura.9 In that case the alleged offence took place on 14th November,
2006 and the judgment of acquittal was delivered on 30th September,
2010. The High Court held that the appeal against acquittal filed by the
victim was maintainable. It was held that if the interpretation given to the
proviso to Section 372 of the Cr.P.C. is that the right to appeal accrued on
the date of the incident, then it would unreasonable and unfair, more so
since the proviso to Section 372 of the Cr.P.C. is given prospective effect.
8(2013) 1 Cal LT 109
92011 (4) GLT 379
40. Reference was also made to a decision by a learned Single Judge
decision of the Kerala High Court in T. Balakrishnan Master v. K.M.
Ramachandran Master.10 In that case it was held that the proviso to
Section 372 of the Cr.P.C. confers on the victim a substantive right to
prefer an appeal in certain circumstances. The right is dependent on the
judgment rendered by the Court and not in relation to the incident that
gave rise to the prosecution.
41. The Calcutta High Court also considered the question whether
there is finality attached to the judgment of acquittal and whether that
finality could be disturbed on the basis of a right subsequently conferred
on the victim. It was held that the judgment of acquittal had not attained
finality in that the victim had a right to file a revision petition and the
State had the right to file an appeal. All that the proviso to Section 372 of
the Cr.P.C. had done was to replace the right of a revision with the right to
appeal.
42. While it is true that there is a qualitative difference between a
revision and an appeal, the Calcutta High Court drew attention to the
221st Report of 30th April, 2009 of the Law Commission. This Report
noted the distinction and observed that the revision process was
10Crl. M.A. No. 7423 of 2011, decided on 22nd September, 2011 -
MANU/KE/1620/2011
cumbersome and involved a wastage of time and money. It was,
therefore, recommended by the Law Commission that the aggrieved
person should have the right to prefer an appeal, though with the leave of
the Appellate Court. This would also give the aggrieved person an
opportunity to challenge the findings of fact recorded by the Trial Court.
43. On the basis of the above decisions and the reasons given, the
Calcutta High Court concluded that there was nothing to suggest that the
victim could exercise the right to appeal under the proviso to Section 372
of the Cr.P.C. only if it existed on the date of the “cause of action” (the
alleged offence or incident) or the date on which the complaint was
lodged.
44. After a short hiatus, this issue again came up for consideration and
this time before the Full Bench of the Punjab and Haryana High Court in
Tata Steel v. Atma Tube Products Ltd.11 The decision is much more than
elaborate and only two of the seven questions framed for consideration
are relevant for the present discussion. These two questions are:
(1) 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’?
(2) 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
11(2014) 173 (1) PLR 1
before the insertion of the said proviso, can be converted into an
appeal and transferred to the Court of competent jurisdiction?
45. In answering the first question, the High Court noted that the
scheme of the Cr.P.C. provides, after various amendments, the right of
appeal to the accused; the State; the victim and the complainant in
complaint cases. It was observed that if a victim also happens to be the
complainant in a police case, then that victim is not required to take leave
under Section 378 of the Cr.P.C. to file an appeal against an order of
acquittal. To this extent, the Full Bench of the Punjab and Haryana High
Court differed with the view taken by the Full Bench of the Gujarat High
Court in Bhavuben Dineshbhai Makwana.
46. The reasons for disagreement stem from the fact that the
Legislature was aware of the provisions of the existing statute including
the fetter imposed on the State in filing an appeal against an order of
acquittal. However, that fetter was not placed on the right to appeal given
to a victim under the proviso to Section 372 of the Cr.P.C. The view of
the Full Bench of the Punjab and Haryana High Court was that if such
fetter were to be placed on the right of the victim, it would amount to
rewriting the proviso to Section 372 of the Cr.P.C. and would also defeat
the legislative will. The Punjab and Haryana High Court expressed it’s
opinion in the following words:
“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 indeed not only amount to rewriting
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)12 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).13
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.”
47. With regard to the second question, the High Court concluded that
the right to appeal is a substantive right. Consequently, the inescapable
conclusion would be that the right to appeal given to a victim would be
prospective and enforceable with effect from 31st December, 2009 only.
12Smt. Ram Kaur @ Jaswinder Kaur v. Jagbir Singh alias Jabi and others,
MANU/PH/4500/2010 decided on 1st April, 2010
13Guru Prasad Yadav v. State of Bihar, Criminal Appeal No. 582 of 2011
This would be irrespective of the date of registration of the FIR or the
date of the occurrence. The High Court held as follows:
“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.”
48. The Full Bench of the Delhi High Court also considered this issue
in Ram Phal v. State & Ors.14 The question considered by the Delhi High
Court was:
“Whether the appellate remedy [under the proviso to Section 372
of the Cr.P.C.] is available with respect to only such offences
which were committed as on the date when the appellate right
was conferred by law or the appellate right would be available
with respect to the date of the decision or the appellate remedy is
without any reference to the two points of time i.e. the date when
the offence was committed or when the appellate right was
conferred by law, (Act No.5 of 2009 with effect from
31.12.2009).”
49. While answering the question, the Delhi High Court referred to
142015 (151) DRJ 562
Tata Steel decided by the Punjab & Haryana High Court. The Delhi High
Court referred to the conclusion that 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.”
50. Reference was also made to the Division Bench of the Patna High
Court in Parmeshwar Mandal v. State of Bihar15 and parts of the
following passages were referred to and relied upon. It was said in
Parmeshwar Mandal:
“Proviso to Section 372 of the Code is in two parts. First clause
of the said proviso begins with ‘provided that’ and ends with
‘Inadequate compensation’ and creates a right in the victim to
prefer appeal against any order passed by a court either (i)
acquitting the accused or (ii) convicting for a lesser offence or
(iii) imposing inadequate compensation. Thereafter, by inserting
conjunction ‘and’, another clause has been added in the same
sentence by which forum for preferring such appeal has been
identified, which relates to procedural part of law. Thus, the said
proviso contains both substantive part, creating right in the victim
to prefer an appeal, and procedural part, by identifying the forum
for filing such an appeal. It is not in dispute that the substantive
part of law operates prospectively, unless made retrospective, and
the procedural part is presumed to be retrospective within its
defined limits.
xxx xxx xxx xxx
………The Central Government, by Notification No. S.O.
3313(E) dated 30th December, 2009, appointed 31st day of
December 2009, as the date for the Act. 5 of 2009 to come into
force, which was published in Gazette of India, Ext., Pt.II, S.3(ii),
dated 30-12-2009. Hence, in absence of any express intention
notified by the Legislature to the contrary, it has to be concluded
152014 (1) PLJR 377
that the right of victim, to prefer an appeal in terms of said
proviso to Section 372, became available to the victim(s) of all
cases in which orders were passed by any criminal court
acquitting the accused or convicting him for a lesser offence or
imposing inadequate compensation, on or after 31st of December,
2009. In other words, date of judgment of a criminal court has to
be necessarily treated as the relevant date for applying the test of
maintainability of appeal by the victim under three contingencies
laid down under the proviso to Section 372 of the Code,
irrespective of the date of occurrence, institution of the case,
cognizance or commitment.”
51. The Delhi High Court held that in light of the settled law as
explained above, it was in respectful agreement with these decisions.
52. The Full Bench of the Rajasthan High Court in Baldev Sharma v.
Gopal & Ors16 considered (amongst others) the following two questions:
(i) Whether the proviso to Section 372 as introduced by the
amending Act No. 5 of 2009 which has been brought into effect
on 31.12.2009 can be given effect to in cases where the offence
occurred prior to 31.12.2009 and thereby given the right of
appeal to the victim in the event; (a) whether the court below has
acquitted the accused or (b) has convicted the accused for a lesser
offence or (c) has imposed inadequate compensation. Though the
judgment in such cases may have been passed by the court below
after 31.12.2009.
(ii) Whether the appeal by the victim under proviso to Section
372 is also required to be dealt with in the same manner as an
appeal filed by the State under Section 378 Cr.P.C. and the
provisions of Section 378 are required to be read into the
provisions of Section 372 Cr.P.C. with regard to appeals filed by
the victims.
53. It was held, relying upon the same passages in Tata Steel and
Parmeshwar Mandal that “judgments passed on or after the said date
162017 (3) RLW 2604 (Raj.)
[31st December, 2009] are the ones in respect whereto, irrespective of the
date of the offence, the victim can avail the right to file an application
seeking leave to appeal.”
Division Bench decisions
54. Among the first few decisions rendered by the Division Bench of
the High Court was the judgment and order passed by the Division Bench
of the Gauhati High Court in Gouranga Debnaih. In this case, the
alleged incident took place on 14th November, 2006 and the judgment and
order of acquittal was passed by the Trial Court on 30th September, 2010.
On the question of the maintainability of the appeal under the proviso to
Section 372 of the Cr.P.C. the Division Bench framed the following
question for consideration: “Whether he [the victim] has any right to
prefer an appeal against the impugned judgment and order of acquittal
taking the benefit of proviso to Section 372 of the Code which has been
inserted by way of amendment giving effect and if so, the present
condonation petition is maintainable?”
55. In answering this question, the Gauhati High Court expressed the
view that has already been adverted to above and need not be repeated
here. This is what the High Court had to say:
“Now question is whether an appeal can be preferred for an
incident that happened prior to giving effect of the amendment of
the Code. There is no doubt that if a Court considers that from the
date of incident, the right to appeal accrued, then obviously that
would be unreasonable and unfair, more so, when the amendment
is given prospective effect and that would also go against the law
of limitation as prescribed under Article 114 of the Limitation
Act. In this case it is not necessary for us to discuss even that
aspect, as right to appeal of the petitioner accrued only after the
decision in the sessions case by the trial Court i.e. the date on
which the judgment was delivered i.e. on 30.9.2010.”
56. In Parmeshwar Mandal an appeal was filed by a victim in the
High Court against a judgment and order of acquittal dated 28th August,
2012. The Division Bench of the High Court sought assistance on the
maintainability of the appeal. After hearing arguments, the Court noted
the distinction in the language of Section 372 of the Cr.P.C. and the
language of Sections 377 and 378 of the Cr.P.C. The High Court noted
that Section 372 of the Cr.P.C. was framed in affirmative terms.
Moreover, the use of the word ‘shall’ in the proviso to Section 372 of the
Cr.P.C., in contradistinction to the use of the word ‘may’ in Sections 377
and 378 of the Cr.P.C. gives a clear indication that the right of a victim to
file an appeal was placed on a higher pedestal than the rights of the State,
or even the accused. This is what the High Court had to say in this regard:
“What is significant to notice is that this right to appeal, which is
clearly in affirmative terms, has been given to the victim by
inserting the said proviso in Section 372 itself, which is the
opening section of the Chapter, and not by any insertion in
Sections 377 or 378, which deal with appeals against inadequate
sentence and acquittal. In contradistinction to wordings of
Sections 377 and 378, which are apparently enabling provisions,
and only give a liberty to the District Magistrate, State
Government, the Central Government, and the complainant, to
prefer an appeal by use of the word ‘may’, a victim, under the
said proviso to Section 372 has been given a right to prefer
appeal by use of the expression ‘shall have a right to appeal’. It is
also significant to notice that, whereas in Section 378, grant of
leave has been made a condition precedent for entertaining any
appeal against acquittal preferred under sub-sections (1) and (2),
and grant of special leave for entertaining an appeal by a
complainant preferred under sub-section (4), there is no such
qualification prescribed in the said proviso to section 372 for a
victim to maintain his appeal against an order of acquittal, or
against a conviction for a lesser offence or against imposition of
inadequate compensation……. Hence, in the opinion of this
Court, the Legislature, by a conscious act, has put the right of a
victim to prefer an appeal under the Code, in terms of the said
proviso to Section 372, at a much higher pedestal than the right of
a prosecuting agency or a complainant to present an appeal. Any
otherwise intention of the Legislature is ruled out from the fact
that, had it been so, it would have inserted a new sub-section in
Sections 377 or 378, putting his right, with limitations and
qualifications, at par with that of the prosecuting agency or the
complainant, instead of inserting this right of victim in the
opening section of the chapter itself.”
57. Thereafter, the High Court gave its reasons and conclusion for
holding that the date of judgment of a criminal court has to be necessarily
treated as the relevant date for applying the test of maintainability of
appeal by the victim under three contingencies laid down under the
proviso to Section 372 of the Cr.P.C. irrespective of the date of
occurrence, institution of the case, cognizance or commitment. The Delhi
High Court had referred to the relevant passages of the judgment of the
Patna High Court and we have extracted these passages above and they
need not be repeated here.
58. The Division Bench of the Kerala High Court dealt with this issue
in Vanaja K.C. v. State of Kerala & Ors.17 In this case the alleged
offence or incident took place on 27th January, 2005 and the judgment of
acquittal by the Trial Court was rendered on 24th February, 2010. The
question considered by the High Court was:
“Whether the victim gets a right of appeal under the proviso to
Section 372 Cr.P.C. in a case where the date of occurrence was
before and the judgment was pronounced after the date of
commencement of Act 5 of 2009?”
