TMI Blog2013 (3) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Courts. A Division Bench of this Court in Smt. Ram Kaur @ Jaswinder Kaur vs. Jagbir Singh @ Jabi Ors., 2010 (3) RCR (Crl.) 391, also made an attempt to define the expression victim within the meaning of Section 2(wa) for the purpose of his right to appeal under proviso to Section 372 CrPC. A learned Single Judge while considering an application seeking leave of this Court to prefer appeal against the order of acquittal passed in relation to the accusations under Sections 279, 337, 338 and 304-A IPC found an apparent conflict between proviso to Section 372 and Section 378 Cr.P.C. and vide his order dated September 5, 2011 passed in CRM-547-MA-2011 opined that:- ... as proviso to Section 372 of the Code unequivocally provides the remedy of appeal to a victim before a Court to which an appeal shall ordinarily lie against the order of conviction of such a Court while Section 378 of the Code refers to filing of an appeal to the Court of Session from an order of acquittal passed by a Magistrate only in respect of cognizable and non-bailable offences. There would thus be ambiguity in so far as the remedy of appeal provided to a victim in the cases where the offences are bailable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'victim' as defined under Section 2(wa) read with proviso to Section 372 Cr. P.C.? (B) Whether 'complainant' in a private complaint-case, who is also the 'victim' and the 'victim' other than the 'complainant' in such cases are entitled to present appeal against the order of acquittal under proviso to Section 372 or have to seek 'special leave' to appeal from the High Court under Section 378(4) CrPC? (C) Whether the 'rights' of a victim under the amended Cr. P.C. are accessory and auxiliary to those perceived to be the exclusive domain of the 'State'? (D) Whether presentation of appeal against acquittal is a 'right' or an 'obligation' of the 'State' stemming from the Constitution? (E) Where would the appeal of a 'victim' preferred under proviso to Section 372 lie when the State also prefers appeal against that order of acquittal under Clause (a) of Section 378(1) CrPC? (F) Whether proviso to Section 372 CrPC inserted w.e.f. December 31, 2009 is prospective or retrospective in nature and whether a revision petition pending against an order of acquittal before the insertion o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the 'victim'. 7. European Union (EU) also took great strides in granting and protecting the rights of 'victims' through various Covenants including the following:- i. The position of a victim in the framework of Criminal Law and Procedure, Council of Europe Committee of Ministers to Member States, 1985; ii. Strengthening victim's right in the EU communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Reasons, European Union, 2011; iii. Proposal for a Directive of the European Parliament and of the Council establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime, European Union, 2011. 8. The United States of America (USA) had earlier made two enactments on the subject i.e. (i) The Victims of Crime Act, 1984 under which legal assistance is granted to the crime-victims; and (ii) The Victims' Rights and Restitution Act of 1990, followed by meaningful amendments, repeal and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more'; the right of voluntary organizations for impleadment in court proceedings in select cases; the victim's right to be represented by an advocate of his choice and if he is not in a position to afford, to provide an advocate at the State's expenses; victim's right to participate in criminal trial; the right to know the status of investigation and take necessary steps in this regard and to be heard at crucial stages of the criminal trial including at the time of grant or cancellation of bail. The Committee further recommended that the victim shall have a right to prefer an appeal against any adverse order...; he should be provided legal services and that 'victim compensation' is a State obligation in all serious crimes, whether the offender is apprehended or not, convicted or acquitted and for this object a separate legislation be enacted. 12. Soon after the Malimath Committee report came the verdict in Jahira Habibullah H. Sheikh Anr. vs. State of Gujarat Ors., (2004) 4 SCC 158, ripping apart the ailing criminal justice system in India and ordering re-trial of Best Bakery Case and desirability of further investigation in terms of Section 173(8) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-case was registered, to be heard by the High Court in the proceedings initiated by the accused for quashing those proceedings. It held thus:- 9. The scheme envisaged in the Code of Criminal procedure (for short the Code) indicates that a person who is aggrieved by the offence committed, is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police and the charge sheet was laid by them. Even the fact that the court had taken cognizance of the offence is not sufficient to debar him from reaching the court for ventilating his grievance. Even in the sessions court, where the Public Prosecutor is the only authority empowered to conduct the prosecution as per Section 225 of the Code, a private person who is aggrieved by the offence involved in the case is not altogether debarred from participating in the trial.... 