Archive

Whether Revision or Appeal is maintainable against the Acquittal on behalf of Complainant or Informant ?

Whether Criminal Appeal would be maintainable, at the instance of a victim, against order of acquittal passed by an Appellate Court in a Police Case ?

Whether Appeal is maintainable file by informant against the Acquittal ?

Whether Revision or Appeal is maintainable against the Acquittal on behalf of Complainant or Informant ?

Lets discuss the relevant Laws in this regard.

The answer to query would necessitate a closer look at Section 373, which is quoted hereinbelow:

“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 victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court”.

It is relevant to state that prior to 2009 amendments, which the Code underwent, a victim did not have any right to file appeal against order of acquittal and the right to prefer appeal was provided only to State, District Magistrate and a Complainant of a Complaint Case. Section 372 of the Code, which is couched in negative connotation, prohibits filing of an appeal from any judgment or order of a Criminal Court save and except as provided for by the Code or by any other law for the time being in force. The Code had not provided any right of an appeal to a victim against acquittal.

It would appear from a bare perusal and plain reading of Section 372 of the Code that the right to appeal against acquittal, under the proviso thereto, has been provided only to the “victim” and not to the complainant or the informant simplicitor. The term „victim‟, for the first time, has been included by way of amendment to Section 372 in the year 2009. However, some Courts have expressed reservations regarding the right of a Complainant, even if he is a victim, to prefer an appeal against acquittal under the proviso to Section 372. The term “victim” has been defined under section 2(wa) as follows:

 

“2(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 been charged and the expression “victim” includes his or her guardian or legal heir”.

Though Chapter XXIX under its heading „Appeals‟ consists of twenty two Sections, we would confine ourselves to, and deal primarily with, those provisions, which are relevant for the decision of the appeal. In this context, Sections 372, 374, 375, 376, 377, 378 Cr.P.C. are worth noticing. Some of the other provisions, under the Chapter, deal with format of appeal, its hearing, its scope and ambit. Prior to the amendments, which the Code underwent in the year 2009, Chapter XXIX provided for three categories of appeals.

(i) Appeal from orders requiring security — under Section 373 of Code

(ii) Appeal against conviction — under Section 374 of Code

(iii) Appeal against acquittal — under Section 378 of Code

(iv) Appeal against inadequacy of sentence — under Section 377 of Code

With the introduction of the proviso to Section 372 of the Code by the amendments carried out in the year 2009, appeal against “inadequacy of compensation” has also become statutory ground to prefer appeal by a victim.

It is worth noticing that though Section 374 provides appeal against convictions, all convictions are not appeallable. The Code bars filing of appeal against convictions in petty cases (See Section 376) and in the cases, wherein accused pleads guilty (See Section 375).

As the issue confronting us is as to whether an appeal would, at the instance of a victim, lie against order passed by Appellate Court acquitting an accused, it would be expedient to, first, deal with provisions relating to acquittal. Section 378, which is the only section under the Code providing therein right of appeal against acquittal, read, prior to the amendments in 2009, as under:

“378. Appeal in case of acquittal- (1) Save as otherwise provided in sub-section (2),and subject to the provisions of sub-section (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 acquittal passed by any Court other than a High Court(not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision). (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code,( the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal-,

(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court (not being an order under clause (a) or an order of acquittal passed by the Court of session in revision) (3) (No appeal to the High Court) under sub-section (1) or sub-section (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-section (4) for the grant of Special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.

(6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub- section (2)”.

Appeal against Acquittal: (Section 378 of Code)

  1. It is noticeable that Section 378 of the Code, until before amendments in the year 2009, gave right to present an appeal against acquittal, subject to conditions mentioned therein, only to the three categories of persons, namely, (i) District Magistrate, (ii) State, and (iii) Complainant. Prior to the year 2009, no right of appeal was conferred on the informant or on the victim against order of acquittal.

Section 378 of the Code stands divided into six sub- sections. Sub-section (1) of Section 378 stands further divided into two parts, namely, Section 378(1)(a) and Section 378(1)(b). Section 378(1)(a) empowers a District Magistrate to direct Public Prosecutor to present an appeal to the Court of Sessions from order of acquittal passed by a Magistrate in a cognizable and non-bailable offence. Section 378(1)(b) empowers the State Government to direct Public Prosecutor to file an appeal to the High Court against (i) an order of acquittal passed either by original or appellate court other than High Court subject to the same being not an order passed under Clause (a) of Sub-Section (1) of Section 378.

Thus, a District Magistrate can direct Public Prosecutor to file appeal before Sessions Court against order of acquittal passed by a Magistrate only; whereas the State Government can, under Clause 1(a) of Section 378, direct filing of an appeal against original as well as appellate order of acquittal of any Court other than High Court not being an order of acquittal passed by a Court of Magistrate in respect of a cognizable and non-bailable offence.