59. The Division Bench relied upon an earlier decision of the High
Court in Balakrishnan Master which referred to the letter and spirit of
the law. The following passage from the decision of the Kerala High
Court is instructive:
“The question is whether the right of appeal conferred on the
victim by the proviso to Section 372 of the Code, has to be
determined with regard to the date of order of acquittal or
conviction of the accused for a lesser offence or order providing
inadequate compensation, or, with respect to the date of incident
giving rise to the prosecution of the accused. What is conferred
by the Amendment Act 5 of 2009 on the victim is a substantive
right to prefer an appeal in certain circumstances as specified, and
that alone. Act 5 of 2009 has come into effect from 31.12.2009.
Such right is available to a victim where a judgment is rendered
by the court on or after 31.12.2009, provided, any one of the
three circumstances covered by the proviso is involved in the
case. The right is dependent on the judgment rendered by the
court and not in relation to the incident which gave rise to the
prosecution of the accused, whether or not it was at the instance
of the victim…... Where there is no doubt that what is conferred
under the proviso to Section 372 of the Code enabling the victim
to prefer an appeal in the circumstances specified is a substantive
right conferred on him by the Statute its effect cannot be nullified
taking a view that the applicability of the proviso inserted has to
17ILR 2016 (2) Kerala 713
be reckoned with reference to the date of incident in the case
which led to the prosecution of the accused. Any such view
would be against the letter and spirit of the aforesaid proviso and
also the very purpose for which a right of appeal is conferred on
the victim, illustrating and defining the person falling thereunder,
and specifically limiting to what situation such a right could be
exercised.”
60. Reference was also made to Parmeshwar Mandal wherein it was
held that the intention of the Legislature was not to vest the right of
appeal in only those victims in whose cases the occurrence was after the
amendment to the Cr.P.C. If that proposition were to be accepted, then for
years to come, the right of the victim to prefer an appeal in terms of the
proviso would remain illusory (given the delay in disposal of cases).
61. On the basis of these decisions it was held that the appeal filed by
the victim would be maintainable since the judgment of acquittal passed
by the Trial Court was post 31st December, 2009.
62. There are decisions rendered by learned Single Judges of a few
High Courts, but it is not necessary to further burden this judgment with
an analysis of those decisions (we have referred to one of them). Suffice
it to say that the decisions have more or less followed the reasons and
conclusions arrived at in the Full Bench decisions rendered by different
High Courts.
63. Broadly speaking, in the above cases, the view expressed by the
High Courts is that if the judgment of the Trial Court is delivered after the
proviso came into force, that is, after 31st December, 2009 then,
irrespective of the date of the offence, the victim can avail a right of
appeal. In some of the decisions it has been held that the right of appeal
is not an absolute right conferred on the victim, but it is subject to an
application seeking special leave to appeal.
Dissenting decisions
64. In D. Sudhakar v. Panapu Sreenivasulu @ Evone Water
Sreenivasulu and Ors.18 the Andhra Pradesh High Court dismissed an
appeal filed by the victim of an offence against an order of acquittal dated
30th November, 2011 on the ground that it was not maintainable. The
High Court relied upon the observation made by this Court in National
Commission for Women for this conclusion. Reference was also made,
incidentally, to a decision of the learned Single Judge of the Kerala High
Court in John v. Shibu Cherian19 which also held to the same effect.
65. A similar view was expressed by the Division Bench of the
Chhattisgarh High Court in Bhisam Prasad Bareth v. Dinesh Mahant &
Ors.20 relying upon the decision of this Court in National Commission
18MANU/AP/1172/2012 decided on 7th December, 2012
19MANU/KE/1839/2011 decided on 5th August, 2011
20MANU/CG/0079/2012 decided on 15th March, 2012
for Women. It may be mentioned here that the appeal filed in the
Chhattisgarh High Court was against an order of acquittal passed on 18th
March, 2009 in respect of an incident that occurred on 5th March, 2008
both dates being well before the insertion of the proviso to Section 372 of
the Cr.P.C.
66. In the dissenting set of decisions, the view taken by the High
Courts is to the effect that if the incident or the offence occurred prior to
31st December, 2009 the victim cannot file an appeal under the proviso to
Section 372 of the Cr.P.C. regardless of the date of decision of the Trial
Court.
67. An analysis of the decisions rendered by various High Courts
indicates that the overwhelming view is that the date of the judgment and
order passed by the Trial Court is the relevant date for determining the
applicability of the proviso to Section 372 of the Cr.P.C. and if, as in the
present case, the judgment and order is post 31st December, 2009 then the
victim can prefer an appeal to the High Court.
Another view expressed by this Court
68. In Satya Pal Singh v. State of Madhya Pradesh & Ors.21 this Court
gave what appears to be a rather expansive interpretation to the proviso to
Section 372 of the Cr.P.C. and concluded as follows:
“This Court is of the view that the right of questioning the
correctness of the judgment and order of acquittal by preferring
an appeal to the High Court is conferred upon the victim
including the legal heir and others, as defined under Section
2(wa) Cr.P.C. under the proviso to Section 372, but only after
obtaining the leave of the High Court as required under subsection
(3) of Section 378 Cr.P.C.”
69. In this case the offence occurred on or about 19th July, 2010 and the
decision of the Trial Court was delivered on 13th June, 2013. On a plain
reading of the cited passage, it does appear that the date of the alleged
offence and the judgment and order of the Trial Court is not relevant,
meaning thereby that even if the offence was committed prior to 31st
December, 2009 and the judgment and order was rendered prior to 31st
December, 2009 the victim could prefer an appeal to the High Court after
obtaining leave. This is not so, and therefore the misunderstanding of the
expansive nature of the view expressed.
70. The two decisions of this Court mentioned above arise in two
different fact situations. In National Commission for Women the offence
and the judgment of the Trial Court were before 31st December, 2009. In
Satya Pal Singh, the offence and the judgment of the Trial Court were
21(2015) 15 SCC 613
after 31st December, 2009. None of these situations arise in the present
appeals in which the offence was said to have been committed before 31st
December, 2009 while the judgment of the Trial Court was delivered after
31st December, 2009. We are concerned in these appeals only with the
maintainability of an appeal by the victim under the proviso to Section
372 of the Cr.P.C. where the alleged offence was committed before 31st
December, 2009 and the judgment and order has been delivered by the
Trial Court post 31st December, 2009. Therefore, none of the two
decisions of this Court are of any real assistance to us.
Our conclusions
71. It was submitted by learned counsel for the accused that the right to
file an appeal is a substantive right and it should not be easily recognized
unless specifically conferred by statute. We agree. There is no doubt that
from the time of the Constitution Bench decision of this Court in
Garikapati Veeraya v. N. Subbiah Choudhry22 it has been held that the
right to appeal is not a mere matter of procedure but is a substantive right.
We are bound by this decision as well as other decisions following this
view. The question is whether this substantive statutory right has been
conferred on the victim in a case such as the present.
221957 SCR 488
72. It was also submitted by learned counsel for the accused that in the
present fact situation, if we were to hold that Kodagali was entitled to file
an appeal against the acquittal of the accused, then we would be giving
retrospective effect to the proviso to Section 372 of the Cr.P.C. It was
submitted that if Parliament intended to confer a statutory right of appeal
on a victim with retrospective effect, it would have specifically said so.
Since the proviso to Section 372 of the Cr.P.C. was not specifically given
retrospective effect, it must operate prospectively and the crucial date in a
case such as the present would be the date of the alleged offence.
73. To counteract this, it was submitted by learned counsel for
Kodagali that the view expressed by this Court in National Commission
for Women was only an obiter and is not binding upon this Court. It is
not necessary for us to go into this aspect of the matter since we are of the
view that the decision rendered in National Commission for Women has
been misunderstood and misinterpreted and is clearly distinguishable on
facts. Even otherwise, the decision has been rendered by a Bench of the
two learned judges and while the view expressed therein certainly has
great persuasive value but it would not be binding on a Bench of three
Judges. Besides, the obiter dicta of this Court would not bind us.
74. What is significant is that several High Courts have taken a
consistent view to the effect that the victim of an offence has a right of
appeal under the proviso to Section 372 of the Cr.P.C. This view is in
consonance with the plain language of the proviso. But what is more
important is that several High Courts have also taken the view that the
date of the alleged offence has no relevance to the right of appeal. It has
been held, and we have referred to those decisions above, that the
significant date is the date of the order of acquittal passed by the Trial
Court. In a sense, the cause of action arises in favour of the victim of an
offence only when an order of acquittal is passed and if that happens after
31st December, 2009 the victim has a right to challenge the acquittal,
through an appeal. Indeed, the right not only extends to challenging the
order of acquittal but also challenging the conviction of the accused for a
lesser offence or imposing inadequate compensation. The language of the
proviso is quite explicit, and we should not read nuances that do not exist
in the proviso.
75. In our opinion, the proviso to Section 372 of the Cr.P.C. must also
be given a meaning that is realistic, liberal, progressive and beneficial to
the victim of an offence. There is a historical reason for this, beginning
with the Declaration of Basic Principles of Justice for Victims of Crime
and Abuse of Power, adopted by the General Assembly of the United
Nations in the 96th Plenary Session on 29th November, 1985. The
Declaration is sometimes referred to as the Magna Carta of the rights of
victims. One of the significant declarations made was in relation to access
to justice for the victim of an offence through the justice delivery
mechanisms, both formal and informal. In the Declaration it was stated as
follows:
“4. Victims should be treated with compassion and respect for
their dignity. They are entitled to access to the mechanisms of
justice and to prompt redress, as provided for by national
legislation, for the harm that they have suffered.
5. Judicial and administrative mechanisms should be established
and strengthened where necessary to enable victims to obtain
redress through formal or informal procedures that are
expeditious, fair, inexpensive and accessible. Victims should be
informed of their rights in seeking redress through such
mechanisms.
6. The responsiveness of judicial and administrative processes to
the needs of victims should be facilitated by:
(a) Informing victims of their role and the scope, timing and
progress of the proceedings and of the disposition of their cases,
especially where serious crimes are involved and where they have
requested such information;
(b) Allowing the views and concerns of victims to be
presented and considered at appropriate stages of the proceedings
where their personal interests are affected, without prejudice to
the accused and consistent with the relevant national criminal
justice system;
(c) Providing proper assistance to victims throughout the
legal process;
(d) Taking measures to minimize inconvenience to victims,
protect their privacy, when necessary, and ensure their safety, as
well as that of their families and witnesses on their behalf, from
intimidation and retaliation;
(e) Avoiding unnecessary delay in the disposition of cases and
the execution of orders or decrees granting awards to victims.
7. Informal mechanisms for the resolution of disputes, including
mediation, arbitration and customary justice or indigenous
practices, should be utilized where appropriate to facilitate
conciliation and redress for victims.”
76. Putting the Declaration to practice, it is quite obvious that the
victim of an offence is entitled to a variety of rights. Access to
mechanisms of justice and redress through formal procedures as provided
for in national legislation, must include the right to file an appeal against
an order of acquittal in a case such as the one that we are presently
concerned with. Considered in this light, there is no doubt that the
proviso to Section 372 of the Cr.P.C. must be given life, to benefit the
victim of an offence.
77. Under the circumstances, on the basis of the plain language of the
law and also as interpreted by several High Courts and in addition the
resolution of the General Assembly of the United Nations, it is quite clear
to us that a victim as defined in Section 2(wa) of the Cr.P.C. would be
entitled to file an appeal before the Court to which an appeal ordinarily
lies against the order of conviction. It must follow from this that the
appeal filed by Kodagali before the High Court was maintainable and
ought to have been considered on its own merits.
78. As far as the question of the grant of special leave is concerned,
once again, we need not be overwhelmed by submissions made at the Bar.
The language of the proviso to Section 372 of the Cr.P.C. is quite clear,
particularly when it is contrasted with the language of Section 378(4) of
the Cr.P.C. The text of this provision is quite clear and it is confined to an
order of acquittal passed in a case instituted upon a complaint. The word
‘complaint’ has been defined in Section 2(d) of the Cr.P.C. and refers to
any allegation made orally or in writing to a Magistrate. This has nothing
to do with the lodging or the registration of an FIR, and therefore it is not
at all necessary to consider the effect of a victim being the complainant as
far as the proviso to Section 372 of the Cr.P.C. is concerned.
Final order
79. For the reasons mentioned above, the appeals are allowed and the
judgment and orders passed by the High Court are set aside and the
matters are remitted back to the High Court to hear and decide the appeal
filed by Kodagali against the judgment and order of acquittal dated 28th
October, 2013 passed by the District and Sessions Judge, Bagalkot
(Karnataka) in S.C. No.49 of 2010.
...……………………J
(Madan B. Lokur)
...……………………J
New Delhi; (S. Abdul Nazeer)
October 12, 2018
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 2018
(ARISING OUT OF S.L.P. (CRL.) NOS. 70407041
OF 2014)
MALLIKARJUN KODAGALI (DEAD) REPRESENTED
THROUGH LEGAL REPRESENTATIVES …APPELLANT(S)
Versus
THE STATE OF KARNATAKA & ORS. …RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.