17. In Puran Shekhar and Anr. vs. Rambilas Anr., (2001) 6 SCC 338, the locus standi of father of the deceased in a dowry death case, to move the High Court and seek cancellation of bail granted by the Sessions Court was upheld as he was not a stranger. 18. In Delhi Domestic Working Women's Forum vs. Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;right to appeal' given to a 'victim', we may briefly notice the evolution of that right under the Indian legal regime. 24. The Code of Criminal Procedure when originally enacted in the year 1861 did not provide for any right to appeal against acquittal to anyone including the State. It was in the Code of Criminal Procedure of 1898 that Section 417 was inserted enabling the Government to direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. The Law Commission of India in its 41st Report given in September, 1969 as also in 48th Report pertaining to the Criminal Procedure Bill, 1970, however, recommended to restrict the right of appeal given to the State Government against an order of acquittal by introducing the concept of 'leave to appeal' and that all appeals against acquittal should come to the High Court though it rejected the right to appeal to the victim of a crime or his relatives . 25. The Code of Criminal Procedure, 1973 came into being on January 25, 1974 repealing the Code of Criminal Procedure, 1898. The recommendations made by the Law C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e offence; (b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision. (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal- (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.] (3) No appeal to the High Court under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents who have suffered loss or injury as a result of the crime and who, require rehabilitation . 31. Sub-Section (3) of Section 357-A further provides that If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation . Similarly, its sub-Section (4) enables that Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation . 32. The profound and most cherished 'right to appeal' conferred upon and/or earned by the innumerable victims after a protracted struggle and which is free from all shackles, is by way of the proviso added to Section 372 whereunder a 'victim' can prefer an appeal against (i) an order acquitting the accused; (ii) convicting the accused of a lesser offence; and (iii) imposing inadequate compensation. The appeal of the 'victim' li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aning and import of the expression victim as defined under Section 2(wa) with reference to the right to appeal given to such 'victim' on the grounds enumerated under proviso to Section 372 of the Code. Since a Division Bench of this Court as also various other High Courts have elaborately discussed and opined on this and other allied issues, it would be beneficial at this stage to take a brief note of those decisions. 37. In Ram Kaur @ Jaswinder Kaur's case, FIR was registered on the statement of the appellant (Smt. Ram Kaur) initially under Section 307 read with Section 34 IPC but subsequent to the death of the injured, the offence was converted under Section 302 IPC. The accused were, however, acquitted by the trial court holding that the deceased died in a road accident. The State did not prefer appeal against the order of acquittal but the informant-cum-complainant asserted herself to be a 'victim' within the meaning of Section 2(wa) and filed appeal under proviso to Section 372 without seeking 'special leave' to appeal. Since the status of the appellant as a 'victim' and her consequential right to appeal were disputed, the Division Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused in a case under Section 302 IPC etc. and claimed himself to be a 'victim' within the meaning of Section 2(wa) of the Code. In the second case also, the appellant was the father of deceased Nasreen who was married to one of the accused. The primary question that arose for consideration in the first case was whether the appellant (Chattar Singh) could be regarded as a 'victim' for the purpose of proviso to Section 372 of the Code? The Court held that a victim of crime is a person who suffers any loss or injury as a result of the crime. Although the expression any loss or injury is an expansive expression, it appears that it has been used in the