Himachal Pradesh High Court
Prem Singh vs Dina Nath & Another on 9 August, 2024
Neutral Citation No. ( 2024:HHC:6665 ) THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 379 of 2024 Reserved on: 31.07.2024 .
Date of Decision:09.08.2024 Prem Singh ....Appellant Versus Dina Nath & another.
....Respondents Coram Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? Yes For the Appellant : Mr. Arush Matlotia, Advocate.
For the Respondents : Mr. Jiwan Lal Sharma, Advocate, for respondent No.1.
Mr. Prashant Sen, Deputy Advocate General for respondent No.2/State.
Rakesh Kainthla,Judge The present appeal is directed against the judgment dated 10.11.2023, passed by learned Additional Sessions Judge, Sarkaghat, District Mandi, H.P. (learned First Appellate Court Court) vide which respondent (appellant before the learned Trial Court) was acquitted and judgment of conviction dated 30.06.2022 and order of sentence 18.07.2022 passed by learned Additional Chief Judicial Magistrate, Sarkaghat, District Mandi (learned Trial Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 09/08/2024 20:36:34 :::CIS 2 Neutral Citation No. ( 2024:HHC:6665 ) Court) were set aside. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for .
convenience).
2. Briefly stated, the facts giving rise to the present appeal are that appellant-informant filed a complaint before the police stating that his wife was a resident of Village Batsla Post office Nabahi, Tehsil Sarkaghat, District Mandi, H.P. A case pertaining to her land was pending before the Revenue Commissioner Mandi. Lekh Ram, ACO District Mandi, H.P. visited Village Batsla Ghyan on 21.09.2012. He recorded the statement of informant's wife Soma Devi, in which she had stated that the deficiency of her land be made good. Her signatures were obtained on the statement. When the informant obtained a copy of the statement and the order he found that statement was changed and it was mentioned that she wanted to withdraw the case. The statement was changed by ACO Lekh Ram to provide wrongful benefit to Dina Nath.. The signatures of Soma Devi were also changed. Police registered the F.I.R. for the commission of offences punishable under Sections 419, 420, 467, 468, 471, and 120-B of IPC.
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3. The learned Trial Court held that Dina Nath was guilty of the commission of offences punishable under Sections 467, .
468, 471, and 420 of IPC read with Section 120-B of IPC. Hence, the learned Trial Court convicted and sentenced the accused Dina Nath.
4. Being aggrieved from the judgment and order sentence passed by the learned Trial Court, he filed an appeal, which was decided by learned Additional Sessions Judge, Sarkaghat, District Mandi, who allowed the appeal and set aside the judgment of conviction and order of sentence.
5. Feeling aggrieved and dissatisfied with the judgment passed by the learned Appellate Court, the informant Prem Singh has filed the present appeal.
6. Mr Jiwan Lal Sharma, learned counsel for respondent/accused. No.1 raised an objection that the appeal filed by Prem Singh, the informant is not maintainable because the appeal under proviso to under Section 372 of Cr.P.C. can only be filed by the victim and not by a third person. As per the allegations in the complaint made to the police, the informant's wife Soma Devi is the victim. Her signatures were forged and her ::: Downloaded on - 09/08/2024 20:36:34 :::CIS 4 Neutral Citation No. ( 2024:HHC:6665 ) statement was changed. She was a party to the litigation, which was withdrawn based on her statement. The informant has no .
concern with the matter. Hence, he is incompetent to file the appeal; therefore, he prayed that the appeal be dismissed being not maintainable.
7. Mr. Arush Matlotia, learned counsel for the appellant submitted thatthe husband is entitled to file an appeal on behalf of his wife. He relied upon the judgment of the Hon'ble Supreme Court in Satya Pal Singh vs State of M.P. & Ors.2015 (15) SCC 613 in support of his submission.
8. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
9. Proviso to Section 372 of Cr.P.C. confers a right upon the victim to prefer an appeal against any order passed by the Court acquitting the accused or convicting him for a lesser offence or imposing inadequate compensation. The term victim has been defined in Section 2(wa) of Cr.P.C. as the person who has suffered loss and injury caused by the reason of the act or omission for which the accused person has been charged. Therefore, it is apparent from the plain language of this Section that the victim is ::: Downloaded on - 09/08/2024 20:36:34 :::CIS 5 Neutral Citation No. ( 2024:HHC:6665 ) a person who has suffered any loss or injury. The term 'loss' has not been defined in the Indian Penal Code but the term 'wrongful .
loss' has been defined in Section 23 of IPC as the loss by unlawful means of property to which the person using it is legally entitled.
The term 'injury' has been defined under Section 44 of IPC as any harm that is illegally caused to any person in body, mind, reputation or property. It was held by a full Bench of Delhi High Court in Ram Phal v. State, 2015 SCC OnLine Del 9802 that the term victim means a person who has suffered proximate and not remote injury. It was observed:
"29. To restate the correct position, there has to be a relationship between the injury and the person who suffered it, i.e. the "victim". Consequently, the injury (to the victim who suffers it) has to be proximate; it cannot be remote. At the same time, given the nature of what is "injury" (under Section 44, IPC) the enquiry of proximity would be fact-dependent. Courts would assess such issues, based on established principles, and balancing the facts on a case-to-case basis. To conclude the discussion, it is also emphasized that where the victim is unable (by reason of trauma, shock or other disability) to make a choice of preferring an appeal, those who are in a position to do so on her or his behalf (and who might also have suffered some proximate harm) - such as relatives, foster children, guardians, fiancé or live-in partners etc., can maintain an appeal under the proviso to Section 372."::: Downloaded on - 09/08/2024 20:36:34 :::CIS 6
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10. This Court held in S.M. Katwal vs Virbhadra Singh and Others 2015(3) Himachal Law Reports 1363, that the informant or .
the complainant is not necessarily a victim. The right is conferred upon the victim and not the informant/complainant. A person who has not suffered any loss or any injury cannot file an appeal under proviso to Section 372 of Cr.P.C. It was observed:
"47. It is well established from the law cited on both sides that it is not necessary that an informant or the complainant is always a victim and proviso to Section 372 of the Code confers a right upon the victim alone to prefer an appeal and not on an informant or a complainant. The appeal is a creation of a statute and the right to file an appeal has to be determined with reference to the relevant statutory provisions.
48. In a case of prosecution launched on the registration of FIR and presentation of police report under Section 173 of the Code, it is only the State, which is competent to prefer the appeal and the statute does not confer power on a complainant or informant, who is not a victim, to prefer an appeal against the acquittal.
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50. As per the decisions cited at the bar and the law as discussed herein above, laid down therein, the proviso to Section 372 of the Code empowers the victim to prefer an appeal against an order acquitting the accused or convicting for a lesser sentence or imposing inadequate compensation. None of the precedents so cited except for M/s. Tata Steel Limited and Gouranga Deb Nath's cases supra, however, deal with the term 'victim' within the meaning of Section 2(wa) of the Code. The Full Bench of Punjab and Haryana High Court in M/s. Tata Steel Limited, ::: Downloaded on - 09/08/2024 20:36:34 :::CIS 7 Neutral Citation No. ( 2024:HHC:6665 ) after examining the term 'victim' within the meaning of Section 2(wa) of the Code and also the words "loss" and "injury" within the meaning of Sections 23 and 44 of the .
Indian Penal Code with the help of the case law relied upon has held that words "loss" and "injury" used in Section 2(wa) are synonymous and that a person, who has suffered an injury in body or mind or reputation or to his/her property, is a 'victim' within the meaning of Section ibid. No doubt, as per the law laid down by the Full Bench, a 'victim' is a person who not only suffered an injury in body or mind or to the property, but reputation also, is a victim. This judgment reads as follows:
"47. Section 2(wa) of the Code defines 'victim' to mean a person who has suffered any loss or injury caused by the 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'. We find on its plain reading that the Legislature has classified the 'victim' in two categories i.e. (i) a person who has suffered any loss or injury caused by the act or omission attributed to the accused; and (ii) the 'guardian' or 'legal heir' of such 'victim'. The correct understanding of the first part of the term "victim" is contingent and is subject to the true scope of the words "loss" or "injury"
contained therein. Both these words are not denied in the Code, however, Section 2(y) says that "words and expressions used herein and not denied but defined in the Indian Penal Code (45 of 1860) have the meanings respectively assigned to them in that Code".
