Andhra HC (Pre-Telangana)
D. Sudhakar vs Panapu Sreenivasulu @ Evone Water ... on 7 December, 2012
Bench: N.V. Ramana, P. Durga Prasad
THE HON'BLE SRI JUSTICE N.V. RAMANA AND THE HON'BLE SRI JUSTICE P. DURGA PRASAD
CRIMINAL APPEAL No. 619 of 2012
07-12-2012.
D. Sudhakar
Panapu Sreenivasulu @ Evone Water Sreenivasulu and others.
For the petitioner: Mr. A. Tulsi Raj Gokul
For the Respondents: 1)The Public Prosecutor for Respondent No.6
2)Sri M. Rama Rao for respondent Nos.1,3,4 and 5
3) Mrs. D. Sangeetha Reddy, for respondent No.2.
<Gist:
>Head Note:
?CITATIONS:
2001 Laws (Kerala) 844
Judgment: (Per Sri. N.V. Ramana, J.)
The appellant, who claims to be the brother of the deceased has filed this
criminal appeal against the judgment dated 30.11.2011, passed in S.C. No. 34 of
2009, acquitting the respondents-accused Nos. 1 to 5 for the offence punishable
under Section 148 I.P.C. and respondents-accused Nos. 3 to 5 for the offences
punishable under Section 302 r/w 149 I.P.C.
The learned counsel for the appellant submitted that the appellant is the de
facto complainant and he being the brother of the deceased and P.W.1 in the
case, is a victim, and having regard to the definition of the word 'victim', as
defined in Section 2(wa) Cr.P.C., and the proviso appended to Section 372
Cr.P.C., at his instance, criminal appeal, against the order of a criminal court
acquitting the accused or convicting for a lesser offence or imposing inadequate
compensation, is maintainable.
On the other hand, the learned counsel for the respondents-accused submitted
that as per the proviso appended to
Section 372 Cr.P.C., only the victim has a right to prefer an appeal against the
order of a criminal court acquitting the accused or convicting for a lesser
offence or imposing inadequate compensation. The appellant being the de facto
complainant and brother of the deceased and P.W.1 in the case, he will not come
within the definition of the word 'victim', as defined under
Section 2(wa) Cr.P.C., at his instance, criminal appeal as provided under
Section 372 Cr.P.C., against the order of a criminal court acquitting the
accused, is not maintainable. In support of this argument, he placed reliance
on the judgment of the Apex Court in National Commission for Women v. State of
Delhi and of the High Court of Kerala in John v. Shibu Cherian1.
Heard the learned counsel for the appellant-de facto complainant and the learned
counsel for the respondents-accused.
In the light of the arguments advanced by them before us, we would like to deal
with the amendment to Section 372 Cr.P.C. and the changes that are brought into
the Criminal Procedure Code.
To answer this question, it would be appropriate to refer to definition of
'victim', as defined in the Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power, adopted by the General Assembly of the
United Nations, vide its Resolution No.40/34, dated 29.11.1985. Under the
heading Victims of Crime, the word "victims" is defined as follows:
1. "Victims" means persons who, individually or collectively, have suffered
harm, including physical or mental injury, emotional suffering, economic loss or
substantial impairment of their fundamental rights, through acts or omissions
that are in violation of criminal laws operative within Member States, including
those laws prescribing criminal abuse of power.
2. A person may be considered a victim, under this Declaration, regardless of
whether the perpetrator is identified, apprehended, prosecuted or convicted and
regardless of the familial relationship between the perpetrator and the victim.
The term "victim" also includes, where appropriate, the immediate family or
dependants of the direct victim and persons who have suffered harm in
intervening to assist victims in distress or to prevent victimization.
The Law Commission of India, in its 154th report, on the Code of Criminal
Procedure, 1973 in Chapter XV dealing with "Victimology", at para 6.2, referred
to the definition of "victim" as defined in the above Declaration of the United
Nations. While laying special emphasis on the subject of "Victimology", the Law
Commission, has observed that right from the ancient Babylonian Code of
Hammurahi (about 1775 BC) it has been observed that victim of crime was left
with no remedy except to sue for damages in the civil Court. It has also been
noted that in Anglo-Saxon legal system an English Magistrate, advocated state
compensation to be given to the victims of crime and accordingly programme was
set up in Britain in the year 1964. The Law Commission also referred to the
Declaration made by the General Assembly of the United Nations in its 96th
plenary meeting laying down the basic principles of justice for victims of crime
and abuse of power.
