TaxTMI 
TaxTMI 
2016 (4) TMI 1295
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....of 2012, MP (MD) No.1 of 2015 in Crl.A.(MD)SR.No.22547 of 2014, MP(MD)No.1 of 2013 in Crl.A(MD)SR.No.35519 of 2013, MP (MD) No.2 of 2015 in Crl.RC(MD)SR.No.35959 of 2014 MP(MD)No.1of 2013 in Crl.A(MD)SR.No.40383 of 2013 MP(MD).No.1 of 2014 in Crl.A.(MD)SR.No.41392 of 2013 AND Crl.OP(MD)No.10762 of 2015 in Crl.A(MD)No.SR 11019 of 2015, Crl. OP (MD). No. 18479 of 2014 in Crl. A (MD) [SR]. No. 23860 of 2014, Crl.OP(MD).No.18868 of 2014 in Crl.A(MD)[SR].No.23866 of 2014, Crl.OP(MD).No.18872 of 2014 in Crl.A(MD)[SR].No.23862 of 2014, Crl. OP (MD). No. 6646 of 2015 in Crl. A (MD) [SR]. No. 11098 of 2015, Crl.OP.(MD)No.3501 of 2015 in Crl.A(MD)[SR] No.39639 of 2014, Crl. OP (MD). No. 6835 of 2015 in Crl. A (MD) [SR]. No. 38577 of 2014, Crl. OP (MD). No. 18584 of 2014 in Crl. A (MD) [SR]. No. 23864 of 2014, Crl.OP(MD)No.7678 of 2015 in Crl.A(MD)[SR].No.22091 of 2014, Crl.OP(MD)No.7273 of 2015 in Crl.A(MD)[SR]38477 of 2014, Crl.OP(MD)No.7274 of 2015 in Crl.A(MD)[SR]No.37980 of 2014, Crl.OP(MD)No.7605 of 2015 in Crl.A(MD)[SR]No.12833 of 2015, Crl.OP(MD) No.7620 of 2015 in Crl.A(MD)[SR]No.13252 of 2015, Crl.OP(MD) No.7648 of 2015 in Crl.A(MD)[SR] No.11108 of 2015, Crl.OP(MD).No.7649 of 2015 i....
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....hich, the respondent in the appeal was acquitted on finding that the respondent/accused was not guilty of an offence under Section 138 of the Negotiable Instruments Act, 1881. 2. The appellant in the present appeal was the complainant before the Lower Court. As against the acquittal, he filed the present appeal under Section 378 of Cr.P.C. The papers in the appeal were presented before this Court on 20.10.2014. The Registry raised an objection as to how the appeal was maintainable, as it was filed beyond 60 days as laid down under Section 378(5) of Cr.P.C. 3. The counsel for the appellant produced a copy of the judgment of the Supreme Court in A.V.Murthy Vs.B.S.Nagabasavanna [2002 (2) SCC 642] to contend that the complaint was not based upon a dishonoured cheque drawn in respect of a debt or a liability payable under contract and hence, not legally enforceable and such a claim was prohibited under law. Perhaps the Registry, convinced of such a representation, numbered the appeal and it was directed to be posed along with Criminal Appeal (MD) Nos. 100 and 101 of 2015 by a learned Single Judge having the roster. When these three matters were grouped and posed before the learned....
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....s correct exposition of law or the same requires to be overruled ?? 5. The aforesaid referral order is since reported in S.Ganapathy Vs. N.Senthilvel [2015 (1) L.W. (Crl.) 553]. The learned Judge surveyed several decisions of the other High Courts and the Supreme Court with reference to the interpretation of Proviso to Section 372 and Section 378 (4) of Cr.P.C. In so far as the sixth question posed by him was concerned, in para 41 of the order, he had observed as follows: In view of the discussions made thus far, with due respect, I regret, I find it very difficult to persuade myself to fall in line with the view taken by this Court in Selvaraj?s case and also the Judgments of various courts, holding the view that the victim cum complainant has got no right to file appeal under Proviso to Section 372 of the Code of Criminal Procedure. I agree with the view taken by various High Courts, taking the view that the complainant, who happens to be a victim, has got right of appeal under Proviso to Section 372 of the Code of Criminal Procedure.? 6. In Selvaraj, another learned Single Judge namely P.R.Sivakumar,J dealt with the case of a complainant having filed an appeal before th....
