R/SCR.A/10076/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 10076 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
1 Whether Reporters of Local Papers may be allowed to
see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or
NO
any order made thereunder ?
CIRCULATE THIS JUDGEMENT IN THE SUBORDINATE
JUDICIARY.
LAVJIBHAI AMARSIBHAI BHALODIYA….Applicant(s)
Versus
MEHMOODABEN SIC RAJABSHA @ RAJUBHAI ABDULSHA RATHOD
7….Respondent(s)
Appearance:
MR DINESH B PATEL, ADVOCATE for the Applicant(s) No. 1
MR RJ GOSWAMI, ADVOCATE for the Applicant(s) No. 1
MR DHARMESH DEVNANI, APP for the Respondent(s) No. 8
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 23/01/2018
CAV JUDGMENT
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1 By this application under Article 227 of the Constitution of India,
the applicant – original first informant, who also happens to be the
victim, calls in question the legality and validity of the order dated 20 th
September 2017 passed by the 2nd Additional District and Sessions
Judge, Ahmedabad (Rural), Viramgam, below Exhibit: 1 in the Criminal
Appeal No.0 of 2017.
2 The facts giving rise to this application may be summarised as
under:
2.1 The applicant herein lodged a First Information Report at the
Viramgam Police Station, Viramgam, District: Ahmedabad being IC.R.
No.98 of 2013 for the offence punishable under Sections 323, 384, 389
and 120B of the Indian Penal Code.
2.2 On completion of the investigation, the Investigating Agency filed
chargesheet against the respondents Nos.1 to 7 herein and the filing of
the chargesheet culminated in the Criminal Case No.3514 of 2013 in the
Court of the Judicial Magistrate First Class, Viramgam.
2.3 By judgment and order dated 22nd June 2017, the 3rd Additional
J.M.F.C., Viramgam acquitted all the accused persons – private
respondents.
2.4 Being dissatisfied with the judgment and order of acquittal, the
applicant, in his capacity as the original first informant and the victim,
filed a criminal appeal in the Sessions Court, Viramgam, invoking the
provisions of Sections 372 read with 378 of the Code of Criminal
Procedure, 1973. The Sessions Court declined to register the criminal
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appeal on the ground of its maintainability before it. The Sessions Court
took the view that the appeal would lie before the High Court, and
accordingly, ordered return of the appeal memo and other documents.
The Sessions Court, while passing the impugned order, held that the
appeal was not maintainable, as the same would lie before the High
Court relied upon in view of the decision of the Supreme Court in the
case of Satya Pal Singh vs. State of Madhya Pradesh [(2015) 10 SCC
613].
3 In such circumstances referred to above, the applicant, being
dissatisfied, has come up with this application under Article 227 of the
Constitution of India.
4 Mr. Goswamy, the learned counsel appearing for the applicant
vehemently submitted that the Sessions Court committed an error in
passing the impugned order. It is submitted that the Sessions Court has
thoroughly misinterpreted the decision of the Supreme Court in the case
of Satya Pal Singh (supra). According to Mr. Goswamy, in Satya Pal
Singh (supra), the prosecution of the accused was for the offence
punishable under Sections 498A, 304B and alternatively, for the offence
punishable under Section 302 of the Indian Penal Code. In the said case,
the Trial Court acquitted all the accused persons. Satya Pal Singh i.e. the
appellant in the said case, being the legal heir of the deceased, filed an
appeal before the High Court under the proviso to Section 372 of the
Cr.P.C. and the High Court disposed of the appeal by passing a cryptic
order without examining as to whether the leave to file an appeal filed
by the appellant, as provided under Subsection (3) to Section 378 of the
Cr.P.C., could have been granted or not. Mr. Goswamy, the learned
counsel submitted that the Supreme Court took the view that the father
of the deceased had a statutory right to prefer an appeal to the High
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Court against the order of acquittal under the proviso to Section 372 of
the Cr.P.C., but not without obtaining the leave of the High Court under
Subsection (3) of Section 378 of the Cr.P.C.
5 According to Mr. Goswamy, so far as the case on hand is
concerned, the offences were Magistrate triable, and if the District
Magistrate would have directed the Public Prosecutor to present an
appeal, the same could have been presented in the Court of the Sessions.
In such circumstances, the appeal, at the instance of the victim, would
also be maintainable before the Sessions Court. It is only if the appeal is
maintainable before the High Court, then the same can be entertained
only on seeking leave. Leave has to be obtained by both the State as well
as the victim.
6 Mr. Goswamy, the learned counsel laid much emphasis on the
proviso to Section 372 of the Cr.P.C., which makes it clear that, an
appeal, at the instance of the victim, shall lie to the Court to which an
appeal ordinarily lies against the order of conviction of such Court. Mr.
Goswamy, the learned counsel tried to explain that, if the Trial Court
would have convicted the accused persons, then the appeal against the
judgment and order of conviction could have been filed in the Sessions
Court and not in the High Court. The appeal, in such circumstances,
would have been under Section 378 (1)(a) of the Cr.P.C.
7 In such circumstances referred to above, Mr. Goswamy, the
learned counsel prays that there being merit in this application, the same
be allowed and the Sessions Court be directed to accept the appeal and
register the same in accordance with law.
8 Having heard the learned counsel and having considered the
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materials on record, the only question that falls for my consideration is
whether the Sessions Court committed any error in passing the
impugned order.
9 At this stage, I must look into few provisions of the Criminal
Procedure Code. To start with, let me look into Section 372 of the
Cr.P.C. Section 372 of the Cr.P.C. reads 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.”
10 A perusal of the said provision would show that the said definition
takes within its beneficial fold all persons who suffer any loss or injury
by reason of an act or omission which constitutes the crime.
11 The aforesaid proviso was incorporated by the amending Act 5 of
2009 and provided a right to the victim to prefer appeal against or order
of acquittal to a Court to which an appeal against order of conviction
would ordinarily lie from judgments of the trial Court.
