Bombay High Court
Smt.Praneeta Prakash Navage vs The State Of Maharashtra & Ors on 1 August, 2012
Author: A.S.Oka
Bench: A.S.Oka
APPA1129.12+
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1129 OF 2012
IN
CRIMINAL APPEAL NO. 1548 OF 2011
Smt.Praneeta Prakash Navage ... Applicant
v/s
1. The State of Maharashtra & ors. ... Respondents
Mr.R.M.Nakhawa i/by Mr.Vasant Dhavan for the applicant.
Mrs.Revati Mohite-Dere, PP a/with H.J.Dedhia, APP for Resp.
No.1.
Mr.H.S.Deshpande for Resp. Nos.2, 4 and 5.
Mr.Sandesh D. Patil for Resp. No.3.
ALONG WITH
CRIMINAL APPEAL NO. 218 OF 2012
Sunil Laxman Ghode ... Appellant
v/s
1. Nitin Bhikaji Nikam
2. The State of Maharashtra ... Respondents
Mr.Arfan Sait, Advocate appointed for the appellant.
Mrs.Revati Mohite-Dere, PP a/with Mr.H.J.Dedhia, APP for the
State.
Bhangale 1
::: Downloaded on - 09/06/2013 18:55:45 :::
APPA1129.12+
CORAM: A.S.OKA &
SHRIHARI P. DAVARE, JJ.
DATED : 1ST AUGUST, 2012
ORAL JUDGMENT:
1. Both the appeals have been preferred under the proviso to Section 372 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) which was introduced by the Act No.5 of 2009 with effect from 31 st December, 2009.
A victim of an offence has been conferred a right 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 two issues which arise for our consideration are :-
(i) Whether action under Section 390 of the Cr.P.C. can be initiated against the respondent accused in an appeal so preferred by the victim under the proviso under Section 372 ?
(ii) Whether the Court before which such appeal is preferred has power to procure presence of the respondent accused by issuing warrant and, whether the appellate Court can commit the respondent accused to prison pending the disposal of appeal ?Bhangale 2 ::: Downloaded on - 09/06/2013 18:55:45 :::
APPA1129.12+
2. In Criminal Appeal No.218 of 2012, the appeal was admitted by this Court on 8th February, 2012. The learned counsel appearing for the appellant, who has been appointed to espouse the cause of the appellant, submitted that action needs to be taken under Section 390 of the Cr.P.C. against the respondents. He pointed out that the 1st respondent accused has been acquitted for the offence alleged under Section 302 of Indian Penal code.
3. Criminal Appeal No.1548 of 2011 was admitted on 1 st December, 2011. Criminal Application No.1129 of 2012 has been filed by the appellant praying for an action under Section 390 of Cr.P.C. against the 2 nd to 5th respondents who are the accused. As far as Criminal Application No.1129 of 2012 is concerned, respondent Nos.2, 4 and 5 as well as respondent No.3 have filed separate undertakings on oath in which they have disclosed their present residential addresses and contact telephone numbers. In the undertakings, the said respondents have stated that, in case there is any change of the address, they will inform the new address to this Court.
The respondent Nos.2 to 5 are represented by advocates. In the undertakings, they have stated that they will remain Bhangale 3 ::: Downloaded on - 09/06/2013 18:55:45 ::: APPA1129.12+ present in this Court at the time of hearing of the appeal.
4. On the aforesaid questions, we have heard the learned counsel representing the appellants in both the appeals as well as the learned counsel representing the accused in Criminal Appeal No.1548 of 2011. We have also heard the learned Public Prosecutor.
