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2016 (11) TMI 1736
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....tain means. It is the most important of all the various kinds of society in which men unite, being indeed the necessary basis and condition of peace, order, and civilisation. What then is the essential difference between this and other forms of association? .....The difference is clearly one of function. The State must be defined by reference to such of its activities and purposes as are essential and characteristic. .... It is possible, however, to distinguish among the multitudinous operations of government, two which it is suggested may be set apart as primary and essential. These two are war and the administration of justice.....Every society which perform these two functions is a political society or State, and none is such which does not perform them. It is the fundamental duty of a State to ensure administration of justice within its territory. The objectives of criminal justice are prevention and control of crime; maintenance of public order and peace; protection of the rights of victims; trial and punishment of those who are in conflict with law; and reformation of those adjudged guilty of committing crimes. All these had been recognized as State's obligations and, the....
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....High Courts i.e. Full Bench Decision of Punjab & Haryana High Court in 'M/s. Tata Steel Ltd. Vs. M/s. ,Atma Tube Products Ltd. And others' reported in (2014) 1 PLR 1.; and Division Bench Decision of Patna High Court in Criminal Appeal (DB) No. 1078 of 2012 "Parmeshwar Mandal vs. State of Bihar & others, on the issue as to who could be considered a victim therefore, in its wisdom, thought it appropriate to formulate and refer two questions for authoritative pronouncement by a Larger Bench, vide its order dated 13.1.2015, which are as follows: 1. "Whether the definition of the word "victim" as used inSection 2 (wa) would mean any person other than a "guardian" or "legal heir" also for the purpose of maintaining an appeal under Section 372 Cr.P.C.? 2. Whether the ratio of the decision of the Division Bench of this Court in the case of Edal Singh Vs. State (Supra) states the law correctly keeping in view the conflicting ratios of the Full Bench decision of the Punjab & Haryana High Court in the case of M/s. Tata Steel Ltd. (Supra) and tha....
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....in mind the object of the amendment, the word victim should not be confined to specific individuals but needs to be interpreted on the facts of each case. Sri Akhilesh Singh, learned Government Advocate, has contended that the definition of victim cannot be enlarged and right to appeal cannot be created by judicial pronouncement and the reference in question, in the facts of the case, should be answered in negative. Sri Vimlendu Tripathi, learned Additional Government Advocate-I, has supplemented the arguments raised by Government Advocate by submitting that right to prefer appeal is a statutory right having its own limitation, hence liberal/wide interpretation as regards locus to file appeal is not permissible therefore the person entitled to prefer an appeal against acquittal will have to fall within the term victim, as defined i.e. a person who suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and would include his or her guardian or legal heir. It has been submitted that word injury is not defined in the Code, therefore by virtue of Section 2 (y) of the Code the definition of injury as provided by Section 44 ....
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....dure 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 Procedure, 1898. The recommendations made by the Law Commission of India, referred to above, largely found favour with the Parliament when it inserted an embargo in sub-Section (3) to Section 378 against entertainment of an appeal against acquittal "except with the leave of the High Court". Sub- section (4) of Section 378 retained the condition of maintainability of an appeal at the instance of a complainant against an order of acquittal passed in a complaint-case only if special leave to appeal was granted by the High Court. Save in the manner as permitted by Section 378, no appeal could lie against an order of acquittal in view of the express embargo created by Section 372 according to which "no appeal shall lie from any judgment ....
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....m's right to participate in criminal trials shall,inter alia, include: a) To produce evidence, oral ordocumentary, with leave of the Court and/or to seek directions for production of such evidence b) To ask questions to the witnesses or tosuggest to the court questions which may be put to witnesses c) To know the status of investigation andto move the court to issue directions for further investigation on certain matters or to a supervisory officer to ensure effective and proper investigation to assist in the search for truth. d) To be heard in respect of the grant orcancellation of bail e) To be heard whenever prosecutionseeks to withdraw or offer to withdraw and not continue the prosecution f) To advance arguments after theprose....
