Gujarat High Court
Bhavuben vs State Of Gujarat &
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
CR.A/238/2012 30/ 30 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 238 of 2012
with
CRIMINAL
APPEAL No. 608 of 2012
with
CRIMINAL
MISC.APPLICATION No. 6516 of 2012
In
CRIMINAL
APPEAL No. 608 of 2012
For
Approval and Signature:
HONOURABLE
THE
CHIEF JUSTICE
MR.BHASKAR BHATTACHARYA
AND
HONOURABLE
MR.JUSTICE
A.L.DAVE
AND
HONOURABLE
MR.JUSTICE
V. M. SAHAI
=========================================================
BHAVUBEN DINESHBHAI MAKWANA Versus STATE OF GUJARAT & OTHERS ========================================================= Appearance :
MR SUNIL C PATEL for Appellants.
MR TUSHAR MEHTA, ADDITIONAL ADVOCATE GENERAL for Respondent No.1 None for Respondents No. 2 -10
========================================================= CORAM :
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE V. M. SAHAI Date : 23/10/2012 COMMON C.A.V. ORDER (Per : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. These two Criminal Appeals along with a Criminal Misc. Application filed in one of these two appeals have been referred to a Larger Bench by a Division Bench of this Court [Coram: Ravi R. Tripathi & Paresh Upadhyay, JJ.], vide order dated 27th June 2012 for considering the following issues:
(i). Whether an appeal filed by the victim, invoking his right under proviso to section 372 of Cr.P.C, challenging acquittal, or conviction for a lesser offence, or awarding inadequate compensation, is not maintainable, on the ground that the State has filed an appeal against the same order and for the same purpose ?
(ii). Whether an appeal filed by the State should not be entertained, on the ground that the appeal preferred by the victim invoking his right under proviso to section 372 of Cr.P.C., against the same order, is admitted by the Court ?
(iii). If the victim prefers an appeal before this Court, challenging the acquittal, invoking his right under proviso to section 372 of Cr.P.C., whether that appellant is required to first seek leave of the Court, as is required in case of appeal being preferred by the State ?
2. The above two appeals are directed against an order of acquittal passed by the learned Additional Sessions Judge, Bhavnagar in Sessions Case No. 147 of 2010 by which the accused therein, who were charged for the offences punishable under sections 147, 148, 149, 323, 324, 325, 307 and 302 of the Indian Penal Code and Section 135 of the Bombay Police Act, were acquitted.
3. Criminal Appeal No. 238 of 2012 was preferred by the widow of the deceased invoking her right under the proviso to Section 372 of the Criminal Procedure Code [Code]. The same order of acquittal was also challenged by the State of Gujarat by filing Criminal Appeal No. 608 of 2012 along with an application seeking leave to prefer appeal, being Criminal Misc. Application No. 6516 of 2012.
4. When those two appeals and the application praying for leave to appeal by the State were listed for hearing before a Division Bench [Coram:
Ravi R. Tripathi & Paresh Upadhyay, JJ.], the attention of the Division Bench was drawn to two earlier decisions taken by two different Division Benches of this Court, one in the case of Bhikhabhai Motibhai Chavda v. State of Gujarat & Others in Criminal Misc. Application No. 5522 of 2009 with Criminal Appeal No. 783 of 2010 [Coram: Jayant Patel & Z.K. Saiyed, JJ] and the other, in the case of State of Gujarat v. Chaudhary (Patel) Pababhai Devabhai & Ors in Criminal Misc. Application No. 4350 of 2011 [Coram: D.H. Waghela & J.C. Upadhyay, JJ.].
5. In the case of Bhikhabhai Motibhai Chavda [supra], the Division Bench was of the view that once an appeal is filed by the State against an order of acquittal, the subsequent appeal filed by the victim against the selfsame order of acquittal is not maintainable.
6. In the other case, viz. State of Gujarat v. Chaudhary (Patel) Pababhai Devabhai & Ors [supra], the other Division Bench took the view that the victim having already filed an appeal from the selfsame order of acquittal and the same being admitted and the State being a party therein, the subsequent application for leave to appeal filed by the State was not required to be entertained, and consequently, the same was disposed of without entering into the merits.