context of the person whose suffering is the direct and most proximate result of the crime . The Bench further held that a definition which employs the expression means and includes is an exhaustive definition and in the present case Section 2(wa) would refer to a crime victim in the natural and ordinary sense as the person who directly and most proximately suffered the loss or injury but it would also include-(a) his or her heirs in case he or she was dead; or (b) his or her guardian if he or she was a minor or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lodged a complaint that the deceased was tortured, mentally and physically, by the second respondent and his parents besides having been pressurised into fetching ₹ 50,000/- from him. Since the accused were acquitted in the case under Section 302 read with Section 34 IPC, the appellant claiming himself to be a 'victim' preferred an appeal before the High Court under proviso to Section 372 of the Code. The Gauhati High Court held that person who has suffered loss due to a crime is obviously a victim and that in Section 2(wa) of the Code, there are two parts, one part is related to the victim who has suffered loss and injury and by way of other parts, the Legislature expanded the word 'victim' even to the persons who are the guardian and legal heirs . 43. The Gauhati High Court while disagreeing with the Delhi High Court, concluded thus:- ...As the words 'loss' and 'injury' were not defined in the Code, we have to consider that loss and injury, as mental and physical injury and also emotional sufferings and the deceased being the lone daughter of the petitioner, absence of his daughter due to alleged murder by the accused respondents cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on who has suffered any loss or injury caused by the act or omission attributed to the accused; and (ii) the 'guardian' or 'legal heirs' of such 'victim'. The correct understanding of the first part of the term victim is contingent and is subject to the true scope of the words loss or injury contained therein. Both these words are not defined in the Code, however, its Section 2(y) says that words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860) have the meanings respectively assigned to them in that Code . 47. Section 23 IPC defines wrongful loss and it says that 'wrongful loss' is the loss by unlawful means of property to which the person losing it is legally entitled . It is further explained that a person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property . According to Section 44 IPC, the word injury denotes any harm whatever illegally caused to any person, in body, mind, reputation or property . It is, thus, in the context of offences against property, especially under Section 418 and ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the descendant or by operation of law . The Chambers Dictionary defines the word heir (in law) as a person who actually succeeds to property, title etc. on the death of its previous holder . The Oxford English Dictionary (Indian Edition) also defines the word heir to mean a person legally entitled to the property or rank of another on that person's death . It further defines heir-at-law to mean an heir by right of blood especially to the real property of an intestate . 51. According to Barron's Dictionary of Legal Terms (3rd Edition), the term heirs means strictly those whom statutory law would appoint to inherit an estate should the ancestor die without a Will (intestate); sometimes referred to as 'heirs-at-law', 'rightful heirs', 'legal heirs'. The term is often applied indiscriminately to those who inherit by Will or deed, as well as by operation of law . 52. In Angurbala Mullick vs. Debabrata Mullick, AIR 1951 SC 293, it was held that the word heirs cannot normally be limited to issues only. It must mean all those persons who are entitled to the property of another under the law of inheritance. In N. Krishnammal vs. R. Ekam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his property or grievous hurt or to the legal heirs of any person who was no more alive. The Income Tax Act, 1961 [Section 10(BC)] permits deduction of an amount received or receivable from the Central or State Government or a local authority by an individual or his legal heir by way of compensation on account of any disaster etc. Similarly, the Consumer Protection Act, 1986 defines a complainant to mean a consumer and in case of death of the consumer his legal heir or representative, who are competent to make a complaint [Section 2(1)(v)]. 