Gujarat High Court
Jivrajbhai Bababhai Rabari vs State Of Gujarat on 24 April, 2019
Equivalent citations: AIRONLINE 2019 GUJ 972
Author: J. B. Pardiwala
Bench: J.B.Pardiwala, A.C. Rao
R/CR.A/811/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 811 of 2019
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JIVRAJBHAI BABABHAI RABARI Versus STATE OF GUJARAT =========================================================================== Appearance:
MS DILBUR CONTRACTOR for the Appellant(s)No. 1 for the Opponent(s)/Respondent(s)No. 2 MR HK PATEL,APP for the Opponent(s)/Respondent(s)No. 1 =========================================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA and HONOURABLE MR.JUSTICE A.C. RAO Date: 24/04/2019 ORALORDER (PER: HONOURABLEMR.JUSTICEJ.B.PARDIWALA)
1. This is an appeal under Section 372 of the Code of Criminal Procedure, 1973 (for short, 'the Code') at the instance of a victim seeking appropriate compensation in accordance with the provisions of Section 357 of the Code.
2. It appears from the materials on record that the son of the appellant herein came to be murdered by one Rutulkumar @ Surbhi Jageshbhai Patel. In such circumstances, Rutulkumar (original accused) was put on trial in the court of the 2nd Additional Sessions Judge, Mehsana, in the Sessions Case No.2 of 2016 for the offences punishable under Sections 302, 394, 397, 201 of the Indian Penal Code and Section 135 of the Gujarat Police Act.Page 1 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019
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3. At the conclusion of the trial, the trial court convicted the original accused for the offence of murder punishable under Section 302 of the Indian Penal Code and sentenced him to undergo life imprisonment with fine of Rs.5,000=00, and in default of the payment of the amount of fine, to undergo further one year of simple imprisonment.
4. The trial court also convicted the original accused for the offence punishable under Section 201 of the Indian Penal Code and sentenced him to undergo 5 years of rigorous imprisonment with fine of Rs.1,000=00, and in default of the payment of the amount of fine, to undergo further one year of simple imprisonment.
5. The trial court, however, acquitted the original accused of the offences punishable under Sections 394 and 397 of the Indian Penal Code.
6. It appears that the original accused, being dissatisfied with the judgment and order of conviction passed by the trial court, has challenged the same by preferring Criminal Appeal No.457 0f 2017. The Criminal Appeal filed by the original accused has been admitted by this Court and is pending for final hearing.
7. It is the case of the appellant herein that the trial court was obliged to keep in mind the provisions of Section 357 of the Code and even if the trial court was of the view that no case for compensation was made out, it ought to have recorded reasons for refusing the compensation.Page 2 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019
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8. Ms.Contractor, the learned counsel appearing for the appellant, while placing strong reliance on the decision of the Supreme Court in the case of Ankush Shivaji Gaikwad v. State of Maharashtra, AIR 2013 SC 2454, submitted that Section 357 is mandatory. She submitted that Section 357 of the Code confers a duty on the court to apply its mind to the question of compensation in every criminal case. She submitted that the trial court must disclose that it had applied its mind to such question while delivering the judgment holding the accused guilty of the offence of murder. Ms.Contractor submitted that as the trial court has completely overlooked the provisions of Section 357 of the Code, her client had to come before this Court with the present Appeal under the provisions of Section 372 of the Code.
9. Ms.Contractor placed reliance on the following observations made by the Supreme Court, more particularly, in paragraphs 25 to 63 :
"25. The only other aspect that needs to be examined is whether any compensation be awarded against the appellant and in favour of the bereaved family under Section 357 of the Code of Criminal Procedure, 1973. This aspect arises very often and has been a subject-matter of several pronouncements of this Court. The same may require some elaboration to place in bold relief certain aspects that need to be addressed by Courts but have despite the decisions of this Court remained obscure and neglected by the Courts at different levels in this country.
26. More than four decades back Krishna Iyer, J. speaking for the Court in Maru Ram and Ors. v. Union of India and Page 3 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER Ors. (1981) 1 SCC 107 : (AIR 1980 SC 2147), in his inimitable style said that while social responsibility of the criminal to restore the loss or heal the injury is a part of the punitive exercise, the length of the prison term is no reparation to the crippled or bereaved but is futility compounded with cruelty. Victimology must find fulfilment said the Court, not through barbarity but by compulsory recoupment by the wrongdoer of the damage inflicted not by giving more pain to the offender but by lessening the loss of the forlorn. In Hari Singh (Hari Kishan) v. Sukhbir Singh and Ors. (1988) 4 SCC 551 : (AIR 1988 SC 2127), this Court lamented the failure of the Courts in awarding compensation to the victims in terms of Section 357(1) of the Cr.P.C. The Court recommended to all Courts to exercise the power available under Section 357 of the Cr.P.C. liberally so as to meet the ends of justice. The Court said :
".... Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused.... It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to re-assure the victim that he or she is not forgotten in Page 4 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way."
27. The amount of compensation, observed this Court, was to be determined by the Courts depending upon the facts and circumstances of each case, the nature of the crime, the justness of the claim and the capacity of the accused to pay.
28. In Sarwan Singh and others v. State of Punjab (1978) 4 SCC 111 : (AIR 1978 SC 1525); Balraj v. State of U.P. (1994) 4 SCC 29 : (AIR 1995 SC 1935 : 1995 AIR SCW 2997); Baldev Singh and Anr. v. State of Punjab (1995) 6 SCC 593 :
(AIR 1995 SC 372 : 1995 AIR SCW 4202); Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr. (2007) 6 SCC 528 : (AIR 2007 SC (Supp) 1345 : 2007 AIR SCW 2425), this Court held that the power of the Courts to award compensation to victims under Section 357 is not ancillary to other sentences but in addition thereto and that imposition of fine and/or grant of compensation to a great extent must depend upon the relevant factors apart from such fine or compensation being just and reasonable. In Dilip S. Dahanukar's case (supra) this Court even favoured an inquiry albeit summary in nature to determine the paying capacity of the offender. The Court said :Page 5 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019
R/CR.A/811/2019 ORDER ".... The purpose of imposition of fine and/or grant of compensation to a great extent must be considered having the relevant factors therefor in mind. It may be compensating the person in one way or the other. The amount of compensation sought to be imposed, thus, must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of accused to pay the same must be judged. A fortiori , an enquiry in this behalf even in a summary way may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned; the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but sub-section (3) of Section 357 does not impose any such limitation and thus, power thereunder should be exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a Judge."
29. The long line of judicial pronouncements of this Court recognised in no uncertain terms a paradigm shift in the approach towards victims of crimes who were held entitled to reparation, restitution or compensation for loss or injury suffered by them. This shift from retribution to restitution began in the mid 1960s and gained momentum in the decades that followed. Interestingly the clock appears to have come full circle by the law makers and courts going back in a great measure to what was in ancient times Page 6 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER common place. Harvard Law Review (1984) in an article on "Victim Restitution in Criminal Law Process: A Procedural Analysis" sums up the historical perspective of the concept of restitution in the following words :
"Far from being a novel approach to sentencing, restitution has been employed as a punitive sanction throughout history. In ancient societies, before the conceptual separation of civil and criminal law, it was standard practice to require an offender to reimburse the victim or his family for any loss caused by the offense. The primary purpose of such restitution was not to compensate the victim, but to protect the offender from violent retaliation by the victim or the community. It was a means by which the offender could buy back the peace he had broken. As the State gradually established a monopoly over the institution of punishment, and a division between civil and criminal law emerged, the victim's right to compensation was incorporated into civil law."
30. With modern concepts creating a distinction between civil and criminal law in which civil law provides for remedies to award compensation for private wrongs and the criminal law takes care of punishing the wrongdoer, the legal position that emerged till recent times was that criminal law need not concern itself with compensation to the victims since compensation was a civil remedy that fell within the domain of the civil Courts. This conventional position has in recent times undergone a notable sea Page 7 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER change, as societies world over have increasingly felt that victims of the crimes were being neglected by the legislatures and the Courts alike. Legislations have, therefore, been introduced in many countries including Canada, Australia, England, New Zealand, Northern Ireland and in certain States in the USA providing for restitution/reparation by Courts administering criminal justice.
