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TMI Blog2016 (11) TMI 1736X X X X Extracts X X X X X X X X Extracts X X X X ..... he various kinds of society in which men unite, being indeed the necessary basis and condition of peace, order, and civilisation. What then is the essential difference between this and other forms of association? .....The difference is clearly one of function. The State must be defined by reference to such of its activities and purposes as are essential and characteristic. .... It is possible, however, to distinguish among the multitudinous operations of government, two which it is suggested may be set apart as primary and essential. These two are war and the administration of justice.....Every society which perform these two functions is a political society or State, and none is such which does not perform them. It is the fundamental duty of a State to ensure administration of justice within its territory. The objectives of criminal justice are prevention and control of crime; maintenance of public order and peace; protection of the rights of victims; trial and punishment of those who are in conflict with law; and reformation of those adjudged guilty of committing crimes. All these had been recognized as State's obligations and, therefore, till the amendment brought in the Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ryana High Court in 'M/s. Tata Steel Ltd. Vs. M/s. ,Atma Tube Products Ltd. And others' reported in (2014) 1 PLR 1.; and Division Bench Decision of Patna High Court in Criminal Appeal (DB) No. 1078 of 2012 "Parmeshwar Mandal vs. State of Bihar & others, on the issue as to who could be considered a victim therefore, in its wisdom, thought it appropriate to formulate and refer two questions for authoritative pronouncement by a Larger Bench, vide its order dated 13.1.2015, which are as follows: 1. "Whether the definition of the word "victim" as used inSection 2 (wa) would mean any person other than a "guardian" or "legal heir" also for the purpose of maintaining an appeal under Section 372 Cr.P.C.? 2. Whether the ratio of the decision of the Division Bench of this Court in the case of Edal Singh Vs. State (Supra) states the law correctly keeping in view the conflicting ratios of the Full Bench decision of the Punjab & Haryana High Court in the case of M/s. Tata Steel Ltd. (Supra) and that of the Patna High Court in the case of Parmeshwar Mandal (Supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined to specific individuals but needs to be interpreted on the facts of each case. Sri Akhilesh Singh, learned Government Advocate, has contended that the definition of victim cannot be enlarged and right to appeal cannot be created by judicial pronouncement and the reference in question, in the facts of the case, should be answered in negative. Sri Vimlendu Tripathi, learned Additional Government Advocate-I, has supplemented the arguments raised by Government Advocate by submitting that right to prefer appeal is a statutory right having its own limitation, hence liberal/wide interpretation as regards locus to file appeal is not permissible therefore the person entitled to prefer an appeal against acquittal will have to fall within the term victim, as defined i.e. a person who suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and would include his or her guardian or legal heir. It has been submitted that word injury is not defined in the Code, therefore by virtue of Section 2 (y) of the Code the definition of injury as provided by Section 44 of the Indian Penal Code, 1860 would have to be adopted which provides that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment 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 Commission of India, referred to above, largely found favour with the Parliament when it inserted an embargo in sub-Section (3) to Section 378 against entertainment of an appeal against acquittal "except with the leave of the High Court". Sub- section (4) of Section 378 retained the condition of maintainability of an appeal at the instance of a complainant against an order of acquittal passed in a complaint-case only if special leave to appeal was granted by the High Court. Save in the manner as permitted by Section 378, no appeal could lie against an order of acquittal in view of the express embargo created by Section 372 according to which "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 bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; To produce evidence, oral ordocumentary, with leave of the Court and/or to seek directions for production of such evidence b) To ask questions to the witnesses or tosuggest to the court questions which may be put to witnesses c) To know the status of investigation andto move the court to issue directions for further investigation on certain matters or to a supervisory officer to ensure effective and proper investigation to assist in the search for truth. d) To be heard in respect of the grant orcancellation of bail e) To be heard whenever prosecutionseeks to withdraw or offer to withdraw and not continue the prosecution f) To advance arguments after theprosecutor has submitted arguments g) To participate in negotiations leading tosettlement of compoundable offences. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im to engage advocate of his choice to assist the public prosecutor. iii) Proviso to clause (a) of Section 26 of the Code,which provided that offenses under section 376 and 376 (A) to 376 (D) of the Indian Penal Code shall be tried as far as practicable by a court presided over by a woman. iv) Proviso 2nd to sub section (1) of Section 157 of the Code by which it was provided that the statement of a rape victim will be recorded at the residence of the victim or in the place of her choice as far as practicable by a woman police officer in the presence of her parent or guardian or near relative or a social worker of the locality. v) Sub section (1-A) of Section 173(1-A) of the Code bywhich it was provided that in relation to rape of a child investigation would be completed within three months from the date of receipt of information. vi) Section 357-A of the Code so as to provide for the "Victim compensation scheme" for the purpose of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht to appeal though in a case instituted upon a complaint, the complainant had a right to present an appeal under sub section (4) of section 378 of the Code. Thus, by insertion of the proviso an exception to the general rule was carved out by providing victim a right to prefer an appeal against an order of acquittal or of convicting for a lesser offence or imposing inadequate compensation. The term"victim" has been defined in section 2 (wa), inserted in the Code by Act No. 5 of 2009, and the same provides as follows: "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 been charged and the expression "victim" includes his or her guardian or legal heir. The discussion of the term 'victim' has been subject matter of interpretation by a Division Bench of this Court in Criminal Misc. Application U/S 372 Cr.P.C. (Leave to Appeal) No. 172 of 2014, Edal Singh Vs. State of U.P. & 3 others, which was decided by order dated 10.4.2014. The operative portion of the said order provides as follows: "We also have some doubts where the appellant, who is not the grand father, but grand uncle of the deceased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 of the Code. (iv) The 'victim', who is not the complainant in a privatecomplaint-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 unamended provisions read with Section 378 (4) of the Code. (v) Those 'victims' of complaint-cases whose right toappeal have been recognized under proviso to Section 372, are not required to seek 'leave' or 'special leave' to appeal from the High Court in the manner contemplated under Section 378(3) & (4) of the Code. Questions - (C) & (D) (vi) The right conferred on a 'victim' to present appeal under proviso to Section 372 is a substantive and independent right which is neither inferior to nor contingent upon the filing of appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst an order of sentence on the ground of its inadequacy or against an order of acquittal. (2) - The right of a 'victim' to prefer an appeal in terms of the said proviso to Section 372 is an unqualified right and no 'leave to appeal' or 'special leave' is required to be obtained by him/her for the purpose, as required by the State or the complainant for maintaining an appeal in terms of Section 378 of the Code. (3) - No limitation of time has been provided by the Legislature for exercise of such a right of appeal by the 'victim' in terms of the said Proviso. Hence, in the fact and circumstances of each case, the Court has to determine as to whether the appeal was entertainable, or not, on the ground of absence of bonafide explanation for delay by the appellant. The limitation laid down by the Full Bench of Punjab and Haryana High Court is a judicial fiat and not based on interpretation of the provisions of the Code or the Limitation Act, 1963. Hence the same is applicable only within the territorial jurisdiction of that High Court and no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir', he/she will have to establish the legal basis of his/her such status in reference to the law, as may be applicable in the matter, with all its limitations and qualifications, or otherwise also (e.g. judicial order). (10) - Once an appeal preferred in terms of the said proviso to Section 372, against an order is entertained by an appellate court on merits, to whatever result, no fresh/second appeal by any party/person can/should be entertained against the same order. (11) - No distinction can be made between a case instituted by a complainant/informant with the police and by a complainant before the Court directly, and an absolute right of a victim (a complainant or not) to file an appeal under Proviso to Section 372 does not get fettered by any other section of the Code contained in Chapter XXIX, which includes Section 378. 