TMI Blog2018 (10) TMI 1920X X X X Extracts X X X X X X X X Extracts X X X X ..... vious 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite frequently, in the investigation that may not necessarily be unbiased, particularly in respect of crimes against women and children. Access to justice in terms of affordability, effective legal aid and advice as well as adequate and equal representation are also problems that the victim has to contend with and which impact on society, the Rule of law and justice delivery. 4. What follows in a trial is often secondary victimisation through repeated appearances in Court in a hostile or a semi-hostile environment in the courtroom. Till sometime back, secondary victimisation was in the form of aggressive and intimidating cross-examination, but a more humane interpretation of the provisions of the Indian Evidence Act, 1872 has made the trial a little less uncomfortable for the victim of an offence, particularly the victim of a sexual crime. In this regard, the judiciary has been proactive in ensuring that the rights of victims are addressed, but a lot more needs to be done. Today, the rights of an Accused far outweigh the rights of the victim of an offence in many respects. There needs to be some balancing of the concerns and equalising their rights so that the criminal proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords, a considerable amount has been achieved in giving life to the rights of victims of crime, despite the absence of a cohesive policy. But, as mentioned above, a lot more still needs to be done. 8. Among the steps that need to be taken to provide meaningful rights to the victims of an offence, it is necessary to seriously consider giving a hearing to the victim while awarding the sentence to a convict. A victim impact statement or a victim impact assessment must be given due recognition so that an appropriate punishment is awarded to the convict. In addition, the need for psycho-social support and counselling to a victim may also become necessary, depending upon the nature of the offence. It is possible that in a given case the husband of a young married woman gets killed in a fight or a violent dispute. How is the young widow expected to look after herself in such circumstances, which could be even more traumatic if she had a young child? It is true that a victim impact statement or assessment might result in an appropriate sentence being awarded to the convict, but that would not necessarily result in 'justice' to the young widow-perhaps rehabilitation is more imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missed as not maintainable by a judgment and order dated 10th June, 2014. It was held by the High Court that the proviso to Section 372 of the Code of Criminal Procedure came into the statute book with effect from 31st December, 2009 but the incident had occurred well before that date. Therefore, the appeal was not maintainable. Reliance was placed by the High Court on National Commission for Women v. State of Delhi and Anr. (2010) 12 SCC 599. 14. Kodagali then preferred another appeal in the High Court being Criminal Appeal No. 100119 of 2014. This appeal was filed under the provisions of Section 378(4) of the Code of Criminal Procedure By a judgment and order dated 4th July, 2014 the High Court held that the appeal was not maintainable. The view taken by the High Court was on a plain reading of Section 378(4) of the Code of Criminal Procedure, namely, that the appeal was not filed in a case instituted upon a complaint before a Magistrate. 15. Under these circumstances, Kodagali is before us challenging the judgment and orders dated 10th June, 2014 and 4th July, 2014. It is his contention that he has been left with no remedy against the acquittal of the accused. His subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt itself for injuries suffered as well as appropriate interim reliefs in the course of proceedings. 19. Following up on this, and extending the rights of victims of crime, it was observed in paragraph 6.5 that The right of the victim should extend to prefer an appeal against any adverse order passed by the trial court. The appellate court should have the same powers to hear appeals against acquittal as it now has to entertain appeal against conviction. There is no credible and fair reason why appeals against acquittals should lie only to the High Court. 20. On this basis, the Justice Malimath Committee made the following recommendation enabling the victim of a crime to prefer an appeal. The recommendation (made in the Chapter having the same heading) reads as follows: The victim shall have a right to prefer an appeal against any adverse order passed by the court acquitting the accused, convicting for a lesser offence, imposing inadequate sentence, or granting inadequate compensation. Such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court. 