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Bhavuben Dineshbhai Makwana Versus State of Gujarat & Ors.

2012 (10) TMI 1166 - GUJARAT HIGH COURT

Criminal Appeal No. 238 of 2012 with Cri. Appeal No. 608 of 2012 with Misc. Cri. Appli. No. 6516 of 2012 in Cri. Appeal No. 608 of 2012 - Dated:- 23-10-2012 - Bhaskar Bhattacharya, C.J., A.L. Dave and V.M. Sahai, JJ. For Appellant/Petitioner/Plaintiff: Sunil C. Patel For Respondents/Defendant: Tushar Mehta, Addl. Advocate General JUDGMENT Bhaskar Bhattacharya, C.J. 1. These two Criminal Appeals along with a Misc. Criminal Application filed in one of these two appeals have been referred to a Larg .....

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peal filed by the State should not be entertained, 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 a .....

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ure 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 2012. 3. When those two appeals and the application praying for leave to appeal by the State were listed for hearing before a Division Bench (Coram : Ravi R. Tripathi & Paresh Upadhyay, JJ.), the attention of the Division Bench was drawn to two earlier decisions .....

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Chavda, Misc. Cri. A. No. 5222 of 2009 and Cri. A. 783 of 2010 : 2010 (4) GLR 3301), the Division Bench was of the view that once an appeal is filed by the State against an order of acquittal, the subsequent appeal filed by the victim against the self same order of acquittal is not maintainable. 5. In the other case, viz. State of Gujarat v. Chaudhary (Patel) Pababhai Devabhai, Misc. Cri. A. No. 4350 of 2011, the other Division Bench took the view that the victim having already filed an appeal f .....

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ked into for the purpose of deciding whether the appeal filed by the victim under the proviso to Sec. 372 of Cr.P.C. would not be maintainable in spite of specific right conferred upon the victim by the statute, only on the ground that the State had already filed an appeal against the self same order, and also for considering whether the appeal filed by the State should not be entertained only on the ground that the victim had already filed an appeal against the self same order. 7. The Division .....

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(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-cogn .....

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rposes of any case or class of cases, a person who has been in practice as an Advocate for not less than ten years as a Special Public Prosecutor: Provided that the Court may permit the victim to engage an Advocate of his choice to assist the prosecution under this sub-section. 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 .....

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ng the peace or for good behaviour, or (ii) who is aggrieved by any order refusing to accept or rejecting a surety under Sec. 121, may appeal against such order to the Court of Session: Provided that nothing in this Section shall apply to persons the proceedings against whom are laid before a Sessions Judge in accordance with the provisions of sub-sec. (2) or sub-sec. (4) of Sec. 122. 374. Appeals from convictions:- (1) Any person convicted on a trial held by a High Court in its extraordinary or .....

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nt 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 b .....

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of both such imprisonment and fine; (b) where a Court of Session or a Metropolitan Magistrate passes only a sentence of imprisonment for a term not exceeding three months or of fine not exceeding two hundred rupees, or of both such imprisonment and fine: (c) where a Magistrate of the First Class passes only a sentence of fine not exceeding one hundred rupees; or (d) where, in a case tried summarily, a Magistrate empowered to act under Sec. 260 passes only a sentence of fine not exceeding two hu .....

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hereinbefore specified in respect of the case. 377. Appeal by the State Government against sentence:- (1) Save as otherwise provided in sub-sec. (2), the State Government may in any case of conviction on a trial held by any Court other than a High Court, direct the Public prosecutor to present an appeal against the sentence on the ground of its inadequacy- (a) to the Court of Session, if the sentence is passed by the Magistrate; and (b) to the High Court, if the sentence is passed by any other C .....

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ence is passed by the Magistrate; and (b) to the High Court, if the sentence is passed by any other Court. (3) When an appeal has been filed against the sentence on the ground of its inadequacy, the Court of Session or, as the case may be, the High Court shall not 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. Appe .....

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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 Co .....

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l to the High Court under sub-sec. (1) or sub-sec. (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub-sec. (4) for the grant of special leave to appeal from an order of .....

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dditional Advocate General appearing on behalf of the State, has made the following submissions on the above three questions referred to this Larger Bench: 10.1. According to Mr. Mehta, the proviso to Sec. 372 of the Code carves out an exception to the general rule embodied in the first part of Sec. 372 of the Code. It recognizes, Mr. Mehta proceeds, for the first time, an independent right of an appeal available to a victim as defined under Sec. 2(wa) of the Code and thus, the right conferred u .....