12 The Law Commission of India, in its 150th Report , laid emphasis
on Chapter XV on the subject of victimology and observed 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
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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 recognized. In the report of the Law Commission, apart from
referring to the 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 the Law
Reform Commission of Canada (1974).
13 Based upon the recommendations of the Law Commission of India
in its 154th report, the various recent judicial pronouncements of the
Supreme Court emphasizing change in legislative policy to take care of
the interest of the victims and other factors, the legislature decided to
amend the Code. The statements and objects and reasons for amending
the Code are reproduced hereunder:
“Statement of Objects and Reasons.
The need to amend the Code of Criminal Procedure, 1973 to ensure fair
and speedy justice and to tone up the criminal justice system has been felt
for quite some time. The Law Commission has undertaken a
comprehensive review of the Code of Criminal Procedure in its 154 th report
and its recommendations have been found very appropriate, particularly
those relating to provisions concerning arrest, custody and remand,
procedure for summons and warrantcases, compounding of offences,
victimology, special protection in respect of women and inquiry and trialPage 6 of 32
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R/SCR.A/10076/2017 CAV JUDGMENTof persons of unsound mind. Also, as per the Law Commission’s 177th
report relating to arrest, it has been found necessary to revise the law to
maintain a balance between the liberty of the citizens and the society’s
interest in maintenance of peace as well as law and order.
2 The need has also been felt to include measures for preventing the
growing tendency of witnesses being induced or threatened to turn hostile
by the accused parties who are influential, rich and powerful. At present,
the victims are the worst sufferers in a crime and they don’t have much
role in the Court proceedings. They need to be given certain rights and
compensation, so that there is no distortion of the criminal justice system.
The application of technology in investigation, inquiry and trial is expected
to reduce delays, help in gathering credible evidences, minimise the risk of
escape of the remand prisoners during transit and also facilitate utilisation
of police personnel for other duties. There is an urgent need to provide
relief to women, particularly victims of sexual offences, and provide fair
trial to persons of unsound mind who are not able to defend themselves.
93. The Code of Criminal Procedure (Amendment) Bill, 2006 seeks to
achieve the above objectives.”
14 It is relevant to state that prior to the 2009 Amendment, which the
Code underwent, a victim did not have any right to file an appeal
against the order of acquittal and the right to prefer an appeal was
provided only to the State, the District Magistrate and a Complainant of
a Complaint Case. Section 372 of the Code, which is couched in negative
connotation, prohibits filing of an appeal from any judgment or order of
a Criminal Court save and except as provided for by the Code or by any
other law for the time being in force. The Code had not provided any
right of an appeal to a victim against acquittal.
15 It would appear from a bare perusal and plain reading of Section
372 of the Code that the right to appeal against acquittal, under the
proviso thereto, has been provided only to the “victim” and not to the
complainant or the informant simplicitor. The term “victim”, for the first
time, has been included by way of amendment to Section 372 in the year
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2009. However, some Courts have expressed reservations regarding the
right of a Complainant, even if he is a victim, to prefer an appeal against
acquittal under the proviso to Section 372. The term “victim” has been
defined under Section 2(wa) as follows:
“2(wa) “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.”
16 Hence, the said provision not only gave a right to appeal but also
laid down the forum before whom such appeal is to be presented
namely, the Court in which an appeal would ordinarily lie against the
order of conviction passed by the Trial Court. In the factual matrix of
the instant case, such a Court would be the Court of Sessions and not
High Court.
17 Section 378 of the Cr.P.C. reads as under:
“378. Appeal in case of acquittal
(1) Save as otherwise provided in subsection (2), and subject to the
provisions of subsections (3) and (5),
(a) 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 nonbailable offence;
(b) the State Government may, in any case, direct the Public
Prosecutor to present an appeal to the High Court from an original
or appellate order of 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
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under the Delhi Special Police Establishment Act, 1946, or by any other
agency empowered to make investigation into an offence under any
Central Act other than this Code, a [the Central Government may, subject
to the provisions of subsection (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 nonbailable 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 subsection (1) or subsection
(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 and the High Court, on an application made to it by the
complainant in this behalf, grants special leave to appeal from the order
of acquittal, the complainant may present such an appeal to the High
Court.
(5) No application under subsection (4) for the special leave to appeal
from an order of acquittal shall be entertained by the High Court after the
expiry of six months, where the complainant is a public servant, and sixty
days in every other case, computed from the date of that order of
acquittal.
(6) If, in any case, the application under subsection (4) for the grant of
special leave to appeal from an order of acquittal is refused, no appeal
from that order of acquittal shall lie under subsection (1) or under sub
section (2).”
18 It is noticeable that Section 378 of the Code, until before the
amendments in the year 2009, gave right to present an appeal against
acquittal, subject to the conditions mentioned therein, only to the three
categories of persons, namely, (i) District Magistrate, (ii) State, and (iii)
Complainant. Prior to the year 2009, no right of appeal was conferred
on the informant or on the victim against order of acquittal.
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19 Section 378 of the Code stands divided into six sub sections. Sub
section (1) of Section 378 of the Code stands further divided into two
parts, namely, Section 378(1)(a) and Section 378(1)(b). Section 378(1)
(a) of the Code empowers a District Magistrate to direct the Public
Prosecutor to present an appeal to the Court of Sessions from an order of
acquittal passed by a Magistrate in a cognizable and nonbailable
offence. Section 378(1)(b) of the Code empowers the State Government
to direct the Public Prosecutor to file an appeal to the High Court against
(i) an order of acquittal passed either by original or appellate court other
than the High Court subject to the same being not an order passed under
Clause (a) of SubSection (1) of Section 378.
20 Thus, a District Magistrate can direct the Public Prosecutor to file
appeal before the Sessions Court against an order of acquittal passed by
a Magistrate only; whereas the State Government can, under Clause 1(b)
of Section 378, direct filing of an appeal against the original as well as
appellate order of acquittal of any Court other than the High Court not
being an order of acquittal passed by a Court of Magistrate in respect of
a cognizable and nonbailable offence.