31. England was perhaps the first to adopt a separate statutory scheme for victim compensation by the State under the Criminal Injuries Compensation Scheme, 1964. Under the Criminal Justice Act, 1972 the idea of payment of compensation by the offender was introduced. The following extract from the Oxford Handbook of Criminology (1994 Edn., pp.1237-1238), which has been quoted with approval in Delhi Domestic Working Women's Forum v. Union of India and Ors. (1995) 1 SCC 14, is apposite :
"Compensation payable by the offender was introduced in the Criminal Justice Act 1972 which gave the Courts powers to make an ancillary order for compensation in addition to the main penalty in cases where 'injury', loss, or damage' had resulted. The Criminal Justice Act, 1982 made it possible for the first time to make a compensation order as the sole penalty. It also required that in cases where fines and compensation orders were given together, the payment of compensation should take priority over the fine. These developments signified a major shift in penology thinking, reflecting the growing importance attached to Page 8 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER restitution and reparation over the more narrowly retributive aims of conventional punishment. The Criminal Justice Act, 1982 furthered this shift. It required courts to consider the making of a compensation order in every case of death, injury, loss or damage and, where such an order was not given, imposed a duty on the court to give reasons for not doing so . It also extended the range of injuries eligible for compensation. These new requirements mean that if the court fails to make a compensation order it must furnish reasons . Where reasons are given, the victim may apply for these to be subject to judicial review. The 1991 Criminal Justice Act contains a number of provisions which directly or indirectly encourage an even greater role for compensation..."
32. In the United States of America, the Victim and Witness Protection Act of 1982 authorizes a federal court to award restitution by means of monetary compensation as a part of a convict's sentence. Section 3553(a)(7) of Title 18 of the Act requires Courts to consider in every case "the need to provide restitution to any victims of the offense". Though it is not mandatory for the Court to award restitution in every case, the Act demands that the Court provide its reasons for denying the same. Section 3553(c) of Title 18 of the Act states as follows :
"If the court does not order restitution or orders only partial restitution, the court shall include in the statement the reason thereof."Page 9 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019
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33. In order to be better equipped to decide the quantum of money to be paid in a restitution order, the United States federal law requires that details such as the financial history of the offender, the monetary loss caused to the victim by the offence, etc. be obtained during a Presentence Investigation, which is carried out over a period of 5 weeks after an offender is convicted.
34. Domestic/Municipal Legislation apart even the UN General Assembly recognized the right of victims of crimes to receive compensation by passing a resolution titled 'Declaration on Basic Principles of Justice for Victims and Abuse of Power, 1985'. The Resolution contained the following provisions on restitution and compensation :
" Restitution
8. Offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependants. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and the restoration of rights.
9. Governments should review their practices, regulations and laws to consider restitution as an available sentencing option in criminal cases, in addition to other criminal sanctions.Page 10 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019
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10. In cases of substantial harm to the environment, restitution, if ordered, should include, as far as possible, restoration of the environment, reconstruction of the infrastructure, replacement of community facilities and reimbursement of the expenses of relocation, whenever such harm results in the dislocation of a community.
11. Where public officials or other agents acting in an official or quasi-official capacity have violated national criminal laws, the victims should receive restitution from the State whose officials or agents were responsible for the harm inflicted. In cases where the Government under whose authority the victimizing act or omission occurred is no longer in existence, the State or Government successor-in-title should provide restitution to the victims.
Compensation
12. When compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation to :
(a) Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes;
(b) The family, in particular dependants of persons who have died or become physically or Page 11 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER mentally incapacitated as a result of such victimization.
13. The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including in those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm."
35. The UN General Assembly passed a resolution titled Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 2005 which deals with the rights of victims of international crimes and human rights violations. These Principles (while in their Draft form) were quoted with approval by this Court in State of Gujarat and Anr. v. Hon'ble High Court of Gujarat (1998) 7 SCC 392 :
(AIR 1998 SC 3164 : 1998 AIR SCW 3075) in the following words :
"94. In recent years the right to reparation for victims of violation of human rights is gaining ground. United Nations Commission of Human Rights has circulated draft Basic Principles and Guidelines on the Right to Reparation for Victims of Violation of Human Rights, (see Annexure)."
36. Amongst others the following provisions on restitution and compensation have been made :
Page 12 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019R/CR.A/811/2019 ORDER "12. Restitution shall be provided to re-establish the situation that existed prior to the violations of human rights or international humanitarian law. Restitution requires inter alia, restoration of liberty, family life citizenship, return to one's place of residence, and restoration of employment or property.
13. Compensation shall be provided for any economically assessable damage resulting from violations of human rights or international humanitarian law, such as-:
(a) Physical or mental harm, including pain, suffering and emotional distress;
(b) Lost opportunities including education;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Harm to reputation or dignity;
(e) Costs required for legal or expert assistance, medicines and medical services."
37. Back home the Criminal Procedure Code of 1898 contained a provision for restitution in the form of Section 545, which stated in sub-clause 1(b) that the Court may direct "payment to any person of compensation for any loss or injury caused by the offence when substantial compensation is, in the opinion of the Court, recoverable by such person in a Civil Court".
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38. The Law Commission of India in its 41st Report submitted in 1969 discussed Section 545 of the Cr.P.C. of 1898 extensively and stated as follows :
"46.12. Under clause (b) of sub-section (1) of Section 545, the Court may direct "payment to any person of compensation for any loss or injury caused by the offence when substantial compensation is, in the opinion of the Court, recoverable by such person in a Civil Court." The significance of the requirement that compensation should be recoverable in a Civil Court is that the act which constitutes the offence in question should also be a tort. The word "substantial" appears to have been used to exclude cases where only nominal damages would be recoverable. We think it is hardly necessary to emphasise this aspect, since in any event it is purely within the discretion of the Criminal Courts to order or not to order payment of compensation, and in practice, they are not particularly liberal in utilizing this provision . We propose to omit the word "substantial" from the clause."
39. On the basis of the recommendations made by the Law Commission in the above report, the Government of India introduced the Criminal Procedure Code Bill, 1970, which aimed at revising Section 545 and introducing it in the form of Section 357 as it reads today. The Statement of Objects and Reasons underlying the Bill was as follows :
Page 14 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019R/CR.A/811/2019 ORDER "Clause 365 [now S. 357] which corresponds to section 545 makes provision for payment of compensation to victims of crimes. At present such compensation can be ordered only when the Court imposes a fine the amount is limited to the amount of fine. Under the new provision, compensation can be awarded irrespective of whether the offence is punishable with fine and fine is actually imposed, but such compensation can be ordered only if the accused is convicted. The compensation should be payable for any loss or injury whether physical or pecuniary and the Court shall have due regard to the nature of injury, the manner of inflicting the same, the capacity of the accused to pay and other relevant factors."
40. As regards the need for Courts to obtain comprehensive details regarding the background of the offender for the purpose of sentencing, the Law Commission in its 48th Report on 'Some Questions Under the Code of Criminal Procedure Bill, 1970' submitted in 1972 discussed the matter in some detail, stating as follows :
"45. It is now being increasingly recognised that a rational and consistent sentencing policy requires the removal of several deficiencies in the present system. One such deficiency is a lack of comprehensive information as to the characteristics and background of the offender .Page 15 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019
R/CR.A/811/2019 ORDER The aims of sentencing - themselves obscure - become all the more so in the absence of comprehensive information on which the correctional process is to operate. The public as well as the courts themselves are in the dark about judicial approach in this regard.
We are of the view that the taking of evidence as to the circumstances relevant to sentencing should be encouraged, and both the prosecution and the accused should be allowed to co-operate in the process."
41. The Cr.P.C. of 1973 which incorporated the changes proposed in the said Bill of 1970 states in its Objects and Reasons that S. 357 was "intended to provide relief to the proper sections of the community" and that the amended Cr.P.C. empowered the Court to order payment of compensation by the accused to the victims of crimes "to a larger extent" than was previously permissible under the Code. The changes brought about by the introduction of S. 357 were as follows :
(i) The word "substantial" was excluded.
