TMI Blog2013 (10) TMI 1484X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment, little aware of its consequences, though intended to be progressive and beneficial, has created confusion regarding the remedy available to certain group of persons. The matter has engaged the attention of various High Courts in the country, but the decisions have not been uniform. While some of the High Courts have taken the view that a complainant in a private complaint, which after trial ends in the acquittal of the accused, can now, if he falls within the definition of victim under Section 2(wa) of Cr.P.C., resort to the remedy by way of appeal as provided under the proviso to Section 372 of Cr.P.C., some other High Courts have taken the view that in the light of the earlier provision, namely, Section, 378(4) Cr.P.C. which continues to exist in the statute book and is unamended, the remedy of the complainant is only to resort to the remedy under that provision. 3. Most of the cases dealt with in this judgment arise out of acquittal of accused in a private complaint filed for the offence under Section 138 of Negotiable Instruments Act. In all these cases, the complainants were issued with cheques by the accused persons allegedly due for repayment of debts due to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amendment and that the right introduced by way of amendment must remain confined to those persons who are intended to be conferred a statutory benefit The learned counsel supporting this view contended that by a process of interpretation, the scope of the amendment cannot be enlarged. According to them, if this Court is to hold that the complainant in a private complaint, who may be a victim also, is entitled to the benefit of the proviso to Section 372 Cr.P.C., then there will be an apparent conflict between the said proviso and Section 378(4) Cr.P.C., which necessarily needs to be avoided. The Legislature was fully aware of the existence of remedy by way of Section 378(4) Cr.P.C. in favour of the complainants and it must be presumed that by conferring a new right of appeal to the victims, the legislature did not intend that the same benefit should be extended to the complainants, who already had a remedy. In support of these contentions, the Law Commission Report and Justice Malimath Committee Report and also the Rules of Interpretation were referred to. It was then contended that if this Court is to hold that the complainants in private complaints are also entitled to the bene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the new amended provision and such a classification cannot be said to have any nexus to the object sought to be achieved. Moreover, it is pointed out that as far as the proviso to Section 372 Cr.P.C. is concerned, right of appeal is available on three grounds, while under Section 378(4) Cr.P.C. the right of appeal is confined to only as against acquittal and under no other grounds. Merely because a victim of offence may be driven to the necessity of filing a private complaint to have his grievances redressed, it cannot be said that he is disentitled from the benefits conferred on a victim. By adopting the contention that since Section 378(4) Cr.P.C. has not been amended, the right of complainants against an order of acquittal is confined to the remedy under Section 378(4) Cr.P.C., those complainants who are compelled to file private complaints either statutorily or otherwise, would be losing a valuable right which certainly is not intended. It is incorrect to say that by extending the benefit of the proviso to Section 372 Cr.P.C. to the complainant in private complaints also, Section 378(4) Cr.P.C. becomes redundant. There may be umpteen cases where the complaint may be filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of India 1990 K.H.C. 900. Learned Addl. D.G.P. contended that the purpose and object of the amendment was to provide relief to the victims of offence who hitherto had no role to play in the criminal proceedings and who were to remain as mere spectators even though they were the really affected parties. It is with that object that the amendment to Section 372 Cr.P.C. was made and the definition of 'victim' incorporated. It is not to cover a situation where the complainant in a private complaint who already had a remedy by way of appeal for redressal of his grievances. Accordingly, it is contended that the proviso to Section 372 Cr.P.C. enabling the victim to file an appeal cannot cover the complainant in a private complaint. 10. To understand the controversy involved in these cases, it becomes necessary to refer to the various provisions regarding appeal and the rights of the State, complainant, victim etc. 11. Earlier the victims of crimes had no role to play in the prosecution except to remain as mute spectators. If the prosecution ended in acquittal of the accused, and if the State did not prefer appeal against the acquittal, the de facto complainant or the victim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly invoke the revisional jurisdiction which is more in the nature of supervisory jurisdiction. 16. By the amending Act 25 of 2005, Section 378(1) Cr.P.C. was amended incorporating Section 378(1)(a) and (b). Those provisions provided right of appeal to Sessions Court and High Court from acquittal on direction by the District Magistrate or State Government as the case may be. However, the provision that the State had to obtain leave for filing appeal against acquittal to High Court continues to exist 17. By the amending Act 5 of 2009, as far as the cases on hand are concerned, two provisions were introduced They are (i) proviso to Section 372 Cr.P.C. and (ii) definition of 'victim' was provided as per Section 2(wa) Cr.P.C. Those provisions read as follows: 372. * * * * * 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. (wa) 'victim' means a person who has suffered any loss or injury cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was also held that a complainant in a case filed under Section 138 of N.I. Act is not a victim. So is the view taken by the High Court of Punjab and Haryana also following the decision of Bombay High Court. However, the High Court of Jharkhand is of the view that complainant in a prosecution under Section 138 of N.I. Act answers the definition of 'victim' as contained in Section 2(wa) of Cr.P.C. and therefore, such a person is entitled