TaxTMI 
TaxTMI 
2018 (10) TMI 1920
X X X X Extracts X X X X
X X X X Extracts X X X X
....to go to bring the rights of victims of crime to the centre stage and to recognise them as human rights and an important component of social justice and the Rule of law. 3. The travails and tribulations of victims of crime begin with the trauma of the crime itself and, unfortunately, continue with the difficulties they face in something as simple as the registration of a First Information Report (FIR). The difficulties in registering an FIR have been noticed by a Constitution Bench of this Court in Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1. The ordeal continues, quite frequently, in the investigation that may not necessarily be unbiased, particularly in respect of crimes against women and children. Access to justice in terms of affordability, effective legal aid and advice as well as adequate and equal representation are also problems that the victim has to contend with and which impact on society, the Rule of law and justice delivery. 4. What follows in a trial is often secondary victimisation through repeated appearances in Court in a hostile or a semi-hostile environment in the courtroom. Till sometime back, secondary victimisation was in the form of aggr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....which deals with plea bargaining. Parliament has recognised the rights of a victim to participate in a mutually satisfactory disposition of the case. This is a great leap forward in the recognition of the right of a victim to participate in the proceedings of a non-compoundable case. Similarly, Parliament has amended the Code of Criminal Procedure introducing the right of appeal to the victim of an offence, in certain circumstances. The present appeals deal with this right incorporated in the proviso to Section 372 of the Code of Criminal Procedure. 7. In other words, a considerable amount has been achieved in giving life to the rights of victims of crime, despite the absence of a cohesive policy. But, as mentioned above, a lot more still needs to be done. 8. Among the steps that need to be taken to provide meaningful rights to the victims of an offence, it is necessary to seriously consider giving a hearing to the victim while awarding the sentence to a convict. A victim impact statement or a victim impact assessment must be given due recognition so that an appropriate punishment is awarded to the convict. In addition, the need for psycho-social support and counselling to a ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stigations, necessary proceedings were taken before the District and Sessions Judge, Bagalkot against the Accused persons under several Sections of the Indian Penal Code (the IPC). 12. In S.C. No. 49 of 2010 the District and Sessions Judge, Bagalkot (Karnataka) acquitted the Accused by a judgment and order dated 28th October, 2013. 13. Aggrieved thereby, Kodagali preferred an appeal in the High Court being Criminal Appeal No. 100016 of 2014. The appeal was preferred under the proviso to Section 372 of the Code of Criminal Procedure but it was dismissed as not maintainable by a judgment and order dated 10th June, 2014. It was held by the High Court that the proviso to Section 372 of the Code of Criminal Procedure came into the statute book with effect from 31st December, 2009 but the incident had occurred well before that date. Therefore, the appeal was not maintainable. Reliance was placed by the High Court on National Commission for Women v. State of Delhi and Anr. (2010) 12 SCC 599. 14. Kodagali then preferred another appeal in the High Court being Criminal Appeal No. 100119 of 2014. This appeal was filed under the provisions of Section 378(4) of the Code of Criminal Pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dictions, have the right to participate in the proceedings and to receive compensation for injury suffered. It was noted as follows: 6.3 Basically two types of rights are recognized in many jurisdictions particularly in continental countries in respect of victims of crime. They are, firstly, the victim's right to participate in criminal proceedings (right to be impleaded, right to know, right to be heard and right to assist the court in the pursuit of truth) and secondly, the right to seek and receive compensation from the criminal court itself for injuries suffered as well as appropriate interim reliefs in the course of proceedings. 19. Following up on this, and extending the rights of victims of crime, it was observed in paragraph 6.5 that "The right of the victim should extend to prefer an appeal against any adverse order passed by the trial court. The appellate court should have the same powers to hear appeals against acquittal as it now has to entertain appeal against conviction. There is no credible and fair reason why appeals against acquittals should lie only to the High Court." 20. On this basis, the Justice Malimath Committee made the following recommen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of Section 378 by Act 25 of 2005. Now, with effect from 23.06.2006, appeals against orders of acquittal passed by Magistrates in respect of cognizable and non-bailable offences in cases filed on police report are being filed in the Sessions Court, vide Clause (a) of Sub-section (1) of the said section. But, appeal against order of acquittal passed in any case instituted upon complaint continues to be filed in the High Court, if special leave is granted by it on an application made to it by the complainant, vide Sub-section (4) of the said section. 