7. The Division Bench [Coram:
Ravi R. Tripathi & Paresh Upadhyay, JJ.], however, after taking into consideration various provisions of the Code, was of the opinion that the aforesaid question was required to be re-looked into for the purpose of deciding whether the appeal filed by the victim under the proviso to section 372 of Cr.P.C. would not be maintainable in spite of specific right conferred upon the victim by the statute, only on the ground that the State had already filed an appeal against the selfsame order, and also for considering whether the appeal filed by the State should not be entertained only on the ground that the victim had already filed an appeal against the selfsame order.
8. The Division Bench further cast doubt as to whether in order to exercise the right of appeal challenging the order of acquittal under proviso to section 372 of the Code, the victim is required to first seek leave of the Court, as is required in case of appeal being preferred by the State, and therefore, their Lordships also framed the third question as indicated above.
9. We have elaborately heard the learned counsel for the parties in detail.
10. In order to appreciate the questions involved, Sections 2 (d), (wa), 24(8), 372, 373, 374, 375, 376, 377 and 378 of the Code are relevant, and those are quoted below:
"2. Definitions.-
xxx xxx xxx xxx "(d) "complaint"
means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
Explanation: A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complaint;
(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;
24. Public Prosecutors.
(1) xxx xxx xxx xxx (8). The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor:
Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.
"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.
373. Appeal from orders requiring security or refusal to accept or rejecting surety for keeping peace or good behaviour.
Any person,-
(i) who has been ordered under section 117 to give security for keeping the peace or for good behaviour, or
(ii) who is aggrieved by any order refusing to accept or rejecting a surety under section 121, may appeal against such order to the Court of Session:
Provided that nothing in this section shall apply to persons the proceedings against whom are laid before a Sessions Judge in accordance with the provisions of sub-section (2) or sub-section (4) of section 122.
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 sub-section (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.
375. No Appeal in certain cases when accused pleads guilty.-
Notwithstanding anything contained in section 374, where an accused person has pleaded guilty and has been convicted on such plea, there shall be no appeal,-
(a) if the conviction is by a High Court ; or
(b) if the conviction is by a Court of Session, Metropolitan Magistrate or Magistrate of the first or second class, except as to the extent or legality of the sentence.
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 appealable 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 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.
"377. Appeal by the State Government against sentence.
(1). Save as otherwise provided in sub-section (2), the State Government may in any case of conviction on a trial held by any Court other than a High Court, direct the Public prosecutor to present an appeal against the sentence on the ground of its inadequacy-
(a) to the Court of session, if the sentence is passed by the Magistrate; and
(b) to the High Court, if the sentence is passed by any other Court.
(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy-
(a) to the Court of session, if the sentence is passed by the Magistrate; and
(b) to the High Court, if the sentence is passed by any other Court.
(3). When an appeal has been filed against the sentence on the ground of its inadequacy, the Court of Session or, as the case may be, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence."
378. Appeal in case of acquittal.-
(1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5),-
(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 non-bailable 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 an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.
(2). If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may, subject to the provisions of sub-section (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 non-bailable 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 sub-section (1) or sub-section (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 sub-section (4) for the grant of 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.
If, in any case, the application under sub-section (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 sub- section (1) or under sub-section (2).
(Emphasis supplied by us).
11. Mr. Tushar Mehta, the learned Additional Advocate General appearing on behalf of the State, has made the following submissions on the above three questions referred to this larger bench:
11.1 According to Mr. Mehta, the Proviso to Section 372 of the Code carves out an exception to the general rule embodied in the first part of Section 372 of the Code.
It recognizes, Mr. Mehta proceeds, for the first time, an independent right of an appeal available to a victim as defined under section 2 (wa) of the Code and thus, the right conferred upon a victim to challenge an order of acquittal is an independent right and is not dependent upon either the State/Prosecution deciding to file an appeal against acquittal and/or on the dismissal of the application filed by it seeking leave to file an appeal. Mr. Mehta submits that since the victim is conferred with an independent statutory right of appeal, the finding of the Division Bench of this Court in case of Bhikhabhai (supra) that the victim can exercise this right of appeal only when the State/Prosecution is not pursuing the case properly does not get support from the legislative intent embodied in the Code of Criminal Procedure, 1973 and/or from the scheme of the Code.
