2018 (10) TMI 1920 - SC - Indian Laws

Rights of victims of crime - right to file an appeal - substantive right or not - grant of special leave - can a victim file appeal under the proviso to Section 372 of the Code of Criminal Procedure regardless of the date of decision of the Trial Court? - HELD THAT - The proviso to Section 372 of the Code of Criminal Procedure 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. 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 Code of Criminal Procedure must be given life to benefit the victim of an offence - 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 Code of Criminal Procedure 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. The language of the proviso to Section 372 of the Code of Criminal Procedure is quite clear particularly when it is contrasted with the language of Section 378(4) of the Code of Criminal Procedure 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 Code of Criminal Procedure 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 Code of Criminal Procedure is concerned. 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 - appeals are allowed by of remand.

Issues Involved:
1. Rights of victims of crime and their recognition as human rights.
2. Difficulties faced by victims in the criminal justice process.
3. Secondary victimization during trials.
4. Balancing the rights of victims and accused.
5. Victim compensation and support.
6. Victim's right to appeal under Section 372 of the Code of Criminal Procedure.
7. Retrospective applicability of the right to appeal.
8. Requirement of leave to appeal for victims.

Detailed Analysis:

1. Rights of Victims of Crime and Their Recognition as Human Rights:
The judgment emphasizes the evolving jurisprudence recognizing victims' rights as human rights and a crucial component of social justice and the Rule of Law. The court acknowledges the progress made but highlights the need for further advancements to bring victims' rights to the forefront.

2. Difficulties Faced by Victims in the Criminal Justice Process:
Victims encounter significant challenges, starting from the trauma of the crime to the registration of FIRs, biased investigations, and access to justice. The court notes that these issues impact society, the Rule of Law, and justice delivery, necessitating improvements in the system to support victims effectively.

3. Secondary Victimization During Trials:
The judgment addresses the issue of secondary victimization, where victims face hostile environments and aggressive cross-examinations in court. The judiciary has taken steps to mitigate this, particularly for victims of sexual crimes, but further measures are needed to balance the rights of victims and the accused.

4. Balancing the Rights of Victims and Accused:
The court emphasizes the need to balance the concerns of victims and accused to ensure fair criminal proceedings. While the rights of the accused often outweigh those of the victims, the judiciary and legislature have taken steps to address this imbalance.

5. Victim Compensation and Support:
Monetary compensation schemes under Section 357A of the Cr.P.C. are in place, but they are insufficient. The judiciary has gone beyond awarding compensation, recommending infrastructural improvements like child-friendly courts and support for vulnerable witnesses.

6. Victim's Right to Appeal Under Section 372 of the Cr.P.C.:
The court examines the right of victims to appeal under the proviso to Section 372 of the Cr.P.C., introduced on 31st December 2009. The court affirms that victims have the right to appeal against an order of acquittal, even if the alleged offence occurred before the amendment, provided the judgment was delivered after the amendment.

7. Retrospective Applicability of the Right to Appeal:
The court clarifies that the right to appeal is a substantive right, and the relevant date for its applicability is the date of the judgment, not the date of the offence. This ensures that victims can appeal against judgments delivered after the amendment, even if the offence occurred earlier.

8. Requirement of Leave to Appeal for Victims:
The court addresses whether victims need to seek leave to appeal under Section 378(3) of the Cr.P.C. The majority opinion holds that victims do not need to seek leave, emphasizing the need for a realistic, liberal, and beneficial interpretation of the proviso to Section 372. However, a separate opinion by another judge argues that victims should seek leave to appeal to balance the rights of the accused and prevent frivolous appeals.

Final Order:
The appeals are allowed, and the judgments of the High Court are set aside. The matters are remitted back to the High Court to hear and decide the appeal filed by the victim against the order of acquittal. The court emphasizes the need to treat victims with sensitivity and respect, ensuring their access to justice and balancing their rights with those of the accused.

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