(ii) A new sub-section (3) was added which provides for payment of compensation even in cases where the fine does not form part of the sentence imposed.
(iii) Sub-section (4) was introduced which states that an order awarding compensation may be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.Page 16 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019
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42. The amendments to the Cr.P.C. brought about in 2008 focused heavily on the rights of victims in a criminal trial, particularly in trials relating to sexual offences. Though the 2008 amendments left Section 357 unchanged, they introduced Section 357-A under which the Court is empowered to direct the State to pay compensation to the victim in such cases where "the compensation awarded under Section 357 is not adequate for such rehabilitation, or where the case ends in acquittal or discharge and the victim has to be rehabilitated." Under this provision, even if the accused is not tried but the victim needs to be rehabilitated, the victim may request the State or District Legal Services Authority to award him/her compensation. This provision was introduced due to the recommendations made by the Law Commission of India in its 152nd and 154th Reports in 1994 and 1996 respectively.
43. The 154th Law Commission Report on the Cr.P.C.
devoted an entire chapter to 'Victimology' in which the growing emphasis on victim's rights in criminal trials was discussed extensively as under :
"1. Increasingly the attention of criminologists, penologists and reformers of criminal justice system has been directed to victimology, control of victimization and protection of victims of crimes. Crimes often entail substantive harm to people and not merely symbolic harm to the social order. Consequently the needs and rights of victims of crime Page 17 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER should receive priority attention in the total response to crime. One recognized method of protection of victims is compensation to victims of crime. The needs of victims and their family are extensive and varied.
xx--xx--xx--xx--xx 9.1 The principles of victimology has foundations in Indian Constitutional Jurisprudence. The provision on Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV) form the bulwark for a new social order in which social and economic justice would blossom in the national life of the country (Article 38). Article 41 mandates inter alia that the State shall make effective provisions for "securing the right to public assistance in cases of disablement and in other cases of undeserved want." So also Article 51- A makes it a fundamental duty of every Indian citizen, inter alia 'to have compassion for living creatures' and to 'develop humanism'. If emphatically interpreted and imaginatively expanded these provisions can form the constitutional underpinnings for victimology.
9.2 However, in India the criminal law provides compensation to the victims and their dependants only in a limited manner. Section 357 of the Code of Criminal Procedure incorporates this concept to an extent and empowers the criminal courts to grant compensation to the victims.
xx--xx--xx--xx Page 18 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER
11. In India the principles of compensation to crime victims need to be reviewed and expanded to cover all cases. The compensation should not be limited only to fines, penalties and forfeitures realized. The State should accept the principle of providing assistance to victims out of its own funds?"
44. The question then is whether the plenitude of the power vested in the Courts under Sections 357 and 357-A, notwithstanding, the Courts can simply ignore the provisions or neglect the exercise of a power that is primarily meant to be exercised for the benefit of the victims of crimes that are so often committed though less frequently punished by the Courts. In other words, whether Courts have a duty to advert to the question of awarding compensation to the victim and record reasons while granting or refusing relief to them?
45. The language of Section 357, Cr.P.C. at a glance may not suggest that any obligation is cast upon a Court to apply its mind to the question of compensation. Sub-section (1) of S. 357 states that the Court "may" order for the whole or any part of a fine recovered to be applied towards compensation in the following cases :
(i) To any person who has suffered loss or injury by the offence, when in the opinion of the Court, such compensation would be recoverable by such person in a Civil Court.Page 19 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019
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(ii) To a person who is entitled to recover damages under the Fatal Accidents Act, when there is a conviction for causing death or abetment thereof.
(iii) To a bona fide purchaser of property, which has become the subject of theft, criminal misappropriation, criminal breach of trust, cheating, or receiving or retaining or disposing of stolen property, and which is ordered to be restored to its rightful owner.
46. Sub-section (3) of Section 357 further empowers the Court by stating that it "may" award compensation even in such cases where the sentence imposed does not include a fine. The legal position is, however, well-established that cases may arise where a provision is mandatory despite the use of language that makes it discretionary. We may at the outset, refer to the oft quoted passage from Julius v. Lord Bishop of Oxford (1880) 5 AC 214, where the Court summed up the legal position thus :
"The words 'it shall be lawful' are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may Page 20 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so..."
47. There is no gainsaying that Section 357 confers a power on the Court insofar as it makes it "legal and possible which there would otherwise be no right or authority to do" viz. to award compensation to victims in criminal cases. The question is whether despite the use of discretionary language such as the word "may", there is "something" in the nature of the power to award compensation in criminal cases, in the object for which the power is conferred or in the title of the persons for whose benefit it is to be exercised which, coupled with the power conferred under the provision, casts a duty on the Court to apply its mind to the question of exercise of this power in every criminal case.
48. In Smt. Bachahan Devi and Anr. v. Nagar Nigam, Gorakhpur and Anr., AIR 2008 SC 1282 : (2008 AIR SCW 1326), this Court while dealing with the use of the word "may" summed up the legal position thus :
"...It is well-settled that the use of word 'may' in a statutory provision would not by itself show that the provision is directory in nature. In some cases, the legislature may use the word 'may' as a matter of pure conventional courtesy and yet intend a mandatory force. In order, therefore, to interpret the legal import of the word 'may', the court has to consider various factors, namely, the object and the scheme of the Act, Page 21 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER the context and the background against which the words have been used, the purpose and the advantages sought to be achieved by the use of this word, and the like. It is equally well-settled that where the word 'may' involves a discretion coupled with an obligation or where it confers a positive benefit to a general class of subjects in a utility Act, or where the court advances a remedy and suppresses the mischief, or where giving the words directory significance would defeat the very object of the Act, the word 'may' should be interpreted to convey a mandatory force ..."
49. Similarly in Dhampur Sugar Mills Ltd. v. State of U. P. and Ors. (2007) 8 SCC 338 : (AIR 2008 SC 48 : 2008 AIR SCW 6072), this Court held that the mere use of word 'may' or 'shall' was not conclusive. The question whether a particular provision of a statute is directory or mandatory, held the Court, can be resolved by ascertaining the intention of the Legislature and not by looking at the language in which the provision is clothed. And for finding out the legislative intent, the Court must examine the scheme of the Act, purpose and object underlying the provision, consequences likely to ensue or inconvenience likely to result if the provision is read one way or the other and many more considerations relevant thereto.
50. Applying the tests which emerge from the above cases to Section 357, it appears to us that the provision confers a power coupled with a duty on the Courts to apply its mind to Page 22 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER the question of awarding compensation in every criminal case. We say so because in the background and context in which it was introduced, the power to award compensation was intended to re-assure the victim that he or she is not forgotten in the criminal justice system. The victim would remain forgotten in the criminal justice system if despite Legislature having gone so far as to enact specific provisions relating to victim compensation, Courts choose to ignore the provisions altogether and do not even apply their mind to the question of compensation. It follows that unless Section 357 is read to confer an obligation on Courts to apply their mind to the question of compensation, it would defeat the very object behind the introduction of the provision.
51. If application of mind is not considered mandatory, the entire provision would be rendered a dead letter. It was held in NEPC Micon Ltd. and Ors. v. Magma Leasing Ltd. (1999) 4 SCC 253 : (AIR 1999 SC 1952 : 1999 AIR SCW 1637), albeit in the context of S. 138 of the Negotiable Instruments Act that even in regard to a penal provision, any interpretation, which withdraws the life and blood of the provision and makes it ineffective and a dead letter should be avoided.
52. Similarly in Swantraj and Ors. v. State of Maharashtra (1975) 3 SCC 322 : (AIR 1974 SC 517), this Court speaking through Justice Krishna Iyer held :
"1. Every legislation is a social document and judicial construction seeks to decipher the statutory mission, language permitting, taking the cue from the rule in Page 23 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER Heydon's case of suppressing the evil and advancing the remedy..."