56. It thus appears that every heir who, in law, is entitled to succeed to the estate of a deceased 'victim' in one or the other eventuality, shall fall within the ambit of Section 2(wa) of the Code, even if the estate of such deceased 'victim' is to devolve upon the legal heirs as per the order of preference prescribed under the personal law of such 'victim'. This conclusion of ours is also compatible with the other provisions of the Code. 57. It is pertinent to take stock of two other provisions of the Code, namely, Sections 357 357-A pertaining to Order to Pay Compensation and Victim Compensation Scheme , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence to the right to 'engage an advocate' under Section 24(8) or the 'right to appeal' under proviso to Section 372 of the Code. 61. The Legislature while specifying four categories of the next of kin of the deceased victim, has purposefully couched the language of Section 357(1)(c) in a manner which leaves no grey area for the Court firstly to determine the status of the claimant as a 'legal heir' and then the order of succession amongst different categories of heirs. Similarly, the Legislature did not deem it necessary to use the expression victim in Section 357, while in Section 357A, it has shrunk the otherwise widened circumference of the word victim by imposing the riders like 'dependent' or his/her requirement for 'rehabilitation'. 62. Since the expression legal heir has not been used in Section 2(wa) for the purpose of non-testamentary succession including entitlement to compensation under the Code, it must be safely inferred and construed that both the expressions guardian and legal heir are relatable to some other rights given to a 'victim' under the Code including the one under proviso to Section 24(8) to & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;guardian' to file an appeal against unwarranted acquittal and it will be against all canons of justice to say that the appellate Court in such like situations would be helpless and the offenders will go unpunished. Since the Legislature has finally granted the right to appeal to a 'victim', it is the duty of the Court to trenchantly affirm such right and provide appropriate remedy. 65. We say so also for the reason that the right to 'engage an advocate' or to 'prefer an appeal' under proviso to Section 372 does not ipso facto entitle the appellant to claim compensation as a 'legal heir' or the next of kin of a deceased 'victim'. That being so, every class or category of legal heirs of a deceased 'victim' can have locus to invoke the remedy under proviso to Section 372 of the Code, without reading into Section 2(wa) that if Class-I legal heir of a 'victim' opts out of filing any appeal, the other legal heirs would also suffer from the same disability. 66. The legislative intentment can be given its fullest effect by permitting all legal heirs, irrespective of their classification under the personal law to prefer ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;legal heirs' can be permitted by the Court under Section 24(8) to engage an Advocate of his/her choice to assist the prosecution and if he/she is aggrieved at the acquittal of an accused (except acquittal in a case instituted on a complaint), the conviction of the accused for a lesser offence or the imposition of inadequate compensation on such accused, such 'victim' (including his/her legal heirs) have got a right under proviso to Section 372 to prefer an appeal to the Court to which an appeal ordinarily lies against the order of conviction of such Court; (ii) the legal heirs comprising the wife, husband, parent and child of a deceased 'victim' only are entitled to the payment of compensation under Section 357(1)(c) of the Code; (iii) in the case of death of a 'victim', only those of his/her dependants who have suffered loss or injury as a result of the crime and who require rehabilitation, are eligible to seek compensation in terms of the scheme formulated under Section 357-A of the Code; (iv) While the persons falling within the categories at Sr. No. (ii) (iii) above shall necessarily include and form part of the persons falling in categor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, both the victims should be treated indiscriminately for the purpose of appeal under proviso to Section 372, more-so when sub-Section (4) of Section 378 restricts the right to present appeal only against an order of acquittal. It was also advanced that the Legislature has drawn no distinction between the 'victim' of a police case or that of a complaint case in Section 2(wa) or proviso to Section 372 of the Code. 72. The High Courts are at variance in opining on the aforesaid issue. Some have viewed that the 'victim' under Section 2(wa) is all inclusive and covers victim in a complaint-case also. Reference in this regard may be made to (i) a Single Bench decision of this Court in Mrs. Era Rani Shubh vs. SB Enterprises Ors., 2012 (2) RCR (Crl.) 522 ; (ii) order dated 01.05.2012 in Ram Avtar Gupta vs. Ravinder Kumar, Crl. Leave to Appeal No. 230 of 2011, passed by a learned Single Judge of the High Court of Judicature for Rajasthan at Jodhpur; and (iii) of Allahabad High Court dated 30.03.2012 passed in Ashok Kumar Srivastava vs. State of UP Anr., Application under Section 482 CrPC No. 5934 of 2012. Contrary to it, (i) Madhya Pradesh High Court in Dharamve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992 whereunder besides the designated Government official a social and voluntary organization is also authorized to institute complaint though the 'victim' is essentially other than the 'complainant'. What would be the status or locus of a 'complainant' or of the 'victim' in such like cases for the purpose of presenting an appeal under proviso to Section 372 or Section 378(4) of the Code is yet another question that has been raised by the petitioners. 