11.2 Mr. Mehta further contends that the finding of the Division Bench as contained in paragraph 12 of the judgment in the case of Bhikhabhai (supra) to the effect, 'it is only at the time when the final hearing of appeal is to take place, the victim can make the submission to the appellate court against the order of acquittal by assisting the Public prosecutor as per the scheme of Section 24(8) of Cr.P.C' is not the correct law because Section 24(8) of the Code governs the right of the victim only at the time of trial and not at the stage of appeal.
11.3 Mr. Mehta submits that the rights/obligations/procedures during trial and during appellate stage are different and distinct both in the Civil Procedure Code and the Criminal Procedure Code. According to him, an appeal is treated as continuance of the proceedings only for the purpose of deciding the question as to which law would govern the subject matter of appeal. To illustrate, Mr. Mehta points out that while deciding an appeal, the appellate court would interpret the law applicable at the time of institution of original proceedings (though such law may have been repealed at the time of hearing of the appeal) treating the appeal to be the continuance of the original proceedings. Mr. Mehta asserts that for the purpose of applying the procedural and other provisions specifically made in the Code, an appeal cannot be treated as continuance of original proceedings as held by the Division Bench of this Court in the case of Bhikhabhai (supra).
11.4 Mr. Mehta further contends that the law laid down by the Division Bench of this Court in paragraph 14 in the case of Bhikhabhai (supra) to the effect, "even if it is read for the sake of consideration that the victim has absolute right to prefer appeal then also the judicial discretion would demand that when the State has already preferred appeal against the order of acquittal and the leave has been granted by this Court and the appeal has been admitted against the order of acquittal, preferred by the State, it would not be a case to entertain the another appeal of the victim by this Court...." is not a correct law since it does not get support from any provisions of the Code.
11.5 On the very same line of arguments, as referred above, according to Mr. Mehta, the order dated 4th October 2011 passed by the other Division Bench in case of State of Gujarat v. Chaudhary (Patel) Pababhai Devabhai & Ors. (supra) taking the view that "when the appeal against order of acquittal filed by the original complainant - victim being Criminal Appeal No. 304 of 2011 has been admitted, the appeal by the State is not required to be entertained" does not lay down the correct position of law.
11.6 On the third question referred to this larger bench, Mr. Mehta submits that the right of the victim to file an appeal is merely recognized in the proviso to Section 372 of the Code, but it is subject to the procedure contemplated under Section 378 of the Code. The victim when chooses to exercise his statutory right under the proviso to Section 372 of the Code, according to Mr. Mehta, will have to follow the procedure contemplated under Section 378 of the Code and such an appeal will have to be filed within the period of limitation stipulated in Section 378 of the Code as the said Section alone deals with the procedure provided in the Code with regard to the appeal against an order of acquittal.
11.7 Mr. Mehta, in this connection, points out that the Delhi High Court in the case of Kareemul Hajazi v.
State of NCT of Delhi & Ors.
in Criminal Misc.
Application No.13541 of 2010 decided on January 7, 2011 has taken the view that a victim for filing an appeal against an order of acquittal need not seek leave of the court, while the following High Courts in the cases mentioned below have taken the view that even when the victim files an appeal against an order of acquittal, he is required to seek leave as contemplated under Section 378 of the Code:
(i). Smt. Ram Kaur @ Jaswinder Kaur v. Jagbir Singh alias Jabi & Ors. in Criminal Appeal No.205 of 2010 by Punjab and Haryana High Court dated 1st April 2010.
(ii). Gouranga Debnath v. State of Tripura & Ors. in CM Appeal (Cri.) No.89 of 2011 by High Court of Gauhati dated 8th August 2011.
(iii). Guru Prasad Yadav v.
State of Bihar & Ors. in Criminal Appeal (DB) No.582 of 2011 of High Court of Judicature at Patna dated 2nd August 2011.
11.8 Mr. Mehta further submits that the above question arose before the Division Bench of the Bombay High Court (Coram: V.M. Kanade & A.M. Thipsay, JJ.) in the case of Balasaheb Rangnath Khade vs. the State of Maharashtra and others in Criminal Appeal No. 991 of 2011 along with other cognate matters.. Both the Judges gave their dissenting judgments dated 21st September 2011. Justice V.M. Kanade took the view that the victim is not required to seek leave of the High Court while Justice AM Thipsay took the view that the victim is required to seek leave of the High Court and concurred with the judgments of Punjab and Haryana High Court, Patna High Court and Gauhati High Court. Mr. Mehta has placed before us, true copies of the above judgments of different High Courts.
