TaxTMI 
TaxTMI 
2015 (2) TMI 1259
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....mplaint filed by complainant, or he is required to prefer an appeal under sub-section (4) of Section 378 of the Cr.P.C. before this Court after obtaining leave?" Scope of appeal against the judgment of acquittal at the instance of the complainant under the proviso to Section 372 of the Code of Criminal Procedure, 1973 (for short 'the Code') was earlier considered by the learned single Judge of this Court (Hon'ble Mr. Justice G. Minhajuddin) in the case of Sunder Das Rohra v. Anil Mishra, Cr. Rev. No. 779/2012 (decided on 15-4-2013), wherein it was held that appeal against acquittal at the instance of the complainant in a complaint trial could be maintained under the proviso to Section 372 of the Code. Disagreeing with the view taken by the learned single Judge (Hon'ble Mr. Justice G. Minhajuddin), the learned single Judge making the reference (Hon'ble Mr. Justice Sanjay K. Agrawal) has made the instant reference. 2. The learned Advocate General and counsel for the parties are heard. Records of both cases in which the matter has been referred perused. 3. The learned Advocate General while addressing the issue has submitted that remedy of special leave to....
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...., 1881 would lie to, the High Court. The proviso to Section 372 of the Code read with Section 2(wa) of the Code will not be attracted to case filed on complaint. The learned Advocate General also placed reliance in the matter of Shantaram v. Dipak, 2012 (2) Mh LJ 398 : (2012 (5) AIR Bom R 24) in which the High Court of Bombay has taken the same view. The learned Advocate General also relied upon the matter of D. Sudhakar v. Panapu Sreenivasulu and others, 2013 Cri LJ 2764 in which the Division Bench of the Andhra Pradesh High Court has held that special right of appeal has been provided to the victim by amending the proviso to Section 372 of the Code which came into force from 31-12-2009, the victim is entitled to file appeal and prior to amendment victim was not having any right to file appeal, the right was retained with the State. The learned Advocate General also placed reliance in the matter of Bhavuben Dineshbhai Makwana v. State of Gujarat & others, 2013 Cri LJ 4225 in which the Full Bench of the Gujarat High Court has held that only victim as defined under Section 2(wa) of the Code has right to file appeal under the proviso to Section 372 of the Code. 5. The learned Advo....
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.... amendment and addition of the proviso to Section 372 of the Code, remedy to file appeal was not available to victim, only remedy to file leave to appeal under Section 378(4) of the Code was available to the complainant against the judgment of acquittal passed in a complaint case. By adding the proviso to Section 372 of the Code and inserting clause (wa) in Section 2 of the Code defining the word 'victim', right to file appeal against the judgment of acquittal has been provided to the victim. At the time of amendment, the Legislature was having knowledge about the availability of remedy of leave to appeal under Section 378(4) of the Code to the complainant, but the Legislature has not restricted the definition of victim which shows the intention of the Legislature mat victim who may also be complainant has two forums for redressing the grievance i.e. the victim may file appeal under the proviso to Section 372 of the Code against the judgment of acquittal or to file leave to appeal under Section 378(4) of the Code. Therefore, it shall be deemed that Section 378(4) of the Code stands modified to the extent that both the remedies of filing appeal and leave to appeal are availa....
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....Court." 9. Thus, the Code as amended by Act No. 5 of 2009 has, inter alia, incorporated proviso to Section 372 and clause (wa) in Section 2 of the Code. Proviso to Section 372 of the Code provides right of appeal to the victim and victim has been defined in clause (wa) of Section 2 of the Code. Broadly speaking, Section 372 of the Code as amended would show that though none can file an appeal except as provided but the victim had a right to appeal. That right is also circumscribed under three circumstances i.e. (1) acquittal, (2) conviction for lesser offence and (3) inadequate compensation. The competent Court where the appeal would be filed has also been specified being where the appeal would lie against the order of conviction. The proviso has provided for the right of the victim for the first time in the criminal jurisprudence of the country and specified three cases in which such right is given and the only court where such rights could be exercised. In fact, it would not be a farfetched proposition to take the proviso to Section 372 of the Code as a complete Code. Prior to Amendment, only those victims who were complainant in cases instituted upon a criminal complaint were....