53. The Court extracted with approval the following passage from Maxwell on Interpretation of Statutes :
"There is no doubt that 'the office of the Judge is, to make such construction as will suppress the mischief, and advance the remedy, and to suppress all evasions for the continuance of the mischief.' To carry out effectually the object of a statute, it must be so construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined : quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud."
54. This Court has through a line of cases beginning with Hari Singh's (Hari Kishan) case (AIR 1988 SC 2127) (supra) held that the power to award compensation under Section 357 is not ancillary to other sentences but in addition thereto. It would necessarily follow that the Court has a duty to apply its mind to the question of awarding compensation under Section 357 too. Reference may also be made to the decision of this Court in State of Andhra Pradesh v. Polamala Raju alias Rajarao (2000) 7 SCC 75 :
(AIR 2000 SC 2854 : 2000 AIR SCW 3009) where a three- Judge Bench of this Court set aside a judgment of the High Court for non-application of mind to the question of sentencing. In that case, this Court reprimanded the High Court for having reduced the sentence of the accused Page 24 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER convicted under Section 376, IPC from 10 years' imprisonment to 5 years without recording any reasons for the same. This Court said :
"...We are of the considered opinion that it is an obligation of the sentencing court to consider all relevant facts and circumstances bearing on the question of sentence and impose a sentence commensurate with the gravity of the offence...
xx--xx--xx--xx ...To say the least, the order contains no reasons, much less "special or adequate reasons". The sentence has been reduced in a rather mechanical manner without proper application of mind..."
55. In State of Punjab v. Prem Sagar and Ors. (2008) 7 SCC 550 : (AIR 2008 SC (Supp) 261 : 2008 AIR SCW 4805) this Court stressed the need for greater application of mind of the Courts in the field of sentencing. Setting aside the order granting probation by the High Court, the Court stated as follows :
"30....The High Court does not rest its decision on any legal principle. No sufficient or cogent reason has been arrived.
31. We have noticed the development of law in this behalf in other countries only to emphasise that the courts while imposing sentence must take into consideration the principles applicable thereto. It Page 25 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER requires application of mind. The purpose of imposition of sentence must also be kept in mind..."
56. Although speaking in the context of capital punishment, the following observation of this Court in Sangeet and Anr. v. State of Haryana (2013) 2 SCC 452 : (AIR 2013 SC 447 :
2012 AIR SCW 6416) could be said to apply to other sentences as well, particularly the award of compensation to the victim :
"In the sentencing process, both the crime and the criminal are equally important. We have unfortunately, not taken the sentencing process as seriously as it should be with the result that in capital offences, it has become Judge-centric sentencing rather than principled sentencing."
57. Section 357, Cr.P.C. confers a duty on the Court to apply its mind to the question of compensation in every criminal case. It necessarily follows that the Court must disclose that it has applied its mind to this question in every criminal case. In Maya Devi (Dead) through L.Rs. and Ors. v. Raj Kumari Batra (Dead) through L.Rs. and Ors. (2010) 9 SCC 486 : (AIR 2011 SC (Supp) 417 : 2011 AIR SCW 24), this Court held that disclosure of application of mind is best demonstrated by recording reasons in support of the order or conclusion. The Court observed :
"28. ...There is nothing like a power without any limits or constraints. That is so even when a court or other authority may be vested with wide discretionary Page 26 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER power, for, even discretion has to be exercised only along well-recognised and sound juristic principles with a view to promoting fairness, inducing transparency and aiding equity.
29. What then are the safeguards against an arbitrary exercise of power? The first and the most effective check against any such exercise is the well-recognised legal principle that orders can be made only after due application of mind. Application of mind brings reasonableness not only to the exercise of power but to the ultimate conclusion also. Application of mind in turn is best demonstrated by disclosure of mind. And disclosure is best demonstrated by recording reasons in support of the order or conclusion.
30. Recording of reasons in cases where the order is subject to further appeal is very important from yet another angle. An appellate court or the authority ought to have the advantage of examining the reasons that prevailed with the court or the authority making the order. Conversely, absence of reasons in an appealable order deprives the appellate court or the authority of that advantage and casts an onerous responsibility upon it to examine and determine the question on its own ..."
58. Similarly, in State of Rajasthan v. Sohan Lal and Ors. (2004) 5 SCC 573 : (AIR 2004 SC 4520 : 2004 AIR SCW 4321), this Court emphasised the need for reasons thus :
Page 27 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019R/CR.A/811/2019 ORDER "...The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the court concerned had really applied its mind..."
59. In Hindustan Times Ltd. v. Union of India (1998) 2 SCC 242 : (AIR 1998 SC 688 : 1998 AIR SCW 352) this Court stated that the absence of reasons in an order would burden the appellate court with the responsibility of going through the evidence or law for the first time. The Court observed :
"...In our view, the satisfaction which a reasoned judgment gives to the losing party or his lawyer is the test of a good judgment. Disposal of cases is no doubt important but quality of the judgment is equally, if not more, important. There is no point in shifting the burden to the higher Court either to support the judgment by reasons or to consider the evidence or law for the first time to see if the judgment needs a reversal..."
60. In Director, Horticulture, Punjab and Ors. v. Jagjivan Parshad (2008) 5 SCC 539 : (AIR 2008 SC (Supp) 327 : 2008 AIR SCW 2858), this Court stated that the spelling out of reasons in an order is a requirement of natural justice :
Page 28 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019R/CR.A/811/2019 ORDER "...Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance..."
61. In Maya Devi's case (AIR 2011 SC (Supp) 417 : 2011 AIR SCW 24) (supra), this Court summarised the existing case law on the need for reasoned orders as follows:
"22. The juristic basis underlying the requirement that courts and indeed all such authorities, as exercise the power to determine the rights and obligations of individuals must give reasons in support of their orders has been examined in a long line of decisions rendered by this Court. In Hindustan Times Ltd. v. Union of India (1998) 2 SCC 242 : (AIR 1998 SC 688 :
1998 AIR SCW 352) the need to give reasons has been held to arise out of the need to minimise chances of arbitrariness and induce clarity.Page 29 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019
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23. In Arun v. Inspector General of Police (1986) 3 SCC 696 : (AIR 1986 SC 1497) the recording of reasons in support of the order passed by the High Court has been held to inspire public confidence in administration of justice, and help the Apex Court to dispose of appeals filed against such orders.
24. In Union of India v. Jai Prakash Singh (2007) 10 SCC 712 : (AIR 2007 SC 1363 : 2007 AIR SCW 1692), reasons were held to be live-links between the mind of the decision-maker and the controversy in question as also the decision or conclusion arrived at.
25. In Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity (2010) 3 SCC 732 : (AIR 2010 SC 1285 : 2010 AIR SCW 4997), reasons were held to be the heartbeat of every conclusion, apart from being an essential feature of the principles of natural justice, that ensure transparency and fairness, in the decision-making process.
26. In Ram Phal v. State of Haryana (2009) 3 SCC 258: (AIR 2009 SC (Supp) 1410 : 2009 AIR SCW 5076), giving of satisfactory reasons was held to be a requirement arising out of an ordinary man's sense of justice and a healthy discipline for all those who exercise power over others.
27. In Director, Horticulture, Punjab v. Jagjivan Parshad (2008) 5 SCC 539 : (AIR 2008 SC (Supp) 327 :Page 30 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019
R/CR.A/811/2019 ORDER 2008 AIR SCW 2858), the recording of reasons was held to be indicative of application of mind specially when the order is amenable to further avenues of challenge."
62. To sum up : While the award or refusal of compensation in a particular case may be within the Court's discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order under Section 357, Cr.P.C. would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family.
63. Coming then to the case at hand, we regret to say that the trial Court and the High Court appear to have remained oblivious to the provisions of Section 357, Cr.P.C. The judgments under appeal betray ignorance of the Courts below about the statutory provisions and the duty cast upon Page 31 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER the Courts. Remand at this distant point of time does not appear to be a good option either. This may not be a happy situation but having regard to the facts and the circumstances of the case and the time lag since the offence was committed, we conclude this chapter in the hope that the courts remain careful in future."