5. At the outset, we may note that in Criminal Appeal No.991 of 2011 and other connected appeals, a question arose before another Division Bench of this Court as to whether a victim can file an appeal against the order of acquittal without filing an application for leave to prefer an appeal. In short, the question was whether an appeal preferred under the proviso to Section 372 of the Cr.P.C. will be governed by the constraints of Section 378. The issue in short was, whether the victim, while preferring an appeal under the proviso to Section 372 of Cr.P.C. requires leave of this Court or whether he can file an appeal as a matter of right. There was conflict of views expressed by the learned Judges constituting the Division Bench. One view was that, while preferring an appeal under the proviso to Section 372 of Cr.P.C., it is not necessary to obtain leave of this Court, in Bhangale 4 ::: Downloaded on - 09/06/2013 18:55:45 ::: APPA1129.12+ case of the victim prefers an appeal in three types of cases as set out in the proviso to Section 372 of Cr.P.C. The other view was that, if an appeal under the proviso of Section 372 lies in this Court, the victim would be required to obtain a leave of this Court as contemplated under sub-sections 3 and 4 of Section 378. Therefore, as per the Rules, the issue was referred to the third learned Judge. The third learned Judge expressed an opinion that the appellant victim is not required to apply or obtain leave of this Court while preferring an appeal under the proviso to Section 372 of Cr.P.C. In terms of the majority view, the concerned Division Bench, by judgment and order dated 22nd June, 2012 held that, it is not necessary to obtain leave of this Court before filing an appeal under the proviso to Section 372 of Cr.P.C.
6. At this stage, it will be necessary to make a reference to Section 390 of the Cr.P.C. which reads thus -
"Section 390. Arrest of accused in appeal from acquittal. - When an appeal is presented under section 378, the High Court may issue a warrant directing that the accused be arrested and brought before it or any subordinate Court, and the Court before which she is brought may commit him to prison pending the disposal of the appeal or admit him to bail."
On plain reading, Section 390 has application when an appeal is presented under Section 378 of Cr.P.C. The power to issue Bhangale 5 ::: Downloaded on - 09/06/2013 18:55:45 ::: APPA1129.12+ a warrant is vested in the High Court under Section 390 only when an appeal is presented under Section 378. In view of the law laid down by the Division Bench in the aforesaid Criminal Appeal No.991 of 2011 and other connected appeals, the appeal preferred by the victim under the proviso to Section 372 of Cr.P.C. will not be governed by Section 378 of the Cr.P.C and thus such an appeal preferred by the victim cannot be treated as the one under Section 378 of the Cr.P.C.
Hence, the power under Section 390 cannot be specifically invoked by this Court in an appeal under the proviso to Section 372 of Cr.P.C.
7. While we are addressing to the aforesaid two issues, it must be borne in mind that we are examining only the power of this Court while dealing with an appeal under the proviso to Section 372, inasmuch as, even if an appeal under Section 378 is filed in the Court of Sessions, the said Court has no power under Section 390 to issue a warrant as Section 390 specifically refers to power of the High Court to issue warrant.
8. Perusal of the proviso to Section 372 shows that a right of appeal is made available to a victim against three categories of orders. The first category of orders is of Bhangale 6 ::: Downloaded on - 09/06/2013 18:55:45 ::: APPA1129.12+ acquittal, the second category of orders is of orders convicting an accused for lesser offence and the third category is of appeal against orders imposing inadequate compensation. By the said Act No.5 of 2009, clause (wa) was added to Section 3 of Cr.P.C. by which the term "victim" was defined. The "victim" as defined is the person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir. The definition of "victim" under clause (wa) is thus very wide. A victim is not necessarily an injured person. Any person who has suffered any loss or injury by reason of the act or omission on the part of the accused, can prefer an appeal under the proviso to Section 372. If the victim as defined is a minor, the guardian of victim can prefer an appeal. The provision contemplates that even a heir of the victim is entitled to prefer an appeal. Thus, the intention of the legislature seems to be to confer a right on a "victim" defined in clause (wa) of Section 3 to prefer appeals falling under the aforesaid three categories. At this stage, we may note that the proviso to Section 372 does not provide for preferring an appeal for enhancement of sentence.
