TaxTMI 
TaxTMI 
2013 (3) TMI 775
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....9 is still eluded of unanimity amongst different High Courts. A Division Bench of this Court in Smt. Ram Kaur @ Jaswinder Kaur vs. Jagbir Singh @ Jabi & Ors., 2010 (3) RCR (Crl.) 391, also made an attempt to define the expression "victim" within the meaning of Section 2(wa) for the purpose of his right to appeal under proviso to Section 372 CrPC. A learned Single Judge while considering an application seeking leave of this Court to prefer appeal against the order of acquittal passed in relation to the accusations under Sections 279, 337, 338 and 304-A IPC found an apparent conflict between proviso to Section 372 and Section 378 Cr.P.C. and vide his order dated September 5, 2011 passed in CRM-547-MA-2011 opined that:- ... 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 provid....
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.... 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 against 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) CrPC? (C) Whether the 'rights' of a victim under the amended Cr. P.C. are accessory 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) CrPC? (F) Whether proviso to Section 372 CrPC inserted w.e.f. December 31, 2009 is prospective or retrospective in nature and whether a revision petition pending against....
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....f criminal laws operative within a State, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the 'victim'. 7. European Union (EU) also took great strides in granting and protecting the rights of 'victims' through various Covenants including the following:- i. The position of a victim in the framework of Criminal Law and Procedure, Council of Europe Committee of Ministers to Member States, 1985; ii. Strengthening victim's right in the EU communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Reasons, European Union, 2011; iii. Proposal for a Directive of the European Parliament and of the Council establishing "Minimum Standards on the Rights, Support and Protection of Victims of Crime, European Union, 2011. 8. The United States of America (USA) had earlier made two enactments on the subject i.e. (i) The Victims of Crime Act, 1984 under which legal assistance is granted to the crime-victims; and (ii) The Victims' Rights and Restitution Act of 1990, followed by mea....
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.... charge is punishable with seven years imprisonment or more'; the right of voluntary organizations for impleadment in court proceedings in select cases; the victim's right to be represented by an advocate of his choice and if he is not in a position to afford, to provide an advocate at the State's expenses; victim's right to participate in criminal trial; the right to know the status of investigation and take necessary steps in this regard and to be heard at crucial stages of the criminal trial including at the time of grant or cancellation of bail. The Committee further recommended that "the victim shall have a right to prefer an appeal against any adverse order...; he should be provided legal services and that 'victim compensation' is a State obligation in all serious crimes, whether the offender is apprehended or not, convicted or acquitted" and for this object a separate legislation be enacted. 12. Soon after the Malimath Committee report came the verdict in Jahira Habibullah H. Sheikh & Anr. vs. State of Gujarat & Ors., (2004) 4 SCC 158, ripping apart the ailing criminal justice system in India and ordering re-trial of Best Bakery Case and de....
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....ognized the right of the complainant at whose instance the police-case was registered, to be heard by the High Court in the proceedings initiated by the accused for quashing those proceedings. It held thus:- 9. The scheme envisaged in the Code of Criminal procedure (for short the Code) indicates that a person who is aggrieved by the offence committed, is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police and the charge sheet was laid by them. Even the fact that the court had taken cognizance of the offence is not sufficient to debar him from reaching the court for ventilating his grievance. Even in the sessions court, where the Public Prosecutor is the only authority empowered to conduct the prosecution as per Section 225 of the Code, a private person who is aggrieved by the offence involved in the case is not altogether debarred from participating in the trial.... 17. In Puran Shekhar and Anr. vs. Rambilas & Anr., (2001) 6 SCC 338, the locus standi of father of the deceased in a dowry death case, to move the High Court and seek cancellation of bail granted by the Sessions Court was upheld as he was not a stranger....
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....oned in para 6, are hedging around the 'right to appeal' given to a 'victim', we may briefly notice the evolution of that right under the Indian legal regime. 24. The Code of Criminal Procedure when originally enacted in the year 1861 did not provide for any right to appeal against acquittal to anyone including the State. It was in the Code of Criminal Procedure of 1898 that Section 417 was inserted enabling the Government to 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. The Law Commission of India in its 41st Report given in September, 1969 as also in 48th Report pertaining to the Criminal Procedure Bill, 1970, however, recommended to restrict the right of appeal given to the State Government 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 Proced....