21 In other words, the State can direct filing of an appeal against
order of acquittal passed by a Magistrate in any case relating to
cognizable and nonbailable offences. In view of the specific embargo
placed by Section 378(1)(b), the bar, upon the right of State to file an
appeal against order of acquittal passed by a Magistrate, is restricted to
cognizable and nonbailable offences. The logical inference follows that
the State would have a right of appeal against an order of acquittal, even
if the order of acquittal is passed by a Magistrate provided that the
acquittal is in respect of a noncognizable and bailable offence.
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22 Subsection (3) of Section 378 puts restrictions on the right of the
State to file appeal inasmuch as Section 378 states that no appeal, on
behalf of State, against acquittal would be entertained by a High Court,
either under subsection (1) or sub section (2), without the leave of the
Court. In other words, if leave is refused, appeal against acquittal by
State Government would not be entertained.
23 Section 378(4) of the Code gives a right to the complainant to
prefer appeal against acquittal of accused provided that the High Court
grants “special leave” to such appeal. It is apparent that the condition,
laid down with respect to the right of the complainant to file an appeal
against acquittal, is more stringent than the limitations imposed on the
State Government’s right to file appeal against acquittal. While the State
is required to seek leave to file appeal against acquittal, a Complainant
has to seek grant of Special Leave to Appeal in order to maintain an
appeal against acquittal under Section 378(4) of the Code.
24 Subsection (5) of Section 378 of the Code sets up a time limit for
filing of appeal, which is sixty days for a private complainant, but six
months for a public servant. Section 378(6) states that a complainant
will have no right to file an appeal if the application for grant of Special
Leave to Appeal is refused by the High Court.
● APPEAL AGAINST THE CONVICTION AND SENTENCE:
(SECTIONS 374 AND 377 OF THE CODE).
25 Section 374 of the Code grants right of appeal against Conviction
and Section 377 deals with the appeal against inadequacy of Sentence
passed by a Magistrate or Sessions Court. I would, first, deal with
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Section 374, which gives a right of appeal against conviction. Section
374 of the Code is quoted hereinbelow for easy reference:
“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 subsection (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
(b) sentenced under Section 325, or
(c) in respect of whom an order has been made or a sentence has been
passed under Section 360 by any Magistrate, may appeal to the Court of
Session.
26 Section 374(1) of the Code relates to a right of appeal of a
convicted person, on a trial held by a High Court in extra ordinary
original criminal jurisdiction, to the Supreme Court. Section 374(2)
vests, a right to appeal to High Court, in a person convicted, on a trial
held either by a Sessions Judge or Additional Sessions Judge or by any
other Court in which the imprisonment for more than seven years has
been passed either against him or against any person convicted in the
same trial, whereas SubSection (3) of Section 374 provides that any
person, convicted on a trial held by a Metropolitan Magistrate or
Assistant Sessions Judge or Magistrate of 1st Class or Second Class or
sentence under Section 325 Cr.P.C. or in respect of whom an order has
been made or a sentence has been passed under Section 360 by any
Magistrate, may appeal to Court of Sessions.
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27 Section 375 of the Cr.P.C. prohibits filing of appeal in certain
cases, when accused pleads guilty.
28 Section 376 of the Cr.P.C. bars filing of appeal in petty cases. For
instance, where a Court of Sessions or a Metropolitan Magistrate passes
a sentence of imprisonment for a term not exceeding three months or of
fine not exceeding 200 rupees or of both, imprisonment or fine, no
appeal is provided under the Code. In such cases, the informant or the
complainant can take recourse to only the revisional power under
Sections 397 and 401 of the Code. This is only by way of an illustration.
The other instances, wherein no appeal is provided in petty cases, are
mentioned in Section 376 itself, which I quote hereinbelow:
“376. No appeal in petty cases. Notwithstanding anything contained in
Section 374, there shall be no appeal by a convicted person in any of the
following cases, namely:
(a) where a High Court passes only a sentence of imprisonment for a term
not exceeding six months or of fine not exceeding one thousand rupees, or
of both such imprisonment and fine;
(b) where a Court of Session or a Metropolitan Magistrate passes only a
sentence of imprisonment for a term not exceeding three months or of fine
not exceeding two hundred rupees, or of both such imprisonment and fine;
(c) where a Magistrate of the first class passes only a sentence of fine not
exceeding one hundred rupees; or
(d) where, in a case tried summarily, a Magistrate empowered to act under
Section 260 passes only a sentence of fine not exceeding two hundred
rupees; Provided that an appeal may be brought against any such sentence
if any other punishment is combined with it, but such sentence shall not be
appelable 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
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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”.
29 I may, now, come to Section 372 inasmuch as its proviso to
Section 372 , which gives right to a victim to prefer an appeal against
any order passed by a Court acquitting the accused and further provides
that such appeal shall lie to the Court to which an appeal, ordinarily,
lies against an order of conviction of such Court.
● APPEAL ON THE GROUND OF INADEQUACY OF SENTENCE:
(SECTION 377 OF THE CODE)
30 The State Government, under Section 377 of the Code, can direct
the Public Prosecutor to present an appeal against sentence on ground of
inadequacy to the Court of Sessions, if the sentence is passed by a
Magistrate, and to the High Court if the sentence is passed by any other
Court. I would not go into further details of this provision as it relates to
inadequacy of sentence and not with respect to passing of order of
acquittal.
31 It is worth noting that neither Section 378 nor Chapter XXIX of the
Code, prior to insertion of the proviso to Section 372, in the year 2009,
vested any right in the informant or in the “victim” to prefer an appeal
against acquittal. The informant could challenge the order of acquittal
by way of revision under Sections 397 read with 401 of the Code to the
High Court; but such challenge would be restricted to judging of the
correctness, legality or propriety of any finding, sentence or order,
recorded or passed, and as to the regularity of any proceedings of such
inferior Court.