21. The third Report worth considering is the July 2007 Repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.10 Section 378 needs change with a view to enable filing of appeals in complaint cases also in the Sessions Court, of course, subject to the grant of special leave by it. 2.11 Further, at present, against orders of acquittal passed by Magistrates (where the offence is cognizable and non-bailable) or by Sessions Courts, appeal in cases filed on police reports can be filed only at the instance of the District Magistrate or the State Government, as the case may be, vide Sub-section (1) of Section 378. In such matters, the aggrieved person or the informant cannot himself file an appeal. However, he can prefer a revision. If the revisional Court finds that the Accused has been wrongly acquitted, it cannot convict him in view of Sub-section (3) of Section 401, but it has to remand the case. It is a cumbersome process and involves wastage of money and time. This provision also needs a change and in such matters also, where the District Magistrate or the State does not direct the Public Prosecutor to prefer appeal against an order of acquittal, the aggrieved person or the informant should have the right to prefer appeal, though with the leave of the Appellate Court. This will a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny other law which authorises an appeal. The proviso to Section 372 of the Code of Criminal Procedure gives a limited right to the victim to file an appeal in the High Court against any order of a criminal Court acquitting the Accused or convicting him for a lesser offence or the imposition of inadequate compensation. This Court then observed as follows: The proviso may not thus be applicable as it came in the year 2009 (long after the present incident) and, in any case, would confer a right only on a victim and also does not envisage an appeal against an inadequate sentence. 27. It was further held that an appeal being the creation of a statute, it would not be maintainable under any inherent power. Article 136 of the Constitution does confer discretionary power on this Court to entertain a petition at the behest of the State or an affected private individual but to permit anybody or an organisation pro bono publico to file an appeal would be a dangerous doctrine and would cause utter confusion in the criminal justice system. On this basis it was held that the special leave petition filed by the National Commission for Women was not maintainable. 28. The thrust of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve statutory right of appeal and such a right could not be diluted by a judicial pronouncement since the right of a party to file an appeal is an independent, substantial and statutory right. 33. Analysing the proviso to Section 372 of the Code of Criminal Procedure and juxtaposing it with Section 377 of the Code of Criminal Procedure the Full Bench noted that the victim has no right to prefer an appeal against inadequacy of sentence , a right available only to the State and the State does not have any right to file any appeal against inadequacy of compensation , a right available only to a victim. Noting the availability of different rights, it was held: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plainant will not come within the purview of that Section and would not be required to take recourse to the provision of special leave as provided therein. It was held: Therefore, in the case before us, the legislature while conferring the right of appeal upon the victim, who is not a complainant, not having imposed any condition of taking leave or special leave, we cannot infer such condition and impose the same upon the victim, although, the legislature was quite conscious 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. The third question was then answered in the following words: If the victim also happens to be the complainant and the appeal is against acquittal, he is required to take leave as provided in Section 378 of the Code of Criminal Procedure but if he is not the complainant, he is not required to apply for or obtain any leave. For the appeal against inadequacy of compensation or punishment on a lesser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finality could be disturbed on the basis of a right subsequently conferred on the victim. It was held that the judgment of acquittal had not attained finality in that the victim had a right to file a revision petition and the State had the right to file an appeal. All that the proviso to Section 372 of the Code of Criminal Procedure had done was to replace the right of a revision with the right to appeal. 42. While it is true that there is a qualitative difference between a revision and an appeal, the Calcutta High Court drew attention to the 221st Report of 30th April, 2009 of the Law Commission. This Report noted the distinction and observed that the revision process was cumbersome and involved a wastage of time and money. It was, therefore, recommended by the Law Commission that the aggrieved person should have the right to prefer an appeal, though with the leave of the Appellate Court. This would also give the aggrieved person an opportunity to challenge the findings of fact recorded by the Trial Court. 