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.... 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 an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision. (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may, subject to the provisions of sub-section (3), 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 i....
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....oviding funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who, require rehabilitation". 31. Sub-Section (3) of Section 357-A further provides that "If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation". Similarly, its sub-Section (4) enables that "Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation". 32. The profound and most cherished 'right to appeal' conferred upon and/or earned by the innumerable victims after a protracted struggle and which is free from all shackles, is by way of the proviso added to Section 372 whereunder a 'victim' can prefer an appeal against (i) an order acquitting the accused; (ii) convicting the accused of a lesse....
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....ection 372 Cr. P.C.? 36. The principal debate before us encircles the true meaning and import of the expression "victim" as defined under Section 2(wa) with reference to the right to appeal given to such 'victim' on the grounds enumerated under proviso to Section 372 of the Code. Since a Division Bench of this Court as also various other High Courts have elaborately discussed and opined on this and other allied issues, it would be beneficial at this stage to take a brief note of those decisions. 37. In Ram Kaur @ Jaswinder Kaur's case, FIR was registered on the statement of the appellant (Smt. Ram Kaur) initially under Section 307 read with Section 34 IPC but subsequent to the death of the injured, the offence was converted under Section 302 IPC. The accused were, however, acquitted by the trial court holding that the deceased died in a road accident. The State did not prefer appeal against the order of acquittal but the informant-cum-complainant asserted herself to be a 'victim' within the meaning of Section 2(wa) and filed appeal under proviso to Section 372 without seeking 'special leave' to appeal. Since the status of the appellant as a &....
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....the appellant who was the father of the deceased, filed appeal under proviso to Section 372 of the Code against acquittal of the accused in a case under Section 302 IPC etc. and claimed himself to be a 'victim' within the meaning of Section 2(wa) of the Code. In the second case also, the appellant was the father of deceased Nasreen who was married to one of the accused. The primary question that arose for consideration in the first case was whether the appellant (Chattar Singh) could be regarded as a 'victim' for the purpose of proviso to Section 372 of the Code? The Court held that "a victim of crime is a person who suffers any loss or injury as a result of the crime. Although the expression "any loss or injury" is an expansive expression, it appears that it has been used in the context of the person whose suffering is the direct and most proximate result of the crime". The Bench further held that a definition which employs the expression "means and includes" is an exhaustive definition and in the present case Section 2(wa) would refer to a crime victim in the natural and ordinary sense as the person who directly and most proximately s....
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....e, the appellant was the father of deceased Pooja Debnath who was married to the second respondent (Chandan Das). She was allegedly killed by throttling and the appellant lodged a complaint that the deceased was tortured, mentally and physically, by the second respondent and his parents besides having been pressurised into fetching ₹ 50,000/- from him. Since the accused were acquitted in the case under Section 302 read with Section 34 IPC, the appellant claiming himself to be a 'victim' preferred an appeal before the High Court under proviso to Section 372 of the Code. The Gauhati High Court held that "person who has suffered loss due to a crime is obviously a victim" and that "in Section 2(wa) of the Code, there are two parts, one part is related to the victim who has suffered loss and injury and by way of other parts, the Legislature expanded the word 'victim' even to the persons who are the guardian and legal heirs". 43. The Gauhati High Court while disagreeing with the Delhi High Court, concluded thus:- ...As the words 'loss' and 'injury' were not defined in the Code, we have to consider that loss and injury, as mental....
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....pression "victim" includes his or her 'guardian' or 'legal heir'. We find on its plain reading that the Legislature has classified the 'victim' in two categories i.e. (i) a person who has suffered any loss or injury caused by the act or omission attributed to the accused; and (ii) the 'guardian' or 'legal heirs' of such 'victim'. The correct understanding of the first part of the term "victim" is contingent and is subject to the true scope of the words "loss" or "injury" contained therein. Both these words are not defined in the Code, however, its Section 2(y) says that "words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860) have the meanings respectively assigned to them in that Code". 47. Section 23 IPC defines "wrongful loss" and it says that "'wrongful loss' is the loss by unlawful means of property to which the person losing it is legally entitled". It is further explained that "a person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wr....
