TMI Blog2012 (10) TMI 1166X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, on the ground that the appeal preferred by the victim 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? The above two appeals are directed against an order of acquittal passed by the learned Additional Sessions Judge, Bhavnagar in Sessions Case No. 147 of 2010 by which the accused therein, who were charged for the offences punishable under Secs. 147, 148, 149, 323, 324, 325, 307 and 302 of the Indian Penal Code and Sec. 135 of the Bombay Police Act, were acquitted. 2. Criminal Appeal No. 238 of 2012 was preferred by the widow of the deceased invoking her right under the proviso to Sec. 372 of the Criminal Procedure Code (Code). The same order of acquittal was also challenged by the State of Gujarat by filing Criminal Appeal No. 608 of 2012 along with an application seeking leave to prefer appeal, being Misc. Criminal Application No. 6516 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviso to Sec. 372 of the Code, the victim is required to first seek leave of the Court, as is required in case of appeal being preferred by the State, and therefore, their Lordships also framed the third question as indicated above. 8. We have elaborately heard the learned Counsel for the parties in detail. 9. In order to appreciate the questions involved, Secs. 2(d)(wa), 24(8), 372, 373, 374, 375, 376, 377 and 378 of the Code are relevant, and those are quoted below: 2. Definitions:- XXX XXX XXX XXX (d) complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation: A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complaint; (wa). victim means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssistant Sessions Judge or Magistrate of the First Class, or of the Second Class, or (b) sentenced under Sec. 325, or (c) in respect of whom an order has been made or a sentence has been passed under Sec. 360 by any Magistrate, may appeal to the Court of Session. 375. No Appeal in certain cases when accused pleads guilty:- Notwithstanding anything contained in Sec. 374, where an accused person has pleaded guilty and has been convicted on such plea, there shall be no appeal,- (a) if the conviction is by a High Court; or (b) if the conviction is by a Court of Session, Metropolitan Magistrate or Magistrate of the First or Second Class, except as to the extent or legality of the sentence. 376. No appeal in petty cases.- Notwithstanding anything contained in Sec. 374, there shall be no appeal by a convicted person in any of the following cases, namely: (a) where a High Court passes only a sentence of imprisonment for a term not exceeding six months or of fine not exceeding one thousand rupees, or of both such imprisonment and fine; (b) where a Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence. 378. Appeal in case of acquittal:- (1) Save as otherwise provided in sub-sec. (2) and subject to the provisions of sub-sees. (3) and (5),- (a) 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 non-bailable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by it seeking leave to file an appeal. Mr. Mehta submits that since the victim is conferred with an independent statutory right of appeal, the finding of the Division Bench of this Court in case of Bhikhabhai, (2010 (4) GLR 3301) that the victim can exercise this right of appeal only when the State/Prosecution is not pursuing the case properly does not get support from the legislative intent embodied in the Code of Criminal Procedure, 1973 and/or from the scheme of the Code. 10.2. Mr. Mehta farther contends that the finding of the Division Bench as contained in Paragraph 12 of the judgment in the case of Bhikhabhai, (2010 (4) GLR 3301) to the effect, 'it is only at the time when the final hearing of appeal is to take place, the victim can make the submission to the appellate Court against the order of acquittal by assisting the Public Prosecutor as per the scheme of Sec. 24(8) of Cr.P.C. is not the correct law because Sec. 24(8) of the Code governs the right of the victim only at the time of trial and not at the stage of appeal. 10.3. Mr. Mehta submits that the rights/obligations/procedures during trial and during appellate stage are different and distinct both in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code, according to Mr. Mehta, will have to follow the procedure contemplated under Sec. 378 of the Code and such an appeal will have to be filed within the period of limitation stipulated in Sec. 378 of the Code as the said Section alone deals with the procedure provided in the Code with regard to the appeal against an order of acquittal. 10.7. Mr. Mehta, in this connection, points out that the Delhi High Court in the case of Kareemul Hajazi v. State of N.C.T. of Delhi, in Misc. Criminal Application No. 13541 of 2010 decided on January 7, 2011 has taken the view that a victim for filing an appeal against an order of acquittal need not seek leave of the Court, while the following High Courts in the cases mentioned below have taken the view that even when the victim files an appeal against an order of acquittal, he is required to seek leave as contemplated under Sec. 378 of the Code: (i) Smt. Ram Kaur @ Jaswinder Kaur v. Jagbir Singh @ Jabi, in Criminal Appeal No. 205 of 2010 by Punjab and Haryana High Court dated 1st April, 2010. (ii) Gouranga Debnath v. State of Tripura, in C. M. Appeal (Cri.) No. 89 of 2011 with Cri. A. No. 13 of 2011 by High Court of Gauhati date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Legislature, in the present case, has not conferred such a right upon the victim making it dependent upon either the State or anyone else, exercising right of appeal under the other provisions of the Code. Historically, the victim, in the past, nowhere figured in the entire scheme of the Code. Broadly speaking, the Code, as it stood prior to the amendment of the year 2009, recognized the following parties only: (i) The complainant (who may or may not be a victim) (ii) The accused (iii) The State/Prosecution. 15. The Law Commission of India, in its 150th Report, laid emphasis on Chapter XV on the subject of victimology and observed that right from the ancient Babylonian Code of Hammurabi (about 1775 BC), the victim of a crime was left with no remedy except to sue for damages in the civil Court. The Law Commission of India also noted that in Anglo-Saxon legal system, an English Magistrate advocated the theory of the compensation at the instance of the State to be given to the victims of crime, and accordingly, a programme was set up in Britain in the year 1964. The Law Commission has also referred to the declarations made by the General Assembly of the Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtion of the criminal justice system. The application of technology in investigation, inquiry and trial is expected to reduce delays, help in gathering credible evidences, minimise the risk of escape of the remand prisoners during transit and also facilitate utilisation of police personnel for other duties. There is an urgent need to provide relief to women, particularly victims of sexual offences, and provide fair-trial to persons of unsound mind who are not able to defend themselves. 