75. We are not oblivious of yet another category comprising 'victimless' crimes, where the act which violates the law of the land does constitute an 'offence' but there is no visible 'victim' of the crime though such like crimes have depraving effects on the societal morals and values. Such an offence includes situations where an individual acts alone or there are consensual acts of more than one participants. This is, however, not an issue raised before us and need not be further alluded. 76. A part of the uncertainty, however, has been set at rest by the Hon'ble Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;complainant' of Section 378(4) who has failed to establish the complicity can assail such acquittal only with the 'special leave' of the High Court under Section 378(4) only. The fact that the Legislature has brought no changes in this sub-Section fortifies its policy to retain the same legal position as it existed before the Amendment Act, 2008. 79. However, if such a 'victim-cum-complainant' succeeds in bringing the guilt home against the accused and establishes his/her 'victimisation' but is aggrieved at the conviction for a lesser offence or imposition of inadequate compensation, he/she shall be entitled to invoke the proviso to Section 372 of the Code. We say so for the reason that in such a case the accused no longer enjoys the protection of presumed innocence. The proven 'victim' also has no other remedy to assail the conviction for a lesser offence or imposition of inadequate compensation except the proviso to Section 372. Any different construction would discriminately leave his/her wrong without a remedy. The victims at post-conviction stage constitute one homogenous class and deserve to be treated alike. In such like cases decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also fall back on Section 378(4) only which specifically refers to filing of appeals against acquittal at the instance of complainant and not under proviso to Section 372 of the Code which has been pre-dominantly incorporated to provide right to appeal to the 'victims' in police-case who are not permitted to participate or have any say during trial. 82. The above discussion thus can be summed up to say that- (i) the 'complainant' in a complaint-case who is a 'victim' also, shall continue to avail the remedy of appeal against acquittal under Section 378(4) only except where he/she succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser offence or imposition of an inadequate compensation, for which he/she shall be entitled to avail the remedy of appeal under proviso to Section 372; (ii) the 'victim', who is not the complainant in a private complaint-case, is not entitled to prefer appeal against acquittal under proviso to Section 372 and his/her right to appeal, if any, continues to be governed by the un-amended provisions read with Section 378 (4) of the Code; (iii) the Legislature has given no sepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 and 608 of 2012, another Division Bench of Gujarat High Court referred the matter to the larger Bench for the purpose of deciding (i) whether the appeal filed by the victim under the proviso to Section 372 of the Code, challenging acquittal, or conviction for lesser offence, or awarding inadequate compensation, is not maintainable on the ground that the State has filed an appeal against the same order and for the same purpose? (ii) whether an appeal filed by the State be not entertained on the ground that the appeal preferred by the victim invoking his right under proviso to Section 372 of Code, is admitted by the Court? and (iii) if the victim prefers an appeal before the High Court, challenging the acquittal, should he first seek leave of the Court, as is required in case of appeal being preferred by the State? Overruling both the earlier divergent views of the Division Benches, the Full Bench of Gujarat High Court held that the appeals in both the cases are maintainable. The Full Bench also disagreed with the view taken by this Court in Smt. Ram Kaur's case; the Patna High Court in Guru Prasad Yadav vs. State of Bihar, Crl. APP No. 582 of 2011; and the Bombay High Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'complainant' in the police-case, if files appeal against acquittal is not required to take 'leave' under Section 378 of the Code. To this extent we are, therefore, unable to agree, with reverence, to the view taken by the Full Bench of Gujarat High Court and hold that the 'victim' (including a complainant in a police case) is not required to apply for or obtain any leave under Section 378(4) of the Code nor such a 'victim' is required to seek leave in cases where appeal is against inadequacy of compensation and punishment for lesser offence. 