Rajasthan High Court - Jodhpur
Unknown vs Sb Enterprises & Ors on 2 December, 2014
Bench: Govind Mathur, Prakash Gupta
-1-
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.
O R D E R
(1) D.B. Criminal Revision Petition No.411/2012
(Dhanne Singh v. State of Rajasthan)
(2) D.B. Criminal Revision Petition No.145/2013
(Shyam Singh Tak v. Sandeep Mantri)
Date of Order :: 2nd December, 2014
P R E S E N T
HON'BLE MR.JUSTICE GOVIND MATHUR
HON'BLE MR.JUSTICE PRAKASH GUPTA
Mr. Pradeep Shah]
Mr. M.S.Singhvi ] for the petitioners.
Mr. J.P.Bhardwaj, Public Prosecutor for the State.
Mr. M.L.Bishnoi, for the respondent.
....
BY THE COURT : (PER HON'BLE GOVIND MATHUR,J.)
Noticing conflicting views of different Benches of this Court a Single Bench by order dated 27.4.2013 referred the following question for its adjudication by a Larger Bench :-
"In a case instituted upon a complaint, whether the complainant is entitled to challenge the judgment of acquittal of the accused recorded by a Magistrate by filing an appeal before the Sessions Court under the proviso to Section 372 Cr.P.C. or that such acquittal can be assailed only by bringing a special leave to appeal application to the High Court under Section 378(4) Cr.P.C.?"-2-
Shri Pradeep Shah, learned counsel appearing on behalf of petitioner Shri Dhanne Singh submits that a plain reading of sub-section (4) of Section 378 Code of Criminal Procedure indicates that in a case instituted upon a complaint, the right to appeal is subject to grant of special leave by the High Court. It is asserted that as per proviso to Section 372 Code of Criminal Procedure, the remedy of appeal is available only to the 'victim' and not to the 'complainant' of a complaint case. To substantiate the submission, he has placed reliance upon several judgments including a judgment of Hon'ble Supreme Court rendered in Subhash Chand v. State (Delhi Administration), reported in (2013)2 SCC 17.
Learned Public Prosecutor Shri J.P.Bhardwaj has also supported the argument advanced by Shri Pradeep Shah.
Heard learned counsels.
Section 378 of the Code of Criminal Procedure pertains to appeal in a case of acquittal. As per sub-
section (4) of the section aforesaid, if an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
By Amendment Act No.5 of 2009 vide Section 29thereof a proviso to Section 372 Code of Criminal Procedure was added providing a right to appeal to the victim against -3- any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal lies to the Court to which an appeal ordinarily lies against the order of conviction of such court. It is important to notice that the remedy provided under sub-section (4) of Section 378 Code of Criminal Procedure is to a 'complainant' in a complaint case and under proviso to Section 372 Code of Criminal Procedure, it is for a 'victim'.
The term 'victim' is defined under Section 2(wa) of the Code of Criminal Procedure, that reads as under:-
"2(wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir".
The definition of 'complaint' as prescribed under Section 2(d) of the Code of Criminal Procedure, that reads as follows :-
"2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report".
The term 'complainant' has not been defined under the Code of Criminal Procedure but so far as its general meaning is concerned, it can very well be said that a -4- complainant is a person who makes 'complaint' as defined under Section 2(d) of the Code of Criminal Procedure. A 'complainant' in a complaint case may be 'victim' and may not be. On the other hand, 'victim' is a person who suffers loss or injury and he may brought the fact about commission of crime by way of submitting a 'complaint' or by submitting a first information report before the competent officer-in-
charge of a police station or any other person then the 'victim' may also lodge complaint or first information report on his behalf. The 'victim' as a matter of fact is the person who actually suffers loss or injury as a consequent to the crime, whereas the 'complainant' is not necessarily be a person who suffers loss or injury. Under proviso to Section 372 of the Code of Criminal Procedure a right to appeal is given to the actual sufferer and not to mere complainant. The legislature in view of the difference between a 'victim' and a 'complainant' in a complaint case considered it appropriate to provide a remedy of appeal to a 'victim', but such a right has not been extended to a 'complainant' in a complaint case.
