Allahabad High Court
Prithvi Singh vs State Of U.P. And Others on 21 April, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved In Chamber Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 329 of 2012 Applicant :- Prithvi Singh Opposite Party :- State of U.P. and Others Counsel for Applicant :- Rajul Bhargava Counsel for Opposite Party :- Govt. Advocate Hon'ble Vivek Kumar Birla,J.
Hon'ble Subhash Vidyarthi,J.
(Delivered by Hon'ble V.K. Birla,J.)
1. This appeal has been filed against the order dated 7.7.2012 passed by the Additional Sessions Judge, Court No. 5, Hathras acquitting the respondent nos. 2 and 3 in Session Trial No. 81 of 2002 (State vs. Bhoop Singh and others) arising out of Case Crime No. 185 of 1994, under Sections 302/34 IPC, Police Station Sadabad, District Hathras.
2. Present appeal has been filed under Section 372 Cr.P.C. with an application to grant leave to appeal, which according to the judgment of Hon'ble Apex Court is not required for the purpose of filing appeal against acquittal by the victim under Section 372 Cr.P.C.
3. On 31.5.2017, as learned counsel for the appellant had been elevated as Judge of this Court (since retired), notice was issued to the appellant-Prithvi Singh through Chief Judicial Magistrate, Hathras to engage another counsel returnable within four weeks. The compliance report dated 26.6.2017 submitted by the CJM, Hathras and the office report dated 25.7.2017 indicates that the appellant is dead. His death certificate issued on 9.6.2017 indicating that he died on 1.12.2015 has also been annexed with the compliance report.
4. No one has come forward to claim that he shall be prosecuting this appeal. Under such circumstances, the question that arises in the present case is as to whether the appeal filed under Section 372 Cr.P.C. by the victim as per proviso as inserted by the Code of Criminal Procedure (Amendment Act No. 5 of 2019) Section 29 dated 31.12.2009 would abate on the death of the appellant or not in view of the provisions of Section 394 (2) Cr.P.C., which provides that every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant.
5. Before proceeding further it would be beneficial to extract relevant provisions, which are as under:-
"The Code of Criminal Procedure, 1898 (Act V of 1898). (The amended provisions of Cr.P.C. as existing prior to coming into force of Code of Criminal Procedure, 1973) Part VII Of Appeal, Reference and Revision Chapter XXXI
404. Unless otherwise provided, no appeal to lie- No appeal shall lie from any judgment or order of a Criminal Court except as provided for this Code or by any other law for the time being in force.
417. Appeal on behalf of Government in case of acquittal- The Local Government may direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.
431. Abatement of appeals- Every appeal under section 417 shall finally abate on the death of the accused, and every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant.
(emphasis supplied) Criminal Procedure Code (Act V of 1898) (As Amended by Act (XXVI of 1955)
417. Appeal in case of acquittal- (1) Subject to the provisions of sub-section (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Established constituted under the Delhi Special Police Establishment Act, 1946 (XXXV of 1946), the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal.
(3) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(4) No application under sub-section (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal.
(5) If, in any case, the application under sub-section (3) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1).
(emphasis supplied) The Code of Criminal Procedure (Amendment) Act, 2008 [Act 5 of 2009] 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 sometime. The law Commission has undertaken a comprehensive review of the Code of Criminal Procedure in its 154th report and its recommendations have been found very appropriate, particularly those relating to provisions concerning arrest, custody and remand, procedure for summons and warrant-cases, compounding of offences, victimology, special protection in respect of women and inquiry and trial of persons of unsound mind. Also, as per the Law Commission's 177th report relating to arrest, it has been found necessary to revise the law to maintain a balance between the liberty of the citizens and the society's interest in maintenance of peace as well as law and order.
2. The need has also been felt to include measures for preventing the growing tendency of witnesses being induced or threatened to turn hostile by the accused parties who are influent, 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. To expedite the trial of minor offences, definition of warrant-case and summons-case are to be changed so that more cases can be disposed of in a summary manner.