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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 .....

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ated as continuance of the proceedings only for the purpose of deciding the question as to which law would govern the subject-matter of appeal. To illustrate, Mr. Mehta points out that while deciding an appeal, the appellate Court would interpret the law applicable at the time of institution of original proceedings (though such law may have been repealed at the time of hearing of the appeal) treating the appeal to be the continuance of the original proceedings. Mr. Mehta asserts that for the pur .....

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ht to prefer appeal then also the judicial discretion would demand that when the State has already preferred appeal against the order of acquittal and the leave has been granted by this Court and the appeal has been admitted against the order of acquittal, preferred by the State, it would not be a case to entertain the another appeal of the victim by this Court...." is not a correct law since it does not get support from any provisions of the Code. 10.5. On the very same line of arguments, .....

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rred to this Larger Bench, Mr. Mehta submits that the right of the victim to file an appeal is merely recognized in the proviso to Sec. 372 of the Code, but it is subject to the procedure contemplated under Sec. 378 of the Code. The victim when chooses to exercise his statutory right under the proviso to Sec. 372 of the 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 s .....

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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 .....

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nting judgments dated 21st September, 2011. Justice V.M. Kanade took the view that the victim is not required to seek leave of the High Court while Justice A.M. Thipsay took the view that the victim is required to seek leave of the High Court and concurred with the judgments of Punjab and Haryana High Court, Patna High Court and Gauhati High Court. Mr. Mehta has placed before us, true copies of the above judgments of different High Courts. 10.9. The learned third Judge held that no leave was nec .....

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right of appeal upon a victim. The term "victim" is also simultaneously defined while amending the Code in Sec. 2(wa) as quoted hereinabove. The legislature has used the word "shall" in the proviso while conferring such right to the victim and at the same time, maintained the provisions contained in sub-sec. (4) of Sec. 378 intact thereby making its intention clear that this is an additional right conferred upon a victim who may be the complainant or may not be a complainant .....

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ependent 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 .....

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on has also referred to the declarations made by the General Assembly of the United States Nations in its 96th plenary meeting on 29th November, 1985, laying down the basic principles of justice for victims of crime and abuse of power, recognizing that millions of people throughout the world suffer harm as a result of crime and the abuse of power and that the rights of these families having been adequately recognised. In the report of the Law Commission, apart from referring to earlier Law Commi .....

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t of the victims and other factors, the Legislature decided to amend the Code. The statements and objects and reasons for amending the Code are reproduced hereunder: Statement of Objects and Reasons:- The need to amend the Code of Criminal Procedure, 1973 to ensure fair and speedy justice and to tone up the criminal justice system has been felt for quite some time. The Law Commission has undertaken a comprehensive review of the Code of Criminal Procedure in its 154th report and its recommendatio .....

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enance of peace as well as law and order. 2. The need has also been felt to include measures for preventing the growing tendency of witnesses being induced or threatened to turn hostile by the accused parties who are influential, rich and powerful. At present, the victims are the worst sufferers in a crime and they don't have much role in the Court proceedings. They need to be given certain rights and compensation, so that there is no distortion of the criminal justice system. The applicatio .....

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ks 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 contra .....

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im would be dependent upon the right of the State to prefer appeal and if the appeal of the State is not entertained, only then, the victim may claim right of preferring the appeal and such right may not be available if the appeal of the State is already admitted by granting leave. 17. 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 .....

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eal against "inadequacy of compensation", a right, which is available only to a victim. 18. The term 'inadequacy of sentence' has a special connotation and a distinct statutory demarcation if the provisions of Sec. 375(d) and Sec. 377 of the Code are compared. Scheme of Sec. 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 Sec. 372 of the Code. Under the scheme of Sec. 3 .....

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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. 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 .....

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e (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. 372. Similarly, Sec. 24(8) of the Code has nothing to do with the right of appeal conferred upon the victim and by taking aid of that Sectiob, the substantive right conferred upon a victim cannot be made conditional. 22. In our opinion, the correct law, as emerging from the scheme of the Code, would be .....