A Full Bench of Punjab and Haryana High Court considered the entire issue in question in detail in M/s.
Tata Steel Ltd. v. M/s. Atma Tube Products Ltd. & Ors., decided on 18.3.2013 [CRM-790-MA-2010(O&M)], reported in 2013(2) RCR (Criminal) 1005 and arrived at a conclusion as under:-
"(i) The expression "victim" as defined in Section 2(wa) includes all categories of his/her legal heirs for the purpose of engaging an advocate under Section 24(8) -5- or to prefer an appeal under proviso to Section 372 of the Code.
(ii) However, legal heirs comprising only the wife, husband, parent and child of a deceased victim are entitled to payment of compensation under Section 357(1)(c) of the Code. Similarly, only those dependents of a deceased victim who have suffered loss or injury as a result of the crime and require rehabilitation, are eligible to seek compensation as per the Scheme formulated under Section 357-A of the Code.
(iii) The 'complainant' in a complaint-
case who is also a 'victim' and the 'victim' other than a 'complainant' in such case, shall have remedy of appeal against acquittal under Section 378(4) only, except where he/she succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser offence or imposition of an inadequate compensation, for which he/she shall be entitled to avail the remedy of appeal under proviso to Section 372 of the Code.
(iv) The 'victim', who is not the complainant in a private complaint-case, is not entitled to prefer appeal against acquittal under proviso to Section 372 and his/her right to appeal, if any, continues to be governed by the un-amended provisions read with Section 378 (4) of the Code.
(v) those 'victims' of complaint-cases whose right to appeal have been recognized under proviso to Section 372, are not required to seek 'leave' or 'special leave' -6- to appeal from the High Court in the manner contemplated under Section 378(3) & (4) of the Code.
(vi) The right conferred on a 'victim' to present appeal under proviso to Section 372 is a substantive and independent right which is neither inferior to nor contingent upon the filing of appeal by the State in that case. Resultantly, the condition of seeking 'leave to appeal' or 'special leave to appeal' as contained in Section 378(3) & (4) cannot be imposed for the maintainability of appeal by a 'victim' under proviso to Section 372 of the Code."
The reasons given to arrive at the conclusions aforesaid by Full Bench of Hon'ble Punjab and Haryana High Court are as follows:-
"71. Section 378 of the Code provides the remedy of appeal against acquittal of an accused. Its sub-Section (1) authorises the District Magistrate or the State Government, as the case may be, to present an appeal to the Court of Session or the High Court against the order of acquittal passed by a Magistrate or the Court of Session, respectively. The Central Government can also present such appeal under sub-Section (2) in a case in which the offence has been investigated by CBI or any other central agency. Sub-section (3), however, puts a caveat that no appeal under sub-Sections (1) & (2) can be presented to the High Court without its 'leave'. Sub- Section (4) provides that if an order of acquittal is passed in a case instituted upon the complaint, the 'complainant' can present an appeal to the High Court against -7- such acquittal only if the High Court grants 'special leave' to appeal. The Legislature has thus prescribed different conditions for the maintainability of appeal against order of acquittal passed in a 'police-case' vis-à-vis a 'complaint- case' i.e. a case instituted upon a private complaint. No appeal against acquittal in a complaint-case is maintainable to the Court of Session and for an appeal to High Court, the State or Central Government are required to obtain 'leave' of the High Court as mandated by Section 378(3) and if such an appeal is presented by the complainant, he/she is required to seek 'special leave' of the High Court under Section 378(4).