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....itled to receive an intestate descendant's property-Also termed as 'legal heir'; 'heir at law'; 'lawful heir'..." and that in civil law, 'heir' means "a person who succeeds to the rights and occupies the place of, or is entitled to succeed to the estate of, a descendant, whether by an act of the descendant or by operation of law". The Chambers Dictionary defines the word "heir" (in law) as "a person who actually succeeds to property, title etc. on the death of its previous holder". The Oxford English Dictionary (Indian Edition) also defines the word "heir" to mean "a person legally entitled to the property or rank of another on that person's death". It further defines "heir-at-law" to mean "an heir by right of blood especially to the real property of an intestate". 51. According to Barron's Dictionary of Legal Terms (3rd Edition), the term "heirs" means "strictly those whom statutory law would appoint to inherit an estate should the ancestor die without a Will (intestate); sometimes referred to as 'heirs-at-law', 'rightful heirs', &#....
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....Welfare Fund Act, 2001 (Section 11) cast a duty on the Trust Committee to make payment out of the welfare fund to the members of the fund or their nominees or legal heirs. The Merchant Shipping Act, 1958 (Section 141) also contemplates payment of compensation to a seaman and in the case of a deceased seaman, to the person nominated by him or to his legal heirs. Section 44 of the Delhi Police Act, 1978 also contemplates payment of compensation to a person who has suffered loss or damage to his property or grievous hurt or to the legal heirs of any person who was no more alive. The Income Tax Act, 1961 [Section 10(BC)] permits deduction of an amount received or receivable from the Central or State Government or a local authority by an individual or his legal heir by way of compensation on account of any disaster etc. Similarly, the Consumer Protection Act, 1986 defines a "complainant" to mean a consumer and in case of death of the consumer his legal heir or representative, who are competent to make a complaint [Section 2(1)(v)]. 56. It thus appears that every heir who, in law, is entitled to succeed to the estate of a deceased 'victim' in one or the other eventuali....
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....e under the Victim Compensation Scheme [Sections 357(1)(c) & 357-A], is payable only to the 'legal heirs' of a deceased victim. 60. Having held that the Legislature has not linked or preconditioned the admissibility of compensation to the next kin of a victim under Section 357 or Section 357-A with the personal law of such victim, we revert back to the second part of the definition of "victim" under Section 2(wa) of the Code which includes his/her guardian or legal heir within the expression "victim", with special reference to the right to 'engage an advocate' under Section 24(8) or the 'right to appeal' under proviso to Section 372 of the Code. 61. The Legislature while specifying four categories of the next of kin of the deceased victim, has purposefully couched the language of Section 357(1)(c) in a manner which leaves no grey area for the Court firstly to determine the status of the claimant as a 'legal heir' and then the order of succession amongst different categories of heirs. Similarly, the Legislature did not deem it necessary to use the expression "victim" in Section 357, while in Section 357A, it has shrunk ....
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....ir" deserves to be given widest amplitude to meet with all kinds of peculiar or unforeseen situations, two of which are illustratively given below:- (a) where a major, unmarried orphan is murdered and the accused person(s)/undertrial(s) was/were acquitted of the charges and the State does not prefer an appeal against the acquittal. (b) where the entire family is murdered and the accused person(s)/under trial was/were acquitted of the charges and the State does not prefer an appeal against the acquittal. In both the mis-happenings there may not be any person known as 'legal heir' or a 'guardian' to file an appeal against unwarranted acquittal and it will be against all canons of justice to say that the appellate Court in such like situations would be helpless and the offenders will go unpunished. Since the Legislature has finally granted the right to appeal to a 'victim', it is the duty of the Court to trenchantly affirm such right and provide appropriate remedy. 65. We say so also for the reason that the right to 'engage an advocate' or to 'prefer an appeal' under proviso to Section 372 does not ipso facto entitle the appellant to cl....