10. Thus, the principles discernible from the above referred decision of the Supreme Court is that, although it may be within the discretion of the court to award or refuse to award appropriate compensation, yet at the same time it is the mandatory duty of the court to apply its mind to the question in every criminal case. The Supreme Court goes further to say that the application of mind to the question would be best disclosed by recording reasons for awarding/refusing compensation.
11. On 16th April 2019, this Court passed the following order :
"1. This appeal purported to be one u/s. 372 of the Cr.P.C. is at the instance of the original victim with the prayer for grant of adequate compensation.
2. This matter was mentioned by Ms. Dilbur Contractor, the learned counsel appearing for the appellant for circulation. While mentioning the matter, Ms. Contractor brought to our notice that the Registry has raised an objection with regard to delay in preferring this appeal u/s. 372 of the Cr.P.C. Ms. Contractor submitted that the objection raised by the Registry is not well founded as there is no statutory time period prescribed in law for the purpose of preferring an appeal u/s. 372 of the Cr.P.C.Page 32 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019
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3. Having regard to a neat question of law involved in this matter, we permitted Ms. Contractor to get this appeal circulated accordingly. The appeal has been notified today. We propose to hear the learned counsel appearing for the appellant and the learned APP appearing for the State, first on the question of law whether there is any statutory time period prescribed for preferring an appeal under Section 372 of the Cr.P.C.
4. If we take the view that there is no statutory time period prescribed but the appeal should be preferred within a reasonable period of time then we shall hear Ms. Contractor accordingly on the admission of this appeal. On the other hand, if we take the view that there is some statutory time period prescribed or deemed to have been prescribed for the purpose of preferring an appeal u/s. 372 of the Cr.P.C., then in such circumstances, we may ask Ms. Contractor to prefer a formal application seeking condonation of delay. "
12. It is not in dispute that the judgment and order of conviction and sentence passed by the trial court is dated 25th January 2017, whereas the present Appeal came to be filed on 12th April 2019, i.e. almost after a period of 700 days. It is on account of such delay that we had to pass the order dated 16th April 2019 referred to above.
13. We now proceed to consider the pivotal issue as regards the period of limitation to prefer an appeal under Section 372 of the Code being dissatisfied with the decision of the trial court in Page 33 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER not passing any order with regard to compensation and whether it is obligatory on the part of the appellant to prefer an appropriate application seeking condonation of delay in preferring such appeal.
14. A Full Bench of this Court in the case of Bhavuben Dineshbhai Makwana v. State of Gujarat and others, reported in (2013)2 GLR 1415, had the occasion to consider the scope of an appeal at the instance of the victim as newly introduced in the court.
15. The Full Bench was called upon to answer three issues. Those were as under :
"(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 ?"Page 34 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019
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16. The first two issues referred to above came to be answered by the Full Bench as under :
"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 Page 35 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER 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 150th Report, laid emphasis on Chapter XV on the subject of victimology and observed that right from the ancient Babylonian Code of Hammurabi (about 1775 BC), the victim of a crime was left with no remedy except to sue for damages in the civil court.
The Law Commission of India also noted that in Anglo- 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).
Page 36 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019R/CR.A/811/2019 ORDER 16.1 Based upon the recommendations of the Law
Commission of India in its 154 th 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 Page 37 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER 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."
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.
Page 38 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019R/CR.A/811/2019 ORDER
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:
i. Acquittal of the accused ii. Convicting of the accused for a lesser offence iii.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.Page 39 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019
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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 Page 40 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER 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 Page 41 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER 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 Page 42 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER 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."
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."
17. The Full Bench, thereafter, proceeded to answer the third question, whether a victim, for the purpose of filing an appeal by virtue of the right conferred under the proviso to Section 372 of the Code, was required to take leave of the court ? While answering the third question, the Full Bench drew distinction between an appeal preferred by the victim and an appeal preferred by the complainant. The Full Bench took the view that if an appeal is preferred by the victim, then he need not seek the leave of this Court, but if the appeal is preferred by the complainant, then leave will have to be prayed for. In fact, the third question was answered by the Full Bench in the following words :
"If the victim also happens to be the complainant and the appeal is against acquittal, he is required to take leave as Page 43 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER 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 the 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."
18. The view expressed by the Full Bench of this Court has not been approved by the Supreme Court in the case of Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and others, (2018)3 GLH 609. The Supreme Court, in para-37 of the said judgment, has observed as under :
"In our opinion, the Gujarat High Court made an artificial and unnecessary distinction between a victim as a victim and a victim as a complainant in respect of filing an appeal against an order of acquittal. The proviso to Section 372 of the Code of Criminal Procedure does not introduce or incorporate any such distinction."
19. The Full Bench, in Bhavuben's case (supra), also took the view that if the victim, in his appeal restricts his grievance to inadequacy of the compensation or punishment for a lesser offence, it does not become an appeal against acquittal but the appeal could be said to be 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.
20. The Full Bench, having said so, proceeded to lay down the procedure to be followed if the victim either challenges the order of acquittal or the inadequacy of compensation or both or even Page 44 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER the conviction on a lesser offence than the one charged. The Full Bench proceeded to observe as under :
"[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 Page 45 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER period as the said period is the longest period of limitation for filing an appeal against the order of acquittal prescribed by the legislature."
21. In the case on hand, the appeal is not against the acquittal but the appeal is with regard to the compensation. In such circumstances, Article 114(a) of the Limitation Act will not be applicable. In our opinion, Article 115(b) of the Limitation Act will be applicable.
22. In the aforesaid context, we may refer to and rely upon a Division Bench decision of the Kerala High Court in the case of Yohannan v. State of Kerala, (2015)3 KLT 333. We may quote the relevant observations thus :
"20. We are in respectful agreement with the view taken by the Patna High Court in Parmeshwar Mandal v. State of Bihar and others, 2014 Cri.L.J. 1046. With respect, we are not inclined to agree with the view taken by the Punjab and Haryana High Court in M/s.Tata Steel Ltd.'s case
21. A new right is conferred on the victim by the insertion of the proviso to Section 372, by defining the term "victim"
and by the introduction of Section 357A of the Code of Criminal Procedure (Victim Compensation Scheme). No fetter of limitation is placed by the Legislature on the exercise of the right of the victim to file an appeal under the proviso to Section 372 of the Code of Criminal Procedure. The Court cannot make a provision prescribing a period of limitation for an appeal for which either the Code of Criminal Procedure or the Limitation Act does not provide for a period of limitation.
Page 46 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019R/CR.A/811/2019 ORDER The victim would be entitled to file an appeal and if the Appellate Court finds that the appeal is designedly or deliberately delayed, the Appellate Court need not entertain the appeal on that ground. It would be sufficient if the appellant explains the circumstances under which he could not file the appeal within a reasonable time after the impugned judgment was passed. The Court would be entitled to consider the same and arrive at a conclusion as to the reasonableness or otherwise. Every case has to be decided on the facts and circumstances of that case and no hard and fast formula can be prescribed with respect to the time within which the appeal is to be filed by the victim. So long as the victim is not a party to the proceedings before the court below, he cannot be imputed with the knowledge of the proceedings unless it is shown otherwise. Needless to say that the appellant has to file appeal within a reasonable time after the date of knowledge of the judgment impugned in the appeal.
22. We are of the view that the practical situation can be tackled by issuing a direction that in all cases where the appeals are filed beyond ninety days from the date of judgment, the appellant shall file an affidavit stating the circumstances under which the appeal could not be filed earlier. The Court will consider such affidavit at the time of admission taking into account the facts and circumstances of each case. Before parting with the case we would like to point out the following: The Criminal Rules of Practice in Kerala contains provision for forwarding copy of the judgment to various persons and authorities. The Rule can Page 47 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER be amended incorporating a provision for sending a copy of the judgment to the victim as well. This can be conveniently done by directing the District Magistrate to see that the copy of the judgment is served on the victim. S.363(5) provides that any person affected by a judgment or order passed by a Criminal Court shall, on an application made in this behalf and on payment of the prescribed charges, be given a copy of such judgment or order or any deposition or other part of the record. The proviso to sub -section (5) of S. 363 states that the Court may, if it thinks fit for some special reason, give it to him free of cost. If intimation is given to the victim about the passing of the judgment, he can be imputed with the knowledge of the judgment. We do not think that any victim would deliberately cause delay in filing an appeal against acquittal or complaining about inadequacy of sentence. The Victim Compensation Scheme introduced as per S.357A of the Code of Criminal Procedure would also be a guiding factor to take the view that the victim has a right to be informed of the judgment passed by the Court. On such information being given, the victim would be entitled to apply for certified copy of the judgment as provided under S. 363(5) of the Code of Criminal Procedure."