11.9 The learned third-Judge held that no leave was necessary at the instance of the victim.
12. The learned counsel appearing on behalf of the appellants have virtually supported the above submissions of Mr. Mehta.
13. For the purpose of deciding the first two questions referred to this bench, we should first consider the scope of an appeal at the instance of the victim as newly introduced in the Code.
14. By inserting a proviso vide Section 29 of the Criminal Procedure (Amendment) Act, 2009, the Legislature has consciously conferred a new substantive right of appeal upon a victim. The term "victim" is also simultaneously defined while amending the Code in Section 2(wa) as quoted hereinabove. The legislature has used the word "shall" in the proviso while conferring such right to the victim and at the same time, maintained the provisions contained in sub-section (4) of Section 378 intact thereby making its intention clear that this is an additional right conferred upon a victim who may be the complainant or may not be a complainant but if he is not a complainant, he is not required to comply with the provision of Section 378 (4) which is meant for only that victim who is also a complainant.
15. Once the Legislature confers a substantive right of appeal by a Statute, such a right of appeal cannot be diluted by a judicial pronouncement since the right of a party to file an appeal is an independent, substantial and statutory right. The Legislature, in the present case, has not conferred such a right upon the victim making it dependent upon either the State or anyone else, exercising right of appeal under the other provisions of the Code. Historically, the victim, in the past, nowhere figured in the entire scheme of the Code. Broadly speaking, the Code, as it stood prior to the amendment of the year 2009, recognized the following parties only:
(i) The complainant (who may or may not be a victim)
(ii) The accused
(iii) The State/Prosecution.
16. The Law Commission of India, in its 150 th 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-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 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 Law Reform Commission of Canada (1974).
16.1 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 154th report and its recommendations have been found very appropriate, particularly those relating to provisions concerning arrest, custody and remand, procedure for summons and warrant-cases, compounding of offences, victimology, special protection in respect of women and inquiry and trial 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."
(Emphasis supplied by us).
16.2 In view of the fact that the Amendment is made in the Code in the year 2009 with a specific object and purpose of safeguarding the interests of the victims, in our opinion, the view taken in Bhikahbhai's case (supra) whereby an independent and absolute substantive right of appeal statutorily conferred upon the victim is held to be subject to and subservient to the State preferring an appeal, not only runs contrary to the object for which the amendment is made by the legislature but such finding is also against the plain language of the Statute.
17. It appears that the Division Bench in the case of Bhikhabhai (supra) has proceeded on the footing that in every matter the State can prefer an appeal and a victim also can prefer appeal and based upon this foundation i.e. both the State and the victim have equal rights of appeal against acquittal, the Division Bench held that the right of a victim would be dependent upon the right of the State to prefer appeal and if the appeal of the State is not entertained, only then, the victim may claim right of preferring the appeal and such right may not be available if the appeal of the State is already admitted by granting leave.
18. We further find that in taking the above view, the Division Bench in the above matter failed to take into consideration the fact that the scope of appeal at the instance of the victim is different from that of an appeal filed by the State. It appears that the victim (as defined in Section 2(wa) of the Code) shall have a right to prefer an appeal in the following 3 types of cases:
Acquittal of the accused Convicting of the accused for a lesser offence Imposing inadequate compensation 18.1 In other words, the victim has no right to prefer an appeal against 'inadequacy of sentence', a right which is available only to the State. The State, however, does not have any right to file any appeal against "inadequacy of compensation", a right, which is available only to a victim.
19. The term 'inadequacy of sentence' has a special connotation and a distinct statutory demarcation if the provisions of Section 375(d) and Section 377 of the Code are compared. Scheme of Section 377, which provides for right of appeal to the State/Prosecution, is entirely different from the right of appeal conferred upon a victim under the proviso to Section 372 of the Code. Under the scheme of Section 377 not only the State/Prosecution can file an appeal based upon inadequacy of sentence, but even the accused can plead for his acquittal or for reduction of the sentence as contemplated under Section 377(3) of the Code.
20. As against this, if the Scheme of proviso to Section 372 of the Code is compared, only a victim has an absolute right to file an appeal challenging imposition of inadequate compensation in addition to the right of appeal against acquittal and also challenging the conviction based on lesser offence. There is, however, no provision in the entire Code empowering the State/Prosecution to file an appeal against an order imposing inadequate compensation.