72. It was vehemently urged that only that 'victim' of a crime who is invariably not rescued by the State machinery and whose complaint is not even registered as FIR (in other than non-cognizable offences), approaches the Judicial Magistrate under Section 200 of the Code by way of a private complaint hence the intensity of his/her 'victimisation' is much more than that of the 'victim' of a police-case, therefore, both the victims should be treated indiscriminately for the purpose of appeal under proviso to Section 372, more-so when sub-Section (4) of Section 378 restricts the right to present appeal only against an order of acquittal. It was also advanced that the Legislature has drawn no distinction between the 'victim' of a police case or that of a complaint case in Section 2(wa) or proviso to Section 372 of the Code.
73. The High Courts are at variance in opining on the aforesaid issue. Some have -8- viewed that the 'victim' under Section 2 (wa) is all inclusive and covers victim in a complaint-case also. Reference in this regard may be made to (i) a Single Bench decision of this Court in Mrs. Era Rani Shubh vs. SB Enterprises & Ors., 2012 (2) RCR (Crl.) 522 ; (ii) order dated 01.05.2012 in Ram Avtar Gupta vs. Ravinder Kumar, Crl. Leave to Appeal No. 230 of 2011, passed by a learned Single Judge of the High Court of Judicature for Rajasthan at Jodhpur; and (iii) of Allahabad High Court dated 30.03.2012 passed in Ashok Kumar Srivastava vs. State of UP & Anr., Application under Section 482 CrPC No.5934 of 2012. Contrary to it, (i) Madhya Pradesh High Court in Dharamveer Singh Tomar vs. Ram Raj Singh Tomar, 2011 (3) RCR (Crl.) 607 ; (ii) Bombay High Court in Shanta Ram vs. Deepak, 2012 (2) MHLJ 398 as well as in
(iii) Balasaheb Rangnath Khade vs. State of Maharashtra & Ors., (2012) Bom CR (Crl.) 632 have held that a complainant, even if he/she is the 'victim', would not fall under the proviso to Section 372 since the appeal to be filed by such victim has been separately contemplated under Section 378 (4) of the Code. Uttrakhand High Court in Special Leave to Appeal in Criminal Appeal No. 139 of 2011, Bhagwan Singh v. State of Uttrakhand and another, in its order dated 13.12.2011 viewed that a case of acquittal in a complaint case for non-cognizable and bailable offence falls in clause (b) of sub-Section (1) of Section 378, hence the victim (who was the complainant in a private complaint) could file appeal under proviso to Section 372 to the High Court but with the leave to appeal by the High Court.-9-
74. There is yet a third stand of judicial opinion as well on the issue. The Andhra Pradesh High Court in G. Baswaraj's case, has held that the 'victim' in a complaint case has a right to avail his remedy either under Section 372 or Section 378(4) and it is the prerogative of such victim-cum- complainant as to which remedy he wants to avail. That was a matter arising out of the appeal filed by the complainant in a private complaint under the Negotiable Instruments Act, 1881.
75. There are not one but more than a hundred Legislations other than the IPC where the 'victim' and the 'complainant' are two separate entities. The socio- economic Legislations such as (a) Payment of Wages Act; (b) Payment of Gratuity Act;
(c) Payment of Bonus Act; (d) Inter-State Migrant Workmen Act; (e) Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act etc. are a few of the ones where the 'complainant' can only be a designated Government official though the 'victim' of violation of these Statutes would either be a workman or a person belonging to the marginalized section of society. The second set of Legislations, being quoted on illustrative basis, are (a) Equal Remuneration Act, 1976; (b) Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994; (c) Transplantation of Human Organs and Tissues Act, 1994; and
(d) Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992 whereunder besides the designated Government official a social and voluntary organization is also authorized to institute complaint though the 'victim' is -10- essentially other than the 'complainant'. What would be the status or locus of a 'complainant' or of the 'victim' in such like cases for the purpose of presenting an appeal under proviso to Section 372 or Section 378(4) of the Code is yet another question that has been raised by the petitioners.