The Apex Court, in its various judgments, took note of the fact that the
accused, who had tremendous influence, both political and financial or otherwise
was getting away after committing crime and the victim was very often left
without remedy either of filing of appeal or challenging the inadequate
compensation which was awarded. The Legislature having taken cognizance of this
shortcoming, based on the report of the Law Commission, felt it appropriate and
accordingly, by Act 5 of 2009 amended
Section 372 Cr.P.C., by adding a proviso. The amendment came into force w.e.f.
31.12.2009. Now after the amendment Section 372 Cr.P.C. reads as follows:
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 Court 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.
Prior to amendment of Section 372 Cr.P.C. no right has been given in those cases
where inadequate sentence is imposed or awarded by the trial Court and the right
is retained with the State. Now after addition of the proviso, right is given to
the victim to file appeal in cases where the accused is acquitted or is
convicted for a lesser offence or where the compensation which is imposed is
found to be inadequate.
Now the question is who is a "victim"? The word "victim", is defined under
Section 2(wa) Cr.P.C., and it reads as follows:
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.
Even though the definition of the word "victim" has been given a wide meaning in
the Declaration of the United Nations, but the Legislature has given a very
narrow meaning. The word 'victim', as defined in Section 2(wa) of Cr.P.C.,
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 is treated as victim,
which expression, includes his or her guardian or legal heir.
In this backdrop the question that arises for consideration before this Court
is: Whether the appellant, who is the de facto complainant and brother of the
deceased, can maintain this appeal against acquittal in view of amendment to
Section 372 Cr.P.C. and as per Section 2(wa) of Cr.P.C.?
The learned counsel for the respondent relied on the judgment of the National
Commission for Women v. State of Delhi. In the said case, the National
Commission for Women moved S.L.P. under the inherent powers of the Court,
challenging the order of the High Court of Delhi, whereby the accused was
acquitted for the offence under Section 306 I.P.C., while maintaining his
conviction for the offence under Section 376 I.P.C. and reducing the sentence to
that already undergone. The State represented by the learned Additional
Solicitor General reported that the State is not proposing to file any
application for leave to appeal against the said judgment. The accused, in
spite of service of notice, did not enter his appearance. The counsel for the
National Commission for Women submitted that notwithstanding the fact that the
State did not file any appeal in the matter, still appeal at the instance of the
Commission was maintainable under the inherent powers of the Apex Court, since
leave to file SLP was already granted, and at that stage, it was not open to the
Apex Court to revoke its earlier order and doubt the maintainability of the SLP.
Disagreeing with the stand taken by the counsel for the National
Commission for Women, the Apex Court held as follows:
Chapter XXIX of the Code of Criminal Procedure deals with "Appeal(s)".
Section 372 specifically provides that no appeal shall lie from a judgment or
order of a criminal court except as provided by the Code or by any other law
which authorizes an appeal. The proviso inserted by Section 372 (Act 5 of 2009)
with effect from 31.12.2009, gives a limited right to the victim to file an
appeal in the High Court against any order of a criminal court acquitting the
accused or convicting him for a lesser offence or the imposition of inadequate
compensation. The proviso may not thus be applicable as it came in the year
2009 (long after the present incident) and, in any case, would confer a right
only on a victim and also does not envisage an appeal against an inadequate
sentence. An appeal would thus be maintainable only under Section 377 to the
High Court as it is effectively challenging the quantum of sentence.
(emphasis supplied)
The learned counsel for the respondents next relied on the judgment of the
Kerala High Court in John v. Shibu Cherian. In the said case, the appellant,
who is the de facto complainant and C.W.1, preferred appeal against the order
passed by the Magistrate, acquitting the accused of the offences punishable
under Sections 114, 143, 147, 148, 448, 427 and 506(ii) read with Section 149
I.P.C., along with application to condone the delay in preferring the appeal.