3. The Code of Criminal Procedure (Amendment) Bill, 2006 seeks to achieve the above objectives."
(emphasis supplied) The Code of Criminal Procedure, 1973 "372. No appeal to lie unless otherwise provided.--No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:
[Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.] (added by Act No. 5 of 2009)
378. Appeal in case of acquittal.--4[(1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5),--
(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.] (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, 5[the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal--
(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision].
(3) [No appeal to the High Court] under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.
(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
(6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2).
394. Abatement of appeals.--(1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused.
(2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant:
Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate.
Explanation.--In this section, "near relative" means a parent, spouse, lineal descendant, brother or sister."
(emphasis supplied)
6. Insofar as the law on the issue regarding abatement of such appeal against acquittal is concerned, as back in the year 1971 in Khedu Mohton and others vs. State of Bihar 1971 AIR 66 SC Hon'ble Supreme Court held as under:-
"7. In view of our above conclusion, it is unnecessary for us to consider the question of law canvassed by Mr. E. C. A- agarwal, learned Counsel for the appellant. But as the same has been argued we shall go into it. The appeal before the High Court was brought after obtaining special leave under sub-s. (3) of s. 417, Cr.P.C. It appears that during the pendency of the appeal, the complainant died. It was contended before the High Court and that contention was repeated before us that the appeal abated in view of the death of the complainant. This contention was rejected by the High Court. In support of that contention, Counsel for the appellant relied on two decisions one of Allahabad High Court in Nehal Ahmad v. Ramji and the other of Madras High Court in Thothan and anr. v. Murugan and ors., A.I.R. 1958 Mad 624. The first decision has no application to the facts of the present case. That was an appeal under S. 476 (B) of the, Cr. P.C. It is true that the Madras decision was rendered in an appeal under s. 417(3) of the Cr. P.C. In our opinion, the learned single judge of the Madras High Court erred in thinking that the decision of the Allahabad High Court lent any support to his conclusion that an appeal filed under S. 417(3), Cr. P.C. abates on the death of the complainant. The question of abatement of criminal appeals is dealt with by s. 431 of Criminal Procedure Code. That section reads "Every appeal under S. 41 1 A, sub-s. 1 ) or s. 417 shall finally abate on the death of the accused and every other appeal under this Chapter (except an appeal from a sentence of fine) shall abate on the death of the appel- lant."
8. From this section it is clear that an appeal under s. 417 can only abate on the death of the accused and not otherwise. Once an appeal against an acquittal is entertained by the High Court, it becomes the duty of the High Court to decide the same irrespective of the fact the appellant either does not choose to prosecute it or is unable to prosecute it for one reason or the other. The argument that while introducing sub-s. (3) to s. 417, Cr. P.C., the Parliament overlooked the provisions. contained in s. 43 1, does not deserve consideration. The language of s. 431 is plain and unambiguous. Therefore no question of interpretation of that provision arises."
(emphasis supplied)
7. Punjab and Haryana High Court in Avtar Singh Dhesi vs. Ajaib Singh (Jabba) 2015 SCC Online P & H 10017 decided on 12.5.2015 taking a different view of the matter, although taking note of the judgment of Hon'ble Apex Court in Khedu Mohton (supra), held that the appeal would abate. The aforesaid judgment dated 12.5.2015 is quoted as under:-
"The present appeal against the judgment dated 11.11.2014 was preferred by the complainant on whose complaint a First Information Report No.20 dated 05.03.2008 for the offences under Section 364, 342, 384, 506, 323, 148, 149 of Indian Penal Code was lodged. After the filing of appeal, the complainant died even before the appeal came up for motion hearing. Admittedly, no legal heir has come forward to continue with the present appeal.