89. It hardly calls for a debate that the varied rights given to the State, the victim or a complainant under Chapter XXIX of the Code are not inter se dependent and each right operates within its own sphere. For example, the State has got a right to appeal on the ground of inadequacy of sentence [Section 377] but a victim (including complainant who is also a victim in police case) has got no such right though he/she can prefer appeal if the accused is convicted for a lesser offence. State has no right to appeal against conviction of an accused for a lesser offence. The legislative scheme thus does not permit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inability to agree with the view taken by the Patna High Court in Guru Prasad Yadav's case (supra). 92. 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. (D) Whether presentation of appeal against acquittal is a 'right' or an 'obligation' of the 'State' stemming from the Constitution? 93. The evolution of right to appeal against acquittal discussed in extenso in the earlier part of this order unveils that the right to appeal against acquittal has seen roller-coaster like changes ranging from the 'no right to appeal' [1861] to 'the unconditional right to appeal' [1898] followed by a 'conditional right to appeal' [1973 Code] and again 'unconditional r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 'right' exercisable at the discretion of State Executive. The fact that the Legislature has chosen to grant unconditional right to appeal to a 'victim' as compared to the conditional right given to a State under Section 378(3) implies towards the failure of the State machinery in preserving the fair balance upto the expectations of the people. The State therefore no longer enjoys any privileged status as an 'appellant' and hitherto there shall be no legal distinction between an appeal preferred by the 'State' or a 'victim'. (E) Where would the appeal of a 'victim' preferred under proviso to Section 372 lie when the State also prefers appeal against that order of acquittal under Clauses (a) or (b) of Section 378(1) CrPC? 96. This is indeed a difficult proposition to be solved, for how to provide a uniform appellate forum to a 'victim' when he/she prefers an appeal under proviso to Section 372, and the State also prefers its appeal against the same order under Section 378(1)(b) of the Code? Under proviso to Section 372, the victim's appeal shall lie to the Court to which an appeal lies against the order of conviction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the victim shall have a right to prefer an appeal.......and such an appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court . The adverbial expression ordinarily is suffixed to the Court where convict's appeal shall lie. The marginal discretion or exception of Forum carved out by the Legislature pertains to the appeal preferable by an accused against his conviction and not of the 'victim' which 'shall' lie to the same Court where the appeal against the order of conviction of such Court is maintainable. To say it differently, if there is no change in the appellate forum for the presentation of appeal by a convict, the victim's appeal shall not lie to any other Court except that Court. 101. Caught in the web of apparent conflict, the Uttrakhand High Court in Bhagwan Singh's case (supra), drew force from the word 'ordinarily' mentioned in proviso to Section 372 and made an attempt to reconcile the provisions, holding that the appeal of the 'victim' in the cases at Sr. No. 3 of the table given in para 100 of this order, should also lie in the High Court and not in the Sessions Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 378(1)(a) in such a manner that the State's appeal(s) in respect of all the cognizable offences (whether bailable or non-bailable) are presented to the Court of Session, for such a recourse is the least harmful, non-prejudicial and substantively conforms to the legislative vision underlying the amendments carried out in the Code in the years 2005 and 2009. This can be feasible if the word and contained in Clause (a) of Section 378(1) of the Code is read as or so that the appeal preferred by the State against an order of acquittal passed by the Magistrate in respect of every cognizable offence, whether bailable or not, lies to the Court of Session only. We hasten to add that