48. Section 23 IPC defines "wrongful loss" and it says that "wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled". It is further explained that "a person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person ::: Downloaded on - 09/08/2024 20:36:34 :::CIS 8 Neutral Citation No. ( 2024:HHC:6665 ) is wrongfully deprived of property". According to Section 44 IPC, the word "injury" denotes any harm whatever illegally caused to any person, in body, .
mind, reputation or property". It is, thus, in the context of offences against property, especially under Section 418 and 'mischief' as defined in Section 425 IPC that the term 'wrongful loss' has been used in the Penal Code. The Legislature while defining 'victim' in Section 2(wa) of the code has used the word 'any loss' before 'or injury' and has not restricted it to 'wrongful loss' only. We, thus, find that the words 'loss' and 'injury' used in Section 2(wa) are synonymous. This view is also fortified by the use of the wide term 'any loss' in clause (b) as compared to 'the loss' in clause (c) of Section 357(1) of the Code.
49. It is so clear that a person who has suffered any injury in body or mind or reputation or to his/her property or if such person has been caused loss of property, to which he is legally entitled to, unlawfully at the hands of another person who has charged as an accused, is the 'victim' within the meaning of Section 2(wa). Similarly, if as a result of the aggravated form of victimization, such 'victim' of the first part does not survive, the second part of the definition of 'victim' as defined in Section 2(wa) of the Code substitutes the first part and becomes operative whereupon the guardian (if such 'victim' was a minor or of unsound mind) or the legal heirs of the deceased victim, as the case may be, step-in for the 'victims' for the varied purposes under the Code".
51. In Gouranga Debnath's case, Gauhati High Court (Agartala Bench), while giving a wider interpretation to the term 'victim', has observed that the 'victim' is a person, who individually or collectively have suffered hard, including physical or mental injury, emotional suffering, economical loss or substantial impairment to his fundamental rights through the acts or omissions in ::: Downloaded on - 09/08/2024 20:36:34 :::CIS 9 Neutral Citation No. ( 2024:HHC:6665 ) conflict with criminal law. As a matter of fact, this was the meaning assigned to the term 'victim'. This judgment reads as follows:
.
"41. In the case of Smt. Ram Kaur, the High Court of Punjab and Haryana while examining Section 2(wa) of the Code took note of the Minutes of the 96th Plenary meeting on 29th November 1985 of the General Assembly of the United Nations wherein the United Nations made a Declaration of Basic Principles of Justice for victims of Crime and Abuse of Power, recognising that millions of people throughout the world suffer hard as a result of crime and the abuse of power and that the right of these victims have not been adequately recognised and also that frequently their families, witnesses and other who aid them are unjustly subjected to loss, damage or injury. The Assembly affirmed the necessity of adopting national and international norms in order to secure universal and effective recognition of and respect for, the rights of victims of crimes and abuse of power. In the said declaration, the word 'victim' was defined as under :
6.2:- 6.2 The Declaration defines victims as "person who, individually or collectively, have suffered hard, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws prescribing criminal abuse of power".
42. The aforesaid definition of the victim has been discussed in the 154thReport of Law Commission, but the legislation has not adopted the said definition and have given a restricted meaning of the word "victim" means only a person, who has suffered any loss or injury caused by a reason of the act or omission of the offender and victim ::: Downloaded on - 09/08/2024 20:36:34 :::CIS 10 Neutral Citation No. ( 2024:HHC:6665 ) includes his or her guardian or legal heir, which in fact subsequently incorporated in the amendment of the Code by way of inserting the clause (wa) of Section 2 of the Code.
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43. A joint reading of Smt. Ram Kaur (supra) and Section 2(wa) of the Code, we are of the opinion that a person who has suffered a loss due to a crime is obviously a victim and more particularly we are also in agreement with Mr Kar Bhowmik as well as Mr Deb that in Section 2(wa) of the Code, there are two parts. One part is relating to victims who have suffered loss and injury and by way of other parts, the Legislature expanded the word 'victim' even to the persons who are the guardian and legal heirs."