2.10 Section 378 needs change with a view to enable filing of appeals in complaint cases also in the Sessions Court, of course, subject to the grant of special leave by it. 2.11 Further, at present, against orders of acquittal passed by Magistrates (where the offence is cognizable and non-bailable) or by Sessions Courts, appeal in cases filed on police reports can be filed only at the instance of the District Magistrate or the State Government, as the case may be, vide Sub-section (1) of Section 378. In such matters, the aggrieved person or the informant cannot himself file an appeal. However, he can prefer a revision. I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ced to that already undergone which was about five years and six months. The judgment and order of the High Court is dated 9th February, 2009. 26. Feeling aggrieved by the decision of the High Court, the National Commission for Women preferred a petition for special leave to appeal admittedly invoking the inherent powers of this Court. In that context this Court held that in view of Section 372 of the Code of Criminal Procedure no appeal shall lie from a judgment or order by a criminal Court except as provided by the Code of Criminal Procedure or by any other law which authorises an appeal. The proviso to Section 372 of the Code of Criminal Procedure gives a limited right to the victim to file an appeal in the High Court against any order of a criminal Court acquitting the Accused or convicting him for a lesser offence or the imposition of inadequate compensation. This Court then observed as follows: The proviso may not thus be applicable as it came in the year 2009 (long after the present incident) and, in any case, would confer a right only on a victim and also does not envisage an appeal against an inadequate sentence. 27. It was further held that an appeal being ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ferred by the victim invoking his right under proviso to Section 372 of Code of Criminal Procedure, 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 Section 372 of Code of Criminal Procedure, whether that Appellant is required to first seek leave of the Court, as is required in case of appeal being preferred by the State? 32. While discussing these issues, the Full Bench observed that the Legislature had conferred a substantive statutory right of appeal and such a right could not be diluted by a judicial pronouncement since the right of a party to file an appeal is an independent, substantial and statutory right. 33. Analysing the proviso to Section 372 of the Code of Criminal Procedure and juxtaposing it with Section 377 of the Code of Criminal Procedure the Full Bench noted that the victim has no right to prefer an appeal against "inadequacy of sentence", a right available only to the State and the State does not have any right to file any appeal against "inadequacy of compensation", a right available only to a victim. Noting the availability of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....third question, the Full Bench noted that if the victim restricts the appeal to the 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 Article 115(b) of the Limitation Act, 1963 and thus, no question of taking special leave arises. The Full Bench took the view that for the purposes of Section 378(4) of the Code of Criminal Procedure a victim who is not a complainant will not come within the purview of that Section and would not be required to take recourse to the provision of special leave as provided therein. It was held: Therefore, in the case before us, the legislature while conferring the right of appeal upon the victim, who is not a complainant, not having imposed any condition of taking leave or special leave, we cannot infer such condition and impose the same upon the victim, although, the legislature was quite conscious of existence of such provision in case of an appeal by a complainant and has retained that provision without consequential amendment thereby making i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hnan Master v. K.M. Ramachandran Master [Crl.M.A. No. 7423 of 2011, decided on 22nd September, 2011]. In that case it was held that the proviso to Section 372 of the Code of Criminal Procedure confers on the victim a substantive right to prefer an appeal in certain circumstances. The right is dependent on the judgment rendered by the Court and not in relation to the incident that gave rise to the prosecution. 41. The Calcutta High Court also considered the question whether there is finality attached to the judgment of acquittal and whether that finality could be disturbed on the basis of a right subsequently conferred on the victim. It was held that the judgment of acquittal had not attained finality in that the victim had a right to file a revision petition and the State had the right to file an appeal. All that the proviso to Section 372 of the Code of Criminal Procedure had done was to replace the right of a revision with the right to appeal. 