In other words, the State can direct filing of an appeal against order of acquittal passed by a Magistrate in any case relating to cognizable and non-bailable offences. In view of specific embargo placed by Section 378(1)(b), the bar, upon the right of State to file an appeal against order of acquittal passed by a Magistrate, is restricted to cognizable and non-bailable offences. The logical inference follows that the State would have a right of appeal against an order of acquittal, even if the order of acquittal is passed by a Magistrate provided that the acquittal is in respect of a non-cognizable and bailable offence.

Sub-section (3) of Section 378 puts restrictions on the right of the State to file appeal inasmuch as Section 378 states that no appeal, on behalf of State, against acquittal would be entertained by a High Court, either under sub-section (1) or sub- section (2), without the leave of the Court. In other words, if leave is refused, appeal against acquittal by State Government would not be entertained.

Section 378(4) of the Code gives a right to complainant to prefer appeal against acquittal of accused provided that the High Court grants „special leave‟ to such appeal. It is apparent that the condition, laid down with respect to the right of complainant to file an appeal against acquittal, is more stringent than the limitations imposed on the State Government‟s right to file appeal against acquittal. While the State is required to seek leave to file appeal against acquittal, a Complainant has to seek grant of Special Leave to Appeal in order to maintain an appeal against acquittal under Section 378 (4) of the Code.

Sub- Section (5) of Section 378 sets up a time limit for filing of appeal, which is sixty days for a private complainant, but six months for a public servant. Section 378(6) states that a complainant will have no right to file an appeal if the application for grant of Special Leave to Appeal is refused by the High Court.

Appeal against Conviction and Sentence: (Section 374 and Section 377 of the Code.

Sections 374 of the Code grants right of appeal against Conviction and Section 377 deals with appeal against inadequacy of Sentence passed by a Magistrate or Sessions Court. We would, first, deal with Section 374, which gives a right of appeal against conviction. Section 374 is quoted hereinbelow for easy reference:

  1. Appeals from convictions.-(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years (has been passed against him or against any other person convicted at the same trial); may appeal to the High Court.

(3) Save as otherwise provided in sub-section (2), any person,-

(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class or of the second class, or

(b) sentenced under section 325, or

(c) in respect of whom an order has been made or a sentence has been passed under section 360 by any Magistrate, may appeal to the Court of Session.

  1. Section 374(1) relates to a right of appeal of a convicted person, on a trial held by a High Court in extra- ordinary original criminal jurisdiction, to the Supreme Court. Section 374(2) vests, a right to appeal to High Court, in a person convicted, on a trial held either by a Sessions Judge or Additional Sessions Judge or by any other Court in which the imprisonment for more than seven years has been passed either against him or against any person convicted in the same trial, whereas Sub-Section (3) of Section 374 provides that any person, convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of 1st Class or Second Class or sentence under Section 325 Cr.P.C. or in respect of whom an order has been made or a sentence has been passed under Section 360 by any Magistrate, may appeal to Court of Sessions.

 Section 375 prohibits filing of appeal in certain cases, when accused pleads guilty.

Section 376 bars filing of appeal in petty cases. For instance, where a Court of Sessions or a Metropolitan Magistrate passes a sentence of imprisonment for a term not exceeding three months or of fine not exceeding 200 rupees or of both, imprisonment or fine, no appeal is provided under the Code. In such cases, the informant or the complainant can take recourse to only the revisional power under Section 397 and 401 of the Code. This is only by way of an illustration. The other instances, wherein no appeal is provided in petty cases, are mentioned in Section 376 itself, which we quote hereinbelow:

“376. No appeal in petty cases.- Notwithstanding anything contained in section 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 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 section 260 passes only a sentence of fine not exceeding two hundred rupees; Provided that an appeal may be brought against any such sentence if any other punishment is combined with it, but such sentence shall not be appelable merely on the ground-

(i) that the person convicted is ordered to furnish security to keep the peace; or

(ii) that a direction for imprisonment in default of payment of fine is included in the sentence; or

(iii) that more than one sentence of fine is passed in the case, if the total amount of fine imposed does not exceed the amount hereinbefore specified in respect of the case”.

We may, now, come to Section 372 inasmuch as it is proviso to Section 372, which gives right to a victim to prefer an appeal against any order passed by Court acquitting the accused and further provides that such appeal shall lie to the Court to which an appeal, ordinarily, lies against order of conviction of such Court.