2. Learned counsel for the appellant argues that even in the absence of any legal heir, this Court is bound to decide appeal on merits as the provisions of Section 394 of Criminal Procedure Code 1973 (for short 'Code'), deals with abatement of appeals only on account of death of accused. Since there is no provision for abatement of appeal filed on behalf of the complainant, therefore, the appeal is bound to be heard and decided on merits. He relies upon an order passed by the Hon'ble Supreme Court in a judgment reported as AIR 1971 SC 66 titled Khedu Mohton and others v. State of Bihar and GULATI DIWAKER 2015.05.14 14:26 I attest to the accuracy and authenticity of this document order passed by a Division Bench of this Court reported as 1963 PLR 191 titled Dr. Megh Raj v. Shri Joginder Singh and others.
3. We have heard learned counsel for the appellant and find no merit in the said argument. Section 394 of the Code reads as under:-
"394. Abatement of appeals. (1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused.
(2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant:
Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate."
4. Sub-Section (1) of Section 394 of the Code deals with an appeal filed under Section 377 and 378 of Code i.e. appeal by the State against conviction and sentence and appeal in the case of acquittal. Such appeal would abate on the death of the accused. Whereas sub-Section (2) contemplates that all other appeals shall abate on the death of the appellant. Since the State has continuous existence, it is bound to prosecute an appeal filed. Thus, such an appeal would abate only on death of the accused.
5. But all other appeals i.e. other than the appeals preferred by the State under Section 377 or 378 of the Code would abate on the death of appellant in terms of sub-Section (2) of Section 394 of Code.
6. The judgments referred to by learned counsel for the appellant are not applicable to the facts of the present case. In Khedu Mohton's case (supra), the appeal was preferred by the State against the acquittal; therefore, while interpreting Section 431 of Criminal Procedure Code, 1898 corresponding to Section 394 of the Code, it has been observed that the appeal would abate only on account of death of accused.
7. Similarly, in Dr. Megh Raj's case (supra), the complaint was filed by the appellant and resulted into acquittal of the respondents. During the pendency of the appeal, Dr. Megh Raj died. Considering Section 431 of Criminal Procedure Code, 1898, it was held that all appeals preferred by an accused person must abate on his death. So far as the appeals against acquittals are concerned, it is laid down that they must also abate if the accused dies but death of the appellant in an appeal against acquittal, however, would not affect the continuation of the appeal. The Court held that the appeal by the complainant is saved from abatement under Section 431 of Criminal Procedure Code, 1898.
8. We do not find that such judgment advances the argument raised by the appellant in view of sub-Section (2) of Section 394 of Code which provides that all other appeals shall abate on the death of the appellant Thus, the death of the appellant during the pendency of appeal will entail abatement of appeal.
9. Consequently, the present appeal stands abated."
(emphasis supplied)
8. Guahati High Court in the case on the death of Dhirendra Nath Das, his Lrs Malaya Das vs. State of Assam 2019 SCC Online Gua 5669 DB held that the appeal would not abate. Relevant paragraph 11 of the aforesaid judgment is quoted as under:-
"11. As the provision of section 394 of the Cr.P.C., 1973 is pari materia with that of section 431 of the Cr.PC. Of 1898, we are of the view that the same proposition of law as laid down by the Supreme Court would also be applicable in respect of the provisions of section 394, Cr.P.C. of 1973. Accordingly, we are unable to accept the contention of the accused-respondents that the accompanying appeal preferred by the victim under the proviso to section 372 of Cr.P.C. of 1973 stands abated on the death of the victim appellant."
(emphasis supplied)
9. Since the provisions of Cr.P.C. in respect of file appeal by victim have substantially changed and infact, the provisions of the relevant part of Cr.P.C. have already undergone substantial change since the decision of Hon'ble Apex Court in Khedu Mohton (supra), therefore, the question framed above would have to be considered in the light of existing provisions as provided under Code of Criminal Procedure, 1973 as amended in the year 2009 by Act No. 5 of 2009, whereby the proviso to Section 372 Cr.P.C. was added.
