Allahabad High Court
Kusuma vs State Of U.P. & Anr. on 8 January, 2019
Bench: Anil Kumar, Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. -10 A.F.R. Case :- U/S 378 CR.P.C. No. - 3 of 2019 Applicant :- Kusuma Opposite Party :- State Of U.P. & Anr. Counsel for Applicant :- Diwakar Pratap Pandey Counsel for Opposite Party :- Govt. Advocate Hon'ble Anil Kumar,J.
Hon'ble Vikas Kunvar Srivastav,J.
Heard Sri Diwakar Pratap Pandey, learned counsel for applicant, learned A.G.A. and perused the record.
Present application under Section 378 Cr.P.C. has been filed by the informant/mother of the victim (who is minor) against the judgment of acquittal dated 12.10.2018 passed by the trial court in S.T. No. 428/2016 arising out of Case Crime No. 396/2016, under Section 376/366/506 I.P.C., P.S. - Rudauli, District Faizabad.
Learned A.G.A. has raised an objection to the effect that in view of the judgment given by a Full Bench of this Court in the case of Manoj Kumar Singh Vs. State of U.P. and others, 2016 (97) ACC 861, the mother of the victim cannot file the appeal against judgment of acquittal, so the present appeal under Section 372 Cr.P.C. against the judgment of acquittal dated 12.10.2018 on behal fof the victim through his mother although she is a complaint is not maintainable.
Learned counsel for applicant, in rebuttal, submits that in the present case, the victim is minor and the matter relates to rape of the victim, so the appeal can be filed by the mother of the victim who is also an informant U/s 378 Cr.P.C. challenging the judgment of acquittal passed by trail court, keeping in view the fact that the name of victim should not be disclosed in the rape cases.
We have heard learned counsel for parties on the point in issue.
Core question to be decided is that if a judgement of acquittal has been passed by trial court in an offence arising out of Section 376 Cr.P.C. and like nature then the appeal can be filed on behalf of victim or through his /her guardian, who has filed the complaint/F.I.R. or by the other victim as defined under Section 2(wa) of the Code of Criminal Procedure.
Section 378 of Code of Criminal Procedure deals in rgard to filing an appeal against the judgment of acquittal passed by the trial court, relevant provision quoted hereinbelow:-
"378. Appeal in case of acquittal -
(3)No appeal 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.
(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 subsection (1) or under sub-section (2)."
Section 2(d) of Code of Criminal Procedure defines complainant as under:-
"Section 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 legislature by way of amendment vide A.P.G.O. Ms. No. 732 dated 5th December, 1991 has introduced section 228A in the Indian Penal Code (hereinafter referred to as the I.P.C.) which reads as under:-
"228A - Disclosure of identity of the victim of certain offences etc. -- (1) whoever prints or publishes the name of any matter which may make known the identity of any person against whom an offence under Section 376, section 376A, section 376B, section 376C section 376D or Section 376E is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. (2) Nothing in sub-section (1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication is --
(a) by or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation; or
(b) by, or with the authorisation in writing or, the victim; or
(c) wheter the victim is dead or minor or of unsound mind, by, or with the authorisation in writing of, the next of kin of the victim;
Provided that no such authorisation shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognised welfare institution or organsation."
Thus, as per the mandate of legislature while enacting section 228-A of I.P.C. is that there must be disclosure of identity of victim of certain offence punishable.
Further, in respect to disclosure of the name of the victim in an offence arising out of Section 376, 376A, 376B, 376C or 376D should be published or named during the trial or not taking into consideration the previsions of Section 228-A of I.P.C. Hon'ble the Apex Court in the case of State of Karnataka Vs. Puttaraja, 2004 (1) SCC 475, in paragraph No. 2 held as under:-
"We do not propose to mention name of the victim. Section 228-A of the Indian Penal Code, 1860 (in short the ''IPC') makes disclosure of identity of victim of certain offences punishable. Printing or publishing name of any matter which may make known the identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found to have been committed can be punished. True it is, the restriction does not relate to printing or publication of judgment by High Court or Supreme Court. But keeping in view the social object of preventing social victimization or ostracism of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of this Court, High Court or lower Court, the name of the victim should not be indicated. We have chosen to describe her as 'victim' in the judgment."
In the case of Dinesh alias Buddha Vs. State of Rajasthan, 2006 (3) SCC 771, in paragraph No. 7 Ho'ble the Apex Court after placing reliance on the judgment given in the case of Puttaraja (Supra), has held as under:-
"We do not propose to mention name of the victim. Section 228-A of IPC makes disclosure of identity of victim of certain offences punishable. Printing or publishing name of any matter which may make known the identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found to have been committed can be punished. True it is, the restriction, does not relate to printing or publication of judgment by High Court or Supreme Court. But keeping in view the social object of preventing social victimization or ostracism of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of this Court, High Court or lower Court, the name of the victim should not be indicated. We have chosen to describe her as 'victim' in the judgment. (See State of Karnataka v. Puttaraja (2003 (8) Supreme 364)"
Hon'ble the Apex court in the case of Ms. Z Vs. State of Bihar and others, AIR 2017 SC 3908 while dealing with the issue has held that the name of the victim in an offence arising out of Section 376 Cr.P.C. should not be disclosed.