Appeal on ground of Inadequacy of Sentence: (Section 377 of the Code)

The State Government, under Section 377 of the Code, can direct Public Prosecutor to present an appeal against sentence on ground of inadequacy to the Court of Sessions, if the sentence is passed by a Magistrate, and to the High Court if the sentence is passed by any other Court. We would not go into further details of this provision as it relates to inadequacy of sentence and not with respect to passing of order of acquittal.

It is worth noting that neither Section 378 nor Chapter XXIX or the Code, prior to insertion of the proviso to Section 372, in the year 2009, vested any right in the inforamnt or in the „victim‟ to prefer an appeal against acquittal. The informant could challenge the order of acquittal by way of revision under Sections 397 and 401 of the Code to the High Court; but such challenge would be restricted to judging of the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court.

It would be relevant to state herein that though an informant could have moved the High Court, under Sections 397 and 401 of the Code, against an order of acquittal, such right was not available to the victim if he was not the informant of the case. Sub-Section (3) of Section 401 restricts the High Court to exercise its revisional jurisdiction to convert a finding of acquittal into one of conviction. Further-more, a revisional Court can correct an error committed by a Court, while passing an order of acquittal, but it cannot, ordinarily, interfere with a finding of acquittal unless there has been apparent error of law or procedure or unless the finding is perverse or suffers from manifest illegality or has caused gross miscarriage of justice.

The Apex Court, in case of Johart vs Mangal Prasad, reported in 2008 SC 1165, observed that the jurisdiction of the High Court to entertain revision against acquittal is not barred, but is severally restricted. The High Court, in its revisional power, would not, ordinarily, interfere with the judgment of acquittal passed by the trial court unless there has been apparent error of law or procedure or where the public justice requires interference for correction of manifest illegality or prevention of gross miscarriage of justice. Reference can be made to cases of Ram briksh Singh vs Ambika Yadav, reported in (2004)7 SCC 665 and Bimal Singh vs Khuman Singh, reported in 1988 SCC Criminal 1574, too.

Moreover, the exercise of power of revision remains confined within parameters permitted by the provisions of Section 379 and Section 401 of the Code and is narrower in its ambit and scope in comparison to the power of appeal, which permits examination of both fact and law.

Now that we have noticed the relevant provisions with respect to right of appeal against the order of acquittal passed by original or appellate court other than the High Court, it would be equally apt to trace out the legislative and legal history qua right of victim emerging in criminal jurisprudence prior to coming into force of the present proviso to Section 372 of the Code in the year 2009. Our task has become considerably easier as Punjab and Haryana High Court, in the case of M/s Tata Steel Limited vs Atma Tube Products Limited & Ors, disposed of on 18th March, 2013 vide CRM-790-MA-2010 (O&M), reported in 2013(1) ILR 719(P&H), while examining a related issue, has, at length, dealt with the legislative and legal history. We would do no better than to incorporate some references from passages of Full Bench judgment for the legislative and legal history would be necessary in order to correctly appreciate the issue at hand.

Legislative History The British Government on the report of Margery Fry, set up a Programme, in the year 1964, providing for compensation to victim of crime depending upon gravity of offence, which was subsequently adopted by more and more countries. In the year 1985, United Nations adopted the declaration of basic principles of justice for victims of crime and abuse of power. On the basis of several pronouncements of the Supreme Court, the Law Commission, in the year 1996, in its 154th Report, made recommendations with respect to right of victim or person, followed by report of Justice Manimath Committee in the year 2003, which resulted in the amendment of 1973 Code in the year 2009, inserting proviso to Section 372 of the Code. The European Union (EU) also took big step forward in granting and protecting the rights of „victims‟ through various Covenants, particularly, the position of victim in the framework of Criminal Law and Procedure, Council of Europe Committee of Ministers to Member States, 1985. Towards this direction, the United States of America (USA) also made two enactments, namely, (i) The Victims of Crime Act, 1984, whereunder legal assistance is granted to the crime-victims; and (ii) The Victims‟ Rights and Restitution Act of 1990. The Australian Legislature also enacted South Australia Victims of Crime Act, 2001, and Canada was also not behind in making legislation on the subject known as Victims of Crime Act.

Chapter 15 of 154th Report of Law Commission of India advocated for providing compensatory justice to the victim through victim compensation scheme. The Malimath Committee Report 2003 also made recommendation for impleading victim or his legal representative, as a party, in every criminal procedure, where charge is framed for commission of offence punishable by 7 years imprisonment or more as a right. The Committee also recommended incorporation of provisions conferring right, on victim, to prefer appeal against any adverse order or to engage a lawyer of his choice.