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.... Section 372 of the Code thereby conveniently bypassing the rigours and scrutiny of Section 378(4) of the Code. 12. Allowing such a shunt of procedural prescription of Section 378(4) of the Code would de facto render the provision of Section 378(4) of the Code redundant and as such this could never have been the intention of the legislature while enacting proviso to Section 372 of the Code. Nevertheless the strong and sweeping wordings of proviso to Section 372 of the Code can also not be simply brushed aside just to give way to an already existing inconsistent provision in Section 378(4) of the Code. It has to be determined by application of rules of statutory interpretation so as to exactly cull out from the provisions that whether the two provisions are inconsistent in pith and substance, and if there is inconsistency, then how much space one provision, should vacate so as to make the co-existence of inconsistent provisions possible. 13. It will thus call for application of rules of construction to reconcile the grey overlapping area to resolve the conflict. It is settled that while construing inconsistent provisions any construction which tends to reduce any provision of ....
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.... question, it is not only legitimate but highly convenient to refer both to the former Act and to the ascertained evils to which the former Act had given rise, and to the later Act which provided the remedy' These three being compared I cannot doubt the conclusion". 16. Prior to amendment of 2009 the State was at the centre - stage in Indian pro-accused criminal justice system. It appears that the pro - accused criminal justice system caused more harm than good in certain cases. This could have been a death - blow to the Rule of Law if the situation was not remedied. The legislature, therefore, must be taken to have present to its mind the damage and harm that may have been caused to the victim therefore it amended the Code, inter alia, to insert proviso to Section 372 which creates rights in favour of the victims. It is the mischief that is done by the excessive pro- accused bias in the criminal justice system that the right has been given to the victim and remains unparalleled, albeit yet only in appeal. 17. The 154th Law Commission Report on the Code of Criminal Procedure even devoted an entire chapter to 'Victimology' in which the growing emphasis on victim....
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.... 24. Proviso to Section 372 of the Code is strongly worded general provision dealing with remedy for victims of crimes, apparently without distinguishing a victim who is a complainant and who is not a complainant, aggrieved by any order passed by the Court in criminal cases in following categories of cases:- 1. Where the accused is acquitted, 2. Where the accused is convicted for a lesser offence, and 3. Where inadequate compensation is imposed. 25. Section 378(4) of the Code is a special provision dealing with appeal in case of acquittal of accused in complaint cases. It provides remedy to the complainant only and it is trite to say that complainant has much role in the court proceedings. Plain reading of the provision brings out that the remedy is provided in the provision to the victim: 1. Where the accused is acquitted, 2. Where the acquittal is in complaint cases, 3. Where the victim is complainant and complainant is the appellant. 26. As a corollary, it may be noted that despite the fact that Section 378(4) of the Code specifically deals with complaint cases it is silent, though not prohibitive, on the issue ....
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....usive application and effect in cases of acquittal of accused in cases instituted upon complaint. 4. Proviso to Section 372 of the Code has been enacted as a shift towards victimology and emphasis on victim's rights in criminal trials to curb for the mischief of the absolute pro - accused criminal justice system. 5. Availability of remedy under proviso to Section 372 of the Code in cases where Section 378(4) of the Code is silent about remedy to the victim will have to be resolved by resorting to interpretation. 30. Being conscious of the scope and limitation of the jurisdiction we exercise while answering the stated question referred to the larger Bench that we cannot adjudicate upon an issue beyond the question referred that is to say that we cannot venture to interpret and settle the law which would be applicable in cases instituted upon complaint where either the victim is not complainant or where the victim is complainant but accused had not been acquitted because the stated question referred to this Bench is confined only to ten-ability of appeals before the Court of Session against the judgment of acquittal passed by subordinate criminal court aris....