Recently, in the case of Lalit Yadav Vs. State of Chhattisgarh, 2018 (3) Crimes 463 (SC), in paragraph No. 2 held as under:-
"We, however, notice from the judgments of both, the trial court and the High Court that the victim in the present case who was examined as PW2 has been named all through. Such a course is not consistent with Section 228- A of IPC though the explanation makes an exception in favour of the judgments of the superior court. Nonetheless, every attempt should be made by all the courts not to disclose the identity of the victim in terms of said Section 228-A IPC. It has been so laid down by this Court in State of Punjab v. Ramdev Singh reported in (2004)1 SCC 421."
Further, in the case of Satya Pal Anand Vs. Sate of Madhya Pradesh, 2014 (4) SCC 800, while dealing the matter arising out of offence under Section 376 Cr.P.C., where the trial judge has disclosed the name of of the victim Hon'ble the Supreme Court has taken a serious note in the matter and in paragraph Nos. 6 & 7, held as under:-
"6. Section 228A of the Indian Penal Code makes disclosure of identity of the victim against whom offences under Section 376, Section 376A, Section 376B, Section 376C or Section 376D is alleged or found to have been committed an offence. Sub-section (2) of Section 228A Indian Penal Code exempts two categories of police officers, namely, (i) officer in-charge of the police station and (ii) police officer making the investigation into such offence.
7. The affidavit filed on behalf of the State of Madhya Pradesh has been affirmed by Shri Arvind Tiwari, Additional Superintendent of Police, Mhow, District Indore, Madhya Pradesh. Let notice be issued to him to show cause why offence under Section 228A Indian Penal Code be not directed to be registered against him for disclosing identity of the two rape victims.
Word victim is defined under Section 2(wa) of Code of Criminal Procedure, reads as under:-
""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 important words used under Section 2(wa) of the Code of Criminal Procedure while defining the victim in context to the present case is ""victim" includes his or her guardian or legal heir."
It is settled principle of legal interpretation of the statute that the Courts decide what the law is and not what it should be. The Courts of course adopt a construction which will carry out the obvious intention of the legislature but cannot legislate. But to invoke judicial activism to set at naught legislative judgment is sub serve of the constitutional harmony and comity of instrumentalities. (See Union of India and another V. Deoki Nandan Agarwal, AIR SC 96, All India Radio V Santosh Kumar and another 71 (1998) 3 SCC 237, Sakshi V. Union of India and others,(2004) 5 SCC 518, Pandian Chemicals Ltd. V. CIT (2003) 5 SCC 590, Bhavnagar University Vs. palitana Sugar Mills (P) and others, AIR 2003 SC 511 and J.P. Bansal V. State of Rajasthan, 2003) 5 SCC 134).
In Nasiruddin v. Sita Ram Agarwal, (2003) 4 SCC 753, the Supreme Court has held that the Court can iron cut of the creases but cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provision is plain, unambiguous. It cannot add or subtract words to statute or read something into in which is not there. It cannot rewrite or recast the legislation.
A Full Bench of this Court in the case of of Manoj Kumar Singh (supra), in paragraph No. 55 while considering the definition of victim has held as under:-
"In nutshell, it can be concluded that victim means the actual sufferer of offence (receiver of harm caused by the alleged offence) and no person other than actual receiver of harm can be treated as victim of offence, so as to provide him/ her a right to prefer appeal under the proviso of Section 372. In absence of the direct sufferer or in a case where the direct sufferer suffers a disability his or her legal heir or guardian would qualify as a victim."
Reverting to the facts of the present case, S.T. No. 428/2016 arising out of Case Crime No. 396/2016, under Section 376/366/506 I.P.C., P.S. - Rudauli, District Faizabad has been registered and tried by the session court in which a judgment of acquittal dated 12.10.2018 has been passed, challenged by the applicant before this Court by filing an appeal along with an application to grant leave to appeal who is mother of the victim as well as author of the F.I.R..
As stated above, Hon'ble the Apex Court has categorically held that an offence which is arising out of section 376, 376A, 376B, 376C or 376D Cr.P.C., the name of the victim should not be disclosed and taking into consideration the said facts as well as the word "victim" as defined under Section 2 (wa) Cr.P.C. which means his or her guardian or legal heir, present appeal/application for grant of leave to appeal filed by the mother of the victim who is the author of the F.I.R. falls within the definition of victim and she is legally entitled to file the appeal against the judgment of acquittal on behalf of the victim.
Thus, in view of the above discussion as well as taking into consideration the law as laid down by Hon'ble Apex Court in the case of Mallikarjun Kodagali (dead) represented through Legal Representatives Vs. State of Karnataka and others ,2018 (14) SCALE 32, the mother of the victim who is also an informant can file an appeal against the judgment of acquittal, accordingly, application for grant of leave to appeal is allowed and leave to appeal is granted.
Since the application for grant of leave to appeal has been allowed, the appeal is hereby admitted.
Keeping in view the Section 390 Cr.P.C. bailable warrant be issued to accused-respondent no.2 who shall appear before the concerned Chief Judicial Magistrate. In case the accused- respondent no.2 appear and apply for bail, he shall be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Magistrate concerned with the undertaking that he shall appear on the date fixed before this Court.
The compliance report be submitted by the Chief Judicial Magistrate concerned by the next date fixed.
Learned Chief Judicial Magistrate concerned shall also transmit the photo copy of the personal bond and sureties bond submitted by the accused respondent with his report to this Court for keeping the same in the record of this Court.
Summon the lower court record.
List/put up the appeal on 11.03.2019.
(Vikas Kunvar Srivastav, J.) (Anil Kumar, J.) Order Date :- 8.1.2019 Ravi/