1. I have had the privilege of going through the detailed and
erudite judgment of my brother Justice Lokur. I am in complete
agreement with my learned brother that the pain which the
victim of a criminal offence suffers should be understood by the
courts and keeping in view the emerging trends in law, the rights
of the victim should not be trampled. Victims must be treated
with sensitivity, compassion and respect. They also must be
permitted to access justice because it is sometimes found that
the investigating and prosecuting agencies do not follow up cases
with the zeal which is required. Therefore, I fully agree with my
learned brother that the proviso to Section 372 of Code of
Criminal Procedure, 1973 (for short ‘CrPC’) must be given a
meaning that is realistic, liberal, progressive and beneficial to the
victims of the offences.
2. However, at the same time, one cannot ignore the rights of
the accused and the procedure prescribed by law. I am unable to
agree with my learned brother that a victim can file an appeal in
the High Court without seeking leave to appeal in terms of
Section 378(3) of CrPC.
3. Sections 372 and 378 of CrPC read as under:
“372. No appeal to lie unless otherwise provided. No
appeal shall lie from any judgment or order of a Criminal
Court except as provided for by this Code or by 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.]”
xxx xxx xxx
“378. Appeal in case of acquittal. (
1) Save as
otherwise provided in subsection
(2), and subject to the
provisions of subsections
(3) and (5),1.
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 Magistrate in respect of a
cognizable and nonbailable
offence;
2. 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
subsection
(3), also direct the Public Prosecutor to
present an appeal2.
to the Court of Session, from an order of
acquittal passed by a Magistrate in respect of a
cognizable and nonbailable
offence;
3. 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.
(3) No appeal to the High Court under subsection
(1) or
subsection
(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 subsection
(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 subsection
(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 subsection
(1) or under subsection
(2).”
The proviso to Section 372 was added by way of amendment
inserted by Act 5 of 2009 with effect from 31.12.2009.
4. As far as the present case is concerned, the offence took
place on 06.02.2009 i.e. prior to 31.12.2009 and the order of
acquittal was passed by the trial court on 28.10.2013. I am in
agreement with my learned brother that the right to file an appeal
to the victim will arise only on the date when the judgment is
passed by the trial court because then alone the victim has a
right to urge that the acquittal is wrong or that the sentence
awarded to the accused is not commensurate with the offence
which the accused may have committed. Therefore, I have no
doubt that the victim has a right to appeal and to that extent the
judgment of the High Court is liable to be set aside.
5. My only difference of opinion is with regard to the
conclusion drawn in the judgment of my learned brother that the
victim, even in appeal filed in the High Court, is not required to
seek leave of the High Court. In my considered view, this matter
is, in fact, no longer res integra. This Court has specifically dealt
with this issue in Satya Pal Singh v. State of M.P. and
Others23, wherein it held as follows:
“10. The Full Bench of the High Court of Delhi in Ram
Phal v. State, 2015 SCC Online Del 9802, after examining
the relevant provisions under Section 2(wa) and the
proviso to Section 372 CrPC, in the light of their
legislative history has held that the right to prefer an
appeal conferred upon the victim or relatives of the victim
by virtue of the proviso to Section 372 is an independent
statutory right. Therefore, it has held that there is no
need for the victim in terms of definition under Section
2(wa) CrPC to seek the leave of the High Court as
required under subsection
(3) of Section 378 CrPC to
prefer an appeal under the proviso to Section 372 CrPC.
The said view of the High Court is not legally correct for
23 (2015) 15 SCC 613
the reason that the substantive provision of Section 372
CrPC clearly provides that no appeal shall lie from any
judgment and order of a criminal court except as
provided for by CrPC. Further, subsection
(3) of Section
378 CrPC provides that for preferring an appeal to the
High Court against an order of acquittal it is necessary to
obtain its leave.
xxx xxx xxx
xxx xxx xxx
15. Thus, to conclude on the legal issue:
“whether the appellant herein, being the
father of the deceased, has statutory right to prefer
an appeal to the High Court against the order of
acquittal under the proviso to Section 372 CrPC
without obtaining the leave of the High Court as
required under subsection
(3) of Section 378
CrPC?”
this Court is of the view that the right of questioning the
correctness of the judgment and order of acquittal by
preferring an appeal to the High Court is conferred upon
the victim including the legal heir and others, as defined
under Section 2(wa) CrPC, under the proviso to Section
372, but only after obtaining the leave of the High Court
as required under subsection
(3) of Section 378 CrPC.
The High Court of M.P. has failed to deal with this
important legal aspect of the matter while passing the
impugned judgment and order.”
6. The only issue with which I am dealing is whether a victim
while filing an appeal under Section 372 of CrPC in the High
Court against the acquittal of an accused is required to obtain
leave of the court under Section 378(3) CrPC. Prior to the
amendment of Section 372 of CrPC the victim had no right to file
an appeal. The traditional view has always been that the State
represents the victim of the crime. Criminal offences have always
been treated to be offences against the State and it is the State
alone which investigated and prosecuted such cases. In case the
State machinery does not take action on the complaint of the
victim, the said victim has a right under Section 156 of CrPC to
approach the court. Under Section 156(3) CrPC, the magistrate
may order an investigation to be done by the police. Once the
investigation is done, then again the victim has no hand in the
investigation except to assist the investigating officer and to bring
evidence to the notice of the investigating officer. After
investigation, the investigating officer files a final report under
Section 173 CrPC. The investigating officer may come to the
conclusion that either no offence is made out or may file report
showing what offences are made out in which case the court
proceeds further. Even in those cases where the investigating
agency files a report that no criminal offence is made out, the
victim has a right to object to the report and he can argue before
the court that a case is made out on the basis of the evidence
collected or he can even urge that the police must be directed to
carry out further and more investigation.
7. Chapter XXIX of the CrPC deals with appeals. Appeals
against acquittal are governed by Section 378 of CrPC. As per
subsection
(1) of this section only a District Magistrate or the
State as the case may be is entitled to direct the Public
Prosecutor to file an appeal. Subsection
(2) deals with cases
investigated under the Delhi Special Police Establishment Act,
1946 and in these cases the Central Government may also direct
the Public Prosecutor to file an appeal. I am concerned mainly
with subsection
(3) of Section 378 of CrPC, which provides that
no appeal to the High Court either under subsection
(1) or subsection
(2) shall be entertained except with the leave of the High
Court. Subsection
(4) deals with appeals filed by the
complainant in case the order of acquittal is passed in a case
instituted upon a complaint. In such cases if the appeal has to be
filed in the High Court it cannot be entertained unless the High
Court grants special leave to appeal from the order of acquittal.
Subsection
(5) provides the limitation for filing the petition for
grant of special leave to appeal in terms of subsection
(4). Subsection
(6) lays down that in case the application for special leave
to appeal filed by a complainant under subsection
(4) is refused
then no appeal from that order of acquittal shall lie under subsection
(1) or under subsection
(2). An analysis of Section 378 of
CrPC clearly shows that the CrPC envisaged and granted a
predominant role to the State. It was the State alone which was
entitled to file an appeal. The only exception was in complaint
cases where the complainant could file an appeal. He also had to
seek special leave to appeal in case the appeal lay to the High
Court.
8. Interestingly, Section 372 of CrPC which was amended in
the year 2008 to give a right to the victim is a negative section
which specifically provided, before its amendment, that no appeal
would lie from any judgment or order of a criminal Court except
as provided for by the CrPC or by any other law in force. The
Legislature while giving a victim the right to appeal did not, for
reasons best known to it, give this right to file appeal to the
victim under Section 378 of CrPC or any other specific section.
Surprisingly this right to the victim was given as a proviso to
Section 372 of CrPC. This proviso is not very happily worded. Be
that as it may, the fact is that a victim now has a right to appeal
under this proviso. He can file the appeal against the following
orders:(
i) any order passed by a Court acquitting the accused;
(ii) any order passed by a Court where the accused is
convicted of a lesser offence but the victim feels that
he should have been convicted for a higher offence.
Obviously the appeal lies against the acquittal of the
accused for a higher offence;
(iii) an appeal lies where the victim is not satisfied by the
quantum of compensation awarded.
9. Dealing with the issue, as to whether a victim should seek
leave to appeal, one must first understand the concept behind
introducing the concept of leave to appeal, especially when the
appeals are filed in the High Courts. The presumption of
innocence which is attached to every accused gets fortified and
strengthened when the said accused is acquitted by the trial
Court. Probably, for this reason, the law makers felt that when
the appeal is to be filed in the High Court it should not be filed as
a matter of course or as matter of right but leave of the High
Court must be obtained before the appeal is entertained.
Therefore, the High Court would at the initial stage of deciding
whether the leave is to be granted or not go into the merits of the
case. Only if arguable points are involved, the High Court
normally grants leave to appeal. This would not only prevent the
High Court from being flooded with appeals but more importantly
would ensure that innocent persons who have already faced the
tribulation of a long drawn out criminal trial are not again
unnecessarily dragged to the High Court.
10. At this stage, it would also be pertinent to mention that
under Section 378 of CrPC an appeal against the order of
acquittal passed by a Magistrate in respect of cognizable and
nonbailable
offences lies to the Sessions Court and no leave to
appeal is required. From the Court of Magistrate it is only
appeals in respect of offences which are noncognizable
and
bailable i.e. less serious offences which would lie to the High
Court. In such cases, leave to appeal is a prerequisite.
This was
done with a view to ensure that the persons who had faced trial
for relatively lesser offences should not have to bear the expenses
of an appeal in the High Court. The other appeals which lie to the
High Court are appeals from the Court of Sessions. These are
serious criminal matters and relate to much graver offences. Here
the concept of leave to appeal was probably introduced because
these cases are decided by relatively senior Judges i.e. Sessions
Judges. The Legislature felt that in such cases also the appeals
against acquittals must be scrutinized with greater care.
11. As pointed out above, even a complainant when he files an
appeal against an order of acquittal in a case instituted upon a
complaint is required to obtain special leave to appeal. It is true
that the proviso to Section 372 of CrPC does not indicate that a
victim while filing an appeal in the High Court must file a petition
for leave to appeal before his appeal can be entertained.
12. I am of the considered view that though the proviso to
Section 372 of CrPC does give a right to the victim to file an
appeal, this proviso cannot be read in isolation. It has to be given
a meaning which fulfills the intention of the Legislature. The
proviso to Section 372 of CrPC does not lay down the procedure
as to how, in what manner, and within which time the appeal has
to be filed. An appeal, being a creature of the statute, it is also
necessary to prescribe the limitation and procedure for filing the
appeal.
13. Adverting to subsection
(4) of Section 378 of CrPC, if an
order of acquittal is passed on a case instituted upon a complaint
then the High Court before entertaining an appeal by the
complainant must grant special leave to appeal. The expression
"Special leave to appeal" has no different meaning than the
expression "leave to appeal" and it appears to me that the word
“special” has been added only to distinguish “leave to appeal”
sought by the complainant from the “leave to appeal” sought by
the State. Thus, in a complaint case where the complainant has
set the wheels of the Court in motion even if the complainant files
the appeal he must obtain special leave to appeal. This again
gives rise to an interesting questionCan
the victim be placed on
a higher pedestal than the complainant? More often than not, the
victim and the complainant are likely to be one and the same
person.
14. In case, I accept the proposition that the victim need not
seek leave to appeal in case the appeal is to be filed in the High
Court there shall be another anomalous situation. Supposing
there are two victims in a case and one of the victims files a
complaint and sets the wheels of justice moving and the case is
tried as a complaint case. In case the accused is acquitted and
the victim who is the complainant wants to file an appeal in the
High Court, he will have to seek special leave to appeal whereas
the victim who had not even approached the Court at the initial
stage will be entitled to file an appeal without seeking leave to
appeal. This could not have been the intention of the Legislature.
15. I am fully conscious of the changes in criminal
jurisprudence referred to by my learned brother and the
expanding rights of the victim, which the victim must have. At
the same time, these rights must be balanced with the rights of
the accused. According to the records of National Crime Record
Bureau, the conviction rate in the country in 2016 was only
21.25% and 78.75% cases ended in discharge or acquittal. One
cannot lose sight of the fact that out of these 78.75% cases in
which acquittal was recorded, there may be many cases which
are totally false.
16. It may be that many people are set free because of poor
investigation and on account of indifferent prosecution. At the
same time, it is not uncommon for individuals to file false cases.
In fact, this Court has noted the misuse of Section 498A of Indian
Penal Code, 1860 in the case of Rajesh Sharma v. State of
U.P.24 and of Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Act, 1989 in the case of Dr. Subhash Kashinath
Mahajan v. State of Maharashtra25. Therefore, while
interpreting the law one cannot shut one’s eyes to the fact that a
large number of false cases are filed and appeals will more likely
than not be filed in such cases when the acquittal of the accused
is ordered.
24 2017 SCC Online SC 821
25 (2018) 6 SCC 454
17. One also cannot be oblivious to the fact that one of the
bedrocks of our criminal jurisprudence is that every person is
presumed innocent unless found guilty. This presumption of
innocence gets strengthened when the person is acquitted.