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32 It would be relevant to state herein that though an informant
could have moved the High Court, under Sections 397 read with 401 of
the Code, against an order of acquittal, yet such right was not available
to the victim if he was not the informant of the case. SubSection (3) of
Section 401 restricts the High Court to exercise its revisional jurisdiction
to convert a finding of acquittal into one of conviction. Furthermore, a
revisional Court can correct an error committed by a Court, while
passing an order of acquittal, but it cannot, ordinarily, interfere with a
finding of acquittal unless there has been an apparent error of law or
procedure or unless the finding is perverse or suffers from manifest
illegality or has caused gross miscarriage of justice.
33 Having regard to the provisions of the Code referred to above, I
must now look into the decision of the Supreme Court in Satya Pal
Singh (supra). The appellant Satya Pal Singh lodged an F.I.R. in
connection with the death of his daughter. The Trial Court passed the
judgment and order acquitting all the accused of the charges levelled
against them for the offence punishable under Sections 498A and 304B
of the Indian Penal Code and Section 4 of the Dowry Prohibition Act,
1981 and alternatively, for the offence punishable under Section 302 of
the Indian Penal Code. Being aggrieved by the decision of the Trial
Court, the appellant i.e. Satya Pal Singh approached the High Court
against the order of acquittal of the respondents Nos.2 to 6 i.e. the
original accused. The High Court upheld the Trial Court decision of
acquittal of all the accused persons. The judgment and order of the High
Court came to be challenged by Satya Pal Singh before the Supreme
Court.
The Supreme Court took notice of the fact that the High Court had
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mechanically disposed of the appeal by passing a cryptic order without
examining as to whether the leave to file an appeal filed by the appellant
as provided under Subsection (3) to Section 378 of the Cr.P.C. could
have been granted or not. The learned counsel appearing for the
appellant therein placed reliance on a Full Bench decision of the Delhi
High Court in Ram Phal vs. State [(2015 ) 221 DLT 1], wherein the Full
Bench, after interpreting the proviso to Section 372 read with Section
2(wa) of the Cr.P.C. held that the father of the victim had the locus
standi to prefer an appeal before the High Court under the proviso to
Section 372 of the Cr.P.C. as he fell within the definition of the term
“victim” as defined under Section 2(wa) of the Cr.P.C.
In the aforesaid facts of the case, the question of law, which fell
for the consideration of the Supreme Court, was “whether the appellant
therein, being the father of the deceased, had the statutory right to
prefer an appeal to the High Court against the order of acquittal
under the proviso to Section 372 of Cr.P.C. without obtaining the
leave of the High Court as required under subsection (3) to Section
378 of Cr.P.C.?”
The Supreme Court answered the question of law noted above
observing as under:
“8. We have carefully examined the above mentioned provisions of Cr.P.C.
and the Full Bench decision of Delhi High Court referred to supra upon
which strong reliance is placed by the learned counsel for the appellant.
There is no doubt that the appellant, being the father of the deceased, has
locus standi to prefer an appeal before the High Court under proviso to
Section 372 of Cr.P.C. as he falls within the definition of victim as defined
under Section 2(wa) of Cr.P.C. to question the correctness of the judgment
and order of acquittal passed by the trial court in favour of respondent
Nos. 2 to 6 in Sessions Case No. 293/2010 .
9. The proviso to Section 372 of Cr.P.C. was amended by Act No.5 of
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2009. The said proviso confers a statutory right upon the victim, as
defined under Section 2(wa) of Cr.P.C. to prefer an appeal against an
order passed by the trial court either acquitting the accused or convicting
him/her for a lesser offence or imposing inadequate compensation. In this
regard, the Full Bench of Delhi High Court in the case referred to supra
has elaborately dealt with the legislative history of insertion of the proviso
to Section 372 of Cr.P.C. by Act No. 5 of 2009 with effect from
31.12.2009. The relevant provision of Section 372 of Cr.P.C. reads thus:
“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.”
The said amendment to the provision of Section 372 of Cr.P.C. was
prompted by 154th Law Commission Report. The said Law Commission
Report has undertaken a comprehensive review of Cr.P.C. and its
recommendations were found to be very appropriate in amending the
Cr.P.C. particularly in relation to provisions concerning arrest, custody
and remand, procedure to be followed in summons and warrant cases,
compounding of offences and special protection in respect of women and
inquiry and trial of persons of unsound mind. Further, the Law
Commission in its report has noted the relevant aspect of the matter
namely that the victims are the worst sufferers in a crime and they do not
have much role in the Court proceedings. They need to be given certain
rights and compensation so that there is no distortion of the criminal
justice system. The said report of the Law Commission has also taken note
of the views of the criminologist, penologist and reformers of criminal
justice system at length and has focused on victimology, control of
victimization and protection of the victims of crimes and the issues of
compensation to be awarded in favour of them. Therefore, the Parliament
on the basis of the aforesaid Report of the Law Commission, which is
victim oriented in approach, has amended certain provisions of the Cr.P.C.
and in that amendment the proviso to Section 372 of Cr.P.C. was added to
confer the statutory right upon the victim to prefer an appeal before the
High Court against acquittal order, or an order convicting the accused for
the lesser offence or against the order imposing inadequate compensation.
10. The Full Bench of the High Court of Delhi after examining the
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relevant provisions under Section 2(wa) and proviso to Section 372 of
Cr.P.C., 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 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) of Cr.P.C. to seek the leave of the High
Court as required under subsection (3) of Section 378 of Cr.P.C. to prefer
an appeal under proviso to Section 372 of Cr.P.C. The said view of the
High Court is not legally correct for the reason that the substantive
provision of Section 372 of Cr.P.C. clearly provides that no appeal shall lie
from any judgment and order of a Criminal Court except as provided for
by Cr.P.C. Further, subsection (3) to Section 378 of Cr.P.C. provides that
for preferring an appeal to the High Court against an order of acquittal it
is necessary to obtain its leave.