43. On the basis of the above decisions and the reasons given, the Calcutta High Court concluded that there was nothing to suggest that the victim could exercise the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legislative will. The Punjab and Haryana High Court expressed it's opinion in the following words: The Court shall always presume that while amending or bringing a new enactment, the Legislature was fully aware of the provisions of the existing Statute. The Parliament had thus full knowledge of the fetters imposed by it on the presentation of appeals by the State or a complaint through Section 378(3) (4) of the Code, yet it gave the right to appeal to a 'victim' free from any obstacle under proviso to Section 372 of the Code. The legislative policy to grant unconditional right to appeal to a 'victim' is thus writ large. It would indeed not only amount to rewriting the proviso to Section 372 but would also defeat the legislative will if the restrictions expressly embedded in Section 378(3) (4) are impliedly planted into proviso to Section 372 of the Code also. Since leave to appeal Under Section 378(3) is confined only to such appeals which are presented by the State or Central Governments Under Sub-section (1)(b) or Sub-section (2) (b) of Section 378 of the Code, with due regard at our command, we are unable to agree with the view taken by the Divis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by a 'victim' including revision petition against acquittal of the Accused by an order passed before December 31, 2009, cannot be converted into an appeal under proviso to Section 372 and it shall have to be dealt with in accordance with the parameters settled for exercising revisional jurisdiction by a superior Court. 48. The Full Bench of the Delhi High Court also considered this issue in Ram Phal v. State and Ors. 2015 (151) DRJ 562. The question considered by the Delhi High Court was: Whether the appellate remedy [under the proviso to Section 372 of the Code of Criminal Procedure] is available with respect to only such offences which were committed as on the date when the appellate right was conferred by law or the appellate right would be available with respect to the date of the decision or the appellate remedy is without any reference to the two points of time i.e. the date when the offence was committed or when the appellate right was conferred by law, (Act No. 5 of 2009 with effect from 31.12.2009). 49. While answering the question, the Delhi High Court referred to Tata Steel decided by the Punjab Haryana High Court. The Delhi High Court referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under the proviso to Section 372 of the Code, irrespective of the date of occurrence, institution of the case, cognizance or commitment. 51. The Delhi High Court held that in light of the settled law as explained above, it was in respectful agreement with these decisions. 52. The Full Bench of the Rajasthan High Court in Baldev Sharma v. Gopal and Ors. 2017 (3) RLW 2604 (Raj.) considered (amongst others) the following two questions: (i) Whether the proviso to Section 372 as introduced by the amending Act No. 5 of 2009 which has been brought into effect on 31.12.2009 can be given effect to in cases where the offence occurred prior to 31.12.2009 and thereby given the right of appeal to the victim in the event; (a) whether the court below has acquitted the Accused or (b) has convicted the Accused for a lesser offence or (c) has imposed inadequate compensation. Though the judgment in such cases may have been passed by the court below after 31.12.2009. (ii) Whether the appeal by the victim under proviso to Section 372 is also required to be dealt with in the same manner as an appeal filed by the State Under Section 378 Code of Criminal Procedure and the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt sought assistance on the maintainability of the appeal. After hearing arguments, the Court noted the distinction in the language of Section 372 of the Code of Criminal Procedure and the language of Sections 377 and 378 of the Code of Criminal Procedure The High Court noted that Section 372 of the Code of Criminal Procedure was framed in affirmative terms. Moreover, the use of the word 'shall' in the proviso to Section 372 of the Code of Criminal Procedure, in contradistinction to the use of the word 'may' in Sections 377 and 378 of the Code of Criminal Procedure gives a clear indication that the right of a victim to file an appeal was placed on a higher pedestal than the rights of the State, or even the accused. This is what the High Court had to say in this regard: What is significant to notice is that this right to appeal, which is clearly in affirmative terms, has been given to the victim by inserting the said proviso in Section 372 itself, which is the opening Section of the Chapter, and not by any insertion in Sections 377 or 378, which deal with appeals against inadequate sentence and acquittal. In contradistinction to wordings of Sections 377 and 37 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005 and the judgment of acquittal by the Trial Court was rendered on 24th February, 2010. The question considered by the High Court was: Whether the victim gets a right of appeal under the proviso to Section 372 Code of Criminal Procedure in a case where the date of occurrence was before and the judgment was pronounced after the date of commencement of Act 5 of 2009? 