Therefore, the legislature felt that before a person who has been
acquitted after a protracted trial is called to face proceedings in
the High Court in an appeal, the High Court should look into the
matter and first decide whether there are sufficient reasons to
grant leave to file appeal or not. This is, in a manner of speaking
a preliminary hearing to decide whether the matter is worth
looking into or not. I see no reason why such scrutiny should
not be done in appeals filed by the victim. The victim cannot be
placed on a higher pedestal than the State or the complainant.
18. The right of the victim to file an appeal is not taken away or
in any manner weakened only because he has to seek leave to
appeal. If Sections 378(3), 378(4) and 372 of CrPC are read
together, it is clear that the victim is also required to apply for
leave to appeal before his appeal can be entertained.
19. Though the victim has rights, one cannot forget that a
victim who may have suffered, may also seek revenge. Therefore,
an obligation has been cast upon the State to prosecute the
accused. In fact, even now a trial under the CrPC has to be
conducted by the Public Prosecutor or Assistant Public
Prosecutor. No private lawyer can be engaged to conduct the trial
under Section 301(2) of CrPC. A private person including the
victim, can only instruct a pleader to act on his behalf in court
but the prosecution has to be conducted either by the Public
Prosecutor or Assistant Public Prosecutor and the pleader
engaged by the private person can only act as per the directions
of the Public Prosecutor or Assistant Public Prosecutor. The
reason behind this is that the victim may fabricate evidence or
hide true facts whereas the Public Prosecutor or Assistant Public
Prosecutor is expected to be fair to the court, to the accused and
to the victim.
20. On the one hand are the rights of the victim and on the
other hand, is the well settled principle of criminal jurisprudence
that every man is presumed to be innocent till proved guilty.
Therefore, though the victim may have a right to file an appeal,
this right of filing an appeal vested in the victim, cannot be larger
than the right of filing an appeal which inheres in the State and
the complainant in a complaint case. Therefore, I am of the view
that when the victim files an appeal against acquittal in the High
Court he has to seek leave to appeal under Section 378(3) CrPC.
.….…………………….J.
(DEEPAK GUPTA)
New Delhi
October 12, 2018
Print Page
1. Leave granted.
2. The rights of victims of crime is a subject that has, unfortunately, only
drawn sporadic attention of Parliament, the judiciary and civil society.
Yet, it has made great progress over the years. It is our evolving and
developing jurisprudence that has made this possible. But we still have a
long way to go to bring the rights of victims of crime to the centre stage
and to recognise them as human rights and an important component of
social justice and the rule of law.
3. The travails and tribulations of victims of crime begin with the
trauma of the crime itself and, unfortunately, continue with the difficulties
they face in something as simple as the registration of a First Information
Report (FIR). The difficulties in registering an FIR have been noticed by
a Constitution Bench of this Court in Lalita Kumari v. Government of
Uttar Pradesh.1 The ordeal continues, quite frequently, in the
investigation that may not necessarily be unbiased, particularly in respect
of crimes against women and children. Access to justice in terms of
affordability, effective legal aid and advice as well as adequate and equal
representation are also problems that the victim has to contend with and
which impact on society, the rule of law and justice delivery.
4. What follows in a trial is often secondary victimisation through
repeated appearances in Court in a hostile or a semi-hostile environment
in the courtroom. Till sometime back, secondary victimisation was in the
form of aggressive and intimidating cross-examination, but a more
humane interpretation of the provisions of the Indian Evidence Act, 1872
has made the trial a little less uncomfortable for the victim of an offence,
particularly the victim of a sexual crime. In this regard, the judiciary has
been proactive in ensuring that the rights of victims are addressed, but a
lot more needs to be done. Today, the rights of an accused far outweigh
1(2014) 2 SCC 1
the rights of the victim of an offence in many respects. There needs to be
some balancing of the concerns and equalising their rights so that the
criminal proceedings are fair to both.2 The Courts have provided solace to
the victim with monetary compensation, but that is not enough.3 There are
victim compensation schemes in force due to the mandate of Section
357A of the Code of Criminal Procedure, 1973 (the Cr.P.C.) but even that
is not enough, though they are being implemented in several parts of the
country. We are of the view that the judiciary is obliged to go and has
gone beyond merely awarding compensation and has taken into
consideration the larger picture from the perspective of the victim of an
offence, relating to infrastructure in court buildings and has recommended
and implemented some recommendations such as the construction of
child friendly courts and courts that address the concerns of vulnerable
witnesses.4 The Courts have done and are continuing to do their best for
the victims of crime.
5. In Sakshi v. Union of India5 this Court passed significant
directions for holding in camera proceedings, providing for a screen
between the accused and the victim and placed restrictions, in a sense, on
2Girish Kumar Suneja v. Central Board of Investigation, (2017) 14 SCC 809
3Hari Singh v. Sukhbir Singh, AIR 1988 SC 2127; Bodhisattwa Gautam v. Subhra
Chakroborty, AIR 1996 SC 922; Ankush Shivaji Gaikwad v. State of Maharashtra,
(2013) 6 SCC 770
4Sampurna Behura v. Union of India, (2018) 4 SCC 433
5(2004) 5 SCC 518
the cross examination of witnesses. It is true that these directions have
been passed in a case relating to sexual offences but the trend of this
Court has been to show concern for the rights of victims of an offence and
to address them.
6. Parliament also has been proactive in recognising the rights of
victims of an offence. One such recognition is through the provisions of
Chapter XXIA of the Cr.P.C. which deals with plea bargaining.
Parliament has recognised the rights of a victim to participate in a
mutually satisfactory disposition of the case. This is a great leap forward
in the recognition of the right of a victim to participate in the proceedings
of a non-compoundable case. Similarly, Parliament has amended the
Cr.P.C. introducing the right of appeal to the victim of an offence, in
certain circumstances. The present appeals deal with this right
incorporated in the proviso to Section 372 of the Cr.P.C.
7. In other words, a considerable amount has been achieved in giving
life to the rights of victims of crime, despite the absence of a cohesive
policy. But, as mentioned above, a lot more still needs to be done.
8. Among the steps that need to be taken to provide meaningful rights
to the victims of an offence, it is necessary to seriously consider giving a
hearing to the victim while awarding the sentence to a convict. A victim
impact statement or a victim impact assessment must be given due
recognition so that an appropriate punishment is awarded to the convict.
In addition, the need for psycho-social support and counselling to a
victim may also become necessary, depending upon the nature of the
offence. It is possible that in a given case the husband of a young married
woman gets killed in a fight or a violent dispute. How is the young widow
expected to look after herself in such circumstances, which could be even
more traumatic if she had a young child? It is true that a victim impact
statement or assessment might result in an appropriate sentence being
awarded to the convict, but that would not necessarily result in ‘justice’ to
the young widow - perhaps rehabilitation is more important to her than
merely ensuring that the criminal is awarded a life sentence. There is now
a need, therefore, to discuss these issues in the context of social justice
and take them forward in the direction suggested by some significant
Reports that we have had occasion to look into and the direction given by
Parliament and judicial pronouncements.
9. The rights of victims, and indeed victimology, is an evolving
jurisprudence and it is more than appropriate to move forward in a
positive direction, rather than stand still or worse, take a step backward. A
voice has been given to victims of crime by Parliament and the judiciary
and that voice needs to be heard, and if not already heard, it needs to be
raised to a higher decibel so that it is clearly heard.
10. With this background, we need to consider the questions that arise
before us consequent to the introduction of the proviso to Section 372 of
the Cr.P.C. with effect from 31st December, 2009. The questions are
somewhat limited: Whether a ‘victim’ as defined in the Cr.P.C. has a right
of appeal in view of the proviso to Section 372 of the Cr.P.C. against an
order of acquittal in a case where the alleged offence took place prior to
31st December, 2009 but the order of acquittal was passed by the Trial
Court after 31st December, 2009? Our answer to this question is in the
affirmative. The next question is: Whether the ‘victim’ must apply for
leave to appeal against the order of acquittal? Our answer to this question
is in the negative.
Factual narrative
11. The appellant (Kodagali – now dead but represented by his legal
representatives) was the victim of an attack on the night of 6th February,
2009. He lodged a First Information Report with the police and after
investigations, necessary proceedings were taken before the District and
Sessions Judge, Bagalkot against the accused persons under several
sections of the Indian Penal Code (the IPC).
12. In S.C. No. 49 of 2010 the District and Sessions Judge, Bagalkot
(Karnataka) acquitted the accused by a judgment and order dated 28th
October, 2013.
13. Aggrieved thereby, Kodagali preferred an appeal in the High Court
being Criminal Appeal No. 100016 of 2014. The appeal was preferred
under the proviso to Section 372 of the Cr.P.C. but it was dismissed as not
maintainable by a judgment and order dated 10th June, 2014. It was held
by the High Court that the proviso to Section 372 of the Cr.P.C. came into
the statute book with effect from 31st December, 2009 but the incident had
occurred well before that date. Therefore, the appeal was not
maintainable. Reliance was placed by the High Court on National
Commission for Women v. State of Delhi and another6
14. Kodagali then preferred another appeal in the High Court being
Criminal Appeal No. 100119 of 2014. This appeal was filed under the
provisions of Section 378(4) of the Cr.P.C. By a judgment and order
dated 4th July, 2014 the High Court held that the appeal was not
maintainable. The view taken by the High Court was on a plain reading
of Section 378(4) of the Cr.P.C., namely, that the appeal was not filed in a
case instituted upon a complaint before a Magistrate.
6(2010) 12 SCC 599
15. Under these circumstances, Kodagali is before us challenging the
judgment and orders dated 10th June, 2014 and 4th July, 2014. It is his
contention that he has been left with no remedy against the acquittal of
the accused. His submission is that one of the accused is a Member of the
Legislative Assembly and it is for this reason that the State did not
challenge the acquittal. It is not necessary for us to go into the merits of
the controversy or the allegations made by Kodagali. Suffice it to say, we
are only concerned with the question whether the appeal filed by
Kodagali under the proviso to Section 372 of the Cr.P.C. was
maintainable or not.
Victims of crime and their rights
16. In recent times, four Reports have dealt with the rights of victims
of crime and the remedies available to them. The first Report in this
sequence is the 154th Report of the Law Commission of India of August
1996. While this Report did not specifically deal with the right of a victim
of crime to file an appeal, it did discuss issues of victims of crime,
compensation to be paid to the victim and rehabilitation of the victim
including the establishment of a Victim Assistance Fund.
17. The second important Report is the March 2003 Report of the
Committee on Reforms of Criminal Justice System commonly known as
the Report of the Justice Malimath Committee. In the Chapter on
Adversarial Rights, it is recommended under the sub-heading of Victims
Right to Appeal as follows:
“2.21. The victim or his representative who is a party to the trial
should have a right to prefer an appeal against any adverse order
passed by the trial court. In such an appeal he could challenge the
acquittal, or conviction for a lesser offence or inadequacy of
sentence, or in regard to compensation payable to the victim. The
appellate court should have the same powers as the trial court in
regard to assessment of evidence and awarding of sentence.”
18. Thereafter, in the substantive Chapter on Justice to Victims, it is
noted that victims of crime, in many jurisdictions, have the right to
participate in the proceedings and to receive compensation for injury
suffered. It was noted as follows:
“6.3 Basically two types of rights are recognized in many
jurisdictions particularly in continental countries in respect of
victims of crime. They are, firstly, the victim’s right to participate
in criminal proceedings (right to be impleaded, right to know,
right to be heard and right to assist the court in the pursuit of
truth) and secondly, the right to seek and receive compensation
from the criminal court itself for injuries suffered as well as
appropriate interim reliefs in the course of proceedings.”
19. Following up on this, and extending the rights of victims of crime,
it was observed in paragraph 6.5 that “The right of the victim should
extend to prefer an appeal against any adverse order passed by the trial
court. The appellate court should have the same powers to hear appeals
against acquittal as it now has to entertain appeal against conviction.
There is no credible and fair reason why appeals against acquittals should
lie only to the High Court.”
20. On this basis, the Justice Malimath Committee made the following
recommendation enabling the victim of a crime to prefer an appeal. The
recommendation (made in the Chapter having the same heading) reads as
follows:
“The victim shall have a right to prefer an appeal against any
adverse order passed by the court acquitting the accused,
convicting for a lesser offence, imposing inadequate sentence, or
granting inadequate compensation. Such appeal shall lie to the
court to which an appeal ordinarily lies against the order of
conviction of such court.”
21. The third Report worth considering is the July 2007 Report of the
Committee on the Draft National Policy on Criminal Justice also known
as the Professor Madhava Menon Committee. While this Committee does
not specifically deal with providing a right of appeal to the victim of a
crime, it does refer to victim orientation to criminal justice and providing
for a balance between the constitutional rights of an accused person and a
victim of crime. One of the suggestions given by the Committee is to
permit the impleadment of a victim in the trial proceedings. Obliquely
therefore, it follows that if a victim is impleaded as a party to the trial
proceedings, the victim would certainly have a right to file an appeal
against an adverse order, particularly an order of acquittal.
