Rajasthan High Court - Jaipur
Ramvati vs State Of Rajasthan And Ors on 3 March, 2017
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D. B. Criminal Leave To Appeal No. 61 / 2017
Ramvati Wife of Lt. Sh. Babu Lal by caste Gurjar, aged 45 Years,
r/o Aloy, Police Station Dhana Khedli Tehsil Roopwas, Distt.
Bharatpur.
----Complainant-Appellant
Versus
1. The State of Rajasthan
Respondent
2. Ram Prasad Son of Dhanpal by caste Gurjar, r/o Barahana
Police Station Surmathura, Distt. Dholpur.
3. Jaggo alias Jagdish S/o Amar Singh b/c Gurjar, r/o Nidhara,
Police Station Badi, Distt. Dholpur
4. Dataram Son of Tundaram b/c Gurjar, r/o Chandelipura, Police
Station Basai Dang, Distt. Dholpur.
5. Amar Singh alias Mohar Singh S/o Jagan Singh b/c Gurjar, r/o
Village Mohari, Police Station Basedi, Distt. Dholpur.
6. Jagan Son of Shivcharan b/c Gurjar, r/o Bhabutipura Police
Station Basai Dang, Distt. Dholpur.
----Accused-respondents
_____________________________________________________
For Appellant(s) : Mr. A.K. Gupta with Ms. Sakshi Swami.
For Respondent No.1 : Mr. R.S. Raghav, Public Prosecutor.
_____________________________________________________ REPORTABLE HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE DINESH CHANDRA SOMANI Order 03/03/2017 This D.B. Criminal Leave to Appeal has been preferred by the complainant against the judgment dated 24.12.2016 passed by the Special Judge(Dacoity Affected Area), Dholpur whereby the accused-respondents no. 2 to 6 have been acquitted of the charges for offences under Sections 148, 353/149, (2 of 7) [CRLLA-61/2017] 307/149, 302/149 IPC and Section 9 and 11 of R.D.A Act. Respondent No. 2 has also been acquitted of charge under Section 216-A IPC and Section 5/27 and 30 of Arms Act. Moreover, Respondent No. 6 has also been acquitted of charge under Section 216-A IPC and Section 3/25 of Arms Act.
The complainant by this application filed with reference to proviso to Section 372 read with Section 378(3) Cr.P.C. has sought leave of this Court to file appeal against the aforesaid judgment and consequential reversal of findings of acquittal recorded by the trial court and for conviction of the accused- respondents.
During scrutiny of the matter, Stamp Report of the Registry made the following report:
"It is within time.
Defects:
(1) Present D.B. Criminal Leave to Appeal has been filed against the order of acquittal of accused/respondents dated 24.12.2016 passed by Special Judge(DAA) Dholpur. As per proviso of 372 Cr.P.C., this D.B. Criminal Leave to Appeal seems not proper.
(2) Status of appellant is not mentioned. (3) Court fees of Rs. 3/- is deficit on appeal."The complainant has removed Defect No. 2 and 3
pointed out by the Registry, but with regard to Defect No. 1 that as per proviso to Section 372 Cr.P.C., the complainant was required to file appeal rather than filing leave to appeal, learned counsel for the complainant submitted that this question has been authoritatively answered by the Supreme Court in Satya Pal Singh Vs. State of Madhya Pradesh and Others, (2015) 15 (3 of 7) [CRLLA-61/2017] SCC 613 that complainant cannot straightway file appeal against the judgment of acquittal and he has to seek leave of the Court. If he wishes to challenge the acquittal of the accused under proviso to Section 372 Cr.P.C., he can do so only after obtaining leave of the High Court under Section 378(3) Cr.P.C.
Perusal of the aforesaid judgment indicates that Madhya Pradesh High Court in that case had dealt with the appeal filed by the victim against the acquittal of accused therein without requiring him to obtain leave of the Court. Though, eventually appeal was dismissed on merits, but the complainant challenged that judgment before the Supreme Court by filing special leave petition. The Supreme Court while granting leave, treated the same as appeal against the judgment of Madhya Pradesh High Court. Reliance on behalf of the appellant before the Supreme Court was placed on Full Bench Judgment of Delhi High Court in Ram Phal Vs. State, (2015) 221 DLT 1, wherein the Full Bench of that court after interpreting proviso to Section 372 Cr.P.C. held that father of the victim has locus standi to prefer the appeal, being a private party coming under the definition of "victim" under Section 2(wa) Cr.P.C. It was, therefore, argued that appeal filed by the victim directly before the High Court against the judgment of acquittal of the accused was maintainable. Repelling that contention, the Supreme Court in Para 8 to 10 held as under:
"8. We have carefully examined the abovementioned provisions of CrPC and the Full Bench decision of Delhi High Court in Ram Phal vs. State, 2015 SCC OnLine Del 9802 referred to supra upon which strong reliance is placed by the learned counsel for the appellant. There is no doubt that the appellant, being the father of the deceased, has (4 of 7) [CRLLA-61/2017] locus standi to prefer an appeal before the High Court under the proviso to Section 372 CrPC as he falls within the definition of "victim" as defined under Section 2(wa) CrPC to question the correctness of the judgment and order of acquittal passed by the trial court in favour of Respondents 2 to 6 in Sessions Case No. 293 of 2010.