59. The Division Bench relied upon an earlier decision of the High Court in Balakrishnan Master which referred to the letter and spirit of the law. The following passage from the decision of the Kerala High Court is instructive: The question is whether the right of appeal conferred on the victim by the proviso to Section 372 of the Code, has to be determined with regard to the date of order of acquittal or conviction of the Accused for a lesser offence or order providing inadequate compensation, or, with respect to the date of incident giving rise to the prosecution of the accused. What is conferred by the Amendment Act 5 of 2009 on the victim is a substantive right to prefer an appeal in certain circumstances as specified, and that alone. Act 5 of 2009 has come into effect from 31.12.2009. Such right i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... victim can avail a right of appeal. In some of the decisions it has been held that the right of appeal is not an absolute right conferred on the victim, but it is subject to an application seeking special leave to appeal. Dissenting decisions 64. In D. Sudhakar v. Panapu Sreenivasulu @ Evone Water Sreenivasulu and Ors. decided on 7th December, 2012 the Andhra Pradesh High Court dismissed an appeal filed by the victim of an offence against an order of acquittal dated 30th November, 2011 on the ground that it was not maintainable. The High Court relied upon the observation made by this Court in National Commission for Women for this conclusion. Reference was also made, incidentally, to a decision of the learned Single Judge of the Kerala High Court in John v. Shibu Cherian decided on 5th August, 2011 which also held to the same effect. 65. A similar view was expressed by the Division Bench of the Chhattisgarh High Court in Bhisam Prasad Bareth v. Dinesh Mahant and Ors. decided on 15th March, 2012 relying upon the decision of this Court in National Commission for Women. It may be mentioned here that the appeal filed in the Chhattisgarh High Court was against an order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t situations. In National Commission for Women the offence and the judgment of the Trial Court were before 31st December, 2009. In Satya Pal Singh, the offence and the judgment of the Trial Court were after 31st December, 2009. None of these situations arise in the present appeals in which the offence was said to have been committed before 31st December, 2009 while the judgment of the Trial Court was delivered after 31st December, 2009. We are concerned in these appeals only with the maintainability of an appeal by the victim under the proviso to Section 372 of the Code of Criminal Procedure where the alleged offence was committed before 31st December, 2009 and the judgment and order has been delivered by the Trial Court post 31st December, 2009. Therefore, none of the two decisions of this Court are of any real assistance to us. Our conclusions 71. It was submitted by learned Counsel for the Accused that the right to file an appeal is a substantive right and it should not be easily recognized unless specifically conferred by statute. We agree. There is no doubt that from the time of the Constitution Bench decision of this Court in Garikapati Veeraya v. N. Subbiah Choudhr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an offence only when an order of acquittal is passed and if that happens after 31st December, 2009 the victim has a right to challenge the acquittal, through an appeal. Indeed, the right not only extends to challenging the order of acquittal but also challenging the conviction of the Accused for a lesser offence or imposing inadequate compensation. The language of the proviso is quite explicit, and we should not read nuances that do not exist in the proviso. 75. In our opinion, 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. In the Declaration it was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77. Under the circumstances, 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. 78. As far as the question of the grant of special leave is concerned, once again, we need not be overwhelmed by submissions made at the Bar. 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 wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal ordinarily lies against the order of conviction of such Court.] xxx xxx xxx 378. Appeal in case of acquittal.-(1) Save as otherwise provided in Sub-section (2), and subject to the provisions of Sub-sections (3) and (5),- 1. 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; 2. 