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....appeal despite informed knowledge of the order which can be appealed against under proviso to Section 372 of the Code. More than one appeal, if preferred by different legal heirs, can also be not a cause of concern nor a serious impediment as all such appeals can be clubbed and decided together by passing one consolidated order. 69. It thus finally emerges that the Legislature, before and after amendment of the Code vide Act No. 5 of 2009, has recognized and conferred one right or the other on the following categories of persons:- (i) a 'victim' as defined in Section 2(wa) which includes his/her 'legal heirs' can be permitted by the Court under Section 24(8) to engage an Advocate of his/her choice to assist the prosecution and if he/she is aggrieved at the acquittal of an accused (except acquittal in a case instituted on a complaint), the conviction of the accused for a lesser offence or the imposition of inadequate compensation on such accused, such 'victim' (including his/her legal heirs) have got a right under proviso to Section 372 to prefer an appeal to the Court to which an appeal ordinarily lies against the order of conviction of such Court; (ii) t....
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.... as mandated by Section 378(3) and if such an appeal is presented by the complainant, he/she is required to seek 'special leave' of the High Court under Section 378(4). 71. It was vehemently urged that only that 'victim' of a crime who is invariably not rescued by the State machinery and whose complaint is not even registered as FIR (in other than non-cognizable offences), approaches the Judicial Magistrate under Section 200 of the Code by way of a private complaint hence the intensity of his/her 'victimisation' is much more than that of the 'victim' of a police-case, therefore, both the victims should be treated indiscriminately for the purpose of appeal under proviso to Section 372, more-so when sub-Section (4) of Section 378 restricts the right to present appeal only against an order of acquittal. It was also advanced that the Legislature has drawn no distinction between the 'victim' of a police case or that of a complaint case in Section 2(wa) or proviso to Section 372 of the Code. 72. The High Courts are at variance in opining on the aforesaid issue. Some have viewed that the 'victim' under Section 2(wa) is all inclusive and co....
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....ual Scavengers and Construction of Dry Latrines (Prohibition) Act etc. are a few of the ones where the 'complainant' can only be a designated Government official though the 'victim' of violation of these Statutes would either be a workman or a person belonging to the marginalized section of society. The second set of Legislations, being quoted on illustrative basis, are (a) Equal Remuneration Act, 1976; (b) Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994; (c) Transplantation of Human Organs and Tissues Act, 1994; and (d) Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992 whereunder besides the designated Government official a social and voluntary organization is also authorized to institute complaint though the 'victim' is essentially other than the 'complainant'. What would be the status or locus of a 'complainant' or of the 'victim' in such like cases for the purpose of presenting an appeal under proviso to Section 372 or Section 378(4) of the Code is yet another question that has been raised by the petitioners. 75. We ar....
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....Code enables a complainant to prefer appeal against acquittal of the accused provided that the High Court grants 'special leave' to such appeal. The 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 the 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 intentment, there cannot be any scope to doubt that the 'complainant' of Section 378(4) who has failed to establish the complicity can assail such acquittal only with the 'special leave' of the High Court under Section 378(4) only. 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. 79. However, if such a 'victim-cum-complainant' succeeds in bringing the guilt home against the accused and establishes his/her 'victimisation' but is aggrieved at the co....
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....d's case (supra) has held that the complainant's remedy, whether he is a private person or a public servant, to question the acquittal lies only in Section 378(4) of the Code, hence the 'victim' will also have to be relegated to that conditional remedy only. Similarly, where a 'victim' is competent to institute a private complaint but permits or consents expressly or implicitly to the filing of such complaint by his family-members, near and dears or an acquaintance, the 'victim' and 'complainant' in such a case cannot be seen differently and would be inseparable, hence the 'victim' will also fall back on Section 378(4) only which specifically refers to filing of appeals against acquittal at the instance of complainant and not under proviso to Section 372 of the Code which has been pre-dominantly incorporated to provide right to appeal to the 'victims' in police-case who are not permitted to participate or have any say during trial. 82. The above discussion thus can be summed up to say that- (i) the 'complainant' in a complaint-case who is a 'victim' also, shall continue to avail the remedy of appeal against a....