42. While it is true that there is a qualitative difference between a revision and an appeal, the Calcutta High Court drew attention to the 221st Report of 30th April, 2009 of the Law Commission. This Report noted the distinction and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Legislature was aware of the provisions of the existing statute including the fetter imposed on the State in filing an appeal against an order of acquittal. However, that fetter was not placed on the right to appeal given to a victim under the proviso to Section 372 of the Code of Criminal Procedure The view of the Full Bench of the Punjab and Haryana High Court was that if such fetter were to be placed on the right of the victim, it would amount to rewriting the proviso to Section 372 of the Code of Criminal Procedure and would also defeat the legislative will. The Punjab and Haryana High Court expressed it's opinion in the following words: The Court shall always presume that while amending or bringing a new enactment, the Legislature was fully aware of the provisions of the existing Statute. The Parliament had thus full knowledge of the fetters imposed by it on the presentation of appeals by the State or a complaint through Section 378(3) & (4) of the Code, yet it gave the right to appeal to a 'victim' free from any obstacle under proviso to Section 372 of the Code. The legislative policy to grant unconditional right to appeal to a 'victim' is th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... w.e.f. December 31, 2009 only. A 'victim' is entitled to prefer appeal in respect of any type of order referred to in the proviso to Section 372 if such order has been passed on or after December 31, 2009 irrespective of the date of registration of FIR or the date of occurrence etc. To be more specific, it is clarified that it is the date of passing of the order to be appealed from and not any other fact situation, which shall determine the right to appeal of a 'victim'. As a corollary thereto, it is held that the remedy availed by a 'victim' including revision petition against acquittal of the Accused by an order passed before December 31, 2009, cannot be converted into an appeal under proviso to Section 372 and it shall have to be dealt with in accordance with the parameters settled for exercising revisional jurisdiction by a superior Court. 48. The Full Bench of the Delhi High Court also considered this issue in Ram Phal v. State and Ors. 2015 (151) DRJ 562. The question considered by the Delhi High Court was: Whether the appellate remedy [under the proviso to Section 372 of the Code of Criminal Procedure] is available with respect to only su....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the contrary, it has to be concluded that the 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. 51. The Delhi High Court held that in light of the settled law as explained above, it was in respectful agreement with these decisions. 52. The Full Bench of the Rajasthan High Court in Baldev Sharma v. Gopal and Ors. 2017 (3) RLW 2604 (Raj.) considered (amongst others) the following two questions: (i) Whether the proviso to Section 372 as introduced by the amending Act No. 5 of 2009 which has been brought into effect on 31.12.2009 can be given effect to in cases where the offence ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... given prospective effect and that would also go against the law of limitation as prescribed Under Article 114 of the Limitation Act. In this case it is not necessary for us to discuss even that aspect, as right to appeal of the Petitioner accrued only after the decision in the sessions case by the trial Court i.e. the date on which the judgment was delivered i.e. on 30.9.2010. 56. In Parmeshwar Mandal an appeal was filed by a victim in the High Court against a judgment and order of acquittal dated 28th August, 2012. The Division Bench of the High Court sought assistance on the maintainability of the appeal. After hearing arguments, the Court noted the distinction in the language of Section 372 of the Code of Criminal Procedure and the language of Sections 377 and 378 of the Code of Criminal Procedure The High Court noted that Section 372 of the Code of Criminal Procedure was framed in affirmative terms. Moreover, the use of the word 'shall' in the proviso to Section 372 of the Code of Criminal Procedure, in contradistinction to the use of the word 'may' in Sections 377 and 378 of the Code of Criminal Procedure gives a clear indication that the right of a victim ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aid down under the proviso to Section 372 of the Code of Criminal Procedure irrespective of the date of occurrence, institution of the case, cognizance or commitment. The Delhi High Court had referred to the relevant passages of the judgment of the Patna High Court and we have extracted these passages above and they need not be repeated here. 58. The Division Bench of the Kerala High Court dealt with this issue in Vanaja K.C. v. State of Kerala and Ors. ILR 2016 (2) Kerala 713 In this case the alleged offence or incident took place on 27th January, 2005 and the judgment of acquittal by the Trial Court was rendered on 24th February, 2010. The question considered by the High Court was: Whether the victim gets a right of appeal under the proviso to Section 372 Code of Criminal Procedure in a case where the date of occurrence was before and the judgment was pronounced after the date of commencement of Act 5 of 2009? 59. The Division Bench relied upon an earlier decision of the High Court in Balakrishnan Master which referred to the letter and spirit of the law. The following passage from the decision of the Kerala High Court is instructive: The question is wheth....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, but it is not necessary to further burden this judgment with an analysis of those decisions (we have referred to one of them). Suffice it to say that the decisions have more or less followed the reasons and conclusions arrived at in the Full Bench decisions rendered by different High Courts. 