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), a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to seek leave of the High Court. In my considered view, this matter is, in fact, no longer res integra. This Court has specifically dealt with this issue in Satya Pal Singh v. State of M.P. and Ors. (2015) 15 SCC 613, wherein it held as follows: 10. The Full Bench of the High Court of Delhi in Ram Phal v. State, after examining the relevant provisions Under Section 2(wa) and the proviso to Section 372 Code of Criminal Procedure, in the light of their legislative history has held that the right to prefer an appeal conferred upon the victim or relatives of the victim by virtue of the proviso to Section 372 is an independent statutory right. Therefore, it has held that there is no need for the victim in terms of definition Under Section 2(wa) Code of Criminal Procedure to seek the leave of the High Court as required Under Sub-section (3) of Section 378 Code of Criminal Procedure to prefer an appeal under the proviso to Section 372 Code of Criminal Procedure. The said view of the High Court is not legally correct for the reason that the substantive provision of Section 372 Code of Criminal Procedure clearly provides that no appeal shall lie from any judgment and order of a crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the investigating officer files a final report Under Section 173 Code of Criminal Procedure. The investigating officer may come to the conclusion that either no offence is made out or may file report showing what offences are made out in which case the court proceeds further. Even in those cases where the investigating agency files a report that no criminal offence is made out, the victim has a right to object to the report and he can argue before the court that a case is made out on the basis of the evidence collected or he can even urge that the police must be directed to carry out further and more investigation. 86. Chapter XXIX of the Code of Criminal Procedure deals with appeals. Appeals against acquittal are governed by Section 378 of Code of Criminal Procedure. As per Sub-section (1) of this Section only a District Magistrate or the State as the case may be is entitled to direct the Public Prosecutor to file an appeal. Sub-section (2) deals with cases investigated under the Delhi Special Police Establishment Act, 1946 and in these cases the Central Government may also direct the Public Prosecutor to file an appeal. I am concerned mainly with Sub-section (3) of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the acquittal of the Accused for a higher offence; (iii) an appeal lies where the victim is not satisfied by the quantum of compensation awarded. 88. Dealing with the issue, as to whether a victim should seek leave to appeal, one must first understand the concept behind introducing the concept of leave to appeal, especially when the appeals are filed in the High Courts. The presumption of innocence which is attached to every Accused gets fortified and strengthened when the said Accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. Therefore, the High Court would at the initial stage of deciding whether the leave is to be granted or not go into the merits of the case. Only if arguable points are involved, the High Court normally grants leave to appeal. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial leave to appeal. The expression Special leave to appeal has no different meaning than the expression leave to appeal and it appears to me that the word special has been added only to distinguish leave to appeal sought by the complainant from the leave to appeal sought by the State. Thus, in a complaint case where the complainant has setma the wheels of the Court in motion even if the complainant files the appeal he must obtain special leave to appeal. This again gives rise to an interesting question-Can the victim be placed on a higher pedestal than the complainant? More often than not, the victim and the complainant are likely to be one and the same person. 93. In case, I accept the proposition that the victim need not seek leave to appeal in case the appeal is to be filed in the High Court there shall be another anomalous situation. Supposing there are two victims in a case and one of the victims files a complaint and sets the wheels of justice moving and the case is tried as a complaint case. In case the Accused is acquitted and the victim who is the complainant wants to file an appeal in the High Court, he will have to seek special leave to appeal whereas t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r weakened only because he has to seek leave to appeal. If Sections 378(3), 378(4) and 372 of Code of Criminal Procedure are read together, it is clear that the victim is also required to apply for leave to appeal before his appeal can be entertained. 98. Though the victim has rights, one cannot forget that a victim who may have suffered, may also seek revenge. Therefore, an obligation has been cast upon the State to prosecute the accused. In fact, even now a trial under the Code of Criminal Procedure has to be conducted by the Public Prosecutor or Assistant Public Prosecutor. No private lawyer can be engaged to conduct the trial Under Section 301(2) of Code of Criminal Procedure. A private person including the victim, can only instruct a pleader to act on his behalf in court but the prosecution has to be conducted either by the Public Prosecutor or Assistant Public Prosecutor and the pleader engaged by the private person can only act as per the directions of the Public Prosecutor or Assistant Public Prosecutor. The reason behind this is that the victim may fabricate evidence or hide true facts whereas the Public Prosecutor or Assistant Public Prosecutor is expected to be fair ..... X X X X Extracts X X X X X X X X Extracts X X X X
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