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....bhai Motibhai Chavda vs. State of Gujarat, 2011 (6) RCR (Crl.) 1323 ; and (ii) Jusabhai Ayubbai Miyana vs. State of Gujarat & Ors. Crl. Appeal No. 45 of 2012 decided on 24.01.2012. Converse was the view in State of Gujarat vs. Chaudhary (Patel) Pababhai Devabhai & Ors., Criminal Misc. Application No. 4350 of 2011, that the victim having already filed an appeal from the selfsame order of acquittal to which the State was also a party, the subsequent application for leave to appeal filed by the State was not to be entertained. In Bhavuben Dinesh Bhai Makwana vs. State of Gujarat and 9 others Criminal Appeals No. 238 of 2012 and 608 of 2012, another Division Bench of Gujarat High Court referred the matter to the larger Bench for the purpose of deciding (i) whether the appeal filed by the victim under the proviso to Section 372 of the Code, challenging acquittal, or conviction for lesser offence, or awarding inadequate compensation, is not maintainable on the ground that the State has filed an appeal against the same order and for the same purpose? (ii) whether an appeal filed by the State be not entertained on the ground that the appeal preferred by the victim invoking his right under ....
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....nd the State operate in different spheres and neither ousts the other, therefore, filing of appeal by the one will not rob the other of its right to appeal. 88. Right to challenge a conviction or acquittal or any other sentence or order, emanates only from a Statute. The scheme of the Code after various amendments, confers right of appeal only on four categories of persons; (i) accused; (ii) State; (iii) victim; and (iv) complainant in complaint cases, and none else. In tune with what has been discussed above, the correct interpretation, in our opinion, would be that a 'victim' who happens to be the 'complainant' in the police-case, if files appeal against acquittal is not required to take 'leave' under Section 378 of the Code. To this extent we are, therefore, unable to agree, with reverence, to the view taken by the Full Bench of Gujarat High Court and hold that the 'victim' (including a complainant in a police case) is not required to apply for or obtain any leave under Section 378(4) of the Code nor such a 'victim' is required to seek leave in cases where appeal is against inadequacy of compensation and punishment for lesser offence. 89....
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....2 of the Code also. Since leave to appeal under Section 378(3) is confined only to such appeals which are presented by the State or Central Governments under sub-Section (1)(b) or sub-Section (2)(b) of Section 378 of the Code, with due regard at our command, we are unable to agree with the view taken by the Division Bench of this Court in Smt. Ram Kaur's case (supra) that a 'victim' shall be required to seek leave/special leave to appeal while exercising his/her right to appeal under proviso to Section 372 of the Code and overrule the same to that extent. On the same analogy, we express our inability to agree with the view taken by the Patna High Court in Guru Prasad Yadav's case (supra). 92. The cumulative effect of the above discussion is that the right(s) of a 'victim' under the amended Code are substantive and not mere brutam fulmen hence these are not accessory or auxiliary to those of the State and are totally incomparable as both the sets of rights or duties operate in different and their respective fields. We thus hold that a 'victim' is not obligated to seek 'leave' or 'special leave' of the High Court for presentation of Ap....
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....pport to us in this regard when it holds that "The State does not in pursuing or conducting a criminal case or an appeal, espouse any right of its own but really vindicates the cause of society at large, to prevent recurrence as well as punish offences and offenders respectively, in order to preserve orderliness in society and avert anarchy, by upholding the rule of law". 95. In an era of enlightened and well-informed society who justifiably demands its rights or frowns upon the belied promises, it will be too farfetched to say that the 'duty' of the State under Sections 377 or 378 is actually a 'right' exercisable at the discretion of State Executive. The fact that the Legislature has chosen to grant unconditional right to appeal to a 'victim' as compared to the conditional right given to a State under Section 378(3) implies towards the failure of the State machinery in preserving the fair balance upto the expectations of the people. The State therefore no longer enjoys any privileged status as an 'appellant' and hitherto there shall be no legal distinction between an appeal preferred by the 'State' or a 'victim'. (E) Whe....
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....ere the Court of Session would have no choice but to await the outcome of the appeal preferred by the State before the High Court and then perform its bounden duty to follow that decision of the superior Court to negate, for all intents and purposes, the right to appeal of a 'victim' contrary to the legislative object behind insertion of the proviso to Section 372 of the Code. 99. The following table demonstrates the after-effects of the 2005 and 2009 amendments on Appeals before different Courts:- 100. Let us now analyse the second part of the proviso added to Section 372. It says that "the victim shall have a right to prefer an appeal.......and such an appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court". The adverbial expression "ordinarily" is suffixed to the Court where convict's appeal shall lie. The marginal discretion or exception of Forum carved out by the Legislature pertains to the appeal preferable by an accused against his conviction and not of the 'victim' which 'shall' lie to the same Court where the appeal against the order of conviction of such Court is main....