63. Broadly speaking, in the above cases, the view expressed by the High Courts is that if the judgment of the Trial Court is delivered after the proviso came into force, that is, after 31st December, 2009 then, irrespective of the date of the offence, the victim can avail a right of appeal. In some of the decisions it has been held that the right of appeal is not an absolute right conferred on the victim, but it is subject to an application seeking special leave to appeal. Dissenting decisions 64. In D. Sudhakar v. Panapu Sreenivasulu @ Evone Water Sreenivasulu and Ors. decided on 7th December, 2012 the Andhra Pradesh High Court dismissed an appeal filed by the victim of an offence against an order of acquittal dated 30th November, 2011 on the ground that it was not maintainable. The High Court relied upon the observation made by this Court in National Commission for Women for this....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the cited passage, it does appear that the date of the alleged offence and the judgment and order of the Trial Court is not relevant, meaning thereby that even if the offence was committed prior to 31st December, 2009 and the judgment and order was rendered prior to 31st December, 2009 the victim could prefer an appeal to the High Court after obtaining leave. This is not so, and therefore the misunderstanding of the expansive nature of the view expressed. 70. The two decisions of this Court mentioned above arise in two different fact situations. In National Commission for Women the offence and the judgment of the Trial Court were before 31st December, 2009. In Satya Pal Singh, the offence and the judgment of the Trial Court were after 31st December, 2009. None of these situations arise in the present appeals in which the offence was said to have been committed before 31st December, 2009 while the judgment of the Trial Court was delivered after 31st December, 2009. We are concerned in these appeals only with the maintainability of an appeal by the victim under the proviso to Section 372 of the Code of Criminal Procedure where the alleged offence was committed before 31st Decembe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as a right of appeal under the proviso to Section 372 of the Code of Criminal Procedure This view is in consonance with the plain language of the proviso. But what is more important is that several High Courts have also taken the view that the date of the alleged offence has no relevance to the right of appeal. It has been held, and we have referred to those decisions above, that the significant date is the date of the order of acquittal passed by the Trial Court. In a sense, the cause of action arises in favour of the victim of an offence only when an order of acquittal is passed and if that happens after 31st December, 2009 the victim has a right to challenge the acquittal, through an appeal. Indeed, the right not only extends to challenging the order of acquittal but also challenging the conviction of the Accused for a lesser offence or imposing inadequate compensation. The language of the proviso is quite explicit, and we should not read nuances that do not exist in the proviso. 75. In our opinion, the proviso to Section 372 of the Code of Criminal Procedure must also be given a meaning that is realistic, liberal, progressive and beneficial to the victim of an offence. There....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... redress for victims. 76. Putting the Declaration to practice, it is quite obvious that the victim of an offence is entitled to a variety of rights. Access to mechanisms of justice and redress through formal procedures as provided for in national legislation, must include the right to file an appeal against an order of acquittal in a case such as the one that we are presently concerned with. Considered in this light, there is no doubt that the proviso to Section 372 of the Code of Criminal Procedure must be given life, to benefit the victim of an offence. 77. Under the circumstances, on the basis of the plain language of the law and also as interpreted by several High Courts and in addition the resolution of the General Assembly of the United Nations, it is quite clear to us that a victim as defined in Section 2(wa) of the Code of Criminal Procedure would be entitled to file an appeal before the Court to which an appeal ordinarily lies against the order of conviction. It must follow from this that the appeal filed by Kodagali before the High Court was maintainable and ought to have been considered on its own merits. 78. As far as the question of the grant of special leave ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iminal Procedure. 82. Sections 372 and 378 of Code of Criminal Procedure read as under: 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.] xxx xxx xxx 378. Appeal in case of acquittal.-(1) Save as otherwise provided in Sub-section (2), and subject to the provisions of Sub-sections (3) and (5),- 1. 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; 2. 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 acq....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ise only on the date when the judgment is passed by the trial court because then alone the victim has a right to urge that the acquittal is wrong or that the sentence awarded to the Accused is not commensurate with the offence which the Accused may have committed. Therefore, I have no doubt that the victim has a right to appeal and to that extent the judgment of the High Court is liable to be set aside. 