22. The fourth Report that deserves a mention is the 221st Report of the
Law Commission of India April 2009. In this Report, the
recommendation of the Law Commission of India was to the effect that as
the law stands, an aggrieved person cannot file an appeal against an order
of acquittal. However, a revision petition can be filed. The powers of a
revisional court are limited and the process involved is cumbersome and
it also involves a wastage of money and time. It was, therefore,
recommended by the Law Commission that against an order of acquittal
passed by a Magistrate, a victim should be entitled to file an appeal
before the revisional court. It was also recommended that in complaint
cases also an appeal should be provided in the Sessions Court instead of
the High Court. In all such cases, the aggrieved person or complainant
should have the right to prefer an appeal, though with the leave of the
Appellate Court. The view of the Law Commission was expressed in the
following words:
“2.9 All appeals against orders of acquittal passed by Magistrates
were being filed in High Court prior to amendment of section 378
by Act 25 of 2005. Now, with effect from 23.06.2006, appeals
against orders of acquittal passed by Magistrates in respect of
cognizable and non-bailable offences in cases filed on police
report are being filed in the Sessions Court, vide clause (a) of
sub-section (1) of the said section. But, appeal against order of
acquittal passed in any case instituted upon complaint continues
to be filed in the High Court, if special leave is granted by it on
an application made to it by the complainant, vide sub-section (4)
of the said section.
2.10 Section 378 needs change with a view to enable filing of
appeals in complaint cases also in the Sessions Court, of course,
subject to the grant of special leave by it.
2.11 Further, at present, against orders of acquittal passed by
Magistrates (where the offence is cognizable and non-bailable) or
by Sessions Courts, appeal in cases filed on police reports can be
filed only at the instance of the District Magistrate or the State
Government, as the case may be, vide sub-section (1) of section
378. In such matters, the aggrieved person or the informant
cannot himself file an appeal. However, he can prefer a revision.
If the revisional Court finds that the accused has been wrongly
acquitted, it cannot convict him in view of sub-section (3) of
section 401, but it has to remand the case. It is a cumbersome
process and involves wastage of money and time. This provision
also needs a change and in such matters also, where the District
Magistrate or the State does not direct the Public Prosecutor to
prefer appeal against an order of acquittal, the aggrieved person
or the informant should have the right to prefer appeal, though
with the leave of the Appellate Court. This will also give an
opportunity to the aggrieved person to challenge the findings of
fact recorded by lower court. Also, this will introduce more
transparency and accountability in the lower judiciary, as at
present, the percentage of acquittal is quite high.”
23. It is, apparently, on the basis of all these Reports and other material
that Section 372 of the Cr.P.C. was amended on 30th December, 2009 with
effect from 31st December, 2009. Section 372 of the Cr.P.C. as it stands
today reads as follows:
“372. No appeal to lie unless otherwise provided. - No appeal
shall lie from any judgment or order of a Criminal Court except
as provided for by this Code or by 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.”
Decision in the case of the National Commission for Women
24. In National Commission for Women, the victim, a young lady
aged 21 years committed suicide on or about 14th April, 2003. She left
behind a note in which she stated that the accused had physical relations
with her and held out a promise of marriage but later backed off. He had
exploited her and therefore she was committing suicide.
25. The Trial Judge relied on the dying declaration and convicted the
accused by his judgment and order dated 21st April, 2008. The accused
preferred an appeal in the Delhi High Court which acquitted him of an
offence under Section 306 of the IPC while maintaining his conviction
under Section 376 of the IPC. The sentence was reduced to that already
undergone which was about five years and six months. The judgment and
order of the High Court is dated 9th February, 2009.
26. Feeling aggrieved by the decision of the High Court, the National
Commission for Women preferred a petition for special leave to appeal
admittedly invoking the inherent powers of this Court. In that context
this Court held that in view of Section 372 of the Cr.P.C. no appeal shall
lie from a judgment or order by a criminal Court except as provided by
the Cr.P.C. or by any other law which authorises an appeal. The proviso
to Section 372 of the Cr.P.C. gives a limited right to the victim to file an
appeal in the High Court against any order of a criminal Court acquitting
the accused or convicting him for a lesser offence or the imposition of
inadequate compensation. This Court then observed as follows:
“The proviso may not thus be applicable as it came in the year
2009 (long after the present incident) and, in any case, would
confer a right only on a victim and also does not envisage an
appeal against an inadequate sentence.”
27. It was further held that an appeal being the creation of a statute, it
would not be maintainable under any inherent power. Article 136 of the
Constitution does confer discretionary power on this Court to entertain a
petition at the behest of the State or an affected private individual but to
permit anybody or an organisation pro bono publico to file an appeal
would be a dangerous doctrine and would cause utter confusion in the
criminal justice system. On this basis it was held that the special leave
petition filed by the National Commission for Women was not
maintainable.
28. The thrust of the decision of this Court, which appears to have been
misunderstood by the High Court, is with regard to entertaining a petition
under Article 136 of the Constitution by a third party. As far as criminal
matters are concerned, this Court undoubtedly held that permitting a third
party to prefer a petition under Article 136 of the Constitution would be
dangerous and would cause confusion. The reasoning of this Court was
not directed towards the proviso to Section 372 of the Cr.P.C. It is only
in passing that this Court observed that on the facts of the case, the
proviso to Section 372 of the Cr.P.C. might not be applicable since it
came into the statute book after the incident.
29. The decision of this Court in National Commission for Women is
quite clearly distinguishable and reliance on this decision by the High
Court is inapposite.
Decisions of the Full Bench
30. The interpretation of the proviso to Section 372 of the Cr.P.C. has
been considered in Full Bench decisions rendered by a few High Courts.
31. Among the first few Full Bench decisions that addressed this issue
was the judgment of the Gujarat High Court in Bhavuben Dineshbhai
Makwana v. State of Gujarat & Ors.7 The questions framed for
consideration in this case were:
(i) Whether an appeal filed by the victim, invoking his right
under proviso to Sec. 372 of Cr.P.C, challenging acquittal, or
conviction for a 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 should not be
entertained, on the ground that the appeal preferred by the victim
7MANU/GJ/1137/2012 - Criminal Appeal No. 238 of 2012, decided on 23rd October,
2012
invoking his right under proviso to Sec. 372 of Cr.P.C., against
the same order, is admitted by the Court?
(iii) If the victim prefers an appeal before this Court, challenging
the acquittal, invoking his right under proviso to Sec. 372 of
Cr.P.C., whether that appellant is required to first seek leave of
the Court, as is required in case of appeal being preferred by the
State?
32. While discussing these issues, the Full Bench observed that the
Legislature had conferred a substantive statutory right of appeal and such
a right could not be diluted by a judicial pronouncement since the right of
a party to file an appeal is an independent, substantial and statutory right.
33. Analysing the proviso to Section 372 of the Cr.P.C. and juxtaposing
it with Section 377 of the Cr.P.C. the Full Bench noted that the victim has
no right to prefer an appeal against “inadequacy of sentence”, a right
available only to the State and the State does not have any right to file
any appeal against “inadequacy of compensation”, a right available only
to a victim. Noting the availability of different rights, it was held:
“In light of different types of right of appeal provided to the
victim and to the State/Prosecution, it will not be proper to hold
that the right of either of them is dependent upon the other. To put
it differently, only victim can file an appeal against an order of
imposing ‘inadequate compensation’ in addition to his right of
appeal against acquittal and convicting the accused for a lesser
offence and therefore, to club his right and make it dependent
upon the exercise of right of appeal at the instance of the State
would be not only be unworkable, but would run contrary to the
scheme and lead to absurdity.”
34. The Full Bench then concluded that the correct position in law
would be that the right to file an appeal by the victim of an offence is an
independent and statutory right not subservient to the rights of the State
to file an appeal. It was further concluded that each victim has an
independent right of appeal and in a given case, the grievance of different
victims may be completely different. It was held as follows:
“In our opinion, the correct law, as emerging from the scheme of
the Code, would be that the right of a victim to prefer an appeal
(on limited grounds enumerated in proviso to Sec. 372 of the
Code) is a separate and independent statutory right and is not
dependent either upon or is subservient to right of appeal of the
State. In other words, both the victim and the State/prosecution
can file appeals independently without being dependent on the
exercise of the right by the other. Moreover, from the act or
omission for which the accused has been charged, there may be
more than one victim and the loss suffered by the victims may
vary from one victim to the other victims. Therefore, each of such
victims will have separate right of appeal and in such appeals, the
grievance of each of the appellant may be different. For instance,
in an act of arson when a joint property of different persons has
been set on fire, the loss suffered by each of the co-sharers may
be different. In such a case, each co-sharer has a separate right of
appeal and such right of one does not depend even on the filing of
such appeal by another victim.”
35. The first two questions were accordingly answered by the Gujarat
High Court by holding that the appeals filed by the victim were
maintainable.
36. On the third question, the Full Bench noted that if the victim
restricts the appeal to the grievance to inadequacy of the compensation or
punishment for a lesser offence, it does not become an appeal against
acquittal but the appeal is really directed against “any other sentence or
order not being an order of acquittal” within the meaning of Art. 115(b)
of the Limitation Act, 1963 and thus, no question of taking special leave
arises. The Full Bench took the view that for the purposes of Section
378(4) of the Cr.P.C. a victim who is not a complainant will not come
within the purview of that section and would not be required to take
recourse to the provision of special leave as provided therein. It was held:
“Therefore, in the case before us, the legislature while conferring
the right of appeal upon the victim, who is not a complainant, not
having imposed any condition of taking leave or special leave, we
cannot infer such condition and impose the same upon the victim,
although, the legislature was quite conscious of existence of such
provision in case of an appeal by a complainant and has retained
that provision without consequential amendment thereby making
its intention clear that the provision of special leave is not
applicable to an appeal preferred by a victim against acquittal if
he is not the complainant.”
The third question was then answered in the following words:
“If the victim also happens to be the complainant and the appeal
is against acquittal, he is required to take leave as provided in
Sec. 378 of the Criminal Procedure Code but if he is not the
complainant, he is not 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.”
37. In our opinion, the Gujarat High Court made an artificial and
unnecessary distinction between a victim as a victim and a victim as a
complainant in respect of filing an appeal against an order of acquittal.
The proviso to Section 372 of the Cr.P.C. does not introduce or
incorporate any such distinction.
38. The next significant decision has been rendered by the Division
Bench of the Calcutta High Court in Mahafuja Banu v. Md. Asadul
Islam & State.8 In this case, the prosecutrix lodged a complaint on 13th
December, 2003 and the judgment and order of acquittal was delivered by
the Trial Court on 22nd December, 2009. An appeal to the High Court was
(presumably) filed only after 31st December, 2009. While considering the
maintainability of the appeal, the High Court referred to the decision of
the Gujarat High Court in Bhavuben Dineshbhai Makwana.
39. Reference was also made to a Division Bench decision of the
Agartala Bench of the Gauhati High Court in Gouranga Debnaih v. State
of Tripura.9 In that case the alleged offence took place on 14th November,
2006 and the judgment of acquittal was delivered on 30th September,
2010. The High Court held that the appeal against acquittal filed by the
victim was maintainable. It was held that if the interpretation given to the
proviso to Section 372 of the Cr.P.C. is that the right to appeal accrued on
the date of the incident, then it would unreasonable and unfair, more so
since the proviso to Section 372 of the Cr.P.C. is given prospective effect.
8(2013) 1 Cal LT 109
92011 (4) GLT 379
40. Reference was also made to a decision by a learned Single Judge
decision of the Kerala High Court in T. Balakrishnan Master v. K.M.
Ramachandran Master.10 In that case it was held that the proviso to
Section 372 of the Cr.P.C. confers on the victim a substantive right to
prefer an appeal in certain circumstances. The right is dependent on the
judgment rendered by the Court and not in relation to the incident that
gave rise to the prosecution.
41. The Calcutta High Court also considered the question whether
there is finality attached to the judgment of acquittal and whether that
finality could be disturbed on the basis of a right subsequently conferred
on the victim. It was held that the judgment of acquittal had not attained
finality in that the victim had a right to file a revision petition and the
State had the right to file an appeal. All that the proviso to Section 372 of
the Cr.P.C. had done was to replace the right of a revision with the right to
appeal.
42. While it is true that there is a qualitative difference between a
revision and an appeal, the Calcutta High Court drew attention to the
221st Report of 30th April, 2009 of the Law Commission. This Report
noted the distinction and observed that the revision process was
10Crl. M.A. No. 7423 of 2011, decided on 22nd September, 2011 -
MANU/KE/1620/2011
cumbersome and involved a wastage of time and money. It was,
therefore, recommended by the Law Commission that the aggrieved
person should have the right to prefer an appeal, though with the leave of
the Appellate Court. This would also give the aggrieved person an
opportunity to challenge the findings of fact recorded by the Trial Court.
43. On the basis of the above decisions and the reasons given, the
Calcutta High Court concluded that there was nothing to suggest that the
victim could exercise the right to appeal under the proviso to Section 372
of the Cr.P.C. only if it existed on the date of the “cause of action” (the
alleged offence or incident) or the date on which the complaint was
lodged.