9. The proviso to Section 372 CrPC was amended by Act 5 of 2009. The said proviso confers a statutory right upon the victim, as defined under Section 2(wa) CrPC to prefer an appeal against an order passed by the trial court either acquitting the accused or convicting him/her for a lesser offence or imposing inadequate compensation. In this regard, the Full Bench of Delhi High Court in the case referred to supra has elaborately dealt with the legislative history of insertion of the proviso to Section 372 CrPC by Act 5 of 2009 with effect from 31-12-2009. The relevant provision of Section 372 CrPC reads thus:
"372. No appeal to lie unless otherwise provided.-No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:
Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court."
The said amendment to the provision of Section 372 CrPC was prompted by the 154th Law Commission Report. The said Law Commission Report has undertaken a comprehensive review of CrPC and its recommendations were found to be very appropriate in amending CrPC particularly in relation to provisions concerning arrest, custody and remand, procedure to be followed in summons and warrant cases, compounding of offences and special protection in respect of women and inquiry and trial of persons of unsound mind. Further, the Law Commission in its Report has noted the relevant aspect of the matter, namely, that the victims are the worst sufferers in a crime and they do not have much role in the Court proceedings. They need to be given certain rights and compensation so that there is no distortion of the criminal justice system. The said Report of the Law Commission has also taken note of the views of the (5 of 7) [CRLLA-61/2017] criminologist, penologist and reformers of criminal justice system at length and has focused on victimology, control of victimization and protection of the victims of crimes and the issues of compensation to be awarded in favour of them. Therefore, Parliament on the basis of the aforesaid Report of the Law Commission, which is victim- oriented in approach, has amended certain provisions of CrPC and in that amendment the proviso to Section 372 CrPC was added to confer the statutory right upon the victim to prefer an appeal before the High Court against acquittal order, or an order convicting the accused for the lesser offence or against the order imposing inadequate compensation.
10. The Full Bench of the High Court of Delhi in Ram Phal case after examining the relevant provisions under Section 2(wa) and the proviso to Section 372 of CrPC, in the light of their legislative history has held that the right to prefer an appeal conferred upon the victim or relatives of the victim by virtue of the proviso to Section 372 is an independent statutory right. Therefore, it has held that there is no need for the victim in terms of definition under Section 2(wa) CrPC to seek the leave of the High Court as required under sub- section (3) of Section 378 CrPC to prefer an appeal under proviso to Section 372 CrPC. The said view of the High Court is not legally correct for the reason that the substantive provision of Section 372 CrPC clearly provides that no appeal shall lie from any judgment and order of a criminal court except as provided for by CrPC. Further, sub-section (3) of Section 378 CrPC provides that for preferring an appeal to the High Court against an order of acquittal it is necessary to obtain its leave." The Supreme Court relying on the judgments in Dwarka Prasad V. Dwarka Das Saraf, (1976) 1 SCC 128; Thompson Vs. Dibdin 1912 AC 533 (HL); S. Sundaram Pillai Vs. V.R. Pattabiraman, (1985) 1 SCC 591; Ishverlal Thakorelal Almaula Vs. Motibhai Nagjibhai, AIR 1966 SC 459; Madras and Southern Mahratta Railway Co. Ltd. Vs. Bezwada Municipality, 1944 SCC OnLine PC 7; CIT Vs. Indo Mercantile Bank Ltd., AIR 1959 SC 713 and Shah Bhojraj Kuverji Oil Mills and Ginning Factory Vs. Subhash Chandra (6 of 7) [CRLLA-61/2017] Yograj Sinha, AIR 1961 SC 1596 held that a proviso must be limited to the subject matter of the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. While interpreting a proviso, care must be taken that it is used to remove special cases from the general enactment and provide for them separately. A proviso is intended to limit the enacted provision so as to except something which would have otherwise been within it or in some measure to modify the enacting clause. While concluding the issue, the Supreme Court held that from a reading of the legal position laid down in the aforesaid cases, it is abundantly clear that, "the proviso to Section 372 Cr.P.C. must be read along with its main enactment i.e. Section 372 itself and together with sub-section (3) of Section 378 Cr.P.C. otherwise the substantive provision of Section 372 Cr.P.C. will be rendered nugatory, as it clearly states that no appeal shall lie from any judgment or order of a criminal court except as provided by Cr.P.C."
In view of above, defect no. 1 pointed out by the Registry is overruled.
Heard learned counsel for the complainant as well as learned Public Prosecutor.
Leave to file appeal is granted.
Let this matter be registered as criminal appeal. Accused-Respondents No. 2 to 6 be summoned by issuance of bailable warrant in the sum of Rs. 25,000/- each.
(7 of 7) [CRLLA-61/2017] A copy of this order be sent to the Registrar General of this Court, who is directed to endorse copy thereof to Deputy Registrar(Judicial) of this Court at Principal Court, Jodhpur as well as Bench at Jaipur, who shall issue clear instructions to Stamp Reporters that no appeal filed by the complainant/victim against the judgment of acquittal of accused shall be directly entertained, unless leave to file appeal is sought by the complainant/victim. (DINESH CHANDRA SOMANI) (MOHAMMAD RAFIQ)J. Manoj