52. In CRM No. 26221 of 2011 and CRM No. A-402- MA of 2011, titled Parmod Kumar v. Har Parkash and Others, Punjab and Haryana High Court has held as follows:
"In terms of the proviso to Section 372 of the Code of Criminal Procedure ("Cr. PC" - for short) only a 'victim' can file an appeal. 'Victim' has been defined in Section 2 (wa) Cr.P.C. to mean 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."
53. In the rest of the judgments cited on behalf of the petitioner, the only legal question dealt with pertains to the entitlement of a victim to prefer an appeal against a judgment of acquittal under the proviso to Section 372 of the Code, qua which there is not much quarrel, hence need no further elaboration.
54. The question, however, arises that the petitioner before this Court is covered by the meaning so assigned to the term 'victim' or not. The answer to this poser in all fairness and in the ends of justice would be in the negative for the reason that irrespective of the complaint Ext.PW-37/A having been made by him, he is not a complainant nor the case is registered at his instance. He at the most is a ::: Downloaded on - 09/08/2024 20:36:34 :::CIS 11 Neutral Citation No. ( 2024:HHC:6665 ) whistle-blower. On going through the reply to this petition filed on behalf of accused-respondents No. 1 and 2, the petitioner is an accused in criminal cases registered vide .
FIR No. 3 of 2003 under Sections 465, 467, 468, 471 of the Indian Penal Code and 13(2) of the Prevention of Corruption Act, FIR 15 of 2003 under Sections 420, 467, 468, 471, 120- B of the Indian Penal Code and 13(2) of the Prevention of Corruption Act, FIR No. 27 of 2005 under Sections 420, 467, 468, 471 of the Indian Penal Code and 13(2) of the Prevention of Corruption Act, FIR No. 11 of 2006 under Sections 420, 467, 468, 471 of the Indian Penal Code and 13(2) of the Prevention of Corruption Act, FIR No. 1 of 2004 under Sections 420, 467, 468, 471 of the Indian Penal Code and 13(2) of the Prevention of Corruption Act, FIR No. 4 of 2003 under Sections 420, 467, 468, 471, 120B of the Indian Penal Code and 13(2) of the Prevention of Corruption Act, and FIR No. 2 of 2004 under Sections 420, 467, 468, 471, 120B of the Indian Penal Code and 13(2) of the Prevention of Corruption Act, in Police Station, Enforcement North Zone, Dharamshala. Therefore, all these cases were registered against him at a time when accusedrespondent No. 1 was the Chief Minister of this State. Not only this but three Civil Suits bearing No. 5 of 2004, 5 of 2005 and 8 of 2005 have been instituted by the petitioner against accused-
respondent No. 1. It can reasonably be believed that both accused-respondent No. 1 and the petitioner are inimical to each other. Therefore, the possibility of he having initiated these proceedings against the accusedrespondents merely to wreakvengeance against them cannot be ruled out.
Although, the kind of "loss" and "injury" as discussed by the Full Bench of Punjab and Haryana High Court in M/s. Tata Steel Limited and Gauhati High Court in Gouranga Debnath's case have not been suffered by the petitioner and at the most he can only be said to have suffered with mental injury or emotional suffering and for that matter even every citizen suffers such loss and injury if an offence of the nature already committed by the accused-respondents is found to be committed by a person occupying such a high ::: Downloaded on - 09/08/2024 20:36:34 :::CIS 12 Neutral Citation No. ( 2024:HHC:6665 ) position, yet keeping in view that the petitioner has not set the machinery in motion in the capacity of a public-spirited person and rather on account of he being inimical to the .
accused respondents, he cannot be termed as 'victim' within the meaning of Section 2(wa) of the Code nor competent to prefer an appeal under the proviso to Section 372 of the Code.