The respondents-accused, entered their appearance upon receipt of notice. After
the delay being condoned, the appeal came up for admission, and at that stage,
the respondent-accused, raised preliminary objection about maintainability of
the appeal itself, having regard to the proviso to Section 372 Cr.P.C. The
Kerala High Court having taken notice of the amendment brought to Section 372
Cr.P.C., which came into effect from 31.12.2009, whereby a proviso, as already
noticed supra, came to be introduced, held as follows:
... Thus, in the light of the above proviso to Section 372 Cr.P.C., the
remedy is available to the victim to file an appeal before the court in which
the appeal will ordinarily lie against the order of conviction. Thus, according
to me, the present appeal preferred by the de facto complainant before this
Court is not maintainable...
The Kerala High Court further noticed that prior to the amendment, the Court
used to entertain the revision petition in deserving cases against the order of
acquittal at the instance of the de facto complainant, and having regard to the
stand taken by the appellant in the affidavit filed in support of the condone
delay petition that he preferred revision, but the Registry raised objection
that the remedy is to file appeal, and therefore, he preferred the appeal, the
Kerala High Court while dismissing the appeal as not maintainable, observed that
dismissal of the appeal will not come in the way of the appellant to work out
his remedies in accordance with the procedure and law.
In view of the above cited judgment, now we have to consider whether the
appellant can be considered as a "victim" within the definition of Section 2(wa)
of Cr.P.C. The next issue that falls for consideration is whether insertion of
the proviso to Section 372 Cr.P.C. is prospective or retrospective in nature.
First we would like to deal with the issue, who is a "heir". The word "heir"
has been interpreted by the Supreme Court in several cases which means all
persons who are entitled to the property of another under the law of
inheritance. In Section 2(wa) of Cr.P.C., since the word heir is preceded by
the word "legal", it must be construed in the legal sense as that is the clear
intention of the Legislature. The expression "legal heir" in relation to a
victim, therefore, clearly refers to a person who is entitled to the property of
the victim under the applicable law of inheritance.
Whereas in the present case, parties are Hindus and the law of heritance
applicable to them is the Hindu Succession Act. Section 8 of the Hindu
Succession Act sets out the general rules of succession in case of a male Hindu
dying intestate, the property would devolve first up on the heirs specified in
Class - I of the schedule and secondly, if there is no heir of Class - I, then
up on the heirs specified in Class - II of the schedule; thirdly if there is no
heir of any of the classes, then up on the agnates of the deceased and lastly if
there are no agnates, then up on the cognates of the deceased. Section 9 of the
Hindu Succession Act provides the order of succession amongst heirs in the
schedule. Those in Class - I take simultaneously and to the exclusion of all
other heirs, there in the first entry in Class - II are preferred to those in
the second entry. Section 12 prescribes the order of succession amongst agnates
and cognates.
In view of the provisions of Sections 8 and 9 of the Hindu Succession Act, the
appellant being a Class - II heir would not inherit anything from his deceased
brother, as he is survived by his wife. Thus, the appellant is not entitled to
the property of the victim under the applicable law of inheritance. Though the
appellant falls in one of the category of heirs as per the Hindu Succession Act,
but the Legislature deliberately used the word "legal heir", which strictly
means a person who is entitled to the property of the victim under the
applicable law of inheritance i.e. Hindu Succession Act. Hence, we are of the
considered opinion that when it is the intention of the Legislature to give
right of appeal to the legal heir, the appellant will not fall within the
definition of "legal heir" and he is not entitled to prefer an appeal to this
Court under Section 372 Cr.P.C. against acquittal of the accused.
The second issue that falls for our consideration is that the incident has taken
place on 07.12.2007 and the amendment to
Section 372 Cr.P.C. has come into force w.e.f. 31.12.2009, where the victim can
prefer an appeal against acquittal. This issue will not hold us for long, in
view of the fact that the Apex Court in National Commission for Women v. State
of Delhi, has already held that the amendment is not applicable to cases where
the incident has taken place prior to amendment. Therefore, even on this count,
the appellant fails, and as such, the appeal is liable to be dismissed as not
maintainable.
In the result, the criminal appeal is dismissed as not maintainable.
________________
N.V. RAMANA, J.
_____________________ P. DURGA PRASAD, J. Dated: 7th December, 2012.