50. Now coming to the case at hand, in the facts andcircumstances appearing from the records, this Court is not satisfied that the appellant, who happens to be the cousin father-in-law of the deceased, has suffered any 'loss& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Full Bench of Punjab & Haryana High Court are unanimous in their conclusion that the proviso of section 372 is not an exception but confers an independent statutory right of appeal to a 'victim', hence, no leave to appeal is required as provided under section 378 of the Code. This particular conclusion, that has been arrived at, has been specifically overruled by the Apex Court in the case of Satya Pal Singh vs. State of M.P. & others reported in 2015 CrLJ 4929 SC by holding that the proviso to Section 372 of Cr.P.C. must be read along with its main enactment i.e. Section 372 and together with sub-section (3) of Section 378 of the Code otherwise the substantive provision of Section 372 of the Code would be rendered nugatory, as it clearly provides that no appeal shall lie from any judgment or order of a Criminal Court except as provided by the Code. Consequently, in view of dictum of Apex Court in Satya Pal Singh (supra), the legal position stands clarified that proviso of Section 372 is an exception to its main provision and cannot be construed as an independent statutory right in complete detachment with main statutory arrangement. In the said case the deceased's father h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;victim'. In this background as to whether the term 'victim' has rightly been understood is an issue to be answered by us. What we find from a reading of the judgments of various High Courts is that all the judgments deal with definition of 'victim' in respect of an offence of murder without considering the impact of the nature of an offence of which one is a victim. There are various forms of offences provided under Indian Penal Code as well as other Special Laws. An offence may be against body, mind, property, etc. In that context injury caused by the offence would vary. Further, there may be crime against society, which can be termed as a victim less crime because there is no victim in particular. None of these judgments consider the above aspect. In this background, we proceed to consider the case in hand. Before we do that let us remind ourselves that it is trite law that an appeal is a creature of statute and there can be no inherent right of appeal unless expressly provided for by the law itself. Apex Court in the case of Durga Shankar Mehta Vs. Raghuraj Singh, AIR 1954 SC 520 as well as in the case of National Commission for Women Vs. State of Delhi an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose. The statutory arrangement providing remedy of appeal under the Code makes it implicit that the remedy of appeal is restricted to only such person and that too only in such manner as provided in section 372. Chapter XXIX of the Code, provides for appeals. The appeal against conviction is an unrestricted right given to the accused (Section 374), whereas the appeal against acquittal is a restricted right given initially to the Government and complainant of the case (Section 378) and now to the victim also under the proviso of Section 372. The right of an accused to prefer appeal against conviction has been subject matter of consideration by the Apex Court in M. H. Hoskot vs. State of Maharashtra reported in 1978 (3) SCC 544, wherein following observation has been made: "11. One component of fair procedure is natural justice. Generally speaking and subject to just exceptions, at least a single right of appeal on facts, where criminal conviction is fraught with long loss of liberty, is basic to civilized jurisprudence. It is integral to fair procedure, natural justice and normative universality save in special cases like the original tribunal being a high bench sitting on a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, 'substantial andcompelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that incase of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Justice system into motion the concept of locus standi is foreign to Criminal Jurisprudence unless contra-indicated by a statutory provision. In this context, a Constitutional Bench of the apex court in A.R. Antulay v. Ramdas Sriniwas Nayak and Anr. reported in 1984 (2) SCC 500 (Constitutional Bench), has held as follows: "While Section 190 of the Code of Criminal Procedure permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfill to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Sections 195 to 199 CrPC. These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ground that the petitioner had an alternative remedy under the JJ Act against the order as may have been passed by the Board. In SLP filed before the Apex Court, an objection was raised as regards its maintainability on the ground that it suffers from the vice of absence of locus on the part of the petitioner. While considering this objection the Apex Court has observed thus: " The administration of criminal justice in India can be divided into two broad stages at which the machinery operates. The first is the investigation of an alleged offence leading to prosecution and the second is the actual prosecution of the offender in a court of law. The jurisprudence that has evolved over the decades as assigned the primary role and responsibility at both stages to the State though we must hasten to add that in certain exceptional situations there is a recognition of limited right in a victim or his family members to take part in the process, particularly, at the stage of the trial The law, however, frowns upon and prohibits any abdication by the State of its role in the matter at each of the stages and, in fact, does not recognize the right of a third party/stranger to participate o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 357 (3) though does not use the