Indian Kanoon - Search engine for Indian Law

Similarly in Ranu Thakur Vs. Dayashanker & Anr., 2015(2) RCR (Cri) 153, the Apex Court was dealing with an appeal by a 'victim' in a police case before the High Court and held that leave under sub-section (3) of Section 378 Cr.P.C. was necessary. Such judgment is also not an authority for the issues which are falling for consideration in the instant case.

This Court in Nirmal Kumar Batabyal Vs. The State of West Bengal & Anr., (2016) 2 C Cr LR (Cal) 534), had the occasion of dealing with the ratio in Satya Pal (supra) and held that the ratio in the said report is to be read in the factual matrix of the said case wherein the forum of appeal for the 'victim' under Section 372 Cr.P.C. and that of the complainant under Section 378 Cr.P.C. were the same, namely, the High Court. The aforesaid ratio may not apply to cases where the appeal of the 'victim' lay before the Court of Sessions in terms of the proviso to Section 372 Cr.P.C.

In National Plywood Industries Vs. State of West Bengal reported in 2013 (1) C Cr LR (Cal) 871, a single Judge of this Court, inter alia, held that the right of a 'victim' to prefer appeal in a complaint case is derivable from the proviso to Section 372 Cr.P.C. and not traceable to Section 378 Cr.P.C.

However, in Subhash Chand Vs. State (Delhi Administration), 2013(2) SCC 17, the Apex Court held that the right to prefer an appeal by a complainant whether he is a private complainant or a public servant is traceable to Section 378(4) Cr.P.C. It may be apposite to note that the Apex Court in the said report was dealing with the right of a public servant to file appeal in a complaint case and had no occasion to deal with the right of a 'victim' to prefer appeal under the proviso to Section 372 Cr.P.C.

The right to prefer an appeal by the 'victim' against an order of acquittal is derivable from the proviso to Section 372 Cr.P.C. Such right was inserted for the first time by the Code of Criminal Procedure Amendment Act, 2008. Prior to its introduction, 'victim' of a crime did not have the right to prefer an appeal in such capacity. Such right was only conferred to the State or to the complainant in a complaint case under Section 378 Cr.P.C. The question is whether one restricts the right of appeal vested in the 'victim' under the proviso to Section 372 Cr.P.C. to police cases alone in view of the pre-existing right of appeal in the complainant under Section 378 Cr.P.C. To do so, one must hold that 'victim' is synonymous with 'complainant' which is impermissible in view of the clear and distinct definitions of the two entities under the Code and the absence of any restriction as to locus standi in institution of criminal proceeding under ordinary law except in rare cases. Hence, such restrictive interpretation would run contrary to the clear and unambiguous words in the proviso and would amount to rewriting the proviso itself. When the words of the statute are clear and unambiguous such words are to be given its fullest expression. That apart, a restrictive interpretation of the right of appeal of the 'victim' as envisaged in the aforesaid proviso would run contrary to the intention of the legislature. The legislative enlargement of the scope and ambit of right to appeal against acquittal down the ages must be borne in mind while inferring the intention of the legislature in incorporating the proviso to Section 372 Cr.P.C. and vesting a right to appeal to the 'victim'. In this perspective, it is clear that the purpose of such amendment was to ensure access to justice to victims in the event of an unmerited acquittal passed by a Criminal Court. Such access to justice in the form of appeal is a fundamental right of every 'victim' of crime and cannot be restricted only to victims in police cases in view of a pre- existing right of appeal vesting in the complainant in a complaint case. Neither the clear words of the proviso nor the intention of the legislature in incorporating the aforesaid amendment gives rise to an inference that such right of appeal to a 'victim' is to be restricted only to police cases and not to complaint cases. Any other interpretation would give rise to an unjust discrimination between a homogenous class, namely, 'victim' with reference to the nature of the proceeding, that is, a police case and a complaint case, and would result in an arbitrary and unreasonable classification without any rational nexus to the object of the legislature. Even if the right of the 'victim' to appeal against an order of acquittal in a complaint case is read in the background of the pre-existing right of the complainant to prefer an appeal under sub-section (4) of Section 378 Cr.P.C., it is apposite to note that both the rights may overlap but they cannot be said to be absolutely congruent to one another. If that were so, there would be no distinction between a complainant and 'victim' in a complaint case. There are innumerable instances where the complainant may not be the 'victim' of the case whereas there may be other cases where there are more than one 'victim' in a case one of whom may be the complainant. For example, in a complaint instituted by a Drug Inspector under the Drug and Cosmetics Act for the prosecution of sale of spurious drugs to various consumers, the Inspector who is the complainant may not be a 'victim' whereas the persons who had purchased of such spurious drugs are the victims of the crime. Similarly, in a case where a private complaint is lodged by an individual for commission of the offence of outraging of modesty of a lady, the latter though not a complainant is a 'victim' of the crime. Can in these cases, the 'victim' be denied of his/her right to prefer an appeal against an order of acquittal under the proviso to Section 372 Cr.P.C. since such right is vested only in the complainant under Section 378(4) Cr.P.C. Such illustrations may be numerous where the complainant is not the 'victim' of the crime or there are more than one 'victim' other than the complainant. In these cases, the right of the complainant to prefer an appeal against acquittal in a complaint case cannot be a substitute for access to justice vested in the 'victim' by way of appeal under the proviso to Section 372 Cr.P.C. That apart, the forum to prefer appeal under the proviso to Section 372 Cr.P.C. and that under Section 378(4)/(5) Cr.P.C. are not identical. While the complainant may prefer appeal against acquittal only before the High Court upon obtaining special leave from such Court, the appeal by the 'victim' may be preferred in the Court before whom the appeal against conviction shall ordinarily lie, that is, the Court of Sessions in magistrate triable cases. Moreover, proviso to Section 372 Cr.P.C. vests a wider right of appeal against conviction for lesser offences or inadequate compensation to the 'victim' apart from the right of appeal against acquittal only as a Section 378 Cr.P.C. Thus the appeals envisaged under the aforesaid proviso to Section 372 Cr.P.C. and Section 378(4)/(5) Cr.P.C. though falling under the same genus of 'Appeals against acquittal' belong to different species as they are distinct from one another not only with regard to the status of the appellant but also vis-à-vis the forum as well as the ambit and manner in which such appeals are to be preferred. Hence, the pre- existing of a right of appeal of a complainant under Section 378 Cr.P.C. cannot obliterate the right of appeal vested in a 'victim' under the proviso to Section 372 Cr.P.C. in a complaint case. Hence, I hold that a 'victim' of crime has a right to prefer appeal against an order of acquittal or conviction for lesser offences or inadequate compensation even in a complaint case under proviso to Section 372 Cr.P.C. notwithstanding the pre-existing right of a complainant to prefer appeal against acquittal under Section 378(4) Cr.P.C. When Victim is A Complainant:-