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....fining a victim and making it inclusive of his or her guardian or legal heir; ii) Proviso to sub section (8) of Section 24(8) of theCode which provided that the Court may permit the victim to engage advocate of his choice to assist the public prosecutor. iii) Proviso to clause (a) of Section 26 of the Code,which provided that offenses under section 376 and 376 (A) to 376 (D) of the Indian Penal Code shall be tried as far as practicable by a court presided over by a woman. iv) Proviso 2nd to sub section (1) of Section 157 of the Code by which it was provided that the statement of a rape victim will be recorded at the residence of the victim or in the place of her choice as far as practicable by a woman police officer in the presence of her parent or guardian or near relative or a social worker of the locality. v) Sub section (1-A) of Section 173(1-A) of the Code bywhich it was provided that in relati....
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.... and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court." Prior to insertion of the proviso, appeal against inadequacy of sentence lay under section 377 of the Code and against acquittal lay under section 378 of the Code but in neither case the victim had a right to appeal though in a case instituted upon a complaint, the complainant had a right to present an appeal under sub section (4) of section 378 of the Code. Thus, by insertion of the proviso an exception to the general rule was carved out by providing victim a right to prefer an appeal against an order of acquittal or of convicting for a lesser offence or imposing inadequate compensation. The term"victim" has been defined in section 2 (wa), inserted in the Code by Act No. 5 of 2009, and the same provides as follows: "Victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir. The discussion of the term 'victim' has been subject matter of interpretation by a Division Bench of this Court in C....
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....he crime and require rehabilitation, are eligible to seek compensation as per the Scheme formulated under Section 357-A of the Code. Question - (B) (iii) The 'complainant' in a complaint-case who is also a 'victim' and the 'victim' other than a 'complainant' in such case, shall have remedy of appeal against acquittal under Section 378(4) only, except where he/she succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser offence or imposition of an inadequate compensation, for which he/she shall be entitled to avail the remedy of appeal under proviso to Section 372 of the Code. (iv) The 'victim', who is not the complainant in a privatecomplaint-case, is not entitled to prefer appeal against acquittal under proviso to Section 372 and his/her right to appeal, if any, continues to be governed by the unamended provisions read with Section 378 (4) of the Code. (v) Those 'victims' of complaint-cases whose right toappeal have been recognized under proviso to Section 372, are no....
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.... of a criminal court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. This Proviso gives an unqualified "right‟ to a "victim‟ to prefer an appeal in its terms, as against the enabling sections 377 and 378, which only give liberty to a District Magistrate, the State Government, the Central Government and the complainant, as the case may be, to prefer an appeal against an order of sentence on the ground of its inadequacy or against an order of acquittal. (2) - The right of a 'victim' to prefer an appeal in terms of the said proviso to Section 372 is an unqualified right and no 'leave to appeal' or 'special leave' is required to be obtained by him/her for the purpose, as required by the State or the complainant for maintaining an appeal in terms of Section 378 of the Code. (3) - No limitation of time has been provided by the Legislature for exercise of such a right of appeal by the 'victim' in terms of the said Proviso. Hence, in the fact and circumstances of each case, th....
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....rer) has to be assessed by the Court in each and every case in the backdrop of definition of 'injury' provided in section 44 of the Indian Penal Code, and not beyond it, before entertaining the appeal, in terms of the proviso to Section 372 on merits. (9) - If any person prefers an appeal in terms of the proviso to Section 372, solely on the basis of his status as a 'guardian' or a 'legal heir', he/she will have to establish the legal basis of his/her such status in reference to the law, as may be applicable in the matter, with all its limitations and qualifications, or otherwise also (e.g. judicial order). (10) - Once an appeal preferred in terms of the said proviso to Section 372, against an order is entertained by an appellate court on merits, to whatever result, no fresh/second appeal by any party/person can/should be entertained against the same order. (11) - No distinction can be made between a case instituted by a complainant/informant with the police and by a complainant before the Court directly, an....