10. Before proceeding further it would be appropriate to take note of the principles of statutory interpretation as the decision of the question involved in the present case is directly dependant on the interpretation of the statutory provisions. For this purpose we have taken help of the book ''Principles of Statutory Interpretation' ''13th Edition, 2012' written by Justice G. P. Singh (Former Justice of M. P. High Court).
11. One of the main basic principles of interpretation is that if meaning of words of statute are plain, effect must be given to it irrespective of consequences.
12. In Nelson Motis vs. Union of India, AIR 1992 SC 1981 it has been observed that when the words of a statute are clear, plain or unambiguous, i.e., they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of consequences.
13. In Kanailal Sur vs. Paramnidhi Sadhu Khan, AIR 1957 SC 907 it was observed that if the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act.
14. In State of Uttar Pradesh vs. Vijay Anand Maharaj, AIR 1963 SC 946 it was held that when a language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises, for the Act speaks for itself.
15. It is also a guiding rule of interpretation that language of the statute should be read as it is.
16. In Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd vs. Custodian of Vested Forests, AIR 1990 SC 1747 it was observed that the intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said.
17. In Raghunath Rai Bareja vs. Punjab National Bank, (2007) 2 SCC 230 Supreme Court held that departure from the literal rule should be done only in very rare cases and ordinarily there should be judicial restraint in this connection.
18. Insofar as rule of ''regard to consequences' is concerned, the aforesaid book clearly provides that this rule has no application when the words are acceptable to only one meaning and no alternate construction is reasonably open. A reference may be made in this regard with citations noted above which provides that if meaning is plain, effect must be given to it irrespective of consequences.
19. In Shah Bhojraj Kuverji Oil Mills and Ginning Factory vs. Subhash Chandra Yograj Sinha, AIR 1961 SC 1596 it was observed that as a general rule, a ''proviso' is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a ''proviso' is not interpreted as stating a general rule.
20. However, in Chapter 3 of the aforesaid book at page 206 it has been observed that the insertion of a ''proviso' by the draftsman is not always strictly adhered to its legitimate use and at times a section worded as a ''proviso' may wholly or partly be in substance a fresh enactment adding to and not merely excepting something out of or qualifying what goes before. A large number of rulings, including the English Law, have been noted in support of the aforesaid observation. A reference in this regard may be made to one of such rulings, namely, Motiram Ghelabhai (deceased L.R.) vs. Jagan Nagar (deceased L.Rs.) and others, AIR 1985 SC 709.
21. Purposes of a ''proviso' were aptly summarised in Sundaram Pillai vs. Pattabiraman, (1985) 1 SCC 591, wherein it was observed that by and large a proviso may serve the following four different purposes:-
"(1) qualifying or excepting certain provisions from the main enactment;
(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;
(3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and (4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision."
(emphasis supplied)
22. However, it was observed in the aforesaid book that the above summary cannot, however, be taken as exhaustive and ultimately a ''proviso' like any other enactment ought to be construed upon its terms.
23. Insofar as the statutes regulating appeal are concerned, the law is well established that the right to file an appeal is a statutory right and it can be circumscribed by the conditions of the statute granting it. As was observed in Government of Andhra Pradesh vs. P. Laxmi Devi, (2008) 4 SCC 720 and Super Cassettes Industries Ltd. vs. State of U.P., (2009) 10 SCC 531, it is not a natural or inherent right and cannot be assumed to exist, unless provided by a statute.
24. Therefore, the scheme of right of appeal under Chapter XXXIX of the Criminal Procedure Code, which provides the right to file appeals including abatement of appeals, has to be understood on the basis of the above golden rules of statutory interpretation.