Bhangale 7 ::: Downloaded on - 09/06/2013 18:55:45 :::APPA1129.12+
9. The legislature has chosen to confer a right on the victim to prefer an appeal. The right conferred on the victim will become meaningful provided the presence of the accused before this Court is procured. Necessary reference will have to be made to the decision of the Apex Court in the case of State of Uttar Pradesh v/s Poosu and anr. (1976 3 SCC
2). The issue which arose before the Apex Court was whether at the time of granting special leave to prefer an appeal under Section 136 of the Constitution of India against an order of acquittal, the Apex Court can exercise power of issuance of warrant under Section 427 of the Code of Criminal Procedure, 1898 (hereinafter referred to the old Cr.P.C.). We may note here that Section 427 of the old Cr.P.C. was pari materia with Section 390 of the Cr.P.C. The Apex Court held that while granting leave under Article 136 of the Constitution of India, the Apex Court can always exercise power under Section 427 of the old Cr.P.C. In the said decision, the Apex Court has considered the history relating to provision of Section 427 in the old Cr.P.C. In paragraph 7 of the said decision, the Apex Court has observed thus -
"7. It may be noted that this provision was for the first time enacted in the Code of 1882. But even before its enactment, the High Court as a matter of judicial practice, had the power, pending the appeal against an Bhangale 8 ::: Downloaded on - 09/06/2013 18:55:45 ::: APPA1129.12+ order of acquittal to secure the attendance of the accused-respondent by bailable or non-bailable warrants. As pointed out by Panigrahi C.J. In State of Badapalli Adi, what was formerly the judicial practice received statutory recognition in the year 1882 when this provision in Section 427, Criminal Procedure Code, was introduced. In Empress of India v/s Mangu (which was decided several years before the addition of this provision in the Code), a Full Bench of Allahabad High Court held, that the High Court has the power to cause the arrest and detention of the accused in prison, pending an appeal against an order of acquittal. To the same effect was the decision of the Calcutta High Court in Queen v. Gobin Tewari. Again in Queen-
Empress v. Gobardhan, Sir John Edge, Chief Justice without laying down any inflexible rule, emphasised that it is not desirable that, pending the appeal against acquittal in a capital case, the prisoner should remain at large while his fate is being discussed by the High Court. The ratio of this decision was followed by a Division Bench of Orissa High Court in State of Badapalli Adi (supra). (Underlined added) In paragraph 8, the Apex Court observed that, even before the enactment of Section 427, the High Court had the power to cause, in its discretion, the arrest and detention in prison of the accused-respondent or his enlargement on bail, pending disposal of the appeal against his acquittal. In paragraph 8, the Apex Court has observed thus -
"8. Viewed in this perspective, it is clear that even before the enactment of this provision, the High Court had the power to cause, in its discretion, the arrest and detention in prison of the accused-respondent or his enlargement on bail, pending disposal of the appeal against his acquittal. This power was ancillary to and necessary for an effective exercise of its jurisdiction in an appeal against an order of acquittal, conferred on Bhangale 9 ::: Downloaded on - 09/06/2013 18:55:45 ::: APPA1129.12+ the High Court by the Code." (Underlined added).
In para 10, the Apex Court has further observed thus -
"10. This is the rationale of Section 427. As soon as the High Court on perusing a petition of appeal against an order of acquittal, considers that there is sufficient ground for interfering and issuing process to the respondent, his status as an accused person and the proceedings against him, revive. The question of judging his guilt or innocence in respect of the charge against him, once more becomes sub judice.
(Underlined added).
Thus, what is held by the Apex Court is that, even before Section 427 of the old Cr.P.C. was brought on the statute book, there was a power vested in the High Court to cause, in its discretion, the arrest and detention in prison of the accused-respondent or his enlargement on bail, pending the disposal of an appeal against his acquittal. The Apex Court has specifically held that this power was ancillary and necessary for an effective exercise of its jurisdiction in an appeal against the order of acquittal conferred on the High Court by the old Cr.P.C. The reason for taking such view was that, after leave to prefer an appeal is granted by the High Court and an appeal against an order of acquittal is admitted, the status of the respondent in such an appeal as an accused person revives and the question of his guilt or innocence Bhangale 10 ::: Downloaded on - 09/06/2013 18:55:45 ::: APPA1129.12+ becomes sub-judice. Thus, the rationale seems to be that, as a consequence of admission of appeal against the order of acquittal, the status of the respondent in the appeal as an accused is restored and there is always an ancillary jurisdiction vested in the High Court to either commit the respondent to prison or to enlarge him on bail.
10. Our attention was invited to an old decision of Lahore High Court in the case of Emperor v/s Sukh Dev and ors.
(A.I.R. 1930 Lahore 465). The High Court was dealing with the power of High Court under Section 561-A of old Cr.P.C.
which is pari materia with Section 482 of the said Code. The view taken by the Lahore High Court is that, in a fit case, the inherent power can be exercised by this Court for confining a respondent in appeal to the prison.