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....by the 'victim' and the State before different forums would lead to indecisiveness and adhocism. 104. The 'draftsman' has in conversantly slipped up while drafting the proviso to Section 372, when he overlooked Section 378(1) as amended by Act No. 25 of 2005. Resultantly, the laudable legislative policy behind enabling the District Magistrate to present an appeal to the Sessions Court so as to avoid time taxing procedure of seeking State's sanction for filing an appeal has been put on hold. 105. The only effective modicum to meet with the situation as we perceive can be to interpret and construe Section 378(1)(a) in such a manner that the State's appeal(s) in respect of all the cognizable offences (whether bailable or non-bailable) are presented to the Court of Session, for such a recourse is the least harmful, non-prejudicial and substantively conforms to the legislative vision underlying the amendments carried out in the Code in the years 2005 and 2009. This can be feasible if the word "and" contained in Clause (a) of Section 378(1) of the Code is read as "or" so that the appeal preferred by the State against an order of acquittal pas....
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...., if possible, effect should be given to both...". Thus, a construction that reduces one of the provisions to a 'useless', 'lumber' or 'dead-letter' is not a harmonious construction as 'to harmonise is not to destroy'. [Ref. (i) JK Cotton Spinning & Weaving Mills Co. Ltd. vs. State of UP & Ors., (1986) 4 SCC 90 [AIR 1961 SC 1170]; and (ii) Calcutta Gas Co. (Prop.) Ltd. vs. State of West Bengal & Ors., AIR 1962 SC 1044]. 109. An equally acceptable principle and oftenly pressed into aid is that when a choice has to be made out of the two given constructions, both of which require reading of some additional words, the Court will naturally prefer the one which is more in consonance with reason or justice. [Ref. Ramaswamy Nadar vs. State of Madras, AIR 1958 SC 56] 110. New India Sugar mills Ltd. vs. Commissioner of Sale Tax, Bihar AIR 1963 SC 1207 says that "it is a recognized rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which the best harmonized with the object of the statute, and which effectuate the object of the legislature". Busching Schmitz Pvt. Ltd. vs. PT Menghani, ....
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....ntainability of both the appeals against the same order of acquittal before one Forum only. 114. As to the fair balance that is needed to be struck between the interests of a 'victim' and those of the State, it appears more appropriate, just, fair and proper not to compel the 'victim' to go to High Court instead the State can be detoured to present its appeal to the Sessions Court even against an order of acquittal passed by a Magistrate in respect of cognizable and bailable offence. The Legislative intent underlying Section 378(1)(a) and 2(a) is to provide a distinct forum of appeals against acquittal passed by the Magistrate in relation to cognizable offences. The recourse so suggested is the most viable substitute which neither jeopardizes the rights of the parties nor dilutes the legislative intention. It also does not traverse through unknown jurisprudential principles as the interpretative power of the Court to notice the omission of a draftsman vis-à-vis the Legislature's intention and to abridge that distance is well recognized. There is adequate jurisprudence bearing directly on the issue that may be briefly noticed at this juncture. 115. In Is....
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....by the State or Central Government cannot be entertained without leave of the High Court. However the reference to sub-section (6) in sub-section (1) is clearly an inadvertent mistake. As pointed out above sub-section (5) of Section 378 applies only to application for special leave by a complainant. Sub-section (5) of Section 378 has no application to an appeal by the State Government or to an application for leave under sub-section (3). What the Legislature clearly intended was to continue to provide that an appeal by the State Government would not be maintainable if special leave to appeal had been refused to a complainant. Thus sub-section (1) of Section 378 was to be subject to provisions of sub-section (6) and not subsection (5) as inadvertently provided therein. Inadvertently the figure (5) in Section 417(1) was continued, without noticing that now under Section 378 the relevant provision was sub-section (6). In our view it is clear that the figure (5) in Section 378(1) is inadvertently retained. Thus in Section 378(1) the figure (6) will have to be read in place of the figure (5). (Emphasis applied) 119. In the light of the above discussion, we hold that while in view of p....