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....p; A narrow reading of the word "victim" and a broadreading of the term "legal heir". (d) A broad reading of the term "victim" and of the term"legal heir": This appears to be the view of the Punjab & Haryana High Court, which favours a broad reading of "legal heir", although it does not appear to have returned a conclusive finding on the reading of the word "victim"." The Full Bench of Delhi High Court, the Division Bench of Patna High Court and the Full Bench of Punjab & Haryana High Court are unanimous in their conclusion that the proviso of section 372 is not an exception but confers an independent statutory right of appeal to a 'victim', hence, no leave to appeal is required as provided under section 378 of the Code. This particular conclusion, that has been arrived at, has been specifically overruled by the Apex Court in the case of Satya Pal Singh vs. State of M.P. & others reported in 2015 CrLJ 4929 SC by holding that the proviso to Section 372 of Cr.P.C. must be read along with its main enactment i.e. Section 372 and together with sub-section (3) of Section 378 of the Code othe....
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....shall lie from any judgment or order of a Criminal Court except as provided by Cr.P.C." The judgment of the Apex Court has settled so far as one particular aspect of the matter is concerned that is, the proviso of Section 372 is an exception to its main provision and cannot be construed as an independent statutory right in complete detachment with main statutory arrangement. What we find from a reading of the judgments of various High Courts is that while interpreting the word 'victim' the High Courts have given elaborate meaning to the word 'victim'. In this background as to whether the term 'victim' has rightly been understood is an issue to be answered by us. What we find from a reading of the judgments of various High Courts is that all the judgments deal with definition of 'victim' in respect of an offence of murder without considering the impact of the nature of an offence of which one is a victim. There are various forms of offences provided under Indian Penal Code as well as other Special Laws. An offence may be against body, mind, property, etc. In that context injury caused by the offence would vary. Further, there may be crime agains....
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....cretionary power conferred under Article 136 of the Constitution of India at the behest of the State or an affected private individual but to permit anybody or an organization pro-bono publico to file an appeal would be a dangerous doctrine and would cause utter confusion in the criminal justice system. We are, therefore, of the opinion that the Special Leave Petition itself was not maintainable." Having regard to the legal position, it is clear that a right to appeal is a statutory right and can be availed by any person only under the statutory arrangement made by the legislation for that purpose. The statutory arrangement providing remedy of appeal under the Code makes it implicit that the remedy of appeal is restricted to only such person and that too only in such manner as provided in section 372. Chapter XXIX of the Code, provides for appeals. The appeal against conviction is an unrestricted right given to the accused (Section 374), whereas the appeal against acquittal is a restricted right given initially to the Government and complainant of the case (Section 378) and now to the victim also under the proviso of Section 372. The right of an accused to prefer appeal against ....
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...., reported in 2007 (4) SCC 415, may be usefully quoted: "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review,reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts nolimitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, 'substantial andcompelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of a....
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.... to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment." As per the statutory arrangement under the Code, the 'victim' has been conferred right to prefer Appeal against acquittal with the leave of the court. At this stage, it would be apposite to notice that for setting the Criminal Justice system into motion the concept of locus standi is foreign to Criminal Jurisprudence unless contra-indicated by a statutory provision. In this context, a Constitutional Bench of the apex court in A.R. Antulay v. Ramdas Sriniwas Nayak and Anr. reported in 1984 (2) SCC 500 (Constitutional Bench), has held as follows: "While Section 190 of the Code of Criminal Procedure permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to f....