44. After a short hiatus, this issue again came up for consideration and
this time before the Full Bench of the Punjab and Haryana High Court in
Tata Steel v. Atma Tube Products Ltd.11 The decision is much more than
elaborate and only two of the seven questions framed for consideration
are relevant for the present discussion. These two questions are:
(1) 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’?
(2) 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
11(2014) 173 (1) PLR 1
before the insertion of the said proviso, can be converted into an
appeal and transferred to the Court of competent jurisdiction?
45. In answering the first question, the High Court noted that the
scheme of the Cr.P.C. provides, after various amendments, the right of
appeal to the accused; the State; the victim and the complainant in
complaint cases. It was observed that if a victim also happens to be the
complainant in a police case, then that victim is not required to take leave
under Section 378 of the Cr.P.C. to file an appeal against an order of
acquittal. To this extent, the Full Bench of the Punjab and Haryana High
Court differed with the view taken by the Full Bench of the Gujarat High
Court in Bhavuben Dineshbhai Makwana.
46. The reasons for disagreement stem from the fact that the
Legislature was aware of the provisions of the existing statute including
the fetter imposed on the State in filing an appeal against an order of
acquittal. However, that fetter was not placed on the right to appeal given
to a victim under the proviso to Section 372 of the Cr.P.C. The view of
the Full Bench of the Punjab and Haryana High Court was that if such
fetter were to be placed on the right of the victim, it would amount to
rewriting the proviso to Section 372 of the Cr.P.C. and would also defeat
the legislative will. The Punjab and Haryana High Court expressed it’s
opinion in the following words:
“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 indeed not only amount to rewriting
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)12 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).13
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.”
47. With regard to the second question, the High Court concluded that
the right to appeal is a substantive right. Consequently, the inescapable
conclusion would be that the right to appeal given to a victim would be
prospective and enforceable with effect from 31st December, 2009 only.
12Smt. Ram Kaur @ Jaswinder Kaur v. Jagbir Singh alias Jabi and others,
MANU/PH/4500/2010 decided on 1st April, 2010
13Guru Prasad Yadav v. State of Bihar, Criminal Appeal No. 582 of 2011
This would be irrespective of the date of registration of the FIR or the
date of the occurrence. The High Court held as follows:
“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.”
48. The Full Bench of the Delhi High Court also considered this issue
in Ram Phal v. State & Ors.14 The question considered by the Delhi High
Court was:
“Whether the appellate remedy [under the proviso to Section 372
of the Cr.P.C.] is available with respect to only such offences
which were committed as on the date when the appellate right
was conferred by law or the appellate right would be available
with respect to the date of the decision or the appellate remedy is
without any reference to the two points of time i.e. the date when
the offence was committed or when the appellate right was
conferred by law, (Act No.5 of 2009 with effect from
31.12.2009).”
49. While answering the question, the Delhi High Court referred to
142015 (151) DRJ 562
Tata Steel decided by the Punjab & Haryana High Court. The Delhi High
Court referred to the conclusion that 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.”
50. Reference was also made to the Division Bench of the Patna High
Court in Parmeshwar Mandal v. State of Bihar15 and parts of the
following passages were referred to and relied upon. It was said in
Parmeshwar Mandal:
“Proviso to Section 372 of the Code is in two parts. First clause
of the said proviso begins with ‘provided that’ and ends with
‘Inadequate compensation’ and creates a right in the victim to
prefer appeal against any order passed by a court either (i)
acquitting the accused or (ii) convicting for a lesser offence or
(iii) imposing inadequate compensation. Thereafter, by inserting
conjunction ‘and’, another clause has been added in the same
sentence by which forum for preferring such appeal has been
identified, which relates to procedural part of law. Thus, the said
proviso contains both substantive part, creating right in the victim
to prefer an appeal, and procedural part, by identifying the forum
for filing such an appeal. It is not in dispute that the substantive
part of law operates prospectively, unless made retrospective, and
the procedural part is presumed to be retrospective within its
defined limits.
xxx xxx xxx xxx
………The Central Government, by Notification No. S.O.
3313(E) dated 30th December, 2009, appointed 31st day of
December 2009, as the date for the Act. 5 of 2009 to come into
force, which was published in Gazette of India, Ext., Pt.II, S.3(ii),
dated 30-12-2009. Hence, in absence of any express intention
notified by the Legislature to the contrary, it has to be concluded
152014 (1) PLJR 377
that the right of victim, to prefer an appeal in terms of said
proviso to Section 372, became available to the victim(s) of all
cases in which orders were passed by any criminal court
acquitting the accused or convicting him for a lesser offence or
imposing inadequate compensation, on or after 31st of December,
2009. In other words, date of judgment of a criminal court has to
be necessarily treated as the relevant date for applying the test of
maintainability of appeal by the victim under three contingencies
laid down under the proviso to Section 372 of the Code,
irrespective of the date of occurrence, institution of the case,
cognizance or commitment.”
51. The Delhi High Court held that in light of the settled law as
explained above, it was in respectful agreement with these decisions.
52. The Full Bench of the Rajasthan High Court in Baldev Sharma v.
Gopal & Ors16 considered (amongst others) the following two questions:
(i) Whether the proviso to Section 372 as introduced by the
amending Act No. 5 of 2009 which has been brought into effect
on 31.12.2009 can be given effect to in cases where the offence
occurred prior to 31.12.2009 and thereby given the right of
appeal to the victim in the event; (a) whether the court below has
acquitted the accused or (b) has convicted the accused for a lesser
offence or (c) has imposed inadequate compensation. Though the
judgment in such cases may have been passed by the court below
after 31.12.2009.
(ii) Whether the appeal by the victim under proviso to Section
372 is also required to be dealt with in the same manner as an
appeal filed by the State under Section 378 Cr.P.C. and the
provisions of Section 378 are required to be read into the
provisions of Section 372 Cr.P.C. with regard to appeals filed by
the victims.
53. It was held, relying upon the same passages in Tata Steel and
Parmeshwar Mandal that “judgments passed on or after the said date
162017 (3) RLW 2604 (Raj.)
[31st December, 2009] are the ones in respect whereto, irrespective of the
date of the offence, the victim can avail the right to file an application
seeking leave to appeal.”
Division Bench decisions
54. Among the first few decisions rendered by the Division Bench of
the High Court was the judgment and order passed by the Division Bench
of the Gauhati High Court in Gouranga Debnaih. In this case, the
alleged incident took place on 14th November, 2006 and the judgment and
order of acquittal was passed by the Trial Court on 30th September, 2010.
On the question of the maintainability of the appeal under the proviso to
Section 372 of the Cr.P.C. the Division Bench framed the following
question for consideration: “Whether he [the victim] has any right to
prefer an appeal against the impugned judgment and order of acquittal
taking the benefit of proviso to Section 372 of the Code which has been
inserted by way of amendment giving effect and if so, the present
condonation petition is maintainable?”
55. In answering this question, the Gauhati High Court expressed the
view that has already been adverted to above and need not be repeated
here. This is what the High Court had to say:
“Now question is whether an appeal can be preferred for an
incident that happened prior to giving effect of the amendment of
the Code. There is no doubt that if a Court considers that from the
date of incident, the right to appeal accrued, then obviously that
would be unreasonable and unfair, more so, when the amendment
is given prospective effect and that would also go against the law
of limitation as prescribed under Article 114 of the Limitation
Act. In this case it is not necessary for us to discuss even that
aspect, as right to appeal of the petitioner accrued only after the
decision in the sessions case by the trial Court i.e. the date on
which the judgment was delivered i.e. on 30.9.2010.”
56. In Parmeshwar Mandal an appeal was filed by a victim in the
High Court against a judgment and order of acquittal dated 28th August,
2012. The Division Bench of the High Court sought assistance on the
maintainability of the appeal. After hearing arguments, the Court noted
the distinction in the language of Section 372 of the Cr.P.C. and the
language of Sections 377 and 378 of the Cr.P.C. The High Court noted
that Section 372 of the Cr.P.C. was framed in affirmative terms.
Moreover, the use of the word ‘shall’ in the proviso to Section 372 of the
Cr.P.C., in contradistinction to the use of the word ‘may’ in Sections 377
and 378 of the Cr.P.C. gives a clear indication that the right of a victim to
file an appeal was placed on a higher pedestal than the rights of the State,
or even the accused. This is what the High Court had to say in this regard:
“What is significant to notice is that this right to appeal, which is
clearly in affirmative terms, has been given to the victim by
inserting the said proviso in Section 372 itself, which is the
opening section of the Chapter, and not by any insertion in
Sections 377 or 378, which deal with appeals against inadequate
sentence and acquittal. In contradistinction to wordings of
Sections 377 and 378, which are apparently enabling provisions,
and only give a liberty to the District Magistrate, State
Government, the Central Government, and the complainant, to
prefer an appeal by use of the word ‘may’, a victim, under the
said proviso to Section 372 has been given a right to prefer
appeal by use of the expression ‘shall have a right to appeal’. It is
also significant to notice that, whereas in Section 378, grant of
leave has been made a condition precedent for entertaining any
appeal against acquittal preferred under sub-sections (1) and (2),
and grant of special leave for entertaining an appeal by a
complainant preferred under sub-section (4), there is no such
qualification prescribed in the said proviso to section 372 for a
victim to maintain his appeal against an order of acquittal, or
against a conviction for a lesser offence or against imposition of
inadequate compensation……. Hence, in the opinion of this
Court, the Legislature, by a conscious act, has put the right of a
victim to prefer an appeal under the Code, in terms of the said
proviso to Section 372, at a much higher pedestal than the right of
a prosecuting agency or a complainant to present an appeal. Any
otherwise intention of the Legislature is ruled out from the fact
that, had it been so, it would have inserted a new sub-section in
Sections 377 or 378, putting his right, with limitations and
qualifications, at par with that of the prosecuting agency or the
complainant, instead of inserting this right of victim in the
opening section of the chapter itself.”
57. Thereafter, the High Court gave its reasons and conclusion for
holding that the date of judgment of a criminal court has to be necessarily
treated as the relevant date for applying the test of maintainability of
appeal by the victim under three contingencies laid down under the
proviso to Section 372 of the Cr.P.C. irrespective of the date of
occurrence, institution of the case, cognizance or commitment. The Delhi
High Court had referred to the relevant passages of the judgment of the
Patna High Court and we have extracted these passages above and they
need not be repeated here.
58. The Division Bench of the Kerala High Court dealt with this issue
in Vanaja K.C. v. State of Kerala & Ors.17 In this case the alleged
offence or incident took place on 27th January, 2005 and the judgment of
acquittal by the Trial Court was rendered on 24th February, 2010. The
question considered by the High Court was:
“Whether the victim gets a right of appeal under the proviso to
Section 372 Cr.P.C. in a case where the date of occurrence was
before and the judgment was pronounced after the date of
commencement of Act 5 of 2009?”
59. The Division Bench relied upon an earlier decision of the High
Court in Balakrishnan Master which referred to the letter and spirit of
the law. The following passage from the decision of the Kerala High
Court is instructive:
“The question is whether the right of appeal conferred on the
victim by the proviso to Section 372 of the Code, has to be
determined with regard to the date of order of acquittal or
conviction of the accused for a lesser offence or order providing
inadequate compensation, or, with respect to the date of incident
giving rise to the prosecution of the accused. What is conferred
by the Amendment Act 5 of 2009 on the victim is a substantive
right to prefer an appeal in certain circumstances as specified, and
that alone. Act 5 of 2009 has come into effect from 31.12.2009.
Such right is available to a victim where a judgment is rendered
by the court on or after 31.12.2009, provided, any one of the
three circumstances covered by the proviso is involved in the
case. The right is dependent on the judgment rendered by the
court and not in relation to the incident which gave rise to the
prosecution of the accused, whether or not it was at the instance
of the victim…... Where there is no doubt that what is conferred
under the proviso to Section 372 of the Code enabling the victim
to prefer an appeal in the circumstances specified is a substantive
right conferred on him by the Statute its effect cannot be nullified
taking a view that the applicability of the proviso inserted has to
17ILR 2016 (2) Kerala 713
be reckoned with reference to the date of incident in the case
which led to the prosecution of the accused. Any such view
would be against the letter and spirit of the aforesaid proviso and
also the very purpose for which a right of appeal is conferred on
the victim, illustrating and defining the person falling thereunder,
and specifically limiting to what situation such a right could be
exercised.”
60. Reference was also made to Parmeshwar Mandal wherein it was
held that the intention of the Legislature was not to vest the right of
appeal in only those victims in whose cases the occurrence was after the
amendment to the Cr.P.C. If that proposition were to be accepted, then for
years to come, the right of the victim to prefer an appeal in terms of the
proviso would remain illusory (given the delay in disposal of cases).
61. On the basis of these decisions it was held that the appeal filed by
the victim would be maintainable since the judgment of acquittal passed
by the Trial Court was post 31st December, 2009.
62. There are decisions rendered by learned Single Judges of a few
High Courts, but it is not necessary to further burden this judgment with
an analysis of those decisions (we have referred to one of them). Suffice
it to say that the decisions have more or less followed the reasons and
conclusions arrived at in the Full Bench decisions rendered by different
High Courts.
63. Broadly speaking, in the above cases, the view expressed by the
High Courts is that if the judgment of the Trial Court is delivered after the
proviso came into force, that is, after 31st December, 2009 then,
irrespective of the date of the offence, the victim can avail a right of
appeal. In some of the decisions it has been held that the right of appeal
is not an absolute right conferred on the victim, but it is subject to an
application seeking special leave to appeal.
Dissenting decisions
64. In D. Sudhakar v. Panapu Sreenivasulu @ Evone Water
Sreenivasulu and Ors.18 the Andhra Pradesh High Court dismissed an
appeal filed by the victim of an offence against an order of acquittal dated
30th November, 2011 on the ground that it was not maintainable. The
High Court relied upon the observation made by this Court in National
Commission for Women for this conclusion. Reference was also made,
incidentally, to a decision of the learned Single Judge of the Kerala High
Court in John v. Shibu Cherian19 which also held to the same effect.
65. A similar view was expressed by the Division Bench of the
Chhattisgarh High Court in Bhisam Prasad Bareth v. Dinesh Mahant &
Ors.20 relying upon the decision of this Court in National Commission
18MANU/AP/1172/2012 decided on 7th December, 2012
19MANU/KE/1839/2011 decided on 5th August, 2011
20MANU/CG/0079/2012 decided on 15th March, 2012
for Women. It may be mentioned here that the appeal filed in the
Chhattisgarh High Court was against an order of acquittal passed on 18th
March, 2009 in respect of an incident that occurred on 5th March, 2008
both dates being well before the insertion of the proviso to Section 372 of
the Cr.P.C.
66. In the dissenting set of decisions, the view taken by the High
Courts is to the effect that if the incident or the offence occurred prior to
31st December, 2009 the victim cannot file an appeal under the proviso to
Section 372 of the Cr.P.C. regardless of the date of decision of the Trial
Court.
67. An analysis of the decisions rendered by various High Courts
indicates that the overwhelming view is that the date of the judgment and
order passed by the Trial Court is the relevant date for determining the
applicability of the proviso to Section 372 of the Cr.P.C. and if, as in the
present case, the judgment and order is post 31st December, 2009 then the
victim can prefer an appeal to the High Court.
Another view expressed by this Court
68. In Satya Pal Singh v. State of Madhya Pradesh & Ors.21 this Court
gave what appears to be a rather expansive interpretation to the proviso to
Section 372 of the Cr.P.C. and concluded as follows:
“This Court is of the view that the right of questioning the
correctness of the judgment and order of acquittal by preferring
an appeal to the High Court is conferred upon the victim
including the legal heir and others, as defined under Section
2(wa) Cr.P.C. under the proviso to Section 372, but only after
obtaining the leave of the High Court as required under subsection
(3) of Section 378 Cr.P.C.”
69. In this case the offence occurred on or about 19th July, 2010 and the
decision of the Trial Court was delivered on 13th June, 2013. On a plain
reading of the cited passage, it does appear that the date of the alleged
offence and the judgment and order of the Trial Court is not relevant,
meaning thereby that even if the offence was committed prior to 31st
December, 2009 and the judgment and order was rendered prior to 31st
December, 2009 the victim could prefer an appeal to the High Court after
obtaining leave. This is not so, and therefore the misunderstanding of the
expansive nature of the view expressed.
70. The two decisions of this Court mentioned above arise in two
different fact situations. In National Commission for Women the offence
and the judgment of the Trial Court were before 31st December, 2009. In
Satya Pal Singh, the offence and the judgment of the Trial Court were
21(2015) 15 SCC 613
after 31st December, 2009. None of these situations arise in the present
appeals in which the offence was said to have been committed before 31st
December, 2009 while the judgment of the Trial Court was delivered after
31st December, 2009. We are concerned in these appeals only with the
maintainability of an appeal by the victim under the proviso to Section
372 of the Cr.P.C. where the alleged offence was committed before 31st
December, 2009 and the judgment and order has been delivered by the
Trial Court post 31st December, 2009. Therefore, none of the two
decisions of this Court are of any real assistance to us.
Our conclusions
71. It was submitted by learned counsel for the accused that the right to
file an appeal is a substantive right and it should not be easily recognized
unless specifically conferred by statute. We agree. There is no doubt that
from the time of the Constitution Bench decision of this Court in
Garikapati Veeraya v. N. Subbiah Choudhry22 it has been held that the
right to appeal is not a mere matter of procedure but is a substantive right.
We are bound by this decision as well as other decisions following this
view. The question is whether this substantive statutory right has been
conferred on the victim in a case such as the present.
221957 SCR 488
72. It was also submitted by learned counsel for the accused that in the
present fact situation, if we were to hold that Kodagali was entitled to file
an appeal against the acquittal of the accused, then we would be giving
retrospective effect to the proviso to Section 372 of the Cr.P.C. It was
submitted that if Parliament intended to confer a statutory right of appeal
on a victim with retrospective effect, it would have specifically said so.
Since the proviso to Section 372 of the Cr.P.C. was not specifically given
retrospective effect, it must operate prospectively and the crucial date in a
case such as the present would be the date of the alleged offence.
73. To counteract this, it was submitted by learned counsel for
Kodagali that the view expressed by this Court in National Commission
for Women was only an obiter and is not binding upon this Court. It is
not necessary for us to go into this aspect of the matter since we are of the
view that the decision rendered in National Commission for Women has
been misunderstood and misinterpreted and is clearly distinguishable on
facts. Even otherwise, the decision has been rendered by a Bench of the
two learned judges and while the view expressed therein certainly has
great persuasive value but it would not be binding on a Bench of three
Judges. Besides, the obiter dicta of this Court would not bind us.
74. What is significant is that several High Courts have taken a
consistent view to the effect that the victim of an offence has a right of
appeal under the proviso to Section 372 of the Cr.P.C. This view is in
consonance with the plain language of the proviso. But what is more
important is that several High Courts have also taken the view that the
date of the alleged offence has no relevance to the right of appeal. It has
been held, and we have referred to those decisions above, that the
significant date is the date of the order of acquittal passed by the Trial
Court. In a sense, the cause of action arises in favour of the victim of an
offence only when an order of acquittal is passed and if that happens after
31st December, 2009 the victim has a right to challenge the acquittal,
through an appeal. Indeed, the right not only extends to challenging the
order of acquittal but also challenging the conviction of the accused for a
lesser offence or imposing inadequate compensation. The language of the
proviso is quite explicit, and we should not read nuances that do not exist
in the proviso.
75. In our opinion, the proviso to Section 372 of the Cr.P.C. must also
be given a meaning that is realistic, liberal, progressive and beneficial to
the victim of an offence. There is a historical reason for this, beginning
with the Declaration of Basic Principles of Justice for Victims of Crime
and Abuse of Power, adopted by the General Assembly of the United
Nations in the 96th Plenary Session on 29th November, 1985. The
Declaration is sometimes referred to as the Magna Carta of the rights of
victims. One of the significant declarations made was in relation to access
to justice for the victim of an offence through the justice delivery
mechanisms, both formal and informal. In the Declaration it was stated as
follows:
“4. Victims should be treated with compassion and respect for
their dignity. They are entitled to access to the mechanisms of
justice and to prompt redress, as provided for by national
legislation, for the harm that they have suffered.
5. Judicial and administrative mechanisms should be established
and strengthened where necessary to enable victims to obtain
redress through formal or informal procedures that are
expeditious, fair, inexpensive and accessible. Victims should be
informed of their rights in seeking redress through such
mechanisms.
6. The responsiveness of judicial and administrative processes to
the needs of victims should be facilitated by:
(a) Informing victims of their role and the scope, timing and
progress of the proceedings and of the disposition of their cases,
especially where serious crimes are involved and where they have
requested such information;
(b) Allowing the views and concerns of victims to be
presented and considered at appropriate stages of the proceedings
where their personal interests are affected, without prejudice to
the accused and consistent with the relevant national criminal
justice system;
(c) Providing proper assistance to victims throughout the
legal process;
(d) Taking measures to minimize inconvenience to victims,
protect their privacy, when necessary, and ensure their safety, as
well as that of their families and witnesses on their behalf, from
intimidation and retaliation;
(e) Avoiding unnecessary delay in the disposition of cases and
the execution of orders or decrees granting awards to victims.
7. Informal mechanisms for the resolution of disputes, including
mediation, arbitration and customary justice or indigenous
practices, should be utilized where appropriate to facilitate
conciliation and redress for victims.”
76. Putting the Declaration to practice, it is quite obvious that the
victim of an offence is entitled to a variety of rights. Access to
mechanisms of justice and redress through formal procedures as provided
for in national legislation, must include the right to file an appeal against
an order of acquittal in a case such as the one that we are presently
concerned with. Considered in this light, there is no doubt that the
proviso to Section 372 of the Cr.P.C. must be given life, to benefit the
victim of an offence.
77. Under the circumstances, on the basis of the plain language of the
law and also as interpreted by several High Courts and in addition the
resolution of the General Assembly of the United Nations, it is quite clear
to us that a victim as defined in Section 2(wa) of the Cr.P.C. would be
entitled to file an appeal before the Court to which an appeal ordinarily
lies against the order of conviction. It must follow from this that the
appeal filed by Kodagali before the High Court was maintainable and
ought to have been considered on its own merits.
78. As far as the question of the grant of special leave is concerned,
once again, we need not be overwhelmed by submissions made at the Bar.
The language of the proviso to Section 372 of the Cr.P.C. is quite clear,
particularly when it is contrasted with the language of Section 378(4) of
the Cr.P.C. The text of this provision is quite clear and it is confined to an
order of acquittal passed in a case instituted upon a complaint. The word
‘complaint’ has been defined in Section 2(d) of the Cr.P.C. and refers to
any allegation made orally or in writing to a Magistrate. This has nothing
to do with the lodging or the registration of an FIR, and therefore it is not
at all necessary to consider the effect of a victim being the complainant as
far as the proviso to Section 372 of the Cr.P.C. is concerned.
Final order
79. For the reasons mentioned above, the appeals are allowed and the
judgment and orders passed by the High Court are set aside and the
matters are remitted back to the High Court to hear and decide the appeal
filed by Kodagali against the judgment and order of acquittal dated 28th
October, 2013 passed by the District and Sessions Judge, Bagalkot
(Karnataka) in S.C. No.49 of 2010.
...……………………J
(Madan B. Lokur)
...……………………J
New Delhi; (S. Abdul Nazeer)
October 12, 2018
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 2018
(ARISING OUT OF S.L.P. (CRL.) NOS. 70407041
OF 2014)
MALLIKARJUN KODAGALI (DEAD) REPRESENTED
THROUGH LEGAL REPRESENTATIVES …APPELLANT(S)
Versus
THE STATE OF KARNATAKA & ORS. …RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.
1. I have had the privilege of going through the detailed and
erudite judgment of my brother Justice Lokur. I am in complete
agreement with my learned brother that the pain which the
victim of a criminal offence suffers should be understood by the
courts and keeping in view the emerging trends in law, the rights
of the victim should not be trampled. Victims must be treated
with sensitivity, compassion and respect. They also must be
permitted to access justice because it is sometimes found that
the investigating and prosecuting agencies do not follow up cases
with the zeal which is required. Therefore, I fully agree with my
learned brother that the proviso to Section 372 of Code of
Criminal Procedure, 1973 (for short ‘CrPC’) must be given a
meaning that is realistic, liberal, progressive and beneficial to the
victims of the offences.
2. However, at the same time, one cannot ignore the rights of
the accused and the procedure prescribed by law. I am unable to
agree with my learned brother that a victim can file an appeal in
the High Court without seeking leave to appeal in terms of
Section 378(3) of CrPC.
3. Sections 372 and 378 of CrPC read as under:
“372. No appeal to lie unless otherwise provided. No
appeal shall lie from any judgment or order of a Criminal
Court except as provided for by this Code or by 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.]”
xxx xxx xxx
“378. Appeal in case of acquittal. (
1) Save as
otherwise provided in subsection
(2), and subject to the
provisions of subsections
(3) and (5),1.
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 Magistrate in respect of a
cognizable and nonbailable
offence;
2. 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
subsection
(3), also direct the Public Prosecutor to
present an appeal2.
to the Court of Session, from an order of
acquittal passed by a Magistrate in respect of a
cognizable and nonbailable
offence;
3. 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.
(3) No appeal to the High Court under subsection
(1) or
subsection
(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 subsection
(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 subsection
(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 subsection
(1) or under subsection
(2).”
The proviso to Section 372 was added by way of amendment
inserted by Act 5 of 2009 with effect from 31.12.2009.