11. Now, coming back to the first category of the three appeals under the proviso to Section 372, the category is of appeals against orders of acquittal. As held by the Apex Court in the case of State of U.P. (supra), even before specific power under Section 427 of the old Cr.P.C was conferred on the High Court, the Court had power in its discretion to arrest the respondent-accused and order detention of the Bhangale 11 ::: Downloaded on - 09/06/2013 18:55:45 ::: APPA1129.12+ respondent-accused in prison or to enlarge him on bail. This power is held to be ancillary for effective exercise of its jurisdiction by this Court in an appeal against an order of acquittal conferred on this Court under the old Code.
12. Thus, apart from inherent power of this Court under Section 482 of the Cr.P.C., in case of an appeal against acquittal governed by provision to Section 372 of the Cr.P.C., the power to order arrest and detention of the respondent accused in prison pending the final disposal of the appeal or directing his enlargement on bail, will have to be read as a power ancillary to and necessary for effective exercise of the power of appeal under the proviso to Section 372 of Cr.P.C.
But for the existence of such an ancillary power, the right conferred by the legislature on the victim to prefer an appeal against acquittal will become ineffective and redundant. This cannot be the intention of the legislature.
13. However, while dealing with the power of issuing warrant and detaining the respondent accused in prison or enlarging him on bail, this Court will be naturally bound by the well settled law. One of the foremost considerations while exercising such power will be that an order of acquittal further Bhangale 12 ::: Downloaded on - 09/06/2013 18:55:45 ::: APPA1129.12+ strengthens the presumption of innocence of the accused. As in case of Section 390 of the Cr.P.C., it is not mandatory that at the time of admitting the appeal that power to arrest should be exercised in each case. The said power can be exercised at any stage of the appeal against acquittal. In the appeal under the proviso to Section 372, after appeal is admitted by this Court, notice of the appeal is required to be issued to the respondent accused. The question of exercising power as aforesaid, of issuing arrest warrant and detaining the respondent till disposal of the appeal or enlarging him on bail, will have to be exercised at appropriate stage after taking into consideration various aspects such as gravity of the offence, nature of the evidence adduced by the prosecution, background and criminal antecedents of the respondents, etc. No hard and fast rule can be laid down in that behalf. If after service of notice of the appeal under the proviso to Section 372, the respondent accused appears and is represented by an advocate and if there is an assurance given that the said respondent will appear at the time of final hearing, this Court can always postpone the action of issuing warrant against the concerned respondent. If this Court finds that, after service of notice of the appeal, the respondent does not cause appearance before the Court, at that stage, Bhangale 13 ::: Downloaded on - 09/06/2013 18:55:45 ::: APPA1129.12+ this Court can always issue warrant to the respondent and can either direct confinement of the respondent till disposal of the appeal or the release of the respondent on appropriate bail. It all depends on the facts and circumstances of each case.
Suffice is to say that such a drastic power need not be exercised in every appeal at the stage of admitting the appeal, the reason being that in absence of applicability of Section 390, the exercise of the said power will be under Section 482 of the said Cr.P.C. The law is well settled that the power under Section 482 of the Cr.P.C. can be exercised sparingly and in rare cases.
14. Now, we turn to the next category of appeals under the proviso to Section 372. The next category is of an order convicting the accused for a lesser offence. It is true that even in this category of appeals, inherent power as stated above can be exercised by this Court. However, in case of such appeals, there will be further constraints. If the accused has already undergone substantial sentence for the lesser offence, it will be an additional consideration for exercise of power of issuing warrant. If the respondent accused has preferred an appeal against the order of conviction and if he is enlarged on bail in such appeal, it is obvious that this Court Bhangale 14 ::: Downloaded on - 09/06/2013 18:55:45 ::: APPA1129.12+ may not exercise inherent power in the appeal preferred at the instance of the victim by ordering warrant to be issued against the respondent and directing his detention in prison.
15. As far as the third category of appeals against order of imposing inadequate compensation is concerned, we must note here that the power of issuing warrant and directing his confinement till the disposal of appeal cannot be exercised as the appeal is confined only to order granting inadequate compensation.