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ne victim and the loss suffered by the victims may vary from one victim to the other victims. Therefore, each of such victims will have separate right of appeal and in such appeals, the grievance of each of the appellant may be different. For instance, in an act of arson when a joint property of different persons has been set on fire, the loss suffered by each of the co-sharers may be different. In such a case, each co-sharer has a separate right of appeal and such right of one does not depend e .....

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of appeal on conditions specified, a Court cannot restrict such unfettered right by imposing conditions through judicial interpretation. 24. The right of appeal being statutory one, the language employed by the legislature should be strictly followed. In this connection, we may preferably refer to the following observations of the Supreme Court in a recent case of Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement, reported in AIR 2010 SC 2239 while making comment on the right .....

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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 fi .....

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and thus, no question of taking special leave arises. 27. If, however, in his appeal by virtue of the power conferred under the proviso to Sec. 372, the victim either challenges the order of acquittal or the inadequacy of compensation or both or even the conviction on a lesser offence than the one charged, in our view, the procedure should be as follows: (1) If the victim also happens to be the complainant, he should follow the provision of sub-sec. (4) of Sec. 378 he being clearly covered by s .....

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ase may be, only if the appellant comes within the purview of the relevant sub-sections mentioned therein. A victim, who is not a complainant, will not consequently fall within any of the sub-sections of Sec. 378. It appears that the legislature was quite conscious of the necessity of the taking leave and special leave as provided in Sec. 378; nevertheless, it decided not to make any amendment of Sec. 378 while conferring right of appeal against acquittal to the victims who are not complainant r .....

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is connection, we may appropriately refer to the following observations of the Supreme Court in the case of Sharada Devi v. State of Bihar, reported in AIR 2003 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 limitati .....

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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. 31. We have already pointed out that the right of appeal being statutory one, the language employed by the legislature in the relevant Statute should be s .....

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ous of existence of such provision in case of an appeal by a complainant and has retained that provision without consequential amendment thereby making its intention clear that the provision of special leave is not applicable to an appeal preferred by a victim against acquittal if he is not the complainant. 33. We now propose to deal with the decisions cited by Mr. Mehta. 33.1. In the case of Smt. Ram Kaur @ Jaswinder Kaur v. Jagbir Singh @ Jabi, in Criminal Appeal No. 205 of 2010 decided by a D .....

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2 of the Code in the police case. According to the Division Bench, even otherwise, if the appellant was supposed to be covered by the definition of "victim" under sub-sec. (wa) of Sec. 2 of the Code, having a right to prefer an appeal against the order of acquittal, according to the Division Bench, she was required to file an application for grant of leave to appeal. The Division Bench further pointed out that even against an order of acquittal passed in a case instituted upon a compla .....

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ves 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 .....

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th v. State of Tripura, in C.M. Appli. (Cri.) No. 89 of 2011 in Cri. A. No. 13 of 2011, a Division Bench of the High Court of Gauhati, Agartala Bench, was considering an application under Sec. 5 of the Limitation Act for condoning the delay of 114 days in filing the connected appeal against the judgment and order of the Sessions Judge by which the Sessions Judge acquitted the respondents Nos. 2 and 3 from the charges levelled against them under Sec. 302 read with Sec. 34 of the Indian Penal Code .....

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to file an appeal against the order of acquittal was of course given, but such right could not be conferred in case of an offence which was committed prior to the date of incorporation of the said proviso. In that context, the Division Bench held that right to appeal of the petitioner had accrued only after the decision in the sessions trial where the respondent Nos. 2 and 3 were acquitted on 30th September, 2010 and the petitioner was, thus, entitled to prefer an appeal. The Division Bench furt .....

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u Prasad Yadav v. State of Bihar, in Cri. App. No. 582 of 2011 (DB) decided on 2nd August, 2011, a Division Bench of the Patna High Court was considering an appeal by the appellant claiming himself to be a 'victim' against an order of acquittal. Such an appeal was filed without moving any application for grant of leave to appeal. 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 or .....

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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 .....

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it demonstrates the fact that the right of appeal given to the State was not sufficient, adequate and enough for the victim's rights and notwithstanding the fact that the State had a right to appeal from an order of acquittal, the victim was also granted the right to appeal from the order of acquittal, lesser offence or inadequate compensation. The third Judge further held that a proviso shows an exception to the Sec. that may qualify the main enactment and proviso to Sec. 372 of the Code sh .....

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