55. Of course, charges against accused respondents No. 1 and 2 are that of corruption, therefore, if any "loss" or "injury" including the emotional loss or mental injury is caused by their acquittal, it cannot only be to a particular individual, like the petitioner, but also to the public at large. As already said, the term 'victim' is wide enough and to be construed liberally in a case having charges of corruption that too against a person occupying a high position and at the helm of affairs. What to speak of complainant or informant having suffered a loss on account of acquittal of an accused from a charge of this nature, anyone else may also feel aggrieved, however, this alone is not sufficient because, under the proviso to Section 372 of the Code, it is a victim alone competent to prefer appeal. In this case, since the petitioner is inimical to accusedrespondents No. 1 and 2, therefore, if he claims himself to be a 'victim', it is difficult to believe. I am, therefore, in agreement with Mr Cheema that the petitioner is not a victim within the meaning of Section 2(wa) of the Code for the reason that an informant or complainant has no right to prefer an appeal. The amendment empowers only a 'victim' and none else to prefer an appeal, not a complainant or first informant that too when the criminal proceedings were launched consequent upon the investigation conducted on registration of FIR. It is worth mentioning here that in the National Commission for Women v. State of Delhi and another, supra the Apex Court has not held the National Commission for Women as a 'victim' inspite of that case being that of atrocities/crime against women. To my mind in that case the National ::: Downloaded on - 09/08/2024 20:36:34 :::CIS 13 Neutral Citation No. ( 2024:HHC:6665 ) Commission was on better footing as compared to the petitioner in the case in hand.
56. In another precedent cited by Mr Cheema, Parmod .
Kumar, at whose instance the FIR was registered, was not held to be a victim by the Punjab and Haryana High Court.
57. As regards Sheo Nandan Paswan's case supra, the same also does not deal with the questions arising in the present case at all. In this case, the learned Public Prosecutor moved an application for withdrawal of prosecution, which was opposed by Sheo Nandan Paswan. The said application was allowed and the accused Dr. Jagannath Misra and others were ordered to be discharged. Sheo Nandan Paswan filed a revision against the said order, which was dismissed by the High Court. Sheo Nandan Paswan challenged the orders of learned Courts below before the Hon'ble Supreme Court. Therefore, the questions involved in Paswan's case were entirely different and dealt with the locus standi of a non-informant to challenge an order of withdrawal of prosecution. It was not a case of an appeal against acquittal. The reference by the Hon'ble Supreme Court in para 14 to a decision of the Constitution Bench in A.R. Antulay's case stating that anybody could set the machinery of law in motion on the commission of a crime and file the complaint, does not render any assistance to the petitioner, who has to plead his case on the basis of a statutory right to file an appeal.
58. In view of what has been said in para supra, it would not be improper to conclude that the right to file an appeal is a creature of statute and the same needs determination with reference to the statutory provisions. In a case, where the prosecution is launched on the basis of an FIR, it is only the State, which can prefer an appeal against the acquittal and not the complainant or informant, who is not a victim. Therefore, when the petitioner is not proved to be a victim, he is not entitled to prefer an appeal under the proviso to Section 372 of the Code against the acquittal of the accused respondents. This takes us to the second question which ::: Downloaded on - 09/08/2024 20:36:34 :::CIS 14 Neutral Citation No. ( 2024:HHC:6665 ) pertains to the delay as occurred in filing the appeal. Point No. 2."
11. In the present case, the informant has not suffered any .
loss or injury. His wife has suffered the loss because her petition was withdrawn on the basis of a forged statement as per the F.I.R.
She was the owner of the property. The informant is not shown to have any interest in the property and he cannot claim himself to be a victim.
12. The Hon'ble Supreme Court held in Satya Pal Singh's case (supra) that the legal heir of the victim can prefer an appeal.
This judgment will not apply to the present case because the appellant nowhere stated that his wife has died and he is her legal heir; therefore, this judgment will not assist the appellant in any manner, whatsoever.
13. Consequently, the objection raised by learned counsel for respondent No.1/accused has to be accepted as correct that appeal at the instance of the informant is not maintainable as he does not fall within the definition of the victim.
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14. In view of the above, the present appeal is dismissed being not maintainable. Pending miscellaneous applications also .
stand disposed of.
(Rakesh Kainthla) Judge 09th August, 2024.
(Ravinder)
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