2018 Supreme(SC) 983

SUPREME COURT OF INDIA
MADAN B. LOKUR, DEEPAK GUPTA, JJ.
Mallikarjun Kodagali (Dead) represented through Legal Representatives – Appellants
Versus
State of Karