Subsequently, Section 372 of the CrPC was amended with effect
from 31.12.2009. The said Section, as amended, reads 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.”
18. A plain reading of the proviso to Section 372 of the CrPC
indicates that the victim also has a right to prefer an appeal against an
order passed by the Court in the following circumstances – (a) acquitting
the accused; or (b) convicting the accused for a lesser offence; or (c)
imposing inadequate compensation.
19. The proviso to Section 372 of the CrPC does not contemplate an
appeal against an order of a Court imposing an inadequate
sentence/punishment. It is well settled that there is no inherent right of
an appeal and the said right is a statutory right and is available only if it
is conferred by a statute.
20. The proviso to Section 372 of the CrPC provides a limited right
to the victim to file an appeal. The plain language of the said proviso
indicates that it does not contemplate an appeal against an inadequate
sentence.
21. In National Commission for Women (supra), the Supreme Court
had observed as under:-
“8. Chapter XXIX of the Code of Criminal Procedure deals
with “Appeal(s)”. Section 372 specifically provides that no
appeal shall lie from a judgment or order of a criminal
court except as provided by the Code or by any other law
which authorizes an appeal. The proviso inserted by
Section 372 (Act 5 of 2009) with effect from 31-12-2009,
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. 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.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 01.11.2019
W.P.(CRL) 2576/2018 & CRL.M.A. 31082/2018
ASHOK MALHOTRA Vs STATE (GOVT OF NCT DELHI)
CORAM
MR JUSTICE VIBHU BAKHRU
Citation: 2019 SCC OnLine Del 11508,
Citation: 2019 SCC OnLine Del 11508,
1. The petitioner has filed the present petition impugning an order
dated 04.06.2018 (hereafter ‘the impugned order’) passed by the learned
District and Sessions Judge, Shahdara District, Karkardooma Courts,
Delhi in Criminal Appeal No. 1230/2016.
2. Respondent no.2 (the complainant) had stated that the petitioner,
who is the elder brother of the complainant’s husband (jeth) lived on the
first floor of the property bearing House No. 1/6896, East Rohtash
Nagar, Shahdara, Delhi - 110031. She had stated that the petitioner
desired to live on the ground floor of the said property and wanted the
complainant and her family to leave the said property. She alleged that
in the aforesaid context, on 02.07.2006 at about 11:45 a.m., the
petitioner had hurled abuses at her and had hit the complainant on her
face (below her left eye) with a GI Pipe (iron pipe). She had stated that
this was informed to the police and the complainant and her husband
were taken by the police to GTB Hospital for a medical examination.
An FIR (bearing FIR No. 295/2006 under Section 325 of the IPC)
regarding the said incident was registered with PS Shahdara and a case
was sent to trial.
3. The Trial Court, by an order dated 28.09.2010, framed a charge
against the petitioner for the commission of an offence under Section
323 of the IPC.
4. On 03.03.2015, the petitioner submitted before the Trial Court
that the disputes between him and the complainant (who is the wife of
his younger brother) had continued for a number of years. In addition,
other litigation regarding property in question had also ensued between
the parties. He submitted that he was finding it difficult to appear in
court repeatedly and had attempted to compromise the matters with the
complainant but she had refused the same. He stated that in the
circumstances, he desired to plead guilty for the offence for which he
was charged, that is, an offence under Section 323 of the IPC.
5. In view of the aforesaid statement on 03.03.2015, the Trial Court
convicted the accused for the offence under Section 323 of the IPC.
Considering the facts of the case, the Trial Court also imposed the
punishment of admonishing the petitioner. It also clarified that the
conviction would not attract any disqualification as per the Probation of
Offenders Act, 1958.
6. Aggrieved by the same, the complainant (respondent no.2)
preferred an appeal (Appeal under Section 378 of the CrPC) before the
learned Additional Sessions Judge. It was contended on behalf of
respondent that the injuries suffered by her were grievous in nature and
therefore, the petitioner ought to have been convicted of an offence
under Section 325 of the IPC. The Appellate Court (learned ASJ)
accepted the aforesaid contention and by an order dated 14.01.2016,
allowed the appeal and remanded the matter to the learned Chief
Metropolitan Magistrate. The Appellate Court also directed the parties
to appear before the said Court on 28.01.2016.
7. The learned MetropolitanMagistrate considered the matter afresh
and convicted the petitioner of the offence under Section 325 of the IPC
on the ground that he had already pleaded guilty on 03.03.2015.
Considering the facts obtaining in the case, the Trial Court observed that
ends of justice would be served if the petitioner is admonished for the
offence under Section 325 of the IPC and be additionally burdened to
pay compensation to the complainant. Accordingly, the learned CMM,
by an order dated 15.09.2016, admonished the petitioner and directed
him to pay compensation of ₹80,000/- to the complainant. The Court
further directed that if the petitioner failed to pay the compensation as
directed, he would be liable to serve simple imprisonment for a period
of one year. The matter was relisted on 14.10.2016 for payment of
compensation.
8. On 14.10.2016, the petitioner’s wife brought the compensation
amount of ₹80,000/- and tendered the same. The complainant
(respondent no.2) declined to receive the said amount and the Trial
Court recorded her statement to the said effect. The Trial Court
admonished the petitioner for the offence under Section 325 of the IPC
and also clarified that no disqualification would be attracted in terms of
the provisions of the Probation of Offenders Act, 1958. The Trial Court
further clarified that the conviction would not have any adverse effect
on the petitioner’s service. Aggrieved by the aforesaid orders (order
dated 15.09.2016 and 14.10.2016) respondent no.2 preferred an appeal
(CA No. 1230/2016) before the Learned ASJ. The memorandum of
appeal has been handed over to this Court.
9. A perusal of the appeal indicates that respondent no.2 is,
essentially, aggrieved by the sentence awarded to the petitioner.
According to respondent no.2, the said sentence in inadequate.
Respondent no.2 also claims that the petitioner was not entitled to
exemption from disqualification under the Probation of Offenders Act,
1958.
10. The Trial Court passed an order dated 31.01.2017 directing that
the appeal preferred by respondent no.2 be treated as one under Section
372 of the CrPC. The appellate court disposed of the appeal by an order
dated 04.06.2018 and the same is impugned by way of the present
petition.
11. The Appellate Court held that the learned CMM ought to have
altered the charge and conducted the trial after altering the charge to
Section 325 of the IPC. The Court also noted that the petitioner had
pleaded guilty to an offence under Section 323 of the IPC and not to an
offence under Section 325 of the IPC. Consequently, the appeal was
allowed and the orders passed by the learned CMM on 15.09.2016 and
14.10.2016 in relation to FIR No. 295/2006 were set aside. The matter
was remanded to the learned CMM for proceeding with the case in
accordance with law after altering the charge, as directed by the earlier
order dated 14.10.2016.
12. The principal question to be addressed in the present petition is
whether an appeal under Section 372 of the CrPC was maintainable at
the instance of respondent no.2 (the victim). It is contended on behalf
of the petitioner that respondent no.2 had preferred an appeal under
Section 372 of the CrPC for enhancing the punishment imposed on the
petitioner as, according to her, the same is wholly inadequate. He
submitted that respondent no.2 had made no grievance regarding
inadequacy of compensation directed to be paid. On the contrary, she
had recorded her statement declining to accept the compensation.
13. Mr Rajesh Mahajan, learned ASC, has supported the contention
advanced by the petitioner. He submitted that the proviso to Section 372
of the CrPC does not entitle the victim to file an appeal on account of
inadequacy of sentence. He submitted that an appeal on the said ground
could only be filed by the State. He referred to the decision of the
Supreme Court in National Commission for Women v. State of Delhi
&Anr.: (2010) 12 SCC 599 in support of his contention. He also pointed
out the decision of the coordinate Bench of this Court in Shikha
Beniwal v. State & Anr.: Crl. A. 1320/2012, decided on 18.02.2015,
wherein an observation had been made that an appeal filed by the
complainant victim for enhancement of sentence is akin to the State’s
appeal for enhancement of sentence under Section 377 of the CrPC. He
also submitted that the said Bench had, in a subsequent decision in
Shakeel Ahmed v. State of NCT of Delhi & Ors.: Crl. A. 528/2012,
decided on 25.05.2015, accepted the view that the scope of an appeal
preferred by a victim under Section 372 of the CrPC was limited.
14. Mr Manjeet Singh, learned counsel appearing for respondent no.
2, countered the aforesaid submissions. He referred to the decision of
the Supreme Court in Mallikarjun Kodagali (dead) represented thr.
Legal Representatives v. State of Karnataka & Ors.: Crl. Appeal No.
1281-82/2018, decided on 12.10.2018. He submitted that M.B. Lokur,
J. speaking for himself and S. Abdul Nazeer, J., had emphasized the
rationale for providing the victim a right to appeal. He submitted that
given such right, the victim would also have a right to challenge the
inadequacy of sentence awarded. He further submitted that de hors the
provisions of Section 372 of the CrPC, a victim would always have the
right to challenge an order passed by the Trial Court imposing an
inadequate sentence convicting the accused. He stated that in the present
case, simply because the State had not filed an appeal, the victim could
not be rendered remediless.
15. He also referred to the decision of the Division Bench of this
Court in Mahesh Rai v. The State Government of NCT of Delhi: Crl.
A. No. 1075/2017, decided on 13.05.2019. He submitted that in that
case, the father of the deceased victim had also filed an appeal (Crl. A.
31/2018) seeking enhancement of the sentence awarded and the same
was allowed. He submitted that this also indicated that an appeal seeking
enhancement of sentence awarded to the accused was maintainable.
Reasons and Conclusion
16. The issue as to the rights available to victims has been much
debated in recent times. This was also one of the subjects dealt with in
the 154th Report of the Law Commission of India submitted in the year
1990. In March, 2003 the Committee on Reforms of Criminal Justice
System, referred to as the ‘Justice Malimath Committee’, had
recommended that a victim should also have a right to prefer an appeal.
The recommendation made by the said Committee reads as under:-
“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.”
17. Subsequently, Section 372 of the CrPC was amended with effect
from 31.12.2009. The said Section, as amended, reads 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.”
18. A plain reading of the proviso to Section 372 of the CrPC
indicates that the victim also has a right to prefer an appeal against an
order passed by the Court in the following circumstances – (a) acquitting
the accused; or (b) convicting the accused for a lesser offence; or (c)
imposing inadequate compensation.
19. The proviso to Section 372 of the CrPC does not contemplate an
appeal against an order of a Court imposing an inadequate
sentence/punishment. It is well settled that there is no inherent right of
an appeal and the said right is a statutory right and is available only if it
is conferred by a statute. In several decisions, an appeal has been
described as a creature of a statute. (See: Hindustan Petroleum
Corporation Ltd. v. Dilbahar Singh: (2014) 9 SCC 102). In National
Commission for Women (supra), the Supreme Court had observed that
“an appeal is a creature of a statute and cannot lie under any inherent
power”. In view of the above, the contention that respondent no. 2 has
an inherent right to appeal against an order of a court imposing
inadequate punishment on the accused, is unmerited.
20. The proviso to Section 372 of the CrPC provides a limited right
to the victim to file an appeal. The plain language of the said proviso
indicates that it does not contemplate an appeal against an inadequate
sentence.
21. In National Commission for Women (supra), the Supreme Court
had observed as under:-
“8. Chapter XXIX of the Code of Criminal Procedure deals
with “Appeal(s)”. Section 372 specifically provides that no
appeal shall lie from a judgment or order of a criminal
court except as provided by the Code or by any other law
which authorizes an appeal. The proviso inserted by
Section 372 (Act 5 of 2009) with effect from 31-12-2009,
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. 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. An appeal would thus be
maintainable only under Section 377 to the High Court as
it is effectively challenging the quantum of sentence.”
(emphasis applied)
22. The decision of the Division Bench of this Court in Mahesh Rai
(supra) is of little assistance to respondent no. 2. In that case, the
accused had preferred an appeal against a judgment convicting him
under Sections 452 and 302 of the IPC and also against the order of
sentence. The State had also preferred an appeal seeking enhancement
of the sentence. All the three appeals were heard together. A plain
reading of the decision indicates that no issue had been raised or
considered regarding the maintainability of the appeal preferred by the
father of the deceased victim.
23. In Shikha Beniwal (supra), the coordinate Bench of this Court
had referred to the decision of the Supreme Court in Jagmohan Bhola
v. Dilbagh Rai Bhola & Ors.: 2011 (2) JCC 777 and following the said
decision, had observed that an appeal filed by the complainant victim
was for enhancement of sentence was akin to a State’s appeal for
enhancement of sentence under Section 377 of the CrPC. A plain
reading of the decision in Jagmohan Bhola (supra) indicates that the
observations made by the Court in that decision were in the context of
whether a leave to appeal was necessary for preferring an appeal under
Section 372 of the CrPC. The Division Bench of this Court was not
called upon to consider the question whether an appeal by a victim is
maintainable for enhancement of the punishment imposed.
24. It is also relevant to note that the view expressed by the coordinate
Bench of this Court in Shikha Beniwal (supra) was not followed by the
bench in a later decision in Shakeel Ahmed (supra).
25. Before concluding, it is also relevant to refer to the decision of
the Full Bench of the Gujarat High Court in Bhavuben Dineshbhai
Makwana v. State ofGujarat&Others: (2013) 3MWN(Cri) 268 (FB).
In that case, the Full Bench had, inter alia, framed the following
questions for consideration: -
“(i). Whether an appeal filed by the victim, invoking his
right under proviso to section 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 invoking his right under proviso to section 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 section 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?”
26. After analyzing the provisions of the Act and after considering
the earlier issues, the Court had held as under:-
“18. We further find that in taking the above view,
the Division Bench in the above matter failed to
take into consideration the fact that the scope of
appeal at the instance of the victim is different from
that of an appeal filed by the State. It appears that
the victim (as defined in Section 2(wa) of the Code)
shall have a right to prefer an appeal in the
following 3 types of cases:
(i) Acquittal of the accused
(ii) Convicting of the accused for a lesser offence
(iii) Imposing inadequate compensation
18.1 In other words, the victimhas no right to prefer
an Appeal against ‘inadequacy of sentence’, a right
which is available only to the State. The State,
however, does not have any right to file any Appeal
against “inadequacy of Compensation”, a right,
which is available only to a victim.
19. The term ‘inadequacy of sentence’ has a special
connotation and a distinct statutory demarcation if
the provisions of Section 375(d) and Section 377 of
the Code are compared. Scheme of Section 377,
which provides for right of Appeal to the
State/Prosecution, is entirely different from the
right of Appeal conferred upon a victim under the
Proviso to Section 372 of the Code. Under the
scheme of Section 377 not only the
State/Prosecution can file an Appeal based upon
inadequacy of sentence, but even the Accused can
plead for his acquittal or for reduction of the
sentence as contemplated under Section 377(3) of
the Code.
20. As against this, if the scheme of Proviso to
Section 372 of the Code is compared, only a victim
has an absolute right to file an Appeal challenging
imposition of inadequate Compensation in addition
to the right of Appeal against acquittal and also
challenging the conviction based on lesser offence.
There is, however, no provision in the entire Code
empowering the State Prosecution to file an Appeal
against an order imposing inadequate
Compensation.
21. 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.”
27. In view of the above the appeal (Criminal Appeal 1230/2016)
preferred by respondent no.2 was not maintainable. Accordingly, the
present petition is allowed and the impugned order is set aside as The
pending application is also disposed of.
28. The parties are left to bear their own costs.
VIBHU BAKHRU, J
NOVEMBER 01, 2019
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