to take the remedy provided for under Section 372 proviso. The High Court of Madras has taken the view that the victim as well as the complainant in a private complaint who are interested persons can file appeal on acquittal before the District Court as provided under Section 372 proviso. The High Court of Allahabad while dealing with a private complaint in which offences under Sections 498A, 323, 504 and 506 of I.P.C. and Section 34 of Dowry Prohibition Act were alleged which ended in acquittal of the accused took the view that the complainant who is equivalent to the victim in such case is entitled to take the benefit of the proviso to Section 372 Cr.P.C. The High Court of Rajasthan has also taken the view that complainant who answers the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint (i) a complainant may also be the victim, (ii) complainant and victim may be different, and (iii) in a case cognizance of which is taken on police report also, complainant and victim may be different As far as the third category is concerned, prior to the amendment brought about by Act 5 of 2009, neither the complainant nor the victim had a right of appeal. In the case of acquittal on a private complaint, the complainant had a right of appeal under Section 378(4) Cr.P.C. after obtaining special leave to the High Court. 25. The Law Commission as well as Justice Malimath Committee had taken note of the fact that victims of offence had practically no role to play in the prosecution of the cases in which they were the really affected parties. They were silent spectators unable to participate in the proceedings nor could seek any remedy against any order that may be passed in the proceedings including the acquittal of the accused. If the case in which cognizance is taken on a police report ended in acquittal, only the State had right of appeal, and in case the State did not avail of that remedy, the victim was left helpless except to resort to the revisional remedy. 26. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has been invoked to agitate for the position that the term 'victim' does not include complainant The rule stipulates that when construing a statute, it is necessary to ascertain (i) what is the object of the enactment. (ii) what was the existing law before the legislation was passed, (iii) what was the mischief or defect for which the existing law had not provided, (iv) what remedies the legislation has provided for, and (v) reasons for such remedy. 30. In the decision reported in Shivanarayana Kabra v. State of Madras 1967 K.H.C. 613, it was held as follows: 7......It is a sound rule of interpretation, that a statute should be so construed as to prevent the mischief and to advance remedy according to the true intention of the makers of the statute. In construing, therefore, S. 2(c) of the Act and in determining its true scope it is permissible to have regard to all such factors as can legitimately be taken into account in ascertaining the intention of the legislature, such as the history of the statute, the reason which led to its being passed the mischief which it intended to suppress and the remedy provided by the statute for curing the mischief. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the area concerned, or any other interim relief as the appropriate authority deems fit. Section 357A of Cr.P.C. provides for victim compensation scheme and the provision does not draw a distinction between a victim in a case cognizance of which is taken on a police report and cognizance is taken on a private complaint. It deals with adequate compensation and other measures for the victims of the offence. It is to be noted that going by Section 357A(3) of Cr.P.C., the trial court, on conclusion of trial, for reasons stated therein, can make recommendation for compensation, then, the liability falls in the State Government. As per Section 357A(4) Cr.P.C., even if the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents can make an application to the State or the District Legal Services Authority for award of compensation. It is significant to note that while in the definition of 'victim' the words used are 'guardian' or 'legal heir', the word used in Section 357A(4) Cr.P.C. is 'dependents'. Sections 357B and 357C of Cr.P.C. may also be of some relevance in this context. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of Section 357A Cr.P.C. and other provisions of the Code. That certainly cannot be the purpose and intention of the legislature. There cannot be a situation that for certain purposes a complainant can be held as a victim and for certain other purposes, it cannot be so. 37. Further, Section 372 proviso, as already mentioned, provides appeal under three contingencies. But under Section 378(4) Cr.P.C., the right of appeal is confined to an order of acquittal alone. It does not provide for appeal against conviction for a lesser offence or for inadequacy of compensation. To differentiate between a victim in a case instituted on a police report from a case instituted on a private complaint, may not be justifiable and may not be legally valid also. 38. One aspect has to be noticed here. Even though right of appeal is conferred on a victim under Section 372 proviso, the procedure to be followed in filing an appeal, the procedure in dealing with such an appeal and the powers of the appellate court while dealing with such an appeal have not been enumerated. Any how, that aspect need not detain this Court now. 39. If as a matter of fact, the Legislature wanted to exclude com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal is provided for. In the said decision it was held as follows: 4. Mr. Sooraj T. Elenjickal, counsel appearing for the respondents has taken a preliminary objection against the maintainability of the appeal itself on the basis of proviso to S. 372 of Cr.P.C. which objection, according to me, is sustainable. The judgment sought to be challenged is connected with the case instituted upon a police report and therefore, the provisions contained under S. 372 are not applicable. Recently an amendment is brought to S. 372 of Cr.P.C., which came into force with effect from 31-12-2009 and thereby, a proviso is introduced to S. 372 of Cr.P.C. which reads as follows: 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. Thus, in the light of the above proviso to S. 372 of Cr.P.C., the remedy is