TaxTMI 
TaxTMI 
2018 (10) TMI 1920
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....o 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 aggressive and intimidating cross-examination, but a mo....
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....ised 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 victim may also become necessary, depending upon the nature....
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....d 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 Procedure By a judgment and order dated 4th July, 2014 the High Court held t....
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.... 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 recommendation enabling the victim of a crime to prefer an appeal. The recommendation (made in the Chapter ha....
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....trates 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. If the revisional Court finds that the Accused has been wrongly acquitted, it cannot convict him in view of Sub-section (3) of Section....
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.... 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 the creation of a statute, it would not be maintainable under any inherent power. Article 136 of the Constitution does confer discretionary power on this Court to ent....
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....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 different rights, it was held: In light of different types of right of appeal provided to the victim and to the State/Prosecution, it will not be proper to hold that the right of either of them is de....
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....peal 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 its intention clear that the provision of special leave is not applicable to an appeal preferred by a victim against acquittal if he is not the complainant. The third question was then answered in the following words: If the v....
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....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 observed that the revision process was cumbersome and involved a wastage of time and money. It was, therefore, recommended by the Law Commission that the aggrieved person should have the right to prefer an appeal, though with the leave of the Appell....
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.... 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 thus writ large. It would indeed not only amount to rewriting the proviso to Section 372 but would also defeat the legislative will if the restrictions expressly embedded in Section 378(3) & (4) are impliedly planted into proviso to Section 372 of the Code also. Since leave to ap....
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....o 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 such offences which were committed as on the date when the appellate right was conferred by law or the appellate right would be available with respect to the date of the decision or the appellate remedy is without any reference to the two points of time i.e. the date when the offence was committed or whe....
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....fter 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 occurred prior to 31.12.2009 and thereby given the right of appeal to the victim in the event; (a) whether the court below has acquitted the Accused or (b) has convicted the Accused for a lesser offence or (c) has imposed inadequate compensation. Though the judgment in such cases may have been passed by the court below after 31.12.2009. ....
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.... 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 to file an appeal was placed on a higher pedestal than the rights of the State, or even the accused. This is what the High Court had to say in this regard: What is significant to notice is that this right to appeal, which is clearly in affirmative terms, has been given to the victim by inserting the said proviso in Section 372 itself, which is the opening Sec....
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....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 whether the right of appeal conferred on the victim by the proviso to Section 372 of the Code, has to be determined with regard to the date of order of acquittal or conviction of the Accused for a lesser offence or order providing inadequate compensation, or, with respect to the date of incident giving rise to the prosecution of the accused. What is conferred by the Amendment Act 5 of 2009 on....
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....ment 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 conclusion. Reference was also made, incidentally, to a decision of the learned Single Judge of the Kerala High Court in John v. Shibu Cherian decided on 5th August, 2011 which also held to the same effect. 65. A similar view was expressed by the Division Bench of the Chhattisgarh High Court in Bhisam Prasad Bareth v. Dinesh Mahant and Ors. decided on 15th March, 2012 relying upon the decision of ....
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....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 December, 2009 and the judgment and order has been delivered by the Trial Court post 31st December, 2009. Therefore, none of the two decisions of this Court are of any real assistance to us. Our conclusions 71. It was submitted by learned Counsel for the Accused that the right to file an appeal is a substantive right and it should not be easily recognized unless specifically conferred by statute. We agree. There is no doubt ....
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....cquittal 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 is a historical reason for this, beginning with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly of the United Nations in the 96th Plenary Session on 29th November, 1985. The Declaration is sometimes referred to as the Magna Carta of the rights of victims. One of the significant declarations made was in relation to access to justice for the victim of an offence....
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....ocedure 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 is concerned, once again, we need not be overwhelmed by submissions made at the Bar. The language of the proviso to Section 372 of the Code of Criminal Procedure is quite clear, particularly when it is contrasted with the language of Section 378(4) of the Code of Criminal Procedure The text of this provision is quite clear and it is confined to an order of acquittal passed in a case instituted upon a complaint. The word 'complaint' has been defined in Section 2(d) of the Code of Criminal Pro....
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....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 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-sec....
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....e 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 to Section 372 is an independent statutory right. Therefore, it has held that there is no need for the victim in terms of definition Under Section 2(wa) Code of Criminal Procedure to seek the leave of the High Court as required Under Sub-section (3) of Section 378 Code of Criminal Procedure to prefer an appeal under the proviso to Section 372 Code of Criminal Procedure. The said view of the High Court is not legally correct for the reason that the substantive provision of Section 372 Code of Criminal Procedure clearly provides that no appeal shall lie from any judgment and order of a criminal court except as prov....
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....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 carry out further and more investigation. 86. Chapter XXIX of the Code of Criminal Procedure deals with appeals. Appeals against acquittal are governed by Section 378 of Code of Criminal Procedure. As per Sub-section (1) of this Section only a District Magistrate or the State as the case may be is entitled to direct the Public Prosecutor to file an appeal. Sub-section (2) deals with cases investigated under the Delhi Special Police Establishment Act, 1946 and in these cases the Central Government may also direct the Public Prosecutor to file an appeal. I am concerned mainly with Sub-section (3) of Section 378 of Code of Criminal Procedure, which prov....
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....; (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 makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. Therefore, the High Court would at the initial stage of deciding whether the leave is to be granted or not go into the merits of the case. Only if arguable points are involved, the High Court normally grants leave to appeal. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the Hi....
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....nt 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 complainant? More often than not, the victim and the complainant are likely to be one and the same person. 93. In case, I accept the proposition that the victim need not seek leave to appeal in case the appeal is to be filed in the High Court there shall be another anomalous situation. Supposing there are two victims in a case and one of the victims files a complaint and sets the wheels of justice moving and the case is tried as a complaint case. In case the Accused is acquitted and the victim who is the complainant wants to file an appeal in the High Court, he will have to seek special leave to appeal whereas the victim who had not even approached the Court at the initial stage will be entit....