23. The Division Bench decision of the Kerala High Court in the case of Yohannan (supra), referred to above, later came to be considered by the Full Bench in the case of Sobhanakumari K. v. Santhosh, reported in (2018)1 KHC 195. The Full Bench of the Kerala High Court observed as under :
"13. A Division Bench of this Court in Yohannan's case (supra) considered various limitations of victims who include Page 48 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER the guardian or heir of the person who actually suffered loss or injury. The limitations as noticed by the Division Bench are (i) the victim is not a party to the criminal case, (ii) he need not even be a witness in the case, (iii) he may not be aware of the proceedings before the Criminal Court and (iv) he is not informed of the result of the trial. In view of these limitations of the victim, according to the Division Bench, the law makers deliberately omitted to fix a period of limitation for appeals filed under the proviso to Section 372 of Cr.P.C.
When that be so, it is held, the High Court cannot fix a period of limitation. The conclusion has been that when an appeal is filed beyond 90 days from the date of the judgment, the appellant shall file an affidavit explaining why the appeal could not be filed earlier.
14. Subsequent to the decision in Yohannan's case (supra) came the decision in Satya Pal Singh v. State of M.P. MANU/SC/1119/2015 : 2015 KHC 4662 : 2015 AIR SCW 6251 : 2015 (5) KHC SN 25 : 2015 (2) KLD 758 : 2015 (10) SCALE 444 : 2015 CriLJ 4929 : (2015) 15 SCC 613. It was held in Satya Pal Singh (supra) that an appeal could be filed by the victim under the proviso to Section 372 of Cr.P.C against an order of acquittal only after obtaining the leave of the High Court under Section 378(3) of Cr.P.C. As leave under Section 378(3) of Cr.P.C was held necessary for a victim to appeal to the High Court under the proviso to Section 372 Cr.P.C against acquittal, a question arose whether the victim should file an application under Section 5 of the Limitation Act to get the delay in filing the appeal condoned. This question was considered and decided by a Page 49 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER Division Bench of this Court in Vinod's case (supra). It was held that the period of limitation provided under Article 114 of the Limitation Act was only with respect to an appeal filed under Section 378(1) or (2) of Cr.P.C and not with respect to an appeal filed under the proviso to Section 372 Cr.P.C. It was reiterated that no period of limitation was provided for an appeal under the proviso to Section 372 Cr.P.C. The Division Bench held that no application to condone the delay was to be filed in the absence of a prescribed period. In short, the dictum in Yohannan (supra) was reiterated in Vinod (supra).
15. As already stated, the reference was made doubting the correctness of the dictum in Vinod (supra). According to the Division Bench which made the reference, the period of limitation prescribed under Article 114 of the Limitation Act shall apply to an appeal under the proviso to Section 372 of Cr.P.C as well since such an appeal requires the leave under Section 378(3) of Cr.P.C as in the case of an appeal under Section 378(1) or (2) of Cr.P.C.
16. Article 114 of the Limitation Act stipulates the period of limitation for certain appeals under the Code of Criminal Procedure, 1898 (hereinafter referred to as the 'old Code'). The provisions mentioned in clause (a) of Article 114 are subsections (1) and (2) of Section 417 of the old Code. Sub- section (3) of Section 417 of the old Code is mentioned in clause (b) of Article 114. Sub-sections (1) to (3) of Section 417 of the old Code correspond to sub-sections (1), (2) and (4) respectively of Section 378 of the present Cr.P.C. The Page 50 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER aforesaid provisions in the old Code and in the present Cr.P.C are substantially the same. There are of course some differences when sub-sections (1) and (2) of Section 417 of the old Code and sub-sections (1) and (2) of Section 378 of the present Cr.P.C are compared. For example, the new provisions permit an appeal to the Court of Session from an order of acquittal passed by a magistrate if the offence is cognizable and non-bailable. Where the General Clauses Act, or any Central Act or Regulation made after the commencement of the General Clauses Act, repeals and re- enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted (vide Section 8 of the General Clauses Act). In view of Section 8 of the General Clauses Act, the references in Article 114 of the Limitation Act to sub- sections (1) to (3) of Section 417 of the old Code shall be construed as references to sub-sections (1), (2) and (4) of Section 378 of the present Cr.P.C. Clause (b) of Article 114 of the Limitation Act and sub-section (4) of Section 378 of Cr.P.C are not relevant for answering the question under reference.
17. The period of limitation prescribed under clause (a) of Article 114 of the Limitation Act for an appeal under sub- section (1) or sub-section (2) of Section 378 of Cr.P.C from an order of acquittal is 90 days. The time begins to run from the date of the order appealed from. An appeal under Section 378(1) or (2) of Cr.P.C against an order of acquittal can be Page 51 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER filed only by the public prosecutor concerned if he is so directed by the District Magistrate, the State Government or the Central Government, as the case may be. A victim's appeal against acquittal does not come under Section 378(1) or (2) of Cr.P.C. Therefore the period of limitation of 90 days prescribed under clause (a) of Article 114 of the Limitation Act applies only to appeals filed by public prosecutors against orders of acquittal. It does not apply to an appeal filed under the proviso to Section 372 of Cr.P.C by a victim against acquittal. It is not possible to hold from a reading of clause (a) of Article 114 of the Limitation Act that it applies to an appeal of a victim filed under the proviso to Section 372 of Cr.P.C.
18. The decision in Satya Pal Singh (supra) holds that a victim can file an appeal before the High Court under the proviso to Section 372 of Cr.P.C against an order of acquittal only after obtaining the leave of the High Court under Section 378(3) of Cr.P.C. The Apex Court has stated in the said decision that the substantive provision of Section 372 of Cr.P.C clearly provides that no appeal shall lie from any judgment or order of a Criminal Court except as provided by the Cr.P.C. It is also stated that Section 378(3) of Cr.P.C insists on the leave of the High Court to appeal to the High Court against an order of acquittal. The Apex Court has then referred to the rules of interpretation of Statutes to find out as to what is the effect of the proviso to Section 372 of Cr.P.C. It is held that the proviso of a Statute must be given an interpretation limited to the subject-matter of the enacting provision. In order to hold so the Supreme Court relied on its Page 52 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER earlier decisions in Dwarka Prasad v. Dwarka Das Saraf MANU/SC/0505/1975 : 1976 KHC 589: (1976)1 SCC 128 :
AIR 1975 SC 1758 : 1976 (1) SCR 277 and Sundaram Pillai v. Pattabiraman MANU/SC/0387/1985 : 1985 KHC 551 :
(1985) 1 SCC 591 : AIR 1985 SC 582. The question under consideration was concluded in Satya Pal Singh (supra) as under:
"Thus, from a reading of the above said legal position laid down by this Court in the cases referred to supra, it is abundantly clear that the proviso to Section 372 of Cr.P.C must be read along with its main enactment i.e.. Section 372 itself and together with sub-section (3) to section 378 of Cr.P.C, otherwise the substantive provision of Section 372 of Cr.P.C will be rendered nugatory, as it clearly states that no appeal shall lie from any judgment or order of a Criminal Court except as provided by Cr.P.C."