25. At this stage, we take note of the golden principle of interpretation that if the meaning of a word of a statute is plain, effect must be given to it irrespective of consequences. The law in this regard has already been discussed and it needs no repetition. The scheme of the right to appeal as provided in the Code of Criminal Procedure, is to be understood by going through the development of the right to appeal, beginning with the Code of Criminal Procedure, 1898 (hereinafter referred to as Cr.P.C. 1898). Part VII of Cr.P.C., 1898 provides for appeal, reference and revision. Chapter XXXI deals with the right to appeal. The provision under Section 404 of Cr.P.C. 1898 that no appeal shall lie from any judgment or order of a Criminal Court except as provided by this Code or by any other law for the time being in force, remained the same in the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C. 1973). Section 417 of Cr.P.C. 1898 provided that the local government may direct the public prosecutor to present an appeal before the High Court from an original or appellate order of acquittal passed by any court, other than the High Court. Nothing further was provided under Section 417 Cr.P.C. 1898. However, the heading was to the effect ''Appeal on behalf of Government in case of acquittal'. This clearly indicates that the intention was to provide right to file appeal only to the government and to no other person. This provision has undergone a change in Cr.P.C. 1973 and the same is now ''Appeal in case of acquittal'. Now, there is a detailed section divided into six sub-sections. Significantly, it is provided under sub-section (3) of Section 378 Cr.P.C. 1973 that 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. Sub-sections (1) and (2) have taken care of several agencies of the government. Significantly again, sub-section (4) of Section 378 of Cr.P.C. 1973 provides that if such an order of acquittal is passed in any case instituted upon a 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. It is significant to note that under sub-section (3) when an appeal is preferred, it has to accompanied by an application for grant of "leave to appeal", whereas under sub-section (4) the words "special leave to appeal" have been used, where the appeal is proposed to be filed by a complainant, which must be accompanied by an application made by the complainant for grant of such special leave to appeal. Sub-section (5) of section 378 of Cr.P.C. 1973, significantly again, has provided that no application under sub-section (4) for grant of ''special leave' to appeal filed by a public servant shall be entertained by the High Court after expiry of six months from the date of that order of acquittal and sixty days in every other case, meaning thereby right of a complainant to prefer appeal is made limited to the specified period. Clearly, a right to file an appeal has been created in favour of the complainant in Cr.P.C. 1973, however, a period of limitation has been provided. In fact, a longer period of limitation of six months has been provided, where the complainant is a public servant. This clearly shows that insofar as the provision regarding filing of appeal against acquittal is concerned, there is a significant change in Section 378 of Cr.P.C. 1973 in comparison to Section 417 of Cr.P.C. 1898, as it further draws a distinction between a complainant, who is a public servant and broadly speaking, a private complainant.
26. It is also clear that an appeal by the State, broadly speaking in sessions trial, where the case is being prosecuted by the State agencies, is distinct and different from the right to appeal created in favour of a complainant, be it by a public servant or by a private person or by any other agency.
27. Now on a comparison between Section 404 of Cr.P.C. 1898 and Section 372 of Cr.P.C. 1973, it is clear that the main provision is intact, insofar it provides that no appeal shall lie from any judgment or order of a criminal court, except as provided by this Code or by any other law for the time being in force. The significant development that has taken place in this provision is that a ''proviso' was added by the Amending Act No. 5 of 2009, which provides that ''the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction passed by such Court'.
28. Therefore, by the aforesaid provision a right has been created in favour of the victim, which was not existing earlier in the Code, that a victim shall have right to prefer an appeal against any order by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. If we have a glance over the statement of objects and reasons in paragraph 2, it is very much clear that while dealing with the right of the victims it has been noted that 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. This, by itself, is clear that the object of adding this proviso is to create a right in favour of the victim to prefer an appeal as a matter of right. It not only extends to challenge the order of acquittal but such appeal can also be filed by the victim if the accused is convicted for a lessor offence or if the inadequate compensation has been imposed.