the action in respect of a non-cognizable offence can be initiated only by filing a private complaint before the Magistrate and against acquittal in such a case the appellate recourse lies under Section 378(4) of the Code. 106. The Supreme Court in a catena of decisions has ruled that the intention of the Legislature is generally gathered from the language used and the words chosen by it to express its intentment. Conventionally, the Court would not add or mend the language of the Statute or read word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Court will naturally prefer the one which is more in consonance with reason or justice. [Ref. Ramaswamy Nadar vs. State of Madras, AIR 1958 SC 56] 110. New India Sugar mills Ltd. vs. Commissioner of Sale Tax, Bihar AIR 1963 SC 1207 says that it is a recognized rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which the best harmonized with the object of the statute, and which effectuate the object of the legislature . Busching Schmitz Pvt. Ltd. vs. PT Menghani, AIR 1977 SC 1569, also ruled that the Court should adopt a project-oriented approach keeping in mind the principle that legislative futility is to be ruled out so long as the interpretative possibility permits. 111 The Heydon's rule known as the 'Mischief Rule' or the Rule of 'Purposive Construction' also serves as a master-key to remove the ordeal caused by the material words in a Statute which congenitally possess two or more constructions. This rule lays down four guiding principles namely, (i) what was the law before the making of the Act? (ii) what was the mischief or defect for which the law did not provide? (iii) what is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o cognizable offences. The recourse so suggested is the most viable substitute which neither jeopardizes the rights of the parties nor dilutes the legislative intention. It also does not traverse through unknown jurisprudential principles as the interpretative power of the Court to notice the omission of a draftsman vis- -vis the Legislature's intention and to abridge that distance is well recognized. There is adequate jurisprudence bearing directly on the issue that may be briefly noticed at this juncture. 115. In Ishwar Singh Bindra Ors. vs. State of UP Ors. AIR 1968 SC 1450, the word 'and' used in Section 3(b)(i) of the Drugs Act, 1940 between medicines and substances was the subject matter of consideration and after referring to Stroud's Judicial Dictionary (3rd Edition) and Maxwell on Interpretation of Statutes, it was held that the word 'and' sometimes is to be read as 'or' so as to carry out the real intention of the Legislature. 116. In Municipal Corporation of Delhi vs. Tek Chand Bhatia, (1980) 1 SCC 158 also, the Hon'ble Supreme Court considered whether the word or can be read as and and vice versa. Reference was again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section (5) as inadvertently provided therein. Inadvertently the figure (5) in Section 417(1) was continued, without noticing that now under Section 378 the relevant provision was sub-section (6). In our view it is clear that the figure (5) in Section 378(1) is inadvertently retained. Thus in Section 378(1) the figure (6) will have to be read in place of the figure (5). (Emphasis applied) 119. In the light of the above discussion, we hold that while in view of proviso to Section 372 an appeal preferred by a 'victim' against the order of acquittal passed by a Magistrate in respect of a cognizable offence whether bailable or non-bailable shall lie to the Court of Session, the State's appeal under Section 378(1)(a) of the Code against that order shall also be entertained and/or transferred to the same Sessions Court. (F) Whether proviso to Section 372 CrPC inserted w.e.f. December 31, 2009 is prospective or retrospective in nature and whether a revision petition pending against an order of acquittal before the insertion of the said proviso, can be converted into an appeal and transferred to the Court of competent jurisdiction? 120. The right to appeal was veste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in (i) Keshavan Madhava Menon vs. State of Bombay, AIR 1951 SC 128; (ii) Arjan Singh vs. State of Punjab, AIR 1970 SC 703; (iii) Ex. Capt. KC Arora Anr. vs. State of Haryana Ors, (1984) 3 SCC 281; and (iv) State of Madhya Pradesh vs. Rameshwar Rathod, (1990) 4 SCC 21. 124. These very principles apply in the case of an amendment in a Statute. If the amendment intends to create a substantive right or if it affects the vested right, it shall ordinarily be prospective in nature though an amendment in the procedural law like relating to form and limitation can be applied retrospectively. These principles have been extensively discussed and summed up by the Hon'ble Supreme Court in a recent decision in Ramesh Kumar Soni vs. State of Madhya Pradesh, 2013 STPL (Web) 161 SC. 125. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prefer appeal and held that since an accused is required to prefer appeal to the High Court within sixty days as prescribed under Section 374 of the Code read with Article 115(b)(i) of the Limitation Act, the period of limitation for the appeal of a 'victim' shall also be the same i.e. sixty days. 128. One of the well-recognized principles of criminal jurisprudence is that 'crime never dies'. The maxim 'nullum tempus qut locus occurrit regi' [lapse of time is no bar to Crown in proceedings against offenders] is an age-old rule embedded in criminal justice delivery system. The public policy behind this rule is that a criminal offence is considered as a wrong committed against the State and the Society though it is committed against an individual. The aforesaid rule of prudence has been duly acknowledged by the Parliament as it has prescribed no period of limitation for filing an appeal under proviso to Section 372 of the Code against an order of acquittal. 129. Article 114 of the Schedule to the Limitation Act, 1963, however, prescribes period of limitation for State's appeal against order of acquittal and it reads as under:- 130. Since Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r words, those appeals must be filed within 90 days from the date of order appealed from. A 'victim' therefore is also entitled to the said maximum period of limitation i.e. 90 days to prefer his/her appeal against an order of acquittal. 132. Under Section 378(5) of the Code, an application for the grant of special leave to appeal from an order of acquittal moved by the complainant who is a public servant, can be entertained by the High Court within a period of six months and within sixty days in every other case, from the date of the order of acquittal. However, the State or Central Governments are not entitled to take benefit of six months' period given to the complainant-public servant for the purpose of their appeal against an order of acquittal which is required to be preferred within ninety days as per Article 114 of the Limitation Act. The grey area in this regard, if any, also stands clarified by the Supreme Court in Dharampal's case (supra). 133. Likewise, the period of limitation for appeal against the orders other than of acquittal i.e. of 'any other sentence' or 'any order' is governed by Article 115 (b) of the Schedule to the Limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court and 30 days for appeals to the Sessions Court from the orders passed by the Magistrate, as the case may be. To be more specific, the period of limitation for the purpose of filing appeal(s) by a victim shall be as under:- (a) In case of acquittal- (b) Any other sentence or order- 137. The limitation period of ninety, sixty and thirty days, as the case may be, prescribed above for the maintainability of an appeal by a victim, in our considered view, ought to be counted from the date such 'victim' acquires knowledge of the order appealable under proviso to Section 372. We say so for the reason that in most of the State cases, the 'victim' has no participatory role at the trial stage and the possibility of his/her remaining in the dark about the adverse order cannot be lightly brushed aside. The above rule of limitation, therefore, cannot be mechanically enforced even if the victim had no informed knowledge regarding culmination of the trial proceedings as it might cause serious prejudice to his/her rights, close to the extent of snatching away the right to appeal earned by the victims after a long drawn battle. 138. For the reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code. Question-(E) (vii) In view of proviso to Section 372 an appeal preferred by a 'victim' against the order of acquittal passed by a Magistrate in respect of a cognizable offence whether bailable or non-bailable shall lie to the Court of Session, the State's appeal under Section 378(1)(a) of the Code against that very order shall also be entertained and/or transferred to the same Sessions Court. Question-(F) (viii) The proviso to Section 372 inserted w.e.f. December 31, 2009 is prospective in application and only those orders which have been passed on or after December 31, 2009, irrespective of the date of occurrence or registration of FIR or filing of complaint, shall be appealable at the instance of a 'victim' under the afore-stated proviso. Consequently, a revision petition preferred against an order of acquittal passed prior to December 31, 2009 cannot be converted into an appeal and shall be decided accordingly. Question-(G) (ix) Subject to the exception carved out in para-138 of this order, the period of limitation for an appeal by a 'victim' under proviso to Section 372 of the Code shall be as under:- (a) In case of acquittal- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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