Contribution of Courts in Evolution of Right of Victim:

The right of victim, or a person aggrieved, engaged the attention of the Court time and again. In the year 1955, a Division Bench of the Assam High Court, in case of N.C. Bose vs. Prabodh Dutt Gupta reported in ILR 1955 (Assam)116, emphasized the need of right of a private party or victim in case of wrongful acquittal of the case. The relevant extract of the Court‟s observations read as under:

“It seems to me that the person vitally interested in the issue of the prosecution or the trial is the person aggrieved who „initiates‟ the proceedings. He may be both civilly and criminally liable if, on account of any unfairness or partiality, the trial or the proceeding ends in wrongful acquittal or discharge of the accused. The Legislature therefore could not have intended to shut out such a person from coming to the High Court and claiming redress under Section 526 of the Code. The words should be construed to have the widest amplitude so long as the effect of the interpretation is not to open the door to frivolous applications at the instance of intermeddlers or officious persons having no direct interest in the prosueciton or trial”.

The Apex Court, in the case of Ratan Singh vs State of Punjab, reported in (1979) 4 SCC 719, observed that it is a weakness of our criminal jurisprudence that a victim of crime and the distress of the dependents of prisoner do not attract the attention of the law. Indeed, the victim reparation is still the vanishing point of our criminal law and such deficiency and discrepancy, in the system, must be rectified by the legislature sooner the better.

The Constitution Bench of Supreme Court, in the case of Sadhanathan vs Arunachalam and another, reported in (1980) 3 SCC 141, while examining filing of an appeal, under Article 136, held,”…………………….where the court is convinced that public interest justifies an appeal against the acquittal and State has refrained from petitioning from Special Leave which was promoted by private influence, want of bona fide and other extensions considerations, an appeal filed by private party be entertained”.

In the case of J.K. International vs State (Government of NCT of Delhi), reported in (2001) 3 SCC 462, the Apex Court held that a person, who is aggrieved by an offence involved in the case, is not altogether debarred from participating in trial or is not altogether wiped out from the scenario of trial.

The Apex Court, in the case of Ramakant Rai vs. Madan Rai and Others, reported in (2003) 12 SCC 395, recognized the right of a private person to file an appeal against order of acquittal passed by a High Court. In case of Masurddin Mushni vs Md. Siraj & Ors, reported in (2008) 8 SCC 434, the Supreme Court held that a First Information Report cannot be quashed by Court at the instance of accused without giving notice to informant.

Though, in Indian context, the Legislative sanction eluded the right of victim to appeal till 2009 amendment, such a right, on account of judicial pronouncements, was, in effect recognized, throughout the country, as an invaluable right of a victim. The reports of different Committees, 1985 United Nation declarations, 154th report of the Law Commission of India in the year 1996, Malimath Committee Report of 2003 and judicial pronouncement delineating the right of victim were the guiding force and motivating factor leading to statutory enactments of right of appeal of victim in the year 2009.

Chapter XXIX Cr.P.C. contained elaborate provisions with regard to the right of a convict, of the State and of a Complainant to prefer appeal against a judgment and order of the Court passed in a criminal proceeding, It did not, however, contain provisions giving any right to a victim to appeal. It was only by dint of amendment in the year 2009 that a proviso was inserted to Section 372 of the Code giving right of appeal to a victim against (a) order of acquittal, or (b) conviction for a lesser offence or (c) imposing inadequate compensation.

As noticed earlier, the term „victim‟ has been defined in Section 2(wa) to mean 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. If a „victim‟ himself or herself cannot sue on ground of minority or on account of death or any other inability, his guardian or legal heir, as the case may be, would, under the proviso to Section 372, step into his shoes and can exercise similar right as available to a „victim‟.

Coming back to 2009 amendment, the proviso to Section 372 states that a „victim‟ shall have right to prefer an appeal against any order passed by Court acquitting the accused or convicting for a lesser offence including inadequate compensation and that such an appeal shall lie to the Court to which an appeal, ordinarily, lies against the order of conviction of such a Court.

 The issue, which arises for consideration, is whether the proviso to Section 372 would also give right to a victim to prefer appeal against order of acquittal passed by an Appellate Court.

Apart from decision of Full Bench of Punjab and Haryana High Court in the case of M/s Tata Steel Limited (supra), references have been made to a Division Bench decision of this Court in the case of Parmeshwar Mandal vs State of Bihar, reported in 2014(1) PLJR 377 and to the case of Subhash Chandra vs State (Delhi Administration), reported in (2013)2 SCC 17.