29. It is, therefore, clear that as per the golden rule of interpretation, this ''proviso' is a substantive enactment and it is not merely excepting something out of, or qualifying what was excepting or goes before. Therefore, by adding the ''proviso' in Section 372 of Cr.P.C. 1973 by this amendment, a right has been created in favour of the victim.
30. At this stage, it would be appropriate to take note of the definition of ''victim' as inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009) by adding sub-section (wa) in Section 2, which provides that "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'.
31. It is also a settled law, as interpreted by the Supreme Court and various High Courts, that victim does not include each and every person or merely an informant, who has lodged a first information report and the term ''victim' has to be interpreted as per the definition noted above. We need not go deep into the same. Therefore, from a perusal of the scheme of the right to appeal against acquittal, as reflected from a reading of the above noted provisions, it is clear that initially the right to appeal was exclusively with the State Government and it was not available even to the complainant, even if a public servant was a complainant, leave alone a private individual or any other agency.
32. As has already been noticed, Section 417 of Cr.P.C. 1898 provided for appeal on behalf of the government in cases of acquittal and no other person was authorized to file appeal and that this provision has undergone a major change in Cr.P.C. 1973, Section 378 whereof provides for appeal in cases of acquittal. The term local government has been substituted with several individual agencies to which we are not concerned, however, this is to be noted that even the right of a public servant to file appeal, who is a complainant, has been made limited to be exercised within six months and private complainant can come forward with an application for grant of special leave to appeal from the order of acquittal, which has been limited to sixty days only. Therefore, clearly, the legislature was always conscious of the extent to which the right to appeal is to be provided to different agencies, where they appear in a different capacities.
33. It further appears that the word ''leave' and ''special leave' have been consciously used by the legislature in Section 378 of Cr.P.C. 1973 obviously with an intention that the grant of leave in a case of complaint should be more strict in nature and may require deeper scrutiny before any such leave to appeal is granted than the leave to appeal to be granted in sessions trial cases. Thus, the right to appeal is controlled differently when an appeal is filed under different provisions of the Code.
34. Now coming to the provisions regarding abatement of appeals, we may note that vide Section 431 of Cr.P.C. it was provided that every appeal under Section 417 (appeal on behalf of government in case of acquittal) shall finally abate on the death of the accused and every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. This provision has also undergone a substantial change in Cr.P.C. 1973. Sub-section (1) of Section 394 of Cr.P.C. 1973 provides that every appeal under Section 377 or Section 388 shall finally abate on the death of the accused.
35. We are not concerned with Section 377 for the purpose of the present controversy, as Section 377 relates to ''appeal by the State Government against sentence' and is not related to the appeals in cases of acquittal.
36. As we have already noticed that Section 378 of Cr.P.C., 1973 has undergone a major change, which provides ''appeal in case of acquittal' in comparison to Section 417 of Cr.P.C., 1898, which provides ''appeal on behalf of Government in case of acquittal'. The distinction has already been taken note of in the preceding paragraphs.