93. The Code of Criminal Procedure (Amendment) Bill, 2006 seeks to achieve the above objectives. (Emphasis supplied by us) 15.2. In view of the fact that the Amendment is made in the Code in the year 2009 with a specific object and purpose of safeguarding the interests of the victims, in our opinion, the view taken in Bhikahbhai's case, (2010 (4) GLR 3301) whereby an independent and absolute substantive right of appeal statutorily conferred upon the victim is held to be subject to and subservient to the State preferring an appeal, not only runs contrary to the object for which the amendment is made by the legislature but such finding is also against the plain language of the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sser offence. There is, however, no provision in the entire Code empowering the State Prosecution to file an appeal against an order imposing inadequate compensation. 20. 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. 21. In the circumstances, the very basic premise upon which the law is laid down in Bhikhabhai, (2010 (4) GLR 3301), i.e. the rights of both State and victim are similar and therefore, the right of one (victim) can be dependent upon exercise of the right by the other (State), is in our opinion, not correct and against the plain and simple language used by the legislature in the proviso to Sec. 37 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed here under Sec. 34 of F.E.M.A., is an inherent right (See Sec. 9 of the Civil Procedure Code), but a right of appeal is always conferred by Statute. While conferring such right Statute may impose restrictions, like limitation or pre-deposit of penalty or it may limit the area of appeal to questions of law or sometime to substantial questions of law. Whenever such limitations are imposed, they are to be strictly followed. But in a case where there is no limitation on the nature of order or decision to be appealed against, as in this case, the right of appeal cannot be further curtailed by this Court on the basis of an interpretative exercise. (Emphasis supplied by us) 24.1. We are, therefore, of the opinion that the first two questions referred to this Bench should be answered by holding that the appeals mentioned therein are maintainable. 25. The next question is whether a victim for the purpose of filing an appeal by virtue of the right conferred under the proviso to the Sec. 372 of the Code is required to take leave of the Court? 26. In our opinion, if the victim in his appeal, restricts its grievance to inadequacy of the compensation or punishment for a lesser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 003 SC 942 where the said Court held that where there is no specific period of limitation prescribed under the law for enforcing a right conferred by the Statute, the same must be enforced within a reasonable period: Though, no limitation is provided for making a reference under Sec. 30 of the Act, needless to say where no period of limitation for exercise of any statutory power is prescribed the power can nevertheless be exercised only within a reasonable period; what is a reasonable period in a given case shall depend on the facts and circumstances of each case. 29. Earlier, the Supreme Court has taken the same view mentioned above also in the cases of Regional Provident Fund Commissioner v. M/s. K.T. Rolling Mills Pvt. Ltd., and the Government of India v. Citadel Fine Pharmaceuticals, Madras, reported in AIR 1995 SC 943 and AIR 1989 SC 1771, respectively. 30. We are, thus, not convinced by the submissions of Mr. Mehta, the learned Additional Advocate General, that although a victim who is not a complainant, and thus, will not come within the purview of Sec. 378, nevertheless, he would be required to take recourse to the provision of special leave as provided therein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquittal could have been preferred only with the permission of the High Court on an application filed for grant of leave to appeal against the order in appeal. According to the Division Bench of the said High Court, the proviso to Sec. 372 of the Code gives a right upon the victim to prefer an appeal against the order of acquittal being sufferer from the act or omission of the offender but such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. The Division Bench further held that by the proviso, a right to file an appeal has been conferred on the victim against the order of acquittal, but the procedure for filing such appeal will be the same as provided under Sec. 378 of the Code. 33.1.1. We have already pointed out that if the 'victim' also happens to be the complainant, in such a case, he is required to file an application for special leave, but with great respect to the Division Bench of the Punjab Haryana High Court, we cannot accept the other finding that even if he is not the complainant, as a victim, he is required to file an appeal with an application for special leave to appeal, for the reasons assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In such a case, the Division Bench held that by the proviso to Sec. 372 of the Code, a right has been conferred to the victim to prefer an appeal against the order of acquittal, but the procedure for filing such an appeal will be the same as provided under Sec. 378 of the Code, and thus, even if the victim has a right to prefer an appeal against the order of acquittal, he has to seek leave of the High Court. 33.3.1. With great respect to the Division Bench, we are unable to subscribe to the said opinion in view of the fact that in Sec. 378, the legislature did not make any consequential amendment necessitating the filing of application for leave at the instance of a 'victim' although the legislature decided to confer a new right upon the 'victim' who may be a complainant or may not be a complainant. 33.4. In the case of Balasaheb Rangnath Khade v. State of Maharashtra, in Criminal Appeal Nos. 991 and 992 of 2011, there was a difference of opinion between the two-Judges of a Division Bench of the Bombay High Curt and, therefore, the matter was referred to a third Judge on the question whether a victim can file an appeal against the order of acquittal passed b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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