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2012 (10) TMI 1166
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....or the same purpose? (ii) Whether an appeal filed by the State should not be entertained, on the ground that the appeal preferred by the victim invoking his right under proviso to Sec. 372 of Cr.P.C., against the same order, is admitted by the Court? (iii) If the victim prefers an appeal before this Court, challenging the acquittal, invoking his right under proviso to Sec. 372 of Cr.P.C., whether that appellant is required to first seek leave of the Court, as is required in case of appeal being preferred by the State? The above two appeals are directed against an order of acquittal passed by the learned Additional Sessions Judge, Bhavnagar in Sessions Case No. 147 of 2010 by which the accused therein, who were charged for the offences punishable under Secs. 147, 148, 149, 323, 324, 325, 307 and 302 of the Indian Penal Code and Sec. 135 of the Bombay Police Act, were acquitted. 2. Criminal Appeal No. 238 of 2012 was preferred by the widow of the deceased invoking her right under the proviso to Sec. 372 of the Criminal Procedure Code (Code). The same order of acquittal was also challenged by the State of Gujarat by filing Criminal App....
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....Bench further cast doubt as to whether in order to exercise the right of appeal challenging the order of acquittal under proviso to Sec. 372 of the Code, the victim is required to first seek leave of the Court, as is required in case of appeal being preferred by the State, and therefore, their Lordships also framed the third question as indicated above. 8. We have elaborately heard the learned Counsel for the parties in detail. 9. In order to appreciate the questions involved, Secs. 2(d)(wa), 24(8), 372, 373, 374, 375, 376, 377 and 378 of the Code are relevant, and those are quoted below: 2. Definitions:- XXX XXX XXX XXX (d) "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 de....
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.... in this Section shall apply to persons the proceedings against whom are laid before a Sessions Judge in accordance with the provisions of sub-sec. (2) or sub-sec. (4) of Sec. 122. 374. 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-sec. (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  ....
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....ll not be appealable 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. 377. Appeal by the State Government against sentence:- (1) Save as otherwise provided in sub-sec. (2), the State Government may in any case of conviction on a trial held by any Court other than a High Court, direct the Public prosecutor to present an appeal against the sentence on the ground of its inadequacy- (a) to the Court of Session, if the sentence is passed by the Magistrate; and &nb....
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....stigated 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-sec. (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-sec. (1) or sub-sec. (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 an....
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....tim can make the submission to the appellate Court against the order of acquittal by assisting the Public Prosecutor as per the scheme of Sec. 24(8) of Cr.P.C. is not the correct law because Sec. 24(8) of the Code governs the right of the victim only at the time of trial and not at the stage of appeal. 10.3. Mr. Mehta submits that the rights/obligations/procedures during trial and during appellate stage are different and distinct both in the Civil Procedure Code and the Criminal Procedure Code. According to him, an appeal is treated as continuance of the proceedings only for the purpose of deciding the question as to which law would govern the subject-matter of appeal. To illustrate, Mr. Mehta points out that while deciding an appeal, the appellate Court would interpret the law applicable at the time of institution of original proceedings (though such law may have been repealed at the time of hearing of the appeal) treating the appeal to be the continuance of the original proceedings. Mr. Mehta asserts that for the purpose of applying the procedural and other provisions specifically made in the Code, an appeal cannot be treated as continuance of original proceedings as held by t....
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....that even when the victim files an appeal against an order of acquittal, he is required to seek leave as contemplated under Sec. 378 of the Code: (i) Smt. Ram Kaur @ Jaswinder Kaur v. Jagbir Singh @ Jabi, in Criminal Appeal No. 205 of 2010 by Punjab and Haryana High Court dated 1st April, 2010. (ii) Gouranga Debnath v. State of Tripura, in C. M. Appeal (Cri.) No. 89 of 2011 with Cri. A. No. 13 of 2011 by High Court of Gauhati dated 8th August, 2011. (iii) Guru Prasad Yadav v. State of Bihar, in Criminal Appeal No. 582 of 2011 of High Court of Judicature at Patna dated 2nd August, 2011. 10.8. Mr. Mehta further submits that the above question arose before the Division Bench of the Bombay High Court (Coram : V.M. Kanade & A.M. Thipsay, JJ.), in the case of Balasaheb Rangnath Khade v. State of Maharashtra, in Criminal Appeal Nos. 991 and 992 of 2011 along with other cognate matters.. Both the Judges gave their dissenting judgments dated 21st September, 2011. Justice V.M. Kanade took the view that the victim is not required to seek leave of the High Court while Justice A.M. Thipsay took the view that the victim is requ....
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....rved that right from the ancient Babylonian Code of Hammurabi (about 1775 BC), the victim of a crime was left with no remedy except to sue for damages in the civil Court. The Law Commission of India also noted that in Anglo-Saxon legal system, an English Magistrate advocated the theory of the compensation at the instance of the State to be given to the victims of crime, and accordingly, a programme was set up in Britain in the year 1964. The Law Commission has also referred to the declarations made by the General Assembly of the United States Nations in its 96th plenary meeting on 29th November, 1985, laying down the basic principles of justice for victims of crime and abuse of power, recognizing that millions of people throughout the world suffer harm as a result of crime and the abuse of power and that the rights of these families having been adequately recognised. In the report of the Law Commission, apart from referring to earlier Law Commission Reports, reference is also made to the observations of Justice V.R. Krishna Iyer, [Human Rights - A Judge's Miscellany, (1995)], V.N. Rajan (Victimology in India, 1995) R.I. Mawby and S. Walklate, (Critical Victimology, 1994) and La....