11. We have to refer to the rules of interpretation of statutes to find out
what is the effect of the proviso to Section 372 of Cr.P.C.
12. It is well established that the proviso of a statute must be given an
interpretation limited to the subjectmatter of the enacting provision .
Reliance is placed on the decision of this Court rendered by four Judge
Bench in Dwarka Prasad v. Dwarka Das Saraf (1976) 1 SCC 128 :
(AIR 1975 SC 1758), the relevant para 18 of which reads thus:
“18. … A proviso must be limited to the subjectmatter of the
enacting clause. It is a settled rule of construction that a proviso
must prima facie be read and considered in relation to the principal
matter to which it is a proviso. It is not a separate or independent
enactment. “Words are dependent on the principal enacting words
to which they are tacked as a proviso. They cannot be read as
divorced from their context ” (Thompson v. Dibdin, 1912 AC
533). If the rule of construction is that prima facie a proviso should
be limited in its operation to the subjectmatter of the enacting
clause, the stand we have taken is sound. To expand the enacting
clause, inflated by the proviso, sins against the fundamental rule of
construction that a proviso must be considered in relation to the
principal matter to which it stands as a proviso. A proviso
ordinarily is but a proviso, although the golden rule is to read the
whole section, inclusive of the proviso, in such manner that they
mutually throw light on each other and result in a harmonious
construction.” (Emphasis laid by this Court)
13. Further, a three Judge Bench of this Court by majority of 2:1 in the
case of S. Sundaram Pillai v. V. R. Pattabiraman (1985) 1 SCC 591 :
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(AIR 1985 SC 582) has elaborately examined the scope of proviso to the
substantive provision of the Section and rules of its interpretation. The
relevant paras are reproduced hereunder:
“30. Sarathi in Interpretation of Statutes at pages 294295 has
collected the following principles in regard to a proviso:
(a) When one finds a proviso to a section the natural presumption
is that, but for the proviso, the enacting part of the section would
have included the subjectmatter of the proviso.
(b) A proviso must be construed with reference to the preceding
parts of the clause to which it is appended.
(c) Where the proviso is directly repugnant to a section, the proviso
shall stand and be held a repeal of the section as the proviso speaks
the latter intention of the makers.
(d) Where the section is doubtful, a proviso may be used as a guide
to its interpretation: but when it is clear, a proviso cannot imply
the existence of words of which there is no trace in the section.
(e) The proviso is subordinate to the main section .
(f)A proviso does not enlarge an enactment except for compelling
reasons.
(g) Sometimes an unnecessary proviso is inserted by way of
abundant caution.
(h) A construction placed upon a proviso which brings it into
general harmony with the terms of section should prevail.
(i) When a proviso is repugnant to the enacting part, the proviso
will not prevail over the absolute terms of a later Act directed to be
read as supplemental to the earlier one.
(j) A proviso may sometimes contain a substantive provision.
xxx xxx xxx
32. In Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai
(AIR 1966 SC 459) it was held that the main object of a proviso is
merely to qualify the main enactment. In Madras and Southern
Mahrata Railway Co. Ltd. v. Bezwada Municipality (AIR 1944 PC
71) Lord Macmillan observed thus:
“The proper function of a proviso is to except and deal with a
case which would otherwise fall within the general language
of the main enactment, and its effect is confined to that
case.”
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33. The above case was approved by this Court in CIT v. Indo
Mercantile Bank Ltd. (AIR 1959 SC 713) where Kapur, J. held
that the proper function of a proviso was merely to qualify the
generality of the main enactment by providing an exception and
taking out, as it were, from the main enactment a portion which,
but for the proviso, would fall within the main enactment. In Shah
Bhojraj Kuverji Oil Mills and Ginning Factory v. Subbash Chandra
Yograj Sinha (AIR 1961 SC 1596) Hidayatullah, J., as he then
was, very aptly and succinctly indicated the parameters of a proviso
thus:
” 9….As a general rule, a proviso is added to an enactment
to qualify or create an exception to what is in the enactment,
and ordinarily, a proviso is not interpreted as stating a
general rule. ”
xxx xxx xxx
36. While interpreting a proviso care must be taken that it is used
to remove special cases from the general enactment and provide for
them separately.
37. In short, generally speaking, a proviso is intended to limit the
enacted provision so as to except something which would have
otherwise been within it or in some measure to modify the enacting
clause. Sometimes a proviso may be embedded in the main
provision and becomes an integral part of it so as to amount to a
substantive provision itself.” (Emphasis supplied)
14. Thus, from a reading of the abovesaid legal position laid down by
this Court in the cases referred to supra, it is abundantly clear that the
proviso to Section 372 of Cr.P.C. must be read along with its main
enactment i.e., Section 372 itself and together with subsection (3) to
Section 378 of Cr.P.C. otherwise the substantive provision of Section 372
of Cr.P.C. will be rendered nugatory, as it clearly states that no appeal
shall lie from any judgment or order of a Criminal Court except as
provided by Cr.P.C.”
15. Thus, to conclude on the legal issue:
” whether the appellant herein, being the father of the deceased, has
statutory right to prefer an appeal to the High Court against the
order of acquittal under proviso to Section 372 of Cr.P.C. withoutPage 20 of 32
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R/SCR.A/10076/2017 CAV JUDGMENTobtaining the leave of the High Court as required under subsection
(3) to Section 378 of Cr.P.C.?”
this Court is of the view that the right of questioning the correctness of the
judgment and order of acquittal by preferring an appeal to the High Court
is conferred upon the victim including the legal heir and others, as defined
under Section 2(wa) of Cr.P.C., under proviso to Section 372, but only
after obtaining the leave of the High Court as required under subsection
(3) to Section 378 of Cr.P.C. The High Court of M.P. has failed to deal
with this important legal aspect of the matter while passing the impugned
judgment and order .