Thus, the only question which came up for consideration in Satya Pal Singh (supra) and considered by the Supreme Court was whether leave of the High Court under Section 378(3) of Cr.P.C should be obtained to prefer an appeal to the High Court by a victim under the proviso to Section 372 of Cr.P.C. No question relating to the law of limitation was dealt with in the said decision. Clause (a) of Article 114 of the Limitation Act cannot be held applicable to an appeal under the proviso to Section 372 of Cr.P.C simply because the leave of the High Court is required to be obtained under Section 378(3) of Cr.P.C to file such an appeal before the High Court.
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19. We may view it from another angle. Sub-section (1) and (2) of Section 378 of Cr.P.C in their present shape permit the public prosecutor to file appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence. Those sub-sections were amended as per the Code of Criminal Procedure (Amendment) Act, 2005 (Act 25/2005) to provide an Appellate Forum, namely, the Court of Session, for appeals against acquittal in certain cases. The very same Act (Act 25/2005) amended sub-section (3) of Section 378 too. Sub- section (3) before it was amended read as follows:
"No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court."
The amended sub-section (3) reads as follows:
"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."
By the said amendment the Legislature made it clear that leave under subsection (3) shall be obtained only to appeal to the High Court from an order of acquittal. No leave is required to be obtained to appeal to the Court of Session under sub-section (1) or sub-section (2) of Section 378 of Cr.P.C. What Satya Pal Singh (supra) holds is also that the victim should obtain leave of the High Court under sub-
Page 54 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019R/CR.A/811/2019 ORDER section (3) of Section 378 to appeal to the High Court. The proviso to Section 372 of Cr.P.C contemplates filing of appeal to a Court of Session as well since the proviso states that such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. If Article 114(a) of the Limitation Act applies to appeals under the proviso to Section 372 of Cr.P.C for the reason that leave under Section 378(3) of Cr.P.C is to be obtained to file such an appeal, it may have to be held that a period of limitation is prescribed for such an appeal filed before the High Court, but no such period of limitation is prescribed for such an appeal filed before the Court of Session. It cannot be held so since that cannot be the law. The obligation to obtain the leave of the High Court under Section 378(3) of Cr.P.C has nothing to do with the law of limitation.
20. Simultaneous with the incorporation of the proviso to Section 372 of Cr.P.C, or even subsequent to such incorporation, no provision was inserted either in the Limitation Act or in the Cr.P.C specifying any period of limitation for filing an appeal by a victim under the said proviso. It could be a deliberate omission on the part of the Legislature as indicated by the Division Bench in Yohannan's case (supra) considering the limitations of a victim which were considered by the Division Bench in the said case. The only possible conclusion is that no period of limitation is prescribed for filing an appeal by a victim under the proviso to Section 372 of Cr.P.C challenging an order of acquittal. We hold so.
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21. But that does not mean that the victim can bring his appeal against acquittal at any time he wishes. He shall bring it within a reasonable time. We may refer to two decisions. The decisions are (i) Sharada Devi v. State of Bihar MANU/SC/0010/2003 : 2003 KHC 894 : (2003) 3 SCC 128 : AIR 2003 SC 942 : JT 2003 (1) SC 18 : 2003 (2) ILD 46 and Moideen Koya v. Kunhammed Haji MANU/KE/0533/1999 : 1999 KHC 397 : 1999 (2) KLT 646 :
1999 (2) KLJ 69 : ILR 1999 (3) Ker. 54 : AIR 1999 Ker. 324. The Apex Court states in Sharada Devi's case (supra) that though no limitation is prescribed for making a reference under Section 30 of the Land Acquisition Act, needless to say where no period of limitation for the exercise of any statutory power is prescribed, the power can nevertheless be exercised only within a reasonable period. It is also held that what is the reasonable period in a given case shall depend on the facts and circumstances of each case. Moideen Koya (supra) is a decision of the Full Bench of this Court. The Full Bench holds that no period of limitation is prescribed for preferring a revision under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, but the petitioner should explain by affidavit the delay in preferring the revision. That means the revision should be filed within a reasonable time. We hold that a victim who proposes to file an appeal against an order of acquittal should file it within a reasonable period.
22. What shall be the reasonable period within which shall the victim file his appeal? There must be a uniform pattern. That not, different Courts will take different periods as reasonable.
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23. The Punjab and Haryana High Court in M/s. Tata Steel Limited (supra) has held that the period of limitation for an appeal filed by a victim under the proviso to Section 372 of Cr.P.C shall be 90 days from the date of the order appealed against where the appeal lies to the High Court and that it shall be 30 days if the appeal lies to any other Court. We respectfully disagree with the Punjab and Haryana High Court which used the words "the period of limitation for an appeal by a victim". It is already seen that no period of limitation is prescribed for an appeal by a victim against an order of acquittal. Courts cannot fix or prescribe a period of limitation which the Legislature did not choose to.
24. The decision in Yohannan's case (supra) holds that the practical situation can be tackled by issuing a direction that in all cases where the appeals are filed beyond 90 days from the date of judgment, the appellant shall file an affidavit stating the circumstances under which the appeal could not be filed earlier. The Gujarat High Court in Bhavuben Dineshbhai Makwana (supra) has taken the period of 90 days as the reasonable period as it is the longest period of limitation prescribed by the Legislature for filing an appeal against an order of acquittal. We are of the considered opinion that 90 days can be considered the reasonable period within which the victim shall file his appeal against acquittal, whether it lies to the High Court or the Court of Session. We hold further that the reasonable period of 90 days should be counted from the date of the order appealed against. If the victim really comes to know of Page 57 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER the acquittal only later, that itself can be considered a good ground explaining the delay.
25. A victim who could not file his appeal within the reasonable time need not file an application under Section 5 of the Limitation Act. Rather, he cannot file such an application. Section 5 has application only in respect of appeals or applications filed after the prescribed period. In the absence of such a prescribed period to file an appeal by the victim against an order of acquittal, he only needs to file an affidavit explaining the delay. If he has no proper explanation, he is not entitled to the leave of the High Court under Section 378(3) of Cr.P.C.
26. We acknowledge the services rendered by the learned amicus curiae.
27. The reference is answered thus:
"(i) Clause (b) of Article 115 of the Limitation Act applies to an appeal under the proviso to Section 372 of Cr.P.C by a victim against an order convicting the accused for a lesser offence or against an order imposing inadequate compensation. If such an appeal lies only to the High Court, it shall be filed within 60 days from the date of the order appealed against. If it lies to the Court of Session, It shall be filed within 30 days from the date of the order appealed from.
(ii) No period of limitation is prescribed for an appeal by a victim under the said proviso from an order of Page 58 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER acquittal. Article 114 of the Limitation Act does not apply to such an appeal. But the victim shall bring his appeal within a reasonable period of 90 days from the date of the order, whether it is to be filed in the High Court or in the Court of Session. If such appeal is filed beyond the reasonable period, the victim shall file an affidavit explaining why he could not file it within the reasonable period. The decisions in Yohannan's case (supra) and Vinod's case (supra) holding so hold the correct law.""
24. Thus, the Full Bench answered the reference taking the view that clause (b) of Article 115 of the Limitation Act would apply to an appeal under the proviso to Section 372 of the Code by the victim against an order imposing inadequate compensation. If such an appeal lies only to the High Court, it shall have to be filed within 60 days from the date of the order appealed against. If it lies to the court of sessions, it shall have to be filed within 30 days from the date of the order appealed from.