16. At this stage, we must add that, in case of all three categories of appeals, there is always a power conferred on this Court under Chapter VI of the Cr.P.C. to issue process for compelling the appearance of the respondent before the Court. We may hasten to add that the power under Chapter VI is of compelling the appearance before the Court and the said power is not a power to confine the respondent in custody till the disposal of the appeal. Therefore, all these three categories of appeal, if this Court finds that after service of notice appeal of the victim, the respondent has not caused appearance or after service of notice, respondent accused fails to appear, the Court can always take recourse to Bhangale 15 ::: Downloaded on - 09/06/2013 18:55:45 ::: APPA1129.12+ provisions of Chapter VI for procuring and compelling presence of the respondent accused before this Court.
17. At this stage, we may make a reference to Section 437- A of the said Code which reads thus -
"437-A. Bail to require accused to appear before next Appellate Court. - (1) Before conclusion of the trial and before disposal of the appeal, the Court trying the offence or the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for six months.
(2) If such accused fails to appear, the bond stand forfeited and the procedure under Section 446 shall apply.
We may note that, on plain reading of Section 437-A, this Court after admitting the appeal, cannot take recourse to Section 437-A by directing the respondent accused to execute bail bonds. The said power conferred on the Court can be exercised before passing an order of acquittal either in the trial or in the appeal so as to ensure the appearance of the acquitted accused before the higher Court before which the order of acquittal will be challenged. The power conferred on the trial Court and the appellate Court under the said section Bhangale 16 ::: Downloaded on - 09/06/2013 18:55:45 ::: APPA1129.12+ is confined to directing the accused to furnish bail bonds which will be effective for a period of six months. Therefore, this Court, after admitting the appeal under proviso to Section 372 of Cr.P.C cannot take recourse to Section 437-A and direct the respondent accused to execute the bail bond.
18. Considering the peculiar nature of the appeal under proviso to Section 372 of Cr.P.C., even if there is no specific direction by this Court while admitting the appeal to issue notice, it is obvious that notice of appeal will have to be served upon the respondent accused. After service of notice, the Registry will have to place such appeals before the concerned Court so that Court can ascertain whether the respondent accused has caused the appearance in the appeal on the basis of the notice of the appeal. If the Court finds that notwithstanding service of notice, the respondent has not caused appearance, this Court can always take action as we had discussed in earlier part of the judgment.
19. Now turning to the facts and circumstances of the case in hand, in Criminal Application No.1129 of 2012, we have already referred to the undertakings filed by respondent Nos.2 to 4. The same are taken on record and marked "X"
Bhangale 17 ::: Downloaded on - 09/06/2013 18:55:45 :::APPA1129.12+ and "Y" for identification, respectively. We accept the undertakings. The said respondents are represented by advocates. Considering the undertakings and the fact that the said respondents are represented by advocates, at this stage, it is not necessary to take action of issuing warrant against the respondents accused.
20. As far as Criminal Appeal No.218 of 2012 is concerned, we find that notice of the appeal has not been issued to the 1st respondent accused. After service notice, the appellant can always pray for appropriate directions as indicated in earlier part of the judgment.
21. Hence, we pass the following order :-
ORDER
(i) Criminal Application No.1129 of 2012 is disposed of by accepting undertakings of respondent Nos.2 to 4.
(ii) Criminal Appeal No.218 of 2012 shall be placed before the appropriate Court after service of notice of the appeal to the accused.
(iii) If notice in Criminal Appeal No.218 of 2012 is not yet issued to the first respondent, the same shall be issued Bhangale 18 ::: Downloaded on - 09/06/2013 18:55:45 ::: APPA1129.12+ returnable in eight weeks.
(iv) The Registrar (Judicial-I) shall issue direction that in case an appeal under the proviso to Section 372 of Cr.P.C. is admitted, notice of the appeal shall be issued to the respondent accused even if there is no direction issued by this Court to issue warrant against the respondent accused. After notice of the appeal is served, the Registry shall place the appeal before the concerned Court to enable the concerned Court to ascertain whether the respondent has caused appearance to enable the Court to issue appropriate directions.
(SHRIHARI P. DAVARE, J. ) ( A.S.OKA, J. ) Bhangale 19 ::: Downloaded on - 09/06/2013 18:55:45 ::: APPA1129.12+ Bhangale 20 ::: Downloaded on - 09/06/2013 18:55:45 :::