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.... and the revision is bound to fail.? (emphasis added) 7. The learned Chief Justice, by his order dated 18.6.2015, directed the matters to be listed before a Full Bench. Subsequently, when 26 other criminal appeals (both numbered and unnumbered) were put up before the Judge in-charge of administration in the Madurai Bench at the relevant time, he, by an order dated 7.7.2015, directed those matters also to be listed along with the batch of these cases. Hence, those cases are also tagged together in order to answer the order of reference. HISTORICAL BACKGROUND 8. Perhaps it was in 2009 that for the first time the Parliament realized the need to think of victims under the criminal justice system. The need for making several amendments under the Central Act 5/2009 arose due to the development of public opinion on the need for victims to be given due place. Dr.Justice A.S.Anand, the Former Chief Justice of India, in his Shri P.Babulu Reddy Foundation Lecture on 'Victims of Crime' (Hyderabad, 28th of September 1997), made a passionate plea for improving victimology in our country. On the question of victims in criminal law, he observed :- The term victim is lacking descr....
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....urt held that a single right of appeal is more or less a universal requirement of the guarantee of life and liberty rooted in the concept that men are fallible, judges are men and making assurance doubly sure, before irrevocable deprivation of life or liberty comes to pass, a full-scale re- examination of the facts and the law is made an integral part of fundamental fairness or procedure. We are aware and mindful that the above observations were made in connection with an appeal at the instance of the accused. But the principle underlying the above rule lies in the doctrine of human fallibility that `Men are fallible' and `Judges are also men'. It is keeping in view the said object that the principle has to be understood and applied.? Now, every crime is considered as an offence against the Society as a whole and not only against an individual even though it is an individual who is the ultimate sufferer. It is, therefore, the duty of the State to take appropriate steps when an offence has been committed." 11. In what was known as the Best Bakery's case, the Supreme Court heavily came down upon the role of the Investigating Agency and the lethargy of the State i....
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....it had convicted anyone for lesser offence or had imposed an inadequate penalty or compensation. 13. Almost all the cases, which are before us, arose out of private complaints filed under Section 138 of the Negotiable Instruments Act, 1881. Until the introduction of this provision, the matter relating to dishonour of negotiable instruments were dealt with as a civil matter and aggrieved parties moved the civil courts. By the introduction of Section 138 of the Negotiable Instruments Act, it has now become a crime and if proved, punishable with imprisonment. 14. However, under Section 142, the taking cognizance of the offence has been defined and only upon a complaint made by the payee or holder in due course, the Court can take cognizance of any offence. Section 142 of the Negotiable Instruments Act reads as follows:- 142 Cognizance of offences. ?Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)? (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is m....
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.... Code nowhere defines the term 'complainant'. But, an inference can be drawn from the definition of the term 'complaint', which is given under Section 2(d) of the Code, which reads as follows:- ' Complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.' 20. Whether a complainant, who is also a victim, should seek special leave, from the High Court as provided under Section 378(5) of the Code or whether as a matter of right, he can avail a statutory right of appeal is one question, which arises herein. In the cases arising out of Section 138 of the Negotiable Instruments Act, invariably it is the complainant (either as a victim of the offence or otherwise), who sets the law in motion. But, in the case of other offences under the ....
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....sed 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 provision of Sub-Section (3), also direct the Public Prosecutor to present an appeal- (a) to the Court 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 u....
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.... right of victim, to prefer an appeal in terms of said proviso to Section 372, became available to the victim(s) of all cases in which orders were passed by any criminal court acquitting the accused or convicting him for a lesser offence or imposing inadequate compensation, on or after 31st of December, 2009. In other words, date of judgment of a criminal court has to be necessarily treated as the relevant date for applying the test of maintainability of appeal by the victim under three contingencies laid down under the proviso to Section 372 of the Code, irrespective of the date of occurrence, institution of the case, cognizance or commitment? 24. In this regard, it is necessary to refer to the decision of the Supreme Court interpreting Section 378(4) in the light of the amendment made to the Code by Central Act 25 of 2005. The Supreme Court, vide its judgment in Subhash Chand Vs. State (Delhi Administration) [2013 (2) SCC 17], held that a complainant of an offence can file an appeal only in the High Court after getting a special leave. It was further held as follows : Mr.Malhotra is right in submitting that it is only when Section 147 of the Criminal Procedure Code, 1....
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.... jurisdiction. Till Section 378 was amended by Act 25 of 2005 the State could prefer appeals against all acquittal orders. But the major amendment made in Section 378 by Act 25 of 2005 cannot be ignored. It has a purpose. It does not throw the concern of security of the community to the winds. In fact, it makes filing of appeals against certain types of acquittal orders described in Section 378(1)(a) easier, less cumbersome and less time consuming. we conclude that a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court.? 25. A Division Bench of the Delhi High Court in Chattar Singh Vs. Subhash & Ors. [176 (2011) DLT 356] made a narrow reading of the word 'victim' limiting it to persons suffering direct and proximate physical harm and also narrowly read the term 'legal heir' limiting it to the lines of succession under the personal law. The correctness of the view taken by the Division Bench and also on the question of locus-standi of private parties maintaining appeals under the Proviso to Section 372 of Cr.P.C., was referred to a Larger Bench in the case of Ramphal Vs. State & Ors. The ....