84. My only difference of opinion is with regard to the conclusion drawn in the judgment of my learned brother that the victim, even in appeal filed in the High Court, is not required to seek leave of the High Court. In my considered view, this matter is, in fact, no longer res integra. This Court has specifically dealt with this issue in Satya Pal Singh v. State of M.P. and Ors. (2015) 15 SCC 613, wherein it held as follows: 10. The Full Bench of the High Court of Delhi in Ram Phal v. State, after examining the relevant provisions Under Section 2(wa) and the proviso to Section 372 Code of Criminal Procedure, in the light of their legislative history has held that the right to prefer an appeal conferred upon the victim or relatives of the victim by virtue of the proviso ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... be offences against the State and it is the State alone which investigated and prosecuted such cases. In case the State machinery does not take action on the complaint of the victim, the said victim has a right Under Section 156 of Code of Criminal Procedure to approach the court. Under Section 156(3) Code of Criminal Procedure, the magistrate may order an investigation to be done by the police. Once the investigation is done, then again the victim has no hand in the investigation except to assist the investigating officer and to bring evidence to the notice of the investigating officer. After investigation, the investigating officer files a final report Under Section 173 Code of Criminal Procedure. The investigating officer may come to the conclusion that either no offence is made out or may file report showing what offences are made out in which case the court proceeds further. Even in those cases where the investigating agency files a report that no criminal offence is made out, the victim has a right to object to the report and he can argue before the court that a case is made out on the basis of the evidence collected or he can even urge that the police must be directed to ca....
X X X X Extracts X X X X
X X X X Extracts X X X X
....78 of Code of Criminal Procedure or any other specific section. Surprisingly this right to the victim was given as a proviso to Section 372 of Code of Criminal Procedure. This proviso is not very happily worded. Be that as it may, the fact is that a victim now has a right to appeal under this proviso. He can file the appeal against the following orders: (i) any order passed by a Court acquitting the accused; (ii) any order passed by a Court where the Accused is convicted of a lesser offence but the victim feels that he should have been convicted for a higher offence. Obviously the appeal lies against the acquittal of the Accused for a higher offence; (iii) an appeal lies where the victim is not satisfied by the quantum of compensation awarded. 88. Dealing with the issue, as to whether a victim should seek leave to appeal, one must first understand the concept behind introducing the concept of leave to appeal, especially when the appeals are filed in the High Courts. The presumption of innocence which is attached to every Accused gets fortified and strengthened when the said Accused is acquitted by the trial Court. Probably, for this reason, the law mak....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n. It has to be given a meaning which fulfills the intention of the Legislature. The proviso to Section 372 of Code of Criminal Procedure does not lay down the procedure as to how, in what manner, and within which time the appeal has to be filed. An appeal, being a creature of the statute, it is also necessary to prescribe the limitation and procedure for filing the appeal. 92. Adverting to Sub-section (4) of Section 378 of Code of Criminal Procedure, if an order of acquittal is passed on a case instituted upon a complaint then the High Court before entertaining an appeal by the complainant must grant special leave to appeal. The expression "Special leave to appeal" has no different meaning than the expression "leave to appeal" and it appears to me that the word "special" has been added only to distinguish "leave to appeal" sought by the complainant from the "leave to appeal" sought by the State. Thus, in a complaint case where the complainant has setma the wheels of the Court in motion even if the complainant files the appeal he must obtain special leave to appeal. This again gives rise to an interesting question-Can the victim be placed on a higher pedestal than the complainan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s been acquitted after a protracted trial is called to face proceedings in the High Court in an appeal, the High Court should look into the matter and first decide whether there are sufficient reasons to grant leave to file appeal or not. This is, in a manner of speaking a preliminary hearing to decide whether the matter is worth looking into or not. I see no reason why such scrutiny should not be done in appeals filed by the victim. The victim cannot be placed on a higher pedestal than the State or the complainant. 97. The right of the victim to file an appeal is not taken away or in any manner weakened only because he has to seek leave to appeal. If Sections 378(3), 378(4) and 372 of Code of Criminal Procedure are read together, it is clear that the victim is also required to apply for leave to appeal before his appeal can be entertained. 98. Though the victim has rights, one cannot forget that a victim who may have suffered, may also seek revenge. Therefore, an obligation has been cast upon the State to prosecute the accused. In fact, even now a trial under the Code of Criminal Procedure has to be conducted by the Public Prosecutor or Assistant Public Prosecutor. No privat....