37. The second part of Section 431 of Cr.P.C. 1898, broadly speaking, has now been changed as significantly a ''proviso' has been added in sub-section (2) and an explanation has also been added to the entire Section 394 of Cr.P.C. 1973. We may take note of the ''proviso' to Section 394 Cr.P.C. once again, which provides that ''where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate'. The explanation to Section 394 provides that in this section ''near relative' means a parent, spouse, lineal descendant, brother or sister. In the ''proviso' added to sub-section (2) in Section 394 of Cr.P.C. 1973 it is important to note that it is in respect of an appeal against conviction and sentence of death or of imprisonment and not in respect of an appeal against acquittal. It further provides that if the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days from the death of the appellant, apply to the appellate court for leave to continue the appeal and if leave is granted, the appeal shall not abate. Thus, clearly this proviso to sub-section (2) of Section 394 Cr.P.C. 1973, is only in respect of appeal against conviction and sentence of death or of imprisonment and only near relatives as provided in the explanation, may apply for leave to continue the appeal within thirty days from the death of the appellant, and if leave is granted, the appeal shall not abate. Why this provision was added has been taken note of by the Supreme Court in Jugal Kishore Khetawat vs. State of West Bengal (2011) 11 SCC 502 wherein it was held that this is to provide a machinery whereby the children or the members of the family of a convicted person who dies during the appeal, could challenge the conviction and get rid of the odium attaching to the family due to such conviction. Paragraph 7 of the aforesaid judgment is quoted as under:-
"7. Such a proviso has been added in the following circumstances: An amendment to Section 431 was suggested in the Bill introduced in the Parliament by a private Member, Shri K.V. Raghunatha Reddy. The main object of the amendment was to provide a machinery whereby the children or the members of the family of a convicted person who dies during the appeal could challenge the conviction and get rid of the odium attaching to the family as a result of the conviction. The Law Commission of India by its Forty-First Report (September 1969, Vol. I, pp. 279-81) found the proposed amendment "eminently sound" and recommended that the amendment be made with certain modifications. Accordingly Section 394 of the Code of Criminal Procedure, 1973 has made the said proviso."
(emphasis supplied)
38. Now, insofar as the appeal filed against acquittal by the victim under Section 372 of Cr.P.C. 1973 is concerned, it would be covered by the plain words of sub-section (2) of Section 394 Cr.P.C. 1973, which provides that every other appeal under this Chapter (except an appeal from sentence of fine) shall finally abate on the death of the appellant. In sub-section (2) an exception has been carved out in respect of an appeal from a sentence of fine, obviously for the reason that it involves monetary reasons to the benefit of the victim.
39. As already noticed, a substantive right to prefer an appeal against acquittal was added by the amending Act No. 5 of 2009 by adding a ''proviso' to Section 372 of Cr.P.C. 1973. However, significantly, no amendment was made in Section 394 Cr.P.C. 1973, which provides for abatement of appeals.
40. As already noticed, the golden rule of interpretation is that if the meaning of words of a statute are plain, effect must be given irrespective of the consequences. We may refer to the judgments of the Supreme Court in cases of Nelson Motis (supra), Kanailal Sur (supra), Vijay Anand Maharaj (supra), Gwalior Rayan Silk (supra), Raghunath Rai Bareja (supra).
41. In the light of Shah Bhojraj (supra) and Khedu Mohton (supra) it may be argued that once an appeal against acquittal is entertained by the High Court, it becomes the duty of the High Court to decide the same irrespective of the fact that the appellant either does not choose to prosecute it or is unable to prosecute it for one reason or the other. In Motiram Ghelabhai (supra) and Sundaram Pillai (supra), the Supreme Court laid down that the ''proviso' added to Section 372 Cr.P.C. 1973 is a fresh enactment giving a substantive right to file appeal against acquittal to the victim [as defined in Section 2 (wa)], which was was added by the same amending act, being Act No. 5 of 2009.
42. As observed in P. Laxmi Devi (supra) and Super Cassettes Industries (supra) it is a settled law that the right to file an appeal is a statutory right and it can be circumscribed by condition / conditions of the statute granting it. In this view of the settled law, it is extremely important to note that at the time when the judgment in Khedu Mohton (supra) was passed by the Supreme Court, the proviso to Section 372 of Cr.P.C. 1973 was not in existence and in Cr.P.C. 1973 provision of abatement of appeals was substantially changed in comparison to Section 431 Cr.P.C. 1898.
43. In an appeal against conviction, the right of near relatives to get themselves substituted within a limited period was protected so that they may come forward to prosecute the appeal for the purpose of removing the stigma on the family. However, no such right of a victim was protected. No right to substitute the victim has been granted under Section 394 Cr.P.C. 1973. It is also pertinent to note that sub-section (2) of Section 394 Cr.P.C. 1973 provides that every other appeal shall abate on the death of the appellant.