76. We are not oblivious of yet another category comprising 'victimless' crimes, where the act which violates the law of the land does constitute an 'offence' but there is no visible 'victim' of the crime though such like crimes have depraving effects on the societal morals and values. Such an offence includes situations where an individual acts alone or there are consensual acts of more than one participants. This is, however, not an issue raised before us and need not be further alluded.
77. A part of the uncertainty, however, has been set at rest by the Hon'ble Supreme Court in a recent decision in Subhash Chand vs. State (Delhi) Administration, (2013) 2 SCC 17, where on an interpretation of Section 378 of the Code, with special reference to its sub-Section (1) (a) & (b), it has been held that there is no distinction in a complaint-case whether such complaint is filed by a 'private person' or a 'public servant' and an appeal against the acquittal in every single complaint-case shall lie under Section 378 (4) after seeking 'special leave' of the High Court and even if the acquittal order is passed by a Magistrate in a complaint filed by a public servant or the State Government, no appeal shall lie to the Court of Session under Section 378(1)(a) of -11- the Code. The question of status of such complainant as a 'victim' or his consequential right to prefer an appeal under proviso to Section 372 of the Code, however, was not the subject matter of consideration in that case.
78. The expression "complainant" is not defined in the Code though its Section 2(d) defines "complaint" to mean "any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report". A person, other than the informant in a police-case, who makes the allegation orally or in writing to the Magistrate is a 'complainant' within the meaning of Section 378(4) of the Code. The words "victim" and "complainant" have been thus used and construed in the Code differently and distinctly. Also a 'victim' can be the 'complainant' but it may not be necessarily that every 'complainant' is a 'victim'.
79. Section 378(4) of the Code enables a complainant to prefer appeal against acquittal of the accused provided that the High Court grants 'special leave' to such appeal. The Legislature has imposed stringent condition on the maintainability of appeal against an order of acquittal in a complaint-case, for the acquittal by the trial court reinforces the presumption of innocence in favour of the accused who has earned acquittal in a case where the complainant himself/herself was the prosecutor unlike the 'victim' in a police- case who does not have any say in the trial. Such being the legislative intentment, there cannot be any scope to -12- doubt that the 'complainant' of Section 378 (4) who has failed to establish the complicity can assail such acquittal only with the 'special leave' of the High Court under Section 378(4) only. The fact that the Legislature has brought no changes in this sub-Section fortifies its policy to retain the same legal position as it existed before the Amendment Act, 2008.
80. However, if such a 'victim-cum- complainant' succeeds in bringing the guilt home against the accused and establishes his/her 'victimisation' but is aggrieved at the conviction for a lesser offence or imposition of inadequate compensation, he/she shall be entitled to invoke the proviso to Section 372 of the Code. We say so for the reason that in such a case the accused no longer enjoys the protection of presumed innocence. The proven 'victim' also has no other remedy to assail the conviction for a lesser offence or imposition of inadequate compensation except the proviso to Section 372. Any different construction would discriminately leave his/her wrong without a remedy. The victims at post-conviction stage constitute one homogenous class and deserve to be treated alike. In such like cases decided by a Magistrate, even the accused has remedy to file appeal to the Sessions court under Section 374(3) of the Code.
81. It may be noted here that the Code postulates different procedures for conducting Magisterial or Sessions trials in complaint-cases. In a Magisterial trial, it is the complainant who follows the accusatorial procedure without getting any assistance from the Public Prosecutor. However, if the complaint pertains to an -13- offence triable exclusively by the Court of Session, after such complaint-case is committed by the Magistrate to the Court of Session under Section 209 of the Code, the Public Prosecutor shall open the case and conduct the trial as provided by Sections 225 and 226. The procedural advantage available to a complainant in the complaint-case triable by the Court of Session, is also inconsequential to take a view different from what has been held above, for in such like cases also the Public Prosecutor will have to bank upon the same set of evidence which the complainant had produced at his own before the Magistrate at the pre-committal stage.