4. As far as the present case is concerned, the offence took
place on 06.02.2009 i.e. prior to 31.12.2009 and the order of
acquittal was passed by the trial court on 28.10.2013. I am in
agreement with my learned brother that the right to file an appeal
to the victim will arise only on the date when the judgment is
passed by the trial court because then alone the victim has a
right to urge that the acquittal is wrong or that the sentence
awarded to the accused is not commensurate with the offence
which the accused may have committed. Therefore, I have no
doubt that the victim has a right to appeal and to that extent the
judgment of the High Court is liable to be set aside.
5. My only difference of opinion is with regard to the
conclusion drawn in the judgment of my learned brother that the
victim, even in appeal filed in the High Court, is not required to
seek leave of the High Court. In my considered view, this matter
is, in fact, no longer res integra. This Court has specifically dealt
with this issue in Satya Pal Singh v. State of M.P. and
Others23, wherein it held as follows:
“10. The Full Bench of the High Court of Delhi in Ram
Phal v. State, 2015 SCC Online Del 9802, after examining
the relevant provisions under Section 2(wa) and the
proviso to Section 372 CrPC, in the light of their
legislative history has held that the right to prefer an
appeal conferred upon the victim or relatives of the victim
by virtue of the proviso to Section 372 is an independent
statutory right. Therefore, it has held that there is no
need for the victim in terms of definition under Section
2(wa) CrPC to seek the leave of the High Court as
required under subsection
(3) of Section 378 CrPC to
prefer an appeal under the proviso to Section 372 CrPC.
The said view of the High Court is not legally correct for
23 (2015) 15 SCC 613
the reason that the substantive provision of Section 372
CrPC clearly provides that no appeal shall lie from any
judgment and order of a criminal court except as
provided for by CrPC. Further, subsection
(3) of Section
378 CrPC provides that for preferring an appeal to the
High Court against an order of acquittal it is necessary to
obtain its leave.
xxx xxx xxx
xxx xxx xxx
15. Thus, to conclude on the legal issue:
“whether the appellant herein, being the
father of the deceased, has statutory right to prefer
an appeal to the High Court against the order of
acquittal under the proviso to Section 372 CrPC
without obtaining the leave of the High Court as
required under subsection
(3) of Section 378
CrPC?”
this Court is of the view that the right of questioning the
correctness of the judgment and order of acquittal by
preferring an appeal to the High Court is conferred upon
the victim including the legal heir and others, as defined
under Section 2(wa) CrPC, under the proviso to Section
372, but only after obtaining the leave of the High Court
as required under subsection
(3) of Section 378 CrPC.
The High Court of M.P. has failed to deal with this
important legal aspect of the matter while passing the
impugned judgment and order.”
6. The only issue with which I am dealing is whether a victim
while filing an appeal under Section 372 of CrPC in the High
Court against the acquittal of an accused is required to obtain
leave of the court under Section 378(3) CrPC. Prior to the
amendment of Section 372 of CrPC the victim had no right to file
an appeal. The traditional view has always been that the State
represents the victim of the crime. Criminal offences have always
been treated to be offences against the State and it is the State
alone which investigated and prosecuted such cases. In case the
State machinery does not take action on the complaint of the
victim, the said victim has a right under Section 156 of CrPC to
approach the court. Under Section 156(3) CrPC, the magistrate
may order an investigation to be done by the police. Once the
investigation is done, then again the victim has no hand in the
investigation except to assist the investigating officer and to bring
evidence to the notice of the investigating officer. After
investigation, the investigating officer files a final report under
Section 173 CrPC. The investigating officer may come to the
conclusion that either no offence is made out or may file report
showing what offences are made out in which case the court
proceeds further. Even in those cases where the investigating
agency files a report that no criminal offence is made out, the
victim has a right to object to the report and he can argue before
the court that a case is made out on the basis of the evidence
collected or he can even urge that the police must be directed to
carry out further and more investigation.
7. Chapter XXIX of the CrPC deals with appeals. Appeals
against acquittal are governed by Section 378 of CrPC. As per
subsection
(1) of this section only a District Magistrate or the
State as the case may be is entitled to direct the Public
Prosecutor to file an appeal. Subsection
(2) deals with cases
investigated under the Delhi Special Police Establishment Act,
1946 and in these cases the Central Government may also direct
the Public Prosecutor to file an appeal. I am concerned mainly
with subsection
(3) of Section 378 of CrPC, which provides that
no appeal to the High Court either under subsection
(1) or subsection
(2) shall be entertained except with the leave of the High
Court. Subsection
(4) deals with appeals filed by the
complainant in case the order of acquittal is passed in a case
instituted upon a complaint. In such cases if the appeal has to be
filed in the High Court it cannot be entertained unless the High
Court grants special leave to appeal from the order of acquittal.
Subsection
(5) provides the limitation for filing the petition for
grant of special leave to appeal in terms of subsection
(4). Subsection
(6) lays down that in case the application for special leave
to appeal filed by a complainant under subsection
(4) is refused
then no appeal from that order of acquittal shall lie under subsection
(1) or under subsection
(2). An analysis of Section 378 of
CrPC clearly shows that the CrPC envisaged and granted a
predominant role to the State. It was the State alone which was
entitled to file an appeal. The only exception was in complaint
cases where the complainant could file an appeal. He also had to
seek special leave to appeal in case the appeal lay to the High
Court.
8. Interestingly, Section 372 of CrPC which was amended in
the year 2008 to give a right to the victim is a negative section
which specifically provided, before its amendment, that no appeal
would lie from any judgment or order of a criminal Court except
as provided for by the CrPC or by any other law in force. The
Legislature while giving a victim the right to appeal did not, for
reasons best known to it, give this right to file appeal to the
victim under Section 378 of CrPC or any other specific section.
Surprisingly this right to the victim was given as a proviso to
Section 372 of CrPC. This proviso is not very happily worded. Be
that as it may, the fact is that a victim now has a right to appeal
under this proviso. He can file the appeal against the following
orders:(
i) any order passed by a Court acquitting the accused;
(ii) any order passed by a Court where the accused is
convicted of a lesser offence but the victim feels that
he should have been convicted for a higher offence.
Obviously the appeal lies against the acquittal of the
accused for a higher offence;
(iii) an appeal lies where the victim is not satisfied by the
quantum of compensation awarded.
9. Dealing with the issue, as to whether a victim should seek
leave to appeal, one must first understand the concept behind
introducing the concept of leave to appeal, especially when the
appeals are filed in the High Courts. The presumption of
innocence which is attached to every accused gets fortified and
strengthened when the said accused is acquitted by the trial
Court. Probably, for this reason, the law makers felt that when
the appeal is to be filed in the High Court it should not be filed as
a matter of course or as matter of right but leave of the High
Court must be obtained before the appeal is entertained.
Therefore, the High Court would at the initial stage of deciding
whether the leave is to be granted or not go into the merits of the
case. Only if arguable points are involved, the High Court
normally grants leave to appeal. This would not only prevent the
High Court from being flooded with appeals but more importantly
would ensure that innocent persons who have already faced the
tribulation of a long drawn out criminal trial are not again
unnecessarily dragged to the High Court.
10. At this stage, it would also be pertinent to mention that
under Section 378 of CrPC an appeal against the order of
acquittal passed by a Magistrate in respect of cognizable and
nonbailable
offences lies to the Sessions Court and no leave to
appeal is required. From the Court of Magistrate it is only
appeals in respect of offences which are noncognizable
and
bailable i.e. less serious offences which would lie to the High
Court. In such cases, leave to appeal is a prerequisite.
This was
done with a view to ensure that the persons who had faced trial
for relatively lesser offences should not have to bear the expenses
of an appeal in the High Court. The other appeals which lie to the
High Court are appeals from the Court of Sessions. These are
serious criminal matters and relate to much graver offences. Here
the concept of leave to appeal was probably introduced because
these cases are decided by relatively senior Judges i.e. Sessions
Judges. The Legislature felt that in such cases also the appeals
against acquittals must be scrutinized with greater care.
11. As pointed out above, even a complainant when he files an
appeal against an order of acquittal in a case instituted upon a
complaint is required to obtain special leave to appeal. It is true
that the proviso to Section 372 of CrPC does not indicate that a
victim while filing an appeal in the High Court must file a petition
for leave to appeal before his appeal can be entertained.
12. I am of the considered view that though the proviso to
Section 372 of CrPC does give a right to the victim to file an
appeal, this proviso cannot be read in isolation. It has to be given
a meaning which fulfills the intention of the Legislature. The
proviso to Section 372 of CrPC does not lay down the procedure
as to how, in what manner, and within which time the appeal has
to be filed. An appeal, being a creature of the statute, it is also
necessary to prescribe the limitation and procedure for filing the
appeal.
13. Adverting to subsection
(4) of Section 378 of CrPC, if an
order of acquittal is passed on a case instituted upon a complaint
then the High Court before entertaining an appeal by the
complainant must grant special leave to appeal. The expression
"Special leave to appeal" has no different meaning than the
expression "leave to appeal" and it appears to me that the word
“special” has been added only to distinguish “leave to appeal”
sought by the complainant from the “leave to appeal” sought by
the State. Thus, in a complaint case where the complainant has
set the wheels of the Court in motion even if the complainant files
the appeal he must obtain special leave to appeal. This again
gives rise to an interesting questionCan
the victim be placed on
a higher pedestal than the complainant? More often than not, the
victim and the complainant are likely to be one and the same
person.
14. In case, I accept the proposition that the victim need not
seek leave to appeal in case the appeal is to be filed in the High
Court there shall be another anomalous situation. Supposing
there are two victims in a case and one of the victims files a
complaint and sets the wheels of justice moving and the case is
tried as a complaint case. In case the accused is acquitted and
the victim who is the complainant wants to file an appeal in the
High Court, he will have to seek special leave to appeal whereas
the victim who had not even approached the Court at the initial
stage will be entitled to file an appeal without seeking leave to
appeal. This could not have been the intention of the Legislature.
15. I am fully conscious of the changes in criminal
jurisprudence referred to by my learned brother and the
expanding rights of the victim, which the victim must have. At
the same time, these rights must be balanced with the rights of
the accused. According to the records of National Crime Record
Bureau, the conviction rate in the country in 2016 was only
21.25% and 78.75% cases ended in discharge or acquittal. One
cannot lose sight of the fact that out of these 78.75% cases in
which acquittal was recorded, there may be many cases which
are totally false.
16. It may be that many people are set free because of poor
investigation and on account of indifferent prosecution. At the
same time, it is not uncommon for individuals to file false cases.
In fact, this Court has noted the misuse of Section 498A of Indian
Penal Code, 1860 in the case of Rajesh Sharma v. State of
U.P.24 and of Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Act, 1989 in the case of Dr. Subhash Kashinath
Mahajan v. State of Maharashtra25. Therefore, while
interpreting the law one cannot shut one’s eyes to the fact that a
large number of false cases are filed and appeals will more likely
than not be filed in such cases when the acquittal of the accused
is ordered.
24 2017 SCC Online SC 821
25 (2018) 6 SCC 454
17. One also cannot be oblivious to the fact that one of the
bedrocks of our criminal jurisprudence is that every person is
presumed innocent unless found guilty. This presumption of
innocence gets strengthened when the person is acquitted.
Therefore, the legislature felt that before a person who has been
acquitted after a protracted trial is called to face proceedings in
the High Court in an appeal, the High Court should look into the
matter and first decide whether there are sufficient reasons to
grant leave to file appeal or not. This is, in a manner of speaking
a preliminary hearing to decide whether the matter is worth
looking into or not. I see no reason why such scrutiny should
not be done in appeals filed by the victim. The victim cannot be
placed on a higher pedestal than the State or the complainant.
18. The right of the victim to file an appeal is not taken away or
in any manner weakened only because he has to seek leave to
appeal. If Sections 378(3), 378(4) and 372 of CrPC are read
together, it is clear that the victim is also required to apply for
leave to appeal before his appeal can be entertained.
19. Though the victim has rights, one cannot forget that a
victim who may have suffered, may also seek revenge. Therefore,
an obligation has been cast upon the State to prosecute the
accused. In fact, even now a trial under the CrPC has to be
conducted by the Public Prosecutor or Assistant Public
Prosecutor. No private lawyer can be engaged to conduct the trial
under Section 301(2) of CrPC. A private person including the
victim, can only instruct a pleader to act on his behalf in court
but the prosecution has to be conducted either by the Public
Prosecutor or Assistant Public Prosecutor and the pleader
engaged by the private person can only act as per the directions
of the Public Prosecutor or Assistant Public Prosecutor. The
reason behind this is that the victim may fabricate evidence or
hide true facts whereas the Public Prosecutor or Assistant Public
Prosecutor is expected to be fair to the court, to the accused and
to the victim.
20. On the one hand are the rights of the victim and on the
other hand, is the well settled principle of criminal jurisprudence
that every man is presumed to be innocent till proved guilty.
Therefore, though the victim may have a right to file an appeal,
this right of filing an appeal vested in the victim, cannot be larger
than the right of filing an appeal which inheres in the State and
the complainant in a complaint case. Therefore, I am of the view
that when the victim files an appeal against acquittal in the High
Court he has to seek leave to appeal under Section 378(3) CrPC.
.….…………………….J.
(DEEPAK GUPTA)
New Delhi
October 12, 2018
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