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....al right should not be burdened with unreasonable fetters. When a private citizen approaches a court of law against a corrupt public servant who is highly placed, what is at stake is not only a vindiction of personal grievance of that citizen but also the question of bringing orderliness in society and maintaining equal balance in the Rule of law." In the case of Subramanian Swamy Vs. Raju, (2013) 10 SCC 465, the petitioner, in a public interest litigation had sought an authoritative pronouncement on the true purport and effect of different provisions of the JJ Act so as to take a juvenile out of the purview of the said Act. The High Court had declined to answer the question raised on the ground that the petitioner had an alternative remedy under the JJ Act against the order as may have been passed by the Board. In SLP filed before the Apex Court, an objection was raised as regards its maintainability on the ground that it suffers from the vice of absence of locus on the part of the petitioner. While considering this objection the Apex Court has observed thus: " The administration of criminal justice in India can be divided into two broad stages at which the machinery o....
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....roviso of Section 372); * the statutory arrangement to compensate "victim or his dependents" through victims compensation scheme (Section 357-A, 357-B, 357-C); * the manner in which statement of a "victim" in relation to an offence of rape is to be recorded during investigation that is by giving facility of recording of statement at residence or at a place of her choice by a woman police officer in presence of parents or guardian, etc (Section 157). If we examine the Code as it existed since prior to the amendment brought by Act No. 5 of 2009, we may see that Section 357 (3) though does not use the word victim but it uses almost similar language as used in section 2(wa) for the purpose of Compensation to a victim in the eventuality of non-imposition of fine upon accused person while convicting and sentencing him. The language is as follows: "Section 357: (1) ........... (2) .....
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....de provides that: - "words and expressions used herein and not defined but defined in the Indian Penal Code have the meanings respectively assigned to them in that code.(emphasis)" Section 44 of of the Indian Penal Code postulates as follows: "Section 44: The word "Injury" denotes any harm whatever illegally caused to any person, in body, mind, reputation or property." Now, if the meaning of term "injury" is to be examined, it may be seen that there are four types of harm, which may be illegally caused to any person as per the definition. That is harm in respect of (a) body, (b) mind, (c) reputation and (d) property. Though an offence may inflict upon a person a combination of one or more types of harm specified above. The term "injury" has been used at different places in IPC in respect of an offence and has to be contextually understood. The injury caused becomes one of the necessary ingredients to constitute a specified offence. If that is so, the injury relevant for the purpose of a particular offence could either be a harm, whatever illegally caused to any person, in body or mind or reputation or property or a combination of one or more types of harm....
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....ons accord liberal interpretation to the term "Victim" by observing that the victim would have an unqualified right of appeal. However, the Apex Court in Satya Pal Singh's Case (supra) took the view that the victim's right to file an appeal would be subject to the other provisions of the Code and as such the appeal would be subject to the grant of leave. Accordingly, a fresh look at the expression "legal heir", as it occurs in section 2 (wa), in the context of the proviso to section 372, is necessary. At this stage, it would be useful to examine various definitions of the expression "legal heir", which are as follows: Merriam-Webster's Dictionary * One who inherits or is entitled to inherit property. * One who inherits or is entitled to succeed to the possession of property after the death of its owner. Cambridge Dictionary * A person who will legally receive money, property, or a title from another per....
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....ments. But in the Code of Criminal Procedure no such statutory arrangement is available to provide for classes of legal heirs or for a preferential order amongst them. Hence in the context of Code of Criminal Procedure, the expression legal heir cannot be construed to create categories of heirs, unless it requires determination of civil rights of the persons claiming to be legal heir of deceased. Such position is across various communities. We are therefore of the view that the expression "Legal Heir" has to be understood in its ordinary or natural sense. That is if any person is able to establish his status as "heir" recognized by law, he can be termed as "Legal Heir" and the preferences / restrictions / categories provided under any statute / personal law governing succession/ inheritance will have no consequence. This interpretation of expression "Legal Heir" would not be a result of liberal construction but would be a consequence of ordinary or natural meaning of the expression "Legal Heir". Who is Guardian of Actual Victim under Section 2 (wa): So far as the expression "Guardian" is concerned, a plain meaning commonly known to us may be seen as follows: "A gu....