16. Adverting to another contention of the learned counsel on behalf of the
appellant regarding the failure on the part of the High Court to
reappreciate the evidence it is clear from a perusal of the impugned
judgment and order passed by the High Court that it has dealt with the
appeal in a very cursory and casual manner, without adverting to the legal
contentions and evidence on record. The High Court in a very mechanical
way has stated that after a perusal of the evidence on record it found no
reason to interfere with the decision of the trial court as the prosecution
has failed to establish the charges levelled against the accused beyond
reasonable doubt and it has dismissed the appeal by passing a cryptic
order. This Court is of the view that the High Court, being the Appellate
Court, has to exercise its appellate jurisdiction keeping in view the serious
nature of the charges levelled against the accused. The High Court has
failed to exercise its appellate jurisdiction properly in the appeal filed by
the appellant against the judgment and order of acquittal passed by the
trial court.
17. Hence, the impugned judgment and order of the High Court is not
sustainable in law and the same is liable to be set aside by this Court and
the case is required to be remanded to the High Court to consider for grant
of leave to file an appeal by the appellant as required under subsection
(3) to Section 378 of Cr.P.C. and thereafter proceed in the matter .
18. For the reasons stated supra, this appeal is allowed by setting aside the
impugned judgment and order of the High Court. The case is remanded to
the High Court to hear the appellant with regard to grant of leave to file
an appeal as the appellant is legal heir of the victim as defined under
Section 2(wa) of Cr.P.C. and dispose of the appeal in accordance with law
in the light of observations made in this order as expeditiously as
possible .”
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34 The dictum or rather the principles of law explained by the
Supreme Court in Satya Pal Singh (supra) is that the proviso to a
statute must be given an interpretation keeping in mind or limited to the
subjectmatter of the enacting provisions. The Supreme Court took
notice of the fact that the substantive provisions of Section 372 of the
Cr.P.C. clearly provides that no appeal shall lie from any judgment and
order of a Criminal Court, except as provided for by the Cr.P.C. The
Supreme Court, thereafter, took into consideration Subsection (3) of
Section 378 of the Cr.P.C., which provides that for preferring an appeal
to the High Court against an order of acquittal, it is necessary to obtain
its leave. What is sought to be explained by the Supreme Court is that if
an appeal to the High Court under Subsection (1) or Subsection (2) of
Section 378 of the Cr.P.C. can be entertained only with the leave of the
High Court, then the victim is not exempted from seeking leave of the
High Court if he intends to file an appeal. To put it in other words, be it
the State Government or the Central Government or the victim if any
one wants to file an appeal before the High Court against the judgment
and order of acquittal passed by the Sessions Court, then such appeal
can be entertained only by grant of leave by the High Court.
35 It is trite law that a judgement is an authority for the proposition
which actually decides and not what logically follows therefrom [State
of Orissa vs. Sudhansu Sekhar Misra, (AIR 1968 SC 647)]. I am,
therefore, of the considered opinion that the ratio in Satya Pal (supra) is
inapplicable to the facts of the present case which involves an appeal
from an order of acquittal passed by the Magistrate at the behest of the
victim. Proviso to Section 378 of the Cr.P.C. clearly lays down that the
forum to prefer such appeals (at the behest of the victim) against the
orders of acquittal passed by a Magistrate is the Court of Sessions and
not the High Court. No such right of appeal is vested in the victim under
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Section 378 Cr.P.C. save and except when the victim is also the
complainant. Clear intendment of the proviso to lay down the forum of
appeal cannot be rendered otiose or nugatory by referring to Section 378
of the Cr.P.C. It is a settled principal of interpretation that all the
provisions of the Act are to be read harmoniously and an interpretation
ought not to be resorted to which would render a part of a provision
otiose. In fact, in Dwarka Prasad vs. Dwarka Das Saraf [(1976) 1 SCC
128] [relied upon in Satya Pal (supra)], it was held that the whole
section including the proviso has to be read in a harmonious manner
throwing light on each other (Para18). Further, in Commissioner of
Commercial Taxes, Board of Revenue, Madras and another vs.
Ramkishan Shrikishan Jhaver (AIR 1968 SC 59), a Constitution Bench
of the Supreme Court held, although a proviso ordinarily operates as an
exception to the main provision in exceptional cases it may operate as a
substantive provision also. Whether a proviso operates as a substantive
provision or not must be derived from its contents and not its form (see
paras 8 to 12). Similar view is expressed in State of Orissa vs. Debaki
Debi and Ors. (AIR 1964 SC 1413) (Para21) and in Motiram
Ghelabhai vs. Jagan Nagar [(1985) 2 SCC 279]. Furthermore, if the
words of the proviso are clear and do not yield to any other view, it must
be given its full effect and it would be futile to examine whether the said
proviso operates as a substantive provision or an exception to the main
provision [see: Commissioner of Income Tax, U.P. vs. Jagannath
Mahadeo Prasad reported in [AIR 1969 SC 209 (para5)].
Judged from this angle, as the clear and unequivocal words of the
proviso to Section 372 of the Cr.P.C. alone create a right as well as a
forum for appeal for the victim (other than a complainant) against
orders of acquittal, it would be impermissible by any known mode of
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construction to whittle down such clear words of the proviso and render
them otiose by reference to other provisions of the Code including
Section 378 of the Cr.P.C. This issue never fell for decision in Satya Pal
(supra) and the said report cannot be considered an authority on such
proposition.
It may also be interesting to note that even Section 378 of the
Code of Criminal Procedure had undergone an amendment in 2005 vide
Code of Criminal Procedure Amendment Act, 2005 i.e. Act 25 of 2005.