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.... 2006 seeks to achieve the above objectives. (Emphasis supplied by us) 15.2. In view of the fact that the Amendment is made in the Code in the year 2009 with a specific object and purpose of safeguarding the interests of the victims, in our opinion, the view taken in Bhikahbhai's case, (2010 (4) GLR 3301) whereby an independent and absolute substantive right of appeal statutorily conferred upon the victim is held to be subject to and subservient to the State preferring an appeal, not only runs contrary to the object for which the amendment is made by the legislature but such finding is also against the plain language of the Statute. 16. It appears that the Division Bench in the case of Bhikhabhai, (2010 (4) GLR 3301) has proceeded on the footing that in every matter the State can prefer an appeal and a victim also can prefer appeal and based upon this foundation i.e. both the State and the victim have equal rights of appeal against acquittal, the Division Bench held that the right of a victim would be dependent upon the right of the State to prefer appeal and if the appeal of the State is not entertained, only then, the victim may claim right of pref....
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....tion 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. 21. In the circumstances, the very basic premise upon which the law is laid down in Bhikhabhai, (2010 (4) GLR 3301), 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 Sec. 372. Similarly, Sec. 24(8) of the Code has nothing to do with the right of appeal conferred upon the victim and by taking aid of that Sectiob, the substantive right conferred upon a victim cannot be made conditional. 22. 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. 372 of the Code) is a separate and independent statutory right and is not dependent eith....
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....he nature of order or decision to be appealed against, as in this case, the right of appeal cannot be further curtailed by this Court on the basis of an interpretative exercise. (Emphasis supplied by us) 24.1. We are, therefore, of the opinion that the first two questions referred to this Bench should be answered by holding that the appeals mentioned therein are maintainable. 25. The next question is whether a victim for the purpose of filing an appeal by virtue of the right conferred under the proviso to the Sec. 372 of the Code is required to take leave of the Court? 26. In our opinion, if the victim in his appeal, restricts its grievance to inadequacy of the compensation or punishment for a lesser offence, it does not become an appeal against acquittal but the appeal is really directed against "any other sentence or order not being an order of acquittal" within the meaning of Art. 115(b) of the Limitation Act, 1963, and thus, no question of taking special leave arises. 27. If, however, in his appeal by virtue of the power conferred under the proviso to Sec. 372, the victim either challenges the order of acquittal or the inadequacy of compensatio....
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....n nevertheless be exercised only within a reasonable period; what is a reasonable period in a given case shall depend on the facts and circumstances of each case. 29. Earlier, the Supreme Court has taken the same view mentioned above also in the cases of Regional Provident Fund Commissioner v. M/s. K.T. Rolling Mills Pvt. Ltd., and the Government of India v. Citadel Fine Pharmaceuticals, Madras, reported in AIR 1995 SC 943 and AIR 1989 SC 1771, respectively. 30. We are, thus, not convinced by the submissions of Mr. Mehta, the learned Additional Advocate General, that although a victim who is not a complainant, and thus, will not come within the purview of Sec. 378, nevertheless, he would be required to take recourse to the provision of special leave as provided therein. 31. We have already pointed out that the right of appeal being statutory one, the language employed by the legislature in the relevant Statute should be strictly followed and we have relied upon the observations of the of the Supreme Court in the case of Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement, AIR 2010 SC 2239. 32. Therefore, in the case before us, the legislature while conf....
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....to the Court to which an appeal ordinarily lies against the order of conviction of such Court. The Division Bench further held that by the proviso, a right to file an appeal has been conferred on the victim against the order of acquittal, but the procedure for filing such appeal will be the same as provided under Sec. 378 of the Code. 33.1.1. We have already pointed out that if the 'victim' also happens to be the complainant, in such a case, he is required to file an application for special leave, but with great respect to the Division Bench of the Punjab & Haryana High Court, we cannot accept the other finding that even if he is not the complainant, as a victim, he is required to file an appeal with an application for special leave to appeal, for the reasons assigned by us above. 33.2. In the case of Gouranga Debnath v. State of Tripura, in C.M. Appli. (Cri.) No. 89 of 2011 in Cri. A. No. 13 of 2011, a Division Bench of the High Court of Gauhati, Agartala Bench, was considering an application under Sec. 5 of the Limitation Act for condoning the delay of 114 days in filing the connected appeal against the judgment and order of the Sessions Judge by which the Sessions ....
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.... 33.3.1. With great respect to the Division Bench, we are unable to subscribe to the said opinion in view of the fact that in Sec. 378, the legislature did not make any consequential amendment necessitating the filing of application for leave at the instance of a 'victim' although the legislature decided to confer a new right upon the 'victim' who may be a complainant or may not be a complainant. 33.4. In the case of Balasaheb Rangnath Khade v. State of Maharashtra, in Criminal Appeal Nos. 991 and 992 of 2011, there was a difference of opinion between the two-Judges of a Division Bench of the Bombay High Curt and, therefore, the matter was referred to a third Judge on the question whether a victim can file an appeal against the order of acquittal passed by the trial Court without filing an application for leave to file appeal. The third-Judge was of the view that the victim was not required to apply for or obtain leave of the Court to file any of the appeals under the proviso to Sec. 372. The learned third Judge held that the plain meaning implicit in the substantive right granted by the Legislature to the victim is to grant the victim the right which was otherw....