available to the victim to file an appeal before the Court in which the appeal will ordinarily lie against the order of convicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the case may be, is entitled to file an appeal against inadequacy of sentence. In the said decision, it was held as follows: The impugned order in this case is not an order of acquittal. It is not an order convicting the accused for a lesser offence. It is also not an order, directing payment of any compensation. Learned counsel for petitioner argued that petitioner is aggrieved since lower court did not allow any compensation and hence, petitioner can file an appeal against compensation, under S. 372 of the Code. From a reading of the proviso to S. 372 of the Code, it is quite clear that what can be challenged thereunder is inadequacy of compensation and not, failure or omission to order compensation. Only if compensation is ordered, question of adequacy or inadequacy of compensation arises. But, in this case, no compensation is ordered. Hence, no appeal can be filed by the victim or legal heir of the victim under the proviso to S. 372 of the Code challenging failure or omission on the part of the court to pass an order of compensation. The request for treating this petition as an appeal under S. 372 of the Code cannot, therefore, be accepted. 46. In an unreported decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise he will have to be satisfied with whatever compensation awarded by the court. Probably, he may not be able to take aid of Section 357A of Cr.P.C., but, he is certainly a person who is affected by the act of the accused. This Court in the unreported decision was primarily guided by the fact that Section 372 proviso is intended to confer a new benefit only to a victim who hitherto has no right of appeal against acquittal. Apart from the fact that it may not be possible to say that the complainant in a proceedings under Section 138 of N.I. Act is not a victim, it is also not possible to understand how a distinction can be drawn between complainant in a proceedings under Section 138 of N.I. Act and a complainant in a private complaint in respect of an offence under the I.P.C. The procedure followed for the trial of both the cases is as contemplated under the provisions of the Cr.P.C. It may also be remembered that a private complaint alleging offences both under Section 138 of N.I. Act and Section 420 I.P.C. can be instituted. Further, it will not be appropriate to hold that status of a person as victim is determined by the result of prosecution. In order to qualify as a victim goi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsation and it is significant to notice that no distinction is drawn regarding victim and complainant in Section 357A Cr.P.C. 51. New rights have been created by the Amending Act 5 of 2009 introducing various provisions. It has conferred various benefits on the victims of offence. Substantive rights have been conferred on the victims which hitherto were unknown. 52. True, the complainant in a private complaint had remedy by way of appeal after obtaining special leave of the High Court. As already noticed, there may be compelling circumstances which has driven a person to file a private complaint. Just because his cause is agitated through private complaint, to deprive him of the statutory benefits would not be just, legal and reasonable. 53. A person who is a victim in a case instituted on a police report does not cease to be so when he files a private complaint. To put the victim on a police report on a higher pedestal who are entitled to more benefits and to deny the same benefit to the victim in a private complaint cannot have legal sanction. As already noticed, the existing remedy available to a private complainant is only against an order of acquittal. 54. It will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t no victim as defined under Section 2(wa) of Cr.P.C. For example, statutory offences in which complaint has to be filed by the statutory authorities. There may be cases where the complainant and victims are different in a private complaint. In all these cases, the remedy available in a case of acquittal is under Section 378(4) Cr.P.C. The difficulty arises only when the complainant is also the victim in a private complaint 57. Well, at best it could be said that such persons may have two remedies open to them. But merely because of the existence of two remedies, to deny the substantive statutory remedy provided under Section 372 proviso will be illegal. In such cases, the principle of hierarchy of courts applies and the appeal will have to be filed in the lowest forum competent to institute an appeal. 58. Reliance was placed on the decision reported in National Commission for Women v. State of Delhi (2010) 12 S.C.C. 599 to contend for the position that in a case of acquittal on a private complaint, the only remedy available is under Section 378(4) Cr.P.C. In fact, in the decision reported in National Commission for Women v. State of Delhi (2010) 12 S.C.C. 599, the issue cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a complaint under Section 138 of N.I. Act is also a victim and is entitled to the same benefit as the victim in any other case instituted on a private complaint. (c) In case of acquittal of accused on a private complaint, if the complainant is also the victim, he may have two remedies, namely, appeal under the proviso to Section 372 Cr.P.C. as a matter of right, and appeal to High Court after obtaining special leave. But going by the principle of hierarchy of courts, the aggrieved person will have to approach the lower forum which is competent to entertain the appeal. If he avails of one of the two remedies, he is precluded from resorting to the other remedy. (d) Right of appeal under the proviso to Section 372 Cr.P.C. is available in all cases where the judgments are rendered after 31-12-2009. (e) In case of acquittal in a private complaint by the Sessions Court, if the complainant is also the victim, he has a statutory right of appeal as per proviso to Section 372 Cr.P.C. and the stipulation in Section 378(4) Cr.P.C. to obtain special leave may not apply in such a case. Hence, it is held that in all cases where the judgment is rendered after 31-12-2009, appeal lies ..... X X X X Extracts X X X X X X X X Extracts X X X X
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