44. Insofar as abatement of appeals filed under Section 377 (which is in respect of government appeals against conviction) and Section 378 (which is in respect of appeals in cases of acquittal), which can be filed only by seeking leave to appeal and by a complainant by seeking special leave to appeal, it has been provided that they shall abate only in case of death of the accused. Therefore, only complaint case and case against fine are protected under sub-section (1) to the extent that they shall abate on the death of the accused and not on the death of the appellant. It is, therefore, clear that the legislature has consciously not amended Section 394 in respect of Section 372 Cr.P.C. 1973, particularly, an appeal against acquittal filed by the victim.
45. It is also significant to note that earlier different views by different High Courts were existing on the issue whether an application seeking leave to file appeal under Section 378 (4) Cr.P.C. is required or not. Some were of the opinion that even while filing an appeal under Section 372 of Cr.P.C. 1973 victim has to file an application under Section 378 Cr.P.C. 1973 seeking leave to appeal, whereas others were of the opinion that no such application is required. In Mallikarjun Kodagali (dead) through L.R. vs. State of Karnataka and others (2019) 2 SCC 752 it was held by the Supreme Court that there is no requirement of filing an application seeking leave to file appeal if appeal is filed by a victim under Section 372 Cr.P.C. 1973. Paragraph 76 of the aforesaid judgment is quoted as under:-
"76. As far as the question of the grant of special leave is concerned, once again, we need not be overwhelmed by submissions made at the Bar. The language of the proviso to Section 372 of the Cr.P.C. is quite clear, particularly when it is contrasted with the language of Section 378(4) of the Cr.P.C. The text of this provision is quite clear and it is confined to an order of acquittal passed in a case instituted upon a complaint. The word 'complaint' has been defined in Section 2(d) of the Cr.P.C. and refers to any allegation made orally or in writing to a Magistrate. This has nothing to do with the lodging or the registration of an FIR, and therefore it is not at all necessary to consider the effect of a victim being the complainant as far as the proviso to Section 372 of the Cr.P.C. is concerned."
(emphasis supplied)
46. This clearly indicates that the Supreme Court has also held that the right to file appeal under Section 372 Cr.P.C. 1973, as added by proviso by amending Act No. 5 of 2009, is different from the right to file appeal in case of acquittal as provided under Section 378 Cr.P.C. 1973. A clear distinction, therefore, has been noted by the Supreme Court between Section 372 Cr.P.C. 1973 and Section 378 Cr.P.C. 1973. It may also be noticed that there is also a difference in the definition of ''victim' as provided under Section 2(wa) of Cr.P.C. 1973 and of the word ''complainant' as defined under Section 2(d) of Cr.P.C. 1973.
47. It is, therefore, clear that in view of the amended provision of the Code of Criminal Procedure, the judgment of the Supreme Court in case of Khedu Mohton (supra) would not be applicable now and is, thus, clearly distinguishable.
48. There is yet another aspect of the matter. Insofar as the rules of interpretation are concerned, there is a rule which provides that ''regard to consequences' are also be taken into consideration while interpreting any statutory provision. However, as already noticed in the preceding paragraphs, this rule has no application when the words are acceptable to only one meaning and no alternate consideration is reasonably open. There can be no dispute that the provisions of sub-section (2) of Section 394 Cr.P.C. 1973 are absolutely plain in their language and must be given effect to irrespective of the consequences. Therefore, the view that in case the appeal filed by the victim is not abated on the death of the appellant, the consequences may be serious, would not be applicable in the present case.
49. We are, therefore, in respectful agreement with the view taken by the Punjab and Haryana High Court in Avtar Singh Dhesi (supra) that the appeal filed under Section 372 Cr.P.C. 1973 would stand abated on the death of the appellant.
50. Consequently, in view of the discussions made hereinabove present appeal stands abated.
Order Date :- 21.4.2022 Lalit Shukla (Subhash Vidyarthi,J.) (Vivek Kumar Birla,J.)