Lavjibhai Amarsibhai Bhalodiya vs Mehmoodaben Sic Rajabsha @ Rajubhai ... on 23 January, 2018

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Gujarat High Court

Lavjibhai Amarsibhai Bhalodiya vs Mehmoodaben Sic Rajabsha @ Rajubhai ... on 23 January, 2018

HC-NIC Page 1 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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 Page 2 of 32 HC-NIC Page 2 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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 Page 3 of 32 HC-NIC Page 3 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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 Page 4 of 32 HC-NIC Page 4 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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 Page 5 of 32 HC-NIC Page 5 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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 trial Page 6 of 32 HC-NIC Page 6 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT of 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 Page 7 of 32 HC-NIC Page 7 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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 Page 8 of 32 HC-NIC Page 8 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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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HC-NIC Page 9 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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.

Page 10 of 32

HC-NIC Page 10 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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 Page 11 of 32 HC-NIC Page 11 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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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HC-NIC Page 12 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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 Page 13 of 32 HC-NIC Page 13 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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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HC-NIC Page 14 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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 Page 15 of 32 HC-NIC Page 15 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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 Page 16 of 32 HC-NIC Page 16 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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 Page 17 of 32 HC-NIC Page 17 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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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HC-NIC Page 18 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT (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. without Page 20 of 32 HC-NIC Page 20 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT obtaining 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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HC-NIC Page 21 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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 Page 22 of 32 HC-NIC Page 22 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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 Page 23 of 32 HC-NIC Page 23 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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 Page 24 of 32 HC-NIC Page 24 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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 Page 25 of 32 HC-NIC Page 25 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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 Page 26 of 32 HC-NIC Page 26 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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 Page 27 of 32 HC-NIC Page 27 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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, by Page 28 of 32 HC-NIC Page 28 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT Notification 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 Page 29 of 32 HC-NIC Page 29 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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 Page 30 of 32 HC-NIC Page 30 of 32 Created On Tue Jan 23 23:17:13 IST 2018 R/SCR.A/10076/2017 CAV JUDGMENT 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 Page 31 of 32 HC-NIC Page 31 of 32 Created On Tue Jan 23 23:17:13 IST 2018 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 Page 32 of 32 HC-NIC Page 32 of 32 Created On Tue Jan 23 23:17:13 IST 2018

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