By the said amendment, it was provided for the first time that an appeal
against an order of acquittal passed by a Magistrate in certain cases shall
lie before the Court of Sessions at the behest of the Public Prosecutor
upon direction of the concerned District Magistrate. While creating such
forum of appeal under subsection (1) (a), subsection (3) of Section
378 of the Code of Criminal Procedure was also amended and the
requirement to obtain leave to prefer an appeal was restricted only to
appeals preferred before the High Court and not for the ones which were
to be filed before the Court of Sessions in terms of Section 378(1)(a), as
aforesaid. This amended scheme of the Code makes the legislative
intendment clear that no leave under subsection (3) of Section 378 of
the Cr.P.C. is required even in cases where appeal against acquittal is
preferred before the Court of Sessions under Section 378 of the Cr.P.C.
itself. [See : Nirmal Kumar Batabyal vs. The State of West Bengal and
another, C.R.R. 2741 of 2015 decided on 28th April 2016 by the
Calcutta High Court].
36 However, the question, so far as the case on hand is concerned, is
that the victim, who also happens to be the original first informant, if
dissatisfied or aggrieved by the judgment and order of acquittal passed
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by a Judicial Magistrate in respect of a cognizable and nonbailable
offence, whether can file an appeal before the Sessions Court. As stated
earlier, if the accused persons would have been convicted by the Judicial
Magistrate of the alleged offence, then the appeal against such order of
conviction would have been maintainable before the Sessions Court. If
the District Magistrate is empowered to direct the Public Prosecutor to
present an appeal to the Court of Sessions from an order of acquittal
passed by a Magistrate in respect of a cognizable and nonbailable
offence, then I see no good reason to take the view that the victim
cannot file an appeal before the Sessions Court. The question of grant of
leave would arise only if the appeal is to be filed before the High Court.
Section 378(3), prior to the 2005 Amendment to Cr.P.C., reads as under:
“(3) No appeal under subsection (1) or subsection (2) shall be
entertained except with the leave of the High Court.”
37 But, after the 2005 Amendment to Cr.P.C., Section 378(3) now
reads as under:
“(3) No appeal to the High Court under subsection (1) or subsection (2)
shall be entertained except with the leave of the High Court.”
38 After the said amendment, the words “No appeal” appearing in
subsection (3) were modified and substituted by the words “No appeal
to the High Court”. This aspect is quite significant. This makes the
legislative intent clear viz. to require the leave of the High Court in case
of appeals against acquittals that would be coming before it. This shows
that even while not laying down the requirement of leave in respect of
the Appeals against acquittal coming to the Court of Sessions, the
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legislature consciously retained the requirement of leave so far as the
appeals coming to the High Court against acquittals were concerned.
39 On a careful consideration of all the relevant provisions, it appears
to me that where the appeal against acquittal has been first time
introduced in the Court of Sessions, there would be no requirement of
leave because Section 378 of the Code does not say so. At the same time,
that while providing for appeal to the Court of Sessions, legislature did
not amend the provision requiring the State and/or the complainant to
obtain leave of the High Court is significant. Thus, even when the
legislature did not lay down the requirement of leave in case of appeals
against acquittal that would lie to the Court of Sessions, the legislature
still retained the provision for obtaining leave, in case of appeals to the
High Court. Obviously, there would be no danger of any meritorious
appeal being thrown away as the High Court would be competent to
judge the merit thereof and can be trusted for properly scrutinizing the
matter before the appeal is entertained. This would not affect the
genuine victim or any meritorious appeal in any manner whatsoever.
40 Undoubtedly, there has been change in the approach towards the
rights of victim and there has been a recognition of the victim’s
sufferings which, at times, are not redressed at the hands of the State.
Therefore a right has been rightly created in favour of the victim which
victim can exercise where the State machinery does not act in a proper
manner and does not file an appeal even when the acquittal would be
unmerited. The question of conferring right on the victim arose only
because it was felt that the State machinery, at times, does not file an
appeal even when the acquittal would be unmerited. If the victim is
given a right to approach the High Court that would take care of the
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grievance of the victim and it is not necessary that the scrutiny by the
High Court which is implicit in the matter of granting leave should be
dispensed with for protecting the right of the victim.
41 If I analyse Section 378(1)(a) and (b), it is clear that the State
Government cannot direct the Public Prosecutor to file an appeal against
an order of acquittal passed by a Magistrate in respect of a cognizable
and nonbailable offence because of the categorical bar created by
Section 378(1)(b). Such appeals, that is appeals against the orders of
acquittal passed by a Magistrate in respect of a cognizable and non
bailable offence can only be filed in the Sessions Court at the instance of
the Public Prosecutor as directed by the District Magistrate. Section
378(1)(b) uses the words “in any case”, but leaves out orders of acquittal
passed by a Magistrate in respect of a cognizable and nonbailable
offence from the control of the State Government. Therefore, in all other
cases where orders of acquittal are passed, appeals can be filed by the
Public Prosecutor, as directed by the State Government to the High
Court. [See: Subhash Chand vs. State (Delhi Administration) 2013 (2)
SCC 17].
42 If an appeal is maintainable only before the High Court, then it is
mandatory to seek leave before the appeal can be entertained. The
Legislature has been very conscious while amending Section 378(3) of
the Cr.P.C. Prior to the 2005 Amendment to Cr.P.C., the words “no
appeal under subsection (1) or subsection (2)” are, after the 2005
Amendment to Cr.P.C., substituted with the words are “no appeal to the
High Court”.
43 There is no provision in the Cr.P.C. wherein leave of the Sessions
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Court has to be obtained for the purpose of filing of an acquittal appeal
if such appeal is filed by the Public Prosecutor upon the directions issued
by the District Magistrate. Section 378(1)(a) of the Cr.P.C. would cover
cases instituted upon police report. Whereas, Section 378(4) of the
Cr.P.C. specifically talks about cases instituted upon complaint. In the
case on hand, the view taken by the Sessions Court is quite erroneous
and is nothing, but the outcome of misinterpretation of the dictum, as
laid down by the Supreme Court in the case of Satya Pal Singh (supra).
The Sessions Court wants the applicant to file an appeal before the High
Court. I fail to understand under which provisions of law, an appeal will
lie against an order of acquittal passed by a Magistrate in a case
instituted upon police report before the High Court. An appeal against
an order of acquittal would lie at the instance of the complainant before
the High Court upon seeking leave under Section 378(4) of the Cr.P.C.
provided the case is one instituted upon a complaint.