21. In light of different types of right of appeal provided to the victim and to the State/Prosecution, it will not be proper to hold that the right of either of them is dependent upon the other. To put it differently, only victim can file an appeal against an order of imposing 'inadequate compensation' in addition to his right of appeal against acquittal and convicting the accused for a lesser offence and therefore, to club his right and make it dependent upon the exercise of right of appeal at the instance of the State would be not only be unworkable but would run contrary to the scheme and lead to absurdity.
22. 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.
23. 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 co-sharer has a separate right of appeal and such right of one does not depend even on the filing of such appeal by another victim.
24. Moreover, if not specifically prohibited by law, the right conferred upon one cannot be subject to the exercise of right by the other. Even if one such appeal by one of the victims has been dismissed that cannot be a ground of dismissal of the other appeal by another victim although it is desirable that all the appeals should be heard analogously to avoid conflicting decisions. Unless the legislature, by specific provisions confers right of appeal on conditions specified, a court cannot restrict such unfettered right by imposing conditions through judicial interpretation.
25. The right of appeal being statutory one, the language employed by the legislature should be strictly followed. In this connection, we may preferably refer to the following observations of the Supreme Court in a recent case of Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement and Anr reported in AIR 2010 SC 2239 while making comment on the right of appeal:
"A right of filing a suit, unless it is barred by Statute, as it is barred here under Section 34 of FEMA, is an inherent right (See Section 9 of the Civil Procedure Code) but a right of appeal is always conferred by Statute. While conferring such right Statute may impose restrictions, like limitation or pre-deposit of penalty or it may limit the area of appeal to questions of law or sometime to substantial questions of law. Whenever such limitations are imposed, they are to be strictly followed. But in a case where there is no limitation on the nature of order or decision to be appealed against, as in this case, the right of appeal cannot be further curtailed by this Court on the basis of an interpretative exercise."
(Emphasis supplied by us).
25.1 We are, therefore, of the opinion that the first two questions referred to this Bench should be answered by holding that the appeals mentioned therein are maintainable.
26. The next question is whether a victim for the purpose of filing an appeal by virtue of the right conferred under the proviso to the Section 372 of the Code is required to take leave of the Court?
27. In our opinion, if the victim in his appeal, restricts its grievance to inadequacy of the compensation or punishment for a lesser offence, it does not become an appeal against acquittal but the appeal is really directed against "any other sentence or order not being an order of acquittal"
within the meaning of Article 115 (b) of the Limitation Act, 1963 and thus, no question of taking special leave arises.
27.1 If, however, in his appeal by virtue of the power conferred under the proviso to Section 372, the victim either challenges the order of acquittal or the inadequacy of compensation or both or even the conviction on a lesser offence than the one charged, in our view, the procedure should be as follows:
[1]. If the victim also happens to be the complainant, he should follow the provision of sub-section (4) of Section 378 he being clearly covered by such provision for the part of his appeal against the order of acquittal by filing an application for special leave. The period of limitation of maintaining the appeal against the acquittal will be governed by Article 114(b) of the Limitation Act.
[2]. However, if in a given situation, the victim is not the complainant, the appeal is although against the order of acquittal, he would not be required to follow the procedure of Section 378 as that Section requires filing of leave or special leave, as the case may be, only if the appellant comes within the purview of the relevant sub-sections mentioned therein. A victim, who is not a complainant, will not consequently fall within any of the sub-sections of Section 378. It appears that the legislature was quite conscious of the necessity of the taking leave and special leave as provided in Section 378; nevertheless, it decided not to make any amendment of Section 378 while conferring right of appeal against acquittal to the victims who are not complainant requiring them the necessity of taking special leave from this court. The period of limitation in such a case, although is not covered by any of the Articles of the Limitation Act, should be a reasonable period and in such a situation, in our opinion the period of 90 days as provided in Article 114(a) of the Limitation Act should be the reasonable period as the said period is the longest period of limitation for filing an appeal against the order of acquittal prescribed by the legislature.
29. In this connection, we may appropriately refer to the following observations of the Supreme Court in the case of Sharada Devi vs. State of Bihar reported in AIR 2003 SC 942 where the said court held that where there is no specific period of limitation prescribe under the law for enforcing a right conferred by the Statute, the same must be enforced within a reasonable period:
"Though no limitation is provided for making a reference under Section 30 of the Act, needless to say where no period of limitation for exercise of any statutory power is prescribed the power can nevertheless be exercised only within a reasonable period; what is a reasonable period in a given case shall depend on the facts and circumstances of each case."