82. What will happen if the 'victim' in a complaint-case is different from the 'complainant' or where such 'victim' cannot otherwise be a 'complainant' due to statutory embargo against the filing of the complaint by some one other than the designated authority of State? Would he/she be entitled to file an appeal under proviso to Section 372 or should he/she be clubbed together with the complainant under Section 378(4) of the Code? We are of the view that the 'victim' in complaint-cases cannot have a remedy superior to that of the complainant of such case and since the Apex Court in the latest decision in Subhash Chand's case (supra) has held that the complainant's remedy, whether he is a private person or a public servant, to question the acquittal lies only in Section 378(4) of the Code, hence the 'victim' will also have to be relegated to that conditional remedy only. Similarly, where a 'victim' is competent to institute a private complaint but permits or consents expressly or implicitly to the filing of -14- such complaint by his family-members, near and dears or an acquaintance, the 'victim' and 'complainant' in such a case cannot be seen differently and would be inseparable, hence the 'victim' will also fall back on Section 378(4) only which specifically refers to filing of appeals against acquittal at the instance of complainant and not under proviso to Section 372 of the Code which has been pre-dominantly incorporated to provide right to appeal to the 'victims' in police-case who are not permitted to participate or have any say during trial.
83. The above discussion thus can be summed up to say that-
(i) the 'complainant' in a complaint-case who is a 'victim' also, shall continue to avail the remedy of appeal against acquittal under Section 378(4) only except where he/she succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser offence or imposition of an inadequate compensation, for which he/she shall be entitled to avail the remedy of appeal under proviso to Section 372;
(ii) the 'victim', who is not the complainant in a private complaint-case, is not entitled to prefer appeal against acquittal under proviso to Section 372 and his/her right to appeal, if any, continues to be governed by the un-amended provisions read with Section 378 (4) of the Code;
(iii) the Legislature has given no separate entity to a 'victim' in the complaint-case filed by a public servant under a special Statute and the appeal against acquittal in -15- such a case can also be availed by the 'complainant' of that case under Section 378(4) of the Code only.
(iv) those 'victims' of complaint-cases whose right to appeal have been recognized under proviso to Section 372, are not required to seek 'leave' or 'special leave' to appeal from the High Court in the manner contemplated under Section 378(3) & (4), for the Legislature while enacting proviso to Section 372 has prescribed no such fetter nor has it applied the same language used for appeals against acquittals while enacting sub-Section (3) & (4) of Section 378 of the Code."
We are in absolute agreement with the reasons given and the findings arrived by Hon'ble Punjab and Haryana High Court. While accepting the same, the question referred is answered in the terms that -
(i) The 'complainant' in a complaint-case who is also a 'victim' and the 'victim' other than a 'complainant' in such case, shall have remedy of appeal against acquittal under Section 378(4) only, except where he/she succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser offence or imposition of an inadequate compensation, for which he/she shall be entitled to avail the remedy of appeal under proviso to Section 372 of the Code.
(ii) The 'victim', who is not the complainant in a private complaint-case, is not entitled to prefer appeal against acquittal under proviso to Section 372 and -16- his/her right to appeal, if any, continues to be governed by the un-amended provisions read with Section 378 (4) of the Code.
(iii) those 'victims' of complaint-cases whose right to appeal have been recognized under proviso to Section 372, are not required to seek 'leave' or 'special leave' to appeal from the High Court in the manner contemplated under Section 378(3) & (4) of the Code.
(iv) The right conferred on a 'victim' to present appeal under proviso to Section 372 is a substantive and independent right which is neither inferior nor contingent upon the filing of appeal by the State in that case. Resultantly, the condition of seeking 'leave to appeal' or 'special leave to appeal' as contained in Section 378(3) & (4) cannot be imposed for the maintainability of appeal by a 'victim' under proviso to Section 372 of the Code."
Let the revision petitions be placed before learned Single Bench for appropriate proceedings.
(PRAKASH GUPTA),J. (GOVIND MATHUR),J.
kkm/ps.