44 The history of the amendment made to the first clause of proviso
to Section 372 was set out by a Division Bench of the Patna High Court
in its judgment in Parmeshwar Mandal vs. State of Bihar [2014 Cri.L.J.
1046], which is as follows:
“It may be point out that, the first clause of the said proviso is verbatim
copy of the recommendations of the Malimath Committee, submitted as far
back as in the year 2003. In the report, Justice Malimath extensively dealt
with precarious position of victim in criminal justice system of the Country
and made recommendations, which included recommendations to vest the
victim also with a right to appeal. This very recommendation was finally
adopted in the form of amendment in Section 372 of the Code. Hence,
clearly it could not be the intention of the Legislature to vest this right of
appeals in only those victims in whose cases the occurrence had happened
after the amendment. If that could be accepted as a necessary condition for
exercise of the right by a victim, then, for years to come, this right of the
victim to prefer an appeal in terms of the said proviso would have
remained illusory, in spite of the amendment. The Central Government, byPage 28 of 32
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R/SCR.A/10076/2017 CAV JUDGMENTNotification No. S.O. 3313(E) dated 30th December, 2009, appointed 31st
day of December 2009, as the date for the Act. 5 of 2009 to come into
force, which was published in Gazette of India, Ext., Pt.II, S.3(ii), dated
30122009. Hence, in absence of any express intention notified by the
Legislature to 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.”
45 A Division Bench of the Himachal Pradesh High Court, in its
judgment in Joginder Singh vs. State of Himachal Pradesh through its
Secretary (Home) [2013 (2) Crl.CC 566 : 2013 (3) Crimes 160], held
as to how the procedure for filing appeal under the Proviso to Section
372 should be regarded and observed as follows:
“We are of the considered view that though the proviso to Section 372 the
Code does give a right to the victim to file an appeal, this proviso cannot
be read in isolation. It has to be given a meaning which fulfils the
intention of the Legislature. The Proviso to Section 372 of the Code does
not lay down the procedure as to how, in what manner, and most
importantly within which time the appeal has to be filed…”
“As pointed out above the proviso to Section 372 of the Code does not lay
down the procedure for filing the appeal. To us the reasoning of the Punjab
and Haryana and Patna High Courts appeals more than that of the
Bombay and Delhi High Courts. In addition to the reasoning given by
these Courts we would like to add that even if the victim has a right to
prefer an appeal, the procedure of filing an appeal must be governed by
Section 378 the Code except in so far as Section 372 of the Code
specifically provides the forum for appeal?”
Coming to SubSection (4) of Section 378 of the Code, we find that if an
order of acquittal is passed on a case instituted upon 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 expressing “leave to appeal” and it appears to
us that the word special has been added only to distinguish leave to appeal
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sought, by the complainant from the leave to appeal sought by the State.
Thus in a complaint case where the complainant has set 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 a similar 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?
We answer the question by holding that when a victim files an appeal
against the acquittal of the accused in the High Court then he is required
to obtain leave to appeal before his appeal is entertained. It is made clear
that no leave to appeal would be required if the appeal lies to the Sessions
Court or even in an appeal filed to the High Court where the only issue is
with regard of the adequacy of the compensation?”
46 A Full Bench of this Court, in Bhavuben Dineshbhai Makwana vs.
State Of Gujarat [2013 Cri.L.J 4225], dealt with similar issues and
answered the questions as follows:
“In the circumstances, the very basic premise upon which the law is laid
down in Bhikhabhai (supra), 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 Section 372. Similarly, Section 24(8) of the Code has nothing
to do with the right of appeal conferred upon the victim and by taking aid
of that section, the substantive right conferred upon a victim cannot be
made conditional?”
“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 Section 372 of the Code) is a separate and
independent statutory right and is not dependent either upon or is
subservient to right of appeal of the State. In other words, both the victim
and the State/prosecution can file appeals independently without being
dependent on the exercise of the right by the other. Moreover, from the act
or omission for which the accused has been charged, there may be more
than one victim and the loss suffered by the victims may vary from one
victim to the other victims. Therefore, each of such victims will have
separate right of appeal and in such appeals, the grievance of each of the
appellant may be different. For instance, in an act of arson when a joint
property of different persons has been set on fire, the loss suffered by each
of the co sharers may be different. In such a case, each cosharer has a
separate right of appeal and such right of one does not depend even on the
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filing of such appeal by another victim.”
47 My view aforesaid on the subject is fully fortified by the decision
of the Calcutta High Court in the case of Nirmal Kumar Batabyal
(supra).
48 In view of the aforesaid discussion, I hold as follows:
[a] A victim in a police case may prefer an appeal before the
Court of Sessions against an order of acquittal passed by the
Magistrate in terms of the proviso to Section 372 of Cr.P.C.
provided an appeal against an order of conviction in such cases lay
before the Sessions Court.
[b] In the event, the victim prefers an appeal to the Court of
Sessions in terms of the proviso to Section 372 of the Code of
Criminal Procedure, no leave is required to be granted by the High
Court in terms of subsection (3) of Section 378 of the Cr.P.C. as
amended by Act 25 of 2005 which restricts such leave only to
appeals preferred before the High Court and not before any other
forum.
49 In view of the above, this application succeeds and is hereby
allowed. The impugned order passed by the 2nd Additional District and
Sessions Judge, Ahmedabad (Rural) dated 20th September 2017 is
hereby quashed. I remand the appeal for fresh hearing in accordance
with law. By now probably, the appeal is barred by limitation. The
applicant shall file a formal application for condonation of delay under
Section 5 of the Limitation Act, 1963. The Appellate Court shall consider
the said application for condonation of delay first and if the Court is
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R/SCR.A/10076/2017 CAV JUDGMENT
inclined to condone the same after hearing the respective parties, then
register the appeal and deal with the same on merits. D.S. permitted.
(J.B.PARDIWALA, J.)
chandresh
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