25. We may also refer to a Division Bench decision of the Bombay High Court in the case of Amit v. State of Maharashtra and others, reported in 2016 Cri. L.J. 1418. The Division Bench was called upon to consider the issue with regard to the limitation for filing an appeal against the order of acquittal by a victim. We may quote the relevant observations thus :
"12. The next question is about limitation for filing an appeal against order of acquittal by a victim. The Division Bench in the case of Balasaheb has held that there is no limitation Page 59 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER provided for filing of such an appeal against acquittal by a victim; but it firmly held that such appeal should be filed within a reasonable period of time. Now, as a matter fact, the question whether the limitation for filing an appeal by a victim from order of acquittal did not fall for consideration before the Division Bench, nor any question to that effect was framed in the case of Balasaheb. According to us, therefore, the Division Bench Judgment in the case of Balasaheb is not an authority for the proposition that no limitation is provided for filing of an appeal against an order of acquittal and that such appeal should be filed within a reasonable period. The aspect of limitation for filing of an appeal against acquittal is governed by Article 114 of the Limitation Act. It is interesting to note that the said question fell for consideration before the Full Bench of the Punjab & Haryana High Court in the case of M/s. Tata Steel Ltd., Vs. M/s. Atma Tube Products Ltd. & others [decided on 18th March, 2013]. It would be convenient to quote some of paragraphs from the said Judgment in this Judgment. They are paras 129, 130, 137, 138 and Question [G] and answer thereto, which are quoted below:-
"129. One of the well-recognized principles of criminal jurisprudence is that 'crime never dies'. The maxim 'nullum tempus qut locus occurrit regi' [lapse of time is no bar to Crown in proceedings against offenders] is an age-old rule embedded in criminal justice delivery system. The public policy behind this rule is that a criminal offence is considered as a wrong committed against the Page 60 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER State and the Society though it is committed against an individual. The aforesaid rule of prudence has been duly acknowledged by the Parliament as it has prescribed no period of limitation for filing an appeal under proviso to Section 372 of the Code against an order of acquittal.
130. Article 114 of the Schedule to the Limitation Act, 1963, however, prescribes period of limitation for State's appeal against order of acquittal and it reads as under:-
Description of appeal Period of Time from
Limitation which period
begins to run
114. Appeal From an order of acquittal -
(a) Under sub-section Ninety Days The date of the
(1) or sub-Section (2) order appealed
of Section 417 of the from.
Code of Criminal Procedure,
1998 (5) to 1898.
(b) Under sub-Section Thirty days. The date of the
(3) of Section 417 of grant of special
the Code. leave.
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R/CR.A/811/2019 ORDER
"137. The Legislative intentment behind Articles 114 & 115 (b) of the Limitation Act in prescribing the period of limitation for appeals to the High Court or to the Court of Session against different type of orders, is the best guiding factor to determine reasonableness of the period of limitation for an appeal preferable at the instant of a 'victim' also. It would, therefore, be reasonable to view that for appeal against acquittal filed by a 'victim' to the High Court the period of limitation would be 90 days and where such appeal lies to the Sessions Court such period shall be 60 days. For appeal against any other order, the reasonable period would be 60 days to the High Court and 30 days for appeals to the Sessions Court from the orders passed by the Magistrate, as the case may be. To be more specific, the period of limitation for the purpose of filing appeal (s) by a victim shall be as under:-
(a) In case of acquittal -
(i) Where appeal lies 90 days Date of order
to the High Court appealed against.
(ii) Where appeal lies 60 days Date of order
to any other Court appealed against.
(b) Any other sentence or order -
(i) to the High Court 60 days The date of sentence
or order.
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R/CR.A/811/2019 ORDER
(ii) to any other court 30 days The date of sentence
or order.
"138. The limitation period of ninety, sixty and thirty days, as the case may be, prescribed above for the maintainability of an appeal by a victim, in our considered view, ought to be counted from the date such 'victim' acquires knowledge of the order appealable under proviso to Section 372. We say so for the reason that in most of the State cases, the 'victim' has no participatory role at the trial stage and the possibility of his/her remaining in the dark about the adverse order cannot be lightly brushed aside. The above rule of limitation, therefore, cannot be mechanically enforced even if the victim had no informed knowledge regarding culmination of the trial proceedings as it might cause serious prejudice to his/her rights, close to the extent of snatching away the right to appeal earned by the victims after a long drawn battle."
"Question (G) (ix) Subject to the exception carved out in para 138 of this order, the period of limitation for an appeal by a 'victim' under proviso to Section 372 of the Code shall be as under:-
(a) In case of acquittal - (i) Where appeal lies 90 days Date of order to the High Court appealed against. Page 63 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER (ii) Where appeal lies 60 days Date of order to any other Court appealed against. (b) Any other sentence or order - (i) to the High Court 60 days The date of sentence or order. (ii) to any other court 30 days The date of sentence or order.
Upon perusal of the reasons above, recorded by the Full Bench of Punjab & Haryana High Court, we respectfully agree with the above reasons, except for the reasons in paras 137 and 138 read with answer to Question [G} as above.
13. As is clear from the above discussion, there is no provision of limitation for filing of an appeal by the victim under proviso to Section 372 of the Code and Article 114 is silent. In other words, simultaneously, there is no amendment made to Article 114 of the Limitation Act for providing limitation to such appeals under Section 372, Criminal Procedure Code. But then the Full Bench of the Punjab & Haryana High Court has prescribed the limitation as provided in Article 114 of the Limitation Act in para 138, and has also further held that the date of acquisition of knowledge by the victim of the order of acquittal which could be a disputed question to be appealed against should be the commencement of limitation.Page 64 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019
R/CR.A/811/2019 ORDER In our humble opinion, and with respect to the Full Bench of the Punjab & Haryana High Court providing for the limitation for filing of an appeal against acquittal does not fall within the realm of the judicial function. It is for the Legislature to provide for limitation under Article 114 when the occasion has arisen as a result of insertion of proviso to Section 372 with effect from December 31, 2009. Till then, the settled principle that such appeals must be filed within a reasonable time should hold the field. In that view of the matter, the only way out for us is to make a recommendation to the Law Commission through the Ministry of Law & Justice to consider amendment to Article 114 of the Limitation Act for providing for limitation in relation to the appeals to be filed under the proviso to Section 372, Criminal Procedure Code. Further, the appellate Court has always a power to consider the reason about the date of knowledge of the order appealable by the victim as sufficient cause for condoning the delay in filing the appeal. With respect, it would not be be appropriate to hold that the limitation should be counted from the date of knowledge acquired by the victim without the same being projected as a reason to condone the delay."
26. Having regard to the position of law as discussed aforesaid, we are of the view that this being an appeal at the instance of the victim seeking adequate compensation, the period of limitation to prefer such appeal would be 60 days from the date of the order appealed against in view of clause (b) of Article 115 of the Limitation Act. We are also of the view that there need not be Page 65 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019 R/CR.A/811/2019 ORDER any separate application seeking condonation of delay in such type of matters but, at the same time, the appellant owes an obligation to explain the circumstances in which he was not in a position to prefer the appeal within the reasonable period, i.e. 60 days. The appellant needs to explain as to why he could not file the appeal within the reasonable period by filing an appropriate affidavit.
27. It shall be open for the appellant in the present case to file an appropriate affidavit, explaining why he could not file the appeal within the reasonable period.
28. Our final conclusion is as under :
(A) If an appeal is preferred by a victim or a complainant under Section 372 of the Code before the High Court against an order of acquittal, the same needs to be filed within 90 days from the date of the order appealed against.
(B) If an appeal is preferred by a victim or a complainant under Section 372 of the Code before the High Court against any other sentence or order, the same needs to be filed within 60 days from the date of the order appealed against.
(C) If an appeal is preferred by a victim or a complainant under Section 372 of the Code before any other court, i.e. other than the High Court, against an order of acquittal, the same needs to be filed within 60 days from the date of the order appealed against.Page 66 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019
R/CR.A/811/2019 ORDER (D) If an appeal is preferred by a victim or a complainant under Section 372 of the Code before any other court, i.e. other than the High Court, against any other sentence or order, the same needs to be filed within 30 days from the date of the order appealed against.
29. The registry of this Court is directed to take note of this order that as and when any appeal is preferred under Section 372 of the Code, either by the victim or by the complainant, if they find that the appeal has not been preferred within 90 days or 60 days, as the case may be, then the registry shall not insist that the appellant should prefer an appropriate application seeking condonation of delay. The registry shall ask the appellant to place on record an appropriate affidavit explaining as to why he could not prefer the appeal within the reasonable period.
30. Post this matter on 17th June 2019. In the mean time, the appellant shall place on record his affidavit explaining why he could not prefer the present Appeal within the reasonable period.
(J. B. PARDIWALA,J.) (A. C. RAO,J.) /MOINUDDIN Page 67 of 67 Downloaded on : Mon Jun 24 23:20:53 IST 2019