30. Earlier, the Supreme Court has taken the same view mentioned above also in the cases of Regional Provident Fund Commissioner v. M/s. K.T. Rolling Mills Pvt. Ltd., and The Govt. of India v. The Citadel Fine Pharmaceuticals, Madras and others reported in AIR 1995 SC 943 and AIR 1989 SC 1771 respectively.
31. We are, thus, not convinced by the submissions of Mr. Mehta, the learned Additional Advocate General, that although a victim who is not a complainant and thus, will not come within the purview of Section 378, nevertheless, he would be required to take recourse to the provision of special leave as provided therein.
32. We have already pointed out that the right of appeal being statutory one, the language employed by the legislature in the relevant Statute should be strictly followed and we have relied upon the observations of the of the Supreme Court in the case of Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement and Anr. (supra).
33. Therefore, in the case before us, the legislature while conferring the right of appeal upon the victim, who is not a complainant, not having imposed any condition of taking leave or special leave, we cannot infer such condition and impose the same upon the victim although the legislature was quite conscious of existence of such provision in case of an appeal by a complainant and has retained that provision without consequential amendment thereby making its intention clear that the provision of special leave is not applicable to an appeal preferred by a victim against acquittal if he is not the complainant.
34. We now propose to deal with the decisions cited by Mr. Mehta.
34.1 In the case of Smt. Ram Kaur @ Jaswinder Kaur v. Jagbir Singh alias Jabi and others, in Criminal Appeal No. 205-DB of 2010 decided by a Division Bench of the Punjab & Haryana High Court on 1st April 2010, the question was whether without taking the leave to appeal from the Court in terms of sub-section 3 of Section 378 of the Code, a victim can file appeal under section 372 of the Code. The Division Bench, in the facts of the said case, held that the appellant who was a complainant, was not a 'victim' who was entitled to prefer an appeal under section 372 of the Code and, therefore, she could not prefer an appeal under section 372 of the Code in the police case. According to the Division Bench, even otherwise, if the appellant was supposed to be covered by the definition of "victim" under sub-section (wa) of Section 2 of the Code, having a right to prefer an appeal against the order of acquittal , according to the Division Bench, she was required to file an application for grant of leave to appeal. The Division Bench further pointed out that even against an order of acquittal passed in a case instituted upon a complaint, the complainant has been provided the right to appeal, and he can file such appeal with an application for grant of special leave to appeal from the order of acquittal. Thus, under the Code, the Division Bench proceeded, the appeal against acquittal could have been preferred only with the permission of the High Court on an application filed for grant of leave to appeal against the order in appeal. According to the Division Bench of the said High Court, the proviso to section 372 of the Code gives a right upon the victim to prefer an appeal against the order of acquittal being sufferer from the act or omission of the offender but such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. The Division Bench further held that by the proviso, a right to file an appeal has been conferred on the victim against the order of acquittal, but the procedure for filing such appeal will be the same as provided under Section 378 of the Code.
34.1.1 We have already pointed out that if the 'victim' also happens to be the complainant, in such a case, he is required to file an application for special leave, but with great respect to the Division Bench of the Punjab & Haryana High Court, we cannot accept the other finding that even if he is not the complainant, as a victim, he is required to file an appeal with an application for special leave to appeal, for the reasons assigned by us above.
34.2 In the case of Gouranga Debnath v. State of Tripura & Others in C.M. Appl. (Crl.) No. 89 of 2011 in Crl. A. No. 13 of 2011, a Division Bench of the High Court of Gauhati, Agartala Bench, was considering an application under section 5 of the Limitation Act for condoning the delay of 114 days in filing the connected appeal against the judgment and order of the Sessions Judge by which the Sessions Judge acquitted the respondents No.2 and 3 from the charges levelled against them under section 302 read with section 34 of the Indian Penal Code. The appellant was the father of the deceased who got married with the respondent No.2. It appears that the appellant filed the appeal against an order of acquittal by taking aid of the proviso to Section 372 read with Section 378 of the Code, claiming to be a 'victim'. A question was raised as to whether the father of the deceased could be said to be a 'victim' . The Division Bench held that in view of the amendment with effect from 31st December 2009, a limited right to the victim to file an appeal against the order of acquittal was of course given but such right could not be conferred in case of an offence which was committed prior to the date of incorporation of the said proviso. In that context, the Division Bench held that right to appeal of the petitioner had accrued only after the decision in the sessions trial where the respondent No.2 and 3 were acquitted on 30th September 2010 and the petitioner was, thus, entitled to prefer an appeal. The Division Bench further held that the father of the deceased was also a 'victim' within the meaning of sub-section (wa) of section 2 of the Code. In the above case, the 'victim' having filed an application for leave, the third question involved in this application was not really the subject matter of dispute.