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.... 545. 123. It is equally well-established that every Statute shall be presumed prospective in operation unless the Legislature expressly or by necessary implication gives retrospective effect to it. No such inference can possibly be drawn, even remotely, in the instant case. Otherwise also, it is one of the cardinal principles of statutory interpretation that a Statute dealing with substantive rights shall be prospective unless there are words in the Statute sufficient to show the intention of the Legislature to affect existing rights. Osborn's Concise Law Dictionary says that "a new law ought to regulate what is to follow, not the past". These principles have been laid down and reiterated in a string of decisions including in (i) Keshavan Madhava Menon vs. State of Bombay, AIR 1951 SC 128; (ii) Arjan Singh vs. State of Punjab, AIR 1970 SC 703; (iii) Ex. Capt. KC Arora & Anr. vs. State of Haryana & Ors, (1984) 3 SCC 281; and (iv) State of Madhya Pradesh vs. Rameshwar Rathod, (1990) 4 SCC 21. 124. These very principles apply in the case of an amendment in a Statute. If the amendment intends to create a substantive right or if it affects the vested right, it shall ord....
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....upra) too, with reference to Article 114(a) of the Limitation Act, has held that the period of ninety days should be the reasonable period for a 'victim' to file an appeal as the said period is the longest period of limitation for filing an appeal against an order of acquittal prescribed by the Legislature. 127. The Delhi High Court in Kareemul Hajazi's case (supra), however, thought differently and after referring to certain precedents laying down that 'in the absence of prescription of the limitation period, the statutory authority must exercise its jurisdiction within a reasonable period', it decided to bring the 'victim' at par with the 'accused' for the purpose of period of limitation to prefer appeal and held that since an accused is required to prefer appeal to the High Court within sixty days as prescribed under Section 374 of the Code read with Article 115(b)(i) of the Limitation Act, the period of limitation for the appeal of a 'victim' shall also be the same i.e. sixty days. 128. One of the well-recognized principles of criminal jurisprudence is that 'crime never dies'. The maxim 'nullum tempus qut locus occurrit ....
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.... the order of acquittal. Similarly, sub-Section (4) of Section 417 provided 60 days' period of limitation to apply for grant of special leave to appeal to the High Court against the order of acquittal passed in a complaint-case. The appeal against acquittal in such cases can be filed within 30 days of the date of grant of special leave to appeal as provided under Clause (b) of Article 114 of the Limitation Act. The Hon'ble Supreme Court in Dharam Pal's case compared the provisions of old Code with Section 378 of the new Code and held that appeals against acquittal preferred by the State Government or the Central Government continue to be governed by Article 114(a) of the Limitation Act. In other words, those appeals must be filed within 90 days from the date of order appealed from. A 'victim' therefore is also entitled to the said maximum period of limitation i.e. 90 days to prefer his/her appeal against an order of acquittal. 132. Under Section 378(5) of the Code, an application for the grant of special leave to appeal from an order of acquittal moved by the complainant who is a public servant, can be entertained by the High Court within a period of six months....
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....and circumstances of each case. 136. The Legislative intentment behind Articles 114 & 115(b) of the Limitation Act in prescribing the period of limitation for appeals to the High Court or to the Court of Session against different type of orders, is the best guiding factor to determine reasonableness of the period of limitation for an appeal preferable at the instance of a 'victim' also. It would, therefore, be reasonable to view that for appeal against acquittal filed by a 'victim' to the High Court the period of limitation would be 90 days and where such appeal lies to the Sessions Court such period shall be 60 days. For appeal against any other order, the reasonable period would be 60 days to the High Court and 30 days for appeals to the Sessions Court from the orders passed by the Magistrate, as the case may be. To be more specific, the period of limitation for the purpose of filing appeal(s) by a victim shall be as under:- (a) In case of acquittal- (b) Any other sentence or order- 137. The limitation period of ninety, sixty and thirty days, as the case may be, prescribed above for the maintainability of an appeal by a victim, in our considered view, ought to....
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....nized 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 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. Question-(F) (viii) The proviso to Section 372 inserted w.e.f. December 31, 2009 is ....