The next question which arises is how a victim who happens to be the complainant in a complaint case is to exercise his right to appeal against an order of acquittal. Prior to the amendment of the Code by the amending Act of 2008, the right of the 'victim' to prefer an appeal was not recognized. In complaint cases the appeal against acquittal could be preferred by the complainant alone. However, by the amendment to Section 372, the proviso was introduced and a substantive right to appeal was conferred on the 'victim'. The said proviso not only conferred right of appeal to the 'victim' against an order of acquittal but also extended such right of appeal against conviction for lesser offences or grant of inadequate compensation. The proviso also indicated the forum where such appeal is to be preferred, namely, the Court before whom an appeal from an order of conviction shall ordinarily lie. For example, in a case tried before a Judicial Magistrate, such appeal by the 'victim' under the proviso to Section 372 Cr.P.C. shall lie before the Court of Sessions and not the High Court. Hence, the scope and ambit of appellate powers as envisaged under proviso to Section 372 Cr.P.C. as well as the forum for appeal are distinct from an appeal preferred by a complainant against order of acquittal in a complaint case under Section 378(4)/(5) Cr.P.C. If a 'victim' who happens to be a complainant in a complaint case which is tried before a Judicial Magistrate is aggrieved by inadequacy of compensation or conviction for a lesser offence, he may prefer appeal in his capacity as a 'victim' in terms of proviso to Section 372 Cr.P.C. before the Court of Sessions notwithstanding the existence of appellate remedy under Section 378 Cr.P.C. However, in cases of acquittal in a complaint case tried by a Magistrate a question may arise as to whether a complainant/victim would have to take recourse to Section 378(4)/(5) Cr.P.C. and prefer appeal directly before the High Court after seeking special leave or may prefer appeal before the Court of Sessions in terms of proviso to Section 372 Cr.P.C. No doubt, it has been held in Satya Pal (supra) and Ranu Thakur (supra) that the right of the 'victim' is not an independent one and has to be read harmoniously with the pre-existing right under Section 378 Cr.P.C. It must, however, be borne in mind that the Apex Court in the aforesaid reports were dealing with cases where the appeal of the 'victim' under proviso to Section 372 Cr.P.C. also lay before the High Court and, therefore, the procedure for preferring such appeal was held to be subject to the leave granted by the said Court under Section 378(3) Cr.P.C. In the present situation, however, the appeal by the 'victim' in terms of proviso to Section 372 Cr.P.C. lies before the Court of Sessions and not the High Court. Hence, in a Magistrate triable case instituted on a complaint, a 'victim' who happens to be a complainant is vested with twin remedies, - (a) against an order of acquittal before the Court of Sessions in terms of proviso to Section 372 Cr.P.C. in his capacity as a 'victim', or (b) to seek leave of the High Court under Section 378(4) Cr.P.C. and prefer appeal in terms of Sub-section (5) thereof before the said Court in his capacity as a complainant. The aforesaid statutory scheme cannot be understood to mean that the pre-existing right of the complainant under Section 378 Cr.P.C. would render the right of the 'victim' under the proviso of Section 372 Cr.P.C. otiose, if he happens to be the same individual. Not only would such interpretation render the status of 'victim' and the rights flowing therefrom subordinated and/or subsumed in the status of the 'complainant' but would also violate the very ethos of harmonious construction and render the manner as well as forum of preferring appeal by the 'victim' under Section 372 Cr.P.C. otiose. Right to prefer appeal conferred on a 'victim' of crime as introduced by the proviso to Section 372 Cr.P.C. is a statutory expression of the fundamental right of access to justice to victims of crime. Hence, such right of the 'victim' cannot be whittled away in a complaint case only because he happens to be a complainant vested with a pre-existing right under Section 378(4)/(5) Cr.P.C. It must be understood that in a case where the complainant is also a 'victim' of crime he wears two hats - one as a complainant and the other as a 'victim' and his remedies against an order of acquittal emanating from the aforesaid identities respectively are distinct from one another as to the forum as well as the manner in which they are to be exercised. He may either in his capacity as a 'victim' prefer an appeal against acquittal before the Court of Sessions (where the appeal against conviction shall ordinarily lie in a Magistrate triable case) or he may as a complainant approach the High Court and prefer appeal after seeking leave in terms of Section 378(4) Cr.P.C. Existence of twin remedies against a common cause of action vests the freedom of choice on the litigant to elect one in preference to the other and does not foretell an interpretative exercise mandating one remedy to the obliteration of the other. Principle of election of remedies is derived from common law and its origin may be traced to Streatfield v. Streatfield (1 White & Tudor, 416) wherein the doctrine was enunciated as follows:-