word victim but it uses almost similar language as used in section 2(wa) for the purpose of Compensation to a victim in the eventuality of non-imposition of fine upon accused person while convicting and sentencing him. The language is as follows: "Section 357: (1) ........... (2) ........... (3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so 'sentenced'." It may be seen that all the judgments which we have noticed discuss the definition of "victim" as "Means X and includes Y" and while interpreting the phrase "Means X", the term "any loss or injury" has been discussed elaborately and for this purpose, the provisions of section 2 (y) of the Code along with sections 23 (wrongful loss) and 44 (injury) of the Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... places in IPC in respect of an offence and has to be contextually understood. The injury caused becomes one of the necessary ingredients to constitute a specified offence. If that is so, the injury relevant for the purpose of a particular offence could either be a harm, whatever illegally caused to any person, in body or mind or reputation or property or a combination of one or more types of harm and it has to be one of the facts in issue before the trial court to be determined for holding the accused guilty. Such fact in issue would be a relevant ingredient to prove the guilt of accused. Hence, such fact in issue is the test to find out the actual victim of the crime that is the direct sufferer of the injury / harm caused to him by reason of the act or omission for which the accused person has been charged {section 2(wa)}. Any emotional harm or injury, howsoever grave it may be, caused to any person not being the direct sufferer especially when such emotional harm or injury is neither ingredient of the offence nor is the fact in issue in the trial of the accused, cannot grant status of "victim" to such other person not being the direct sufferer. In nutshell, it can be concluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; One who inherits or is entitled to succeed to the possession of property after the death of its owner. Cambridge Dictionary * A person who will legally receive money, property, or a title from another person, especially an older member of the same family, when that other person dies. Oxford Dictionary * A personm legally entitled to the property or rank of another on that person's death. Macmillan Dictionary * Someone who will receive money, property, or a title when another person dies. Collins Dictionary * The person legally succeeding to all property of a deceased person, irrespective of whether such person died testate or intestate, and upon whom devolves as well as the rights the duties and liabilities attached to the estate. In all the above definitions, the common thread is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " would not be a result of liberal construction but would be a consequence of ordinary or natural meaning of the expression "Legal Heir". Who is Guardian of Actual Victim under Section 2 (wa): So far as the expression "Guardian" is concerned, a plain meaning commonly known to us may be seen as follows: "A guardian is one appointed by the wisdom and policy of law to take care of a person and his/her affairs, who by reason of his/her imbecility and want of understanding is incapable of acting for his own interest" (Wharton's Law Lexicon, 1976 reprinted). "Someone who takes care of another person or of another person's property." (Merriam-Webster Dictionary) "One who looks after, protects, or defends." (Collins English Dictionary) "A person who has the legal right and responsibility of taking care of someone who cannot take care of himself or herself, such as a child whose parents have died." (Cambridge Dictionary) "A person who is legally responsible for the care of someone who is unable to manage their own affairs, especially a child whose parents have died." (Oxford Dictionary) All these meanings give clear suggestion that the word "Guardian" includes a Judicial Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... play when the actual sufferer is absent or suffers disability. In other words, victim means the actual sufferer of offence (receiver of harm caused by the alleged offence) and no person other than actual receiver of harm can be treated as victim of offence, so as to provide him /her right to prefer appeal under the proviso of section 372, though, in his or her absence or disability, his "legal heir" or "guardian" would qualify as victim and have a right to appeal. A person who claims himself to be 'guardian' or 'legal heir' of actual victim (direct sufferer), would be able to maintain appeal provided he establishes his claim as such before the court in his application by disclosing his particulars; relationship with the direct sufferer; and the grounds on which such claim of being "legal heir" or "guardian" is based. In the light of the discussion made above, the ratio of Division Bench of this Court in the case of Edal Singh (supra) is in tune with the definition of 'victim' as provided under Section 2 (wa) of the Code of Criminal Procedure. The reference is answered accordingly. Let the order as well as the record be placed before appropriate Bench deal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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