We would, first, refer to the decision of Full Bench of Punjab and Haryana High Court rendered in the case of M/s Tata Steel Limited (supra), which was constituted in view of two separate references made by two different learned Single Judges of Punjab and Haryana High Court, both arising out of Complaint Cases. In one such case, a learned Single Judge, while considering the application seeking leave of the Court to prefer an appeal against the order of acquittal in a case under Sections 279, 337, 338 and 304-A IPC, noticed an apparent conflict between proviso to Section 372 and Section 378 Cr.PC and made the following reference:

“……as proviso to Section 372 of the Code unequivocally provides the remedy of appeal to a victim before a Court to which an appeal shall ordinarily lie against the order of conviction of such a Court while Section 378 of the Code refers to filing of an appeal to the Court of Session from an order of acquittal passed by a Magistrate only in respect of cognizable and non-bailable offences. There would thus be ambiguity in so far as the remedy of appeal provided to a victim in the cases where the offences are bailable and in which cases the aforesaid ambiguity amounts to giving with a left hand only to be taken away by the right hand”.

whether a „victim‟ under proviso to Section 372 of the Code would include „complainant‟ also

“Whether the word “victim” as mentioned in the proviso of Section 372 Cr.P.C. include complainant also for the purpose of availing the remedy of appeal as given to the victim by aforesaid proviso?

It is relevant to note that both the issues were framed by learned Single Judges, while considering applications seeking Special Leave to Appeal under Section 378 (4) of the Code. The last reference was in the context of an order of acquittal, passed by a Magistrate, in a case under Section 138 of the Negotiable Instruments Act, 1881.

The learned Full Bench, finding the matter of being one of paramount importance, formulated the following issues in view of discordance among different High Courts on one question or the other. The issues formulated are as follows:

(A) What is the true import and meaning of the expression „victim‟ as defined under Section 2 (wa) read with proviso to Section 372 Cr.P.C.?

(B) Whether „complainant‟ in a private complaint case, who is also the „victim‟ and the „victim‟ other than the „complainant‟ in such cases are entitled to present appeal agaisnt the order of acquittal under proviso to Section 372 or have to seek „special leave‟ to appeal from the High Court under Section 378(4) Cr.P.C.?

(C) Whether the „rights‟ of a victim under the amended Code are necessary and auxiliary to those perceived to be the exclusive domain of the „State‟?

(D) Whether presentation of appeal against acquittal is a „right‟ or an „obligation‟ of the „State‟ stemming from the Constitution?

(E) Where would the appeal of a „victim‟ preferred under proviso to Section 372 lie when the State also prefers appeal against that order of acquittal under Clause (a) of Section 378)1) Cr.P.C.?

(F) Whether proviso to Section 372 Cr.P.C. inserted w.e.f. December 31,2009, is prospective or retrospective in nature and whether a revision petition pending against an order of acquittal before the insertion of the said proviso, can be converted into an appeal and transferred to the Court of competent jurisdiction?

(G) What would be the period of limitation for a „victim‟ to prefer an appeal under proviso to Section 372 Cr.P.C.?

After detailed consideration of the provisions of the Code, the legislative history relating to enactment of the proviso to Section 372 and various pronouncements of different courts, the learned Full Bench of Punjab and Haryana High Court, in the case of M/s Tata Steel Limited (supra), answered the reference, issue wise, as follows:

Question (A)

(i) The expression „victim‟ as defined in Section 2(wa) includes all categories of his/her legal heirs for the purpose of engaging an advocate under Section 24(8) or to prefer an appeal under proviso to Section 372 of the Code.

(ii) However, legal heirs comprising only the wife, husband, parent and child of a deceased victim are entitled to payment of compensation under Section 357(1)(c) of the Code. Similarly, only those dependents of a deceased victim who have suffered loss or injury as a result of the crime and require rehabilitation, are eligible to seek compensation as per the Scheme formulated under section 357-A of the Code.

Question (B)

(iii) The “Complainant” in a complaint-case who is also a “victim” and the “victim” other than a “complainant” in such case, shall have remedy of appeal against acquittal under Section 378(4) only, except where he/she succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser offence or imposition of an inadequate compensation, for which he/she shall be entitled to avail the remedy of appeal under proviso to Section 372 of the Code.

(iv) The „victim‟, who is not the complainant in a private complaint-case, is not entitled to prefer appeal against acquittal under proviso to Section 372 and his/her right to appeal, if any, continues to be governed by the unamended provisions read with Section 378(4) of the Code.

(v) Those “victims” of complaint cases whose right to appeal 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) and (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 up-on the filing of appeal by the State in that case. Resultantly, the condition of seeking “leave to appeal” or “Special leave to appeal” as contained in section 378(3) & (4) cannot be imposed for the maintainability of appeal by a “victim” under proviso to Section 372 of the Code.

Question (E)

(vii) In view of proviso to Section 372 an appeal preferred by a “victim” against the order of acquittal passed by a Magistrate in respect of a cognizable offence whether bailable or non-bailable shall lie to the Court of Session, the State‟s appeal under Section 378(1)(a) of the Code against that very order shall also be entertained and/or transferred to the same sessions Court.

Though, as many as seven issues were framed by the Punjab and Haryana High Court, in M/s Tata Steel Limited (supra), we would refer to these issues as and when found necessary in the context of the present case.

With respect to Issue No. „A‟ – As to what would be the true import and meaning of the expression „victim‟ as defined under Section 2(wa) read with proviso to Section 372 Cr.P.C. would not be of much relevance in the instant case inasmuch as there is no dispute that in the present case, the informant is the victim as well. According to the prosecution‟s case, it is the informant, who had sustained injuries and loss on account of act of commission of the accused, and, thus, is a „victim‟ within the meaning of Section 2(wa) of the Code.

With respect to Issue No. B- Whether „complainant‟, in a private complaint case, who is also the „victim‟ and the „victim‟ other than the „complainant‟, in such cases, are entitled to present appeal against order of acquittal under the proviso to Section 372 or have to seek „special leave‟ to appeal from the High Court under Section 378(4) of the Code?

The Full Bench of Punjab & Haryana High Court noticed, in M/s Tata Steel Limited (supra), that the High Courts are at variance in their views whether Section 2(wa) would cover „victim‟ in a Complaint Case as well. Whereas Rajasthan High Court, Allahabad High Court and Punjab and Haryana High Court held that Section 2(wa) would cover a complaint case, Madhya Pradesh High Court, Bombay High Court and Maharashtra High Court held that a complainant would not fall under proviso to Section 372 of the Code. The Uttrakhand High Court, in Special Leave to Appeal, in Criminal Appeal No.139 of 2011 (Bhagwan Singh vs State of Uttrakhand & anr) observed that appeal against order of acquittal, in a Complaint Case, which involves commission of a non-cognizable and bailable offence, would also fall in clause (b) of sub-Section (1) of Section 378 and, hence, the victim (who was complainant in a private complaint) could file, in High Court, appeal, under the provisio to Section 372, but after obtaining „ special leave to appeal‟ by the High Court.

The Full Bench of Punjab & Haryana High Court while deciding, in M/s Tata Steel Limited (supra), the issues, held, relying upon the decision, in Subhash Chandra vs State (Delhi Administration), reported in (2013) 2 SCC 17, that there is no distinction between a Complaint Case filed by a private person and a public servant and, as such, the appeal against acquittal, in every single complaint case, would lie under Section 378(4) after seeking Special Leave of the High Court. The Full Bench further observed that even if acquittal order is passed by a Magistrate, in a Complaint Case, filed by a public servant or State Government, no appeal shall lie to the Court of Sessions under section 378(1)(a) of the Code. The Full Bench further observed that a Complainant, whether he is a victim or not a victim, would have remedy of appeal against order of acquittal only under Section 378(4) after obtaining Special Leave to appeal.

The Full Bench, however, observed, in M/s Tata Steel Limited (supra), that if such a victim-cum-complainant succeeds in bringing the guilt of the accused home and establishes his or her victimization, but is aggrieved by conviction for a lesser offence or imposition of inadequate compensation, he or she shall be entitled to invoke the proviso to Section 372 of the Code. Such complainant, if he is proven to be a victim, would have remedy of appeal under the proviso to Section 372 of the Code.

In other words, the Punjab and Haryana High Court came to the conclusion, in M/s Tata Steel Limited (supra), that a complainant, even if he is „victim‟, would have no right of appeal against acquittal under proviso to Section 372 of the Code, but would be entitled to this right of appeal only if conviction is for a lesser offence or on the ground of inadequate compensation inasmuch as there is no other remedy to assail such conviction for a lesser offence or imposition of inadequate compensation. According to the Full Bench of Punjab and Haryana High Court, for a complainant, whether he is a victim or not, the remedy against acquittal would only be by way of Special Leave to Appeal under Section 378(4).

The Full Bench, in M/s Tata Steel Limited (supra), while coming to the said conclusion, reasoned that Legislature has imposed stringent condition on the maintainability of appeal against an order of acquittal in a complaint case, for, the acquittal by the trial court reinforces presumption of innocence in favour of the accused, who has earned acquittal in a case, where the complainant himself/herself was the prosecutor unlike the „victim‟ in a police-case, who does not have any say in the trial. Such being the legislative intendment, there cannot be any scope to doubt that the „complainant‟ of Section 378 (4), who fails to establish the complicity of an accused, can assail such acquittal only with the „special leave‟ of the High Court under Section 378(4). The fact that the Legislature has brought no changes, in this sub-Section, fortifies its policy to retain the same legal position as it existed before the Amendment Act, 2008. The Full Bench was of the view that when State had to seek leave before its appeal against acquittal is entertained, the Complainant would have no better right than the sovereign in preferring appeal with leave under the proviso.

With all humility, it is difficult for us to agree to the proposition of law laid down by the Full Bench of Punjab and Haryana High Court, in M/s Tata Steel Limited (supra), that a complainant, even if he/she is a „victim‟, would have no right of appeal under proviso to Section 372 of the Code against acquittal, for, adopting such a view would not be in consonance with mandate of law. The provision is clear and unambiguous and vests a right in a victim to prefer appeal against any order passed by Court:-

(a) acquitting accused or

(b) convicting accused for a lesser offence or

(c) imposition of inadequate compensation.

The proviso to Section 372 does not even remotely indicate that the expression „victim‟ has been used only in respect of a police case and would not include complainant of a complaint case. It is cardinal principle of construction that if the words of statute are plain and unambiguous, it should be given its literal meaning. Tindal, CJ, in Sussex Peerage‟s, case, observed that “if the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense”. Again, VISCOUNT SIMONDS, L.C., in 1940, Appeal Case 1014, which was approvingly quoted in A.I.R. 1987 Supreme Court 117, (Chandavarkar Sita Ratna Rao v. Ashalata S. Guram), observed that the golden rule is that the words of a statute must prima facie give their ordinary meaning and the aforesaid principle should not be departed unless it can be shown that the legal context in which the words are used requires different meaning. A bare perusal of definition of „victim‟ manifests that the term has not been used in a restrictive sense and would include both the complainant and the informant so long it satisfies qualifying condition in the proviso that he must have suffered loss or injury by act of omission or commission of the accused.

A victim, who has suffered injury, has an option either to file a complaint in the Court or to lodge a case with the police. Any narrower interpretation of the term „victim‟ to exclude one or the other would be contrary to the legislative intent behind insertion of the proviso, which makes no distinction between „Complainant‟ and „Informant‟. The aforesaid aspect can be tested from the following example. A person, who suffers brutal assault, would be a victim under the meaning of term „victim‟ defined in Section 2(wa). Can it be said that he would not be a victim if he files a complaint in court and would come within the definition of „victim‟ if lodges a police case. Such an interpretation would defeat the purpose of giving a right, though of limited nature, to a victim to appeal against acquitting accused or convicting accused for a lesser offence or imposition of inadequate compensation.

In M/s Tata Steel Limited (supra), the reliance by the Punjab and Haryana High Court, on the case of Subhash Chandra (supra) is misplaced as the case of Subhash Chandra (supra) is one, wherein the Supreme Court has held that there is no distinction in Complaint Case, where such complaint is filed by a private person and/or public servant and appeal against acquittal, in every single complaint case, shall lie under Section 378(4) after seeking special leave of the High Court. In M/s Tata Steel Limited (supra), the Full Bench of Punjab and Harayan High Court, later on, in paragraph 77 of its decision, noticed that the question of status of such a complaint as a „victim‟ or his consequential right to prefer an appeal, under proviso to Section 372 of the Code, was not subject matter of consideration before the Supreme Court in the case of Subhash Chandra (supra). Against order passed by a court acquitting an accused a Complainant, who is also a victim, would have a right to prefer an appeal to a court, where such an appeal lies against order of conviction of such court and not under Section 378(4). In case, the Complainant is not the victim, then, his remedy against order of acquittal would be under Section 378(4) only.

In our view, the proviso to Section 372 would be applicable to victims of both, Complaint case as well as Police Case alike. Thus, we are of the considered view that victims of both, Complaint Case and Police Case, would have equal right of appeal against order of acquittal as provided under the proviso to Section 372.

The proviso to Section 372 of the Code became a subject of consideration, in somewhat different context, in the case of Parmeshwar Mandal (supra). In Parmeshwar Mandal (supra), one of the main issues was whether the proviso to Section 372 is prospective or retrospective in nature. Yet another issue, Parmeshwar Mandal (supra), was as to who would constitute guardian or legal heir of a victim in terms of the meaning of the „victim‟ as given in Section 2(wa) and, in the light of the definition of „victim‟ as given in Section 2(wa), it was concluded that the victim would include his (i.e.,victim‟s) guardian and legal heirs.

The Division Bench, in Parmeshwar Mandal (supra), relying upon decisions rendered in the case of New India Insurance Company Limited vs Smt. Shanty Mishra,Adult, reported in 1976 SC 237; Ramesh Kumar Soni vs. State of Madhya Pradesh, reported in AIR 2013 SC 1896; Sudhir G.Angurs vs. M. Sanjeevs, reported in (2006)1 SCC 141, held that substantive part of law would operate prospectively unless made retrospective and the procedural part is presumed to be prospective within its defined limit. The learned Judges held that the first clause of the proviso to Section 372 creates a substantive right in the victim to prefer an appeal and the second clause identifies forum for preferring such appeal. Therefore, the right of victim to prefer an appeal become available to all cases, where orders were passed, in a Criminal Court, acquitting accused and the date of judgment of a criminal Court has to be necessarily treated as relevant date for applying the test of maintainability of appeal by the victim irrespective of date of the occurrence, institution of cases, cognizance or commitment. The Division Bench held that in case the occurrence took place before the date of amendment, but judgment of acquittal is passed after the date of amendment, the victim would have right to appeal. We agree with the view of Division Bench, in Subhash Chandra (supra), that if the judgment of acquittal is passed after the date of amendment, the victim would have a right to appeal and accord our respectful decent to the view of Punjab and Haryana High Court, in M/s Tata Steel Limited (supra), held to the contrary.

As discussed above, a victim, in a police case — be he an informant or otherwise (in the present case, informant himself is victim)― has a right to prefer an appeal against any order passed by the court acquitting accused or convicting for a lesser offence or imposing inadequate compensation and such appeal shall lie to the court to which an appeal, ordinarily, lies against the order of conviction of such court.

Under the Code of Criminal Procedure, 1973, the right to file an appeal, in a police case, against sentence or against acquittal, was given to the District Magistrate of a District or to the State Government or to the Central Government through their respective Public Prosecutors under Sections 377 and 378 of the Code of Criminal Procedure.

As noticed in the preceding paragraphs, Section 378(1)

(a) gives District Magistrate a right to direct Public Prosecutor to prefer an appeal, in the Court of Sessions, against order of acquittal passed by a Magistrate in respect of cognizable and non-bailable offence; whereas Section 378(1)(b) gives the right to the State Government to direct 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 High Court. Similarly, sub-section (2) of Section 378 gives the right to the Central Government to direct Public Prosecutor to present an appeal against order of acquittal in a case, wherein offence has been investigated by the Delhi Special Police Establishment or by any other agency empowered to make investigation into an offence in any Central Act other than this Code.

The provisions of Section 378 clearly go to show that only the State Government and the Central Government have been given the right to file an appeal, in the High Court, from an appellate order of acquittal.

It is, thus, evident that right to prefer an appeal, in High Court, has been given to State Government as well as to Central Government from an appellate order of an acquittal passed by any court (other than High Court).

Section 378 makes it abundantly clear that the right to file appeal against the order of acquittal by the Appellate Court has been given to sovereign, i.e., the State Government or the Central Government, as the case may be, and such a right has not been given even to the District Magistrate, who is prosecutor of district.

Chapter XXIX of the Code of Criminal Procedure talks about an order passed “by the Court” and it means the original court, because the High Court, ordinarily, exercises the power either under appellate or revisional jurisdiction.

The proviso to Section 372, which gives right to a victim, for the first time, to file an appeal against order of acquittal, or order of conviction of a lesser offence or order imposing inadequate compensation, speaks of any order passed by the court. It further provides that against those orders, the appeal shall lie to the court to which an appeal, ordinarily, lies against the order of conviction of such court.

The proviso to Section 372 clearly goes to show that right to file an appeal by the victim, whether he is informant or not, is against the order of trial court only and not against the order of appellate court and when a victim has not been given by the Code the right to prefer appeal against an order of acquittal passed by an appellate court, this right cannot be given to him by enlarging the scope of the proviso to Section 372 of the Code.

From Section 378, it is evident that right to file an appeal against order of acquittal passed by Appellate Court is given to sovereign only, i.e., the State Government and the Central Government, and not to any other person, i.e., not even to the District Magistrate, and, in that view of the matter also, a victim cannot be given a better right.

Further-more, Section 372 bars filing of an appeal unless it is expressly provided in the Code or any other law. The proviso to Section 372 confers right on the victim to prefer an appeal, against „any order passed by the court‟ as indicated hereinbefore, to the Court, wherein an appeal, ordinarily, lies against order of conviction of such court. It is relevant to state that against order of conviction by appellate court, no provision of appeal is provided to High Court. On this score, too, a victim would not have any right of appeal against order of acquittal passed by an Appellate Court.

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (DB) No.146 of 2014

======================================================

Jainath Prasad son of Late Ram Briksh Prasad, resident of Village- Baishakhwa, P.S. Keshwaria, District East Champaran …. Appellant Versus

 

  1. The State of Bihar

 

  1. Brahma Prasad son of Late Mukhlal Prasad, resident of Village Baishkhwa, P.S. Kesharia, District East Champaran, Motihari …. Respondents
Advertisements