34.2.1 We, thus, find that the subject decision does not support the point that in an appeal against acquittal by a victim, an application for leave to appeal must be filed.
34.3 In the case of Guru Prasad Yadav v. The State of Bihar & Ors.
in CR. APP (DB) No. 582 of 2011 decided on 2nd August 2011, a Division Bench of the Patna High Court was considering an appeal by the appellant claiming himself to be a 'victim' against an order of acquittal. Such an appeal was filed without moving any application for grant of leave to appeal. In such a case, the Division Bench held that by the proviso to Section 372 of the Code, a right has been conferred to the victim to prefer an appeal against the order of acquittal, but the procedure for filing such an appeal will be the same as provided under Section 378 of the Code and, thus, even if the victim has a right to prefer an appeal against the order of acquittal, he has to seek leave of the High Court.
34.3.1 With great respect to the Division Bench, we are unable to subscribe to the said opinion in view of the fact that in Section 378, the legislature did not make any consequential amendment necessitating the filing of application for leave at the instance of a 'victim' although the legislature decided to confer a new right upon the 'victim' who may be a complainant or may not be a complainant.
34.4 In the case of Balasaheb Rangnath Khade v. The State of Maharashtra in Criminal Appeals No. 991 of 2011 and No. 992 of 2011, there was a difference of opinion between the two Judges of a Division Bench of the Bombay High Curt and, therefore, the matter was referred to a third Judge on the question whether a victim can file file an appeal against the order of acquittal passed by the trial Court without filing an application for leave to file appeal. The third-Judge was of the view that the victim was not required to apply for or obtain leave of the Court to file any of the appeals under the proviso to Section 372. The learned third-Judge held that the plain meaning implicit in the substantive right granted by the legislature to the victim is to grant the victim the right which was otherwise not available. The third-Judge further held that it demonstrates the fact that the right of appeal given to the State was not sufficient, adequate and enough for the victim's rights and notwithstanding the fact that the State had a right to appeal from an order of acquittal, the victim was also granted the right to appeal from the order of acquittal, lesser offence or inadequate compensation. The third-Judge further held that a proviso shows an exception to the Section that may qualify the main enactment and proviso to Section 372 of the Code shows that no matter what is the position in the Code, the right of appeal is given to the victim and such a right of appeal given to the victim is an unqualified right and could be exercised not only as provided in the Code and was a right untremmelled by other procedural provisions and requirements such as the leave of the Court. In such circumstances, according to the learned third-Judge, it was improper to be shackled by the position of the past in which a victim played no role at all in the criminal justice system and to say that the victim cannot claim to be on higher pedestal in a criminal prosecution than the State and that such can never be the intention of the legislature.
34.4.1 We do not agree fully with the said view, as we have pointed out that if the 'victim' happens to be the complainant, he being a complainant, is required to take leave as there is no consequential amendment of Section 378 of the Code.
35. We, thus, find that the decisions cited are of no avail to support the contentions of Mr. Mehta.
36. On consideration of the entire materials on record, we, thus, answer the Reference as under:
Question No.1 Appeal by the victim is maintainable.
Question No.2 Appeal by the State is maintainable.
Question No.3 If the victim also happens to be the complainant and the appeal is against acquittal, he is required to take leave as provided in Section 378 of the Criminal Procedure Code but if he is not the complainant, he is not required to apply for or obtain any leave. For the appeal against inadequacy of compensation or punishment on a lesser offence, no leave is necessary at the instance of a victim, whether he is the complainant or not.
36.1 The Reference is, thus, disposed of accordingly. Registry is directed to list the appeals and the application before the appropriate Court.
[BHASKAR BHATTACHARYA, CJ.] [A.L.DAVE, J.] [V. M. SAHAI, J.]