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....e proximity test for the meaning of 'victim' and an understanding of 'legal heirs' that tracks the relevant personal law, but is not limited to only those legal heirs entitled to succeed the property, achieves an adequate balance between the two interests. So long as the existence of a legal relationship is established between the (deceased) victim and the one who seeks to appeal under proviso to Section 372, sufficient locus standi has to be conceded?..? The anxiety of Parliament to confine the right of appeal to a restricted category of cases is evident from the subject-object predicate, i.e. the nexus between the 'victim' and 'injury' is apparent from the fact that appeals are admitted to only those injured by the crime or offence (?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?), where 'injury' is defined by Section 44 of the IPC, as discussed earlier. In this first sense, the class of persons, i.e victims being those suffering loss or injury, is clear enough; only the actual victim, wherever available, directly affected by the crime or offence (?act or omission?) attributable to the o....
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.... suffered, such as the father or siblings of a deceased victim or other categories of persons (based on proximity) noted previously . (iii) The laws of inheritance, which decide one's "legal heirs", are not intended to be solely determinative of the entitlement to exercise the rights of the victim, in the criminal trial/appeal, on his/her death, application of Heydon's mischief rule, given that the object of the 2008 Amendment Act was to ensure the involvement of the victim, who has a presumably personal interest in the fair and efficient prosecution of the trial/appeal. Resultantly, it is impermissible for an appellate court to shut out an appeal by a "legal heir" based only on her/his not being an immediate heir, or being lower down in hierarchy vis- -vis entitlement to the crime victim's estate. 54. As a concluding remark on the specter of uncertainty (of defending multiple appeals) which would possibly hover over, and weigh down those acquitted of offences goes, this Court is in agreement with the view of the Punjab and Haryana High Court that all such 'victims' or 'legal heirs' appeals would be heard together, and the issue can be ....
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.... to prefer an appeal to the High Court against the order of acquittal under proviso to Section 372 of Cr.P.C. without obtaining the leave of the High Court as required under Sub-Section (3) to Section 378 of Cr.P.C.?, this Court is of the view that the right of questioning the correctness of the judgment and order of acquittal by preferring an appeal to the High Court is conferred upon the victim including the legal heir and others, as defined under Section 2(wa) of Cr.P.C., under proviso to Section 372, but only after obtaining the leave of the High Court as required under sub-Section (3) to Section 378 of Cr.P.C. The High Court of M.P. has failed to deal with this important legal aspect of the matter while passing the impugned judgment and order.? 28. A Division Bench of the Himachal Pradesh High Court, in its judgment in Joginder Singh Vs. State of Himachal Pradesh through its Secretary (Home) [2013 (2) Crl.CC 566 : 2013 (3) Crimes 160], held as to how the procedure for filing appeal under the Proviso to Section 372 should be regarded and observed as follows:- We are of the considered view that though the proviso to Section 372 of the Code does give a right to the vi....
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....ently, only victim can file an appeal against an order of imposing ?inadequate compensation? in addition to his right of appeal against acquittal and convicting the accused for a lesser offence and therefore, to club his right and make it dependent upon the exercise of right of appeal at the instance of the State would be not only be unworkable but would run contrary to the scheme and lead to absurdity? In the circumstances, the very basic premise upon which the law is laid down in Bhikhabhai (supra), i.e. the rights of both State and victim are similar and therefore, the right of one (victim) can be dependent upon exercise of the right by the other (State) is, in our opinion, not correct and against the plain and simple language used by the legislature in the proviso to Section 372. Similarly, Section 24(8) of the Code has nothing to do with the right of appeal conferred upon the victim and by taking aid of that section, the substantive right conferred upon a victim cannot be made conditional? In our opinion, the correct law, as emerging from the Scheme of the Code, would be that the right of a victim to prefer an appeal (on limited grounds enumerated in proviso to Sec....
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....only give liberty to a District Magistrate, the State Government, the Central Government and the complainant, as the case may be, to prefer an appeal against 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 ....
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....ferred in terms of the said proviso to Section 372, against an order is entertained by an appellate court on merit, 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." 31. Since, subsequent to the Full Bench reference, the Supreme Court in Satyapal Singh interpreted these provisions, we are duty bound to follow the same to the extent it binds us. With that in mind and in the light of the above legal precedents and the discussion, we answer the questions posed by the Referral Judge as follows:- (1) A victim of the crime, who has prosecuted an accused by way of a private complaint, has a statutory right of appeal within the limits prescribed under Section 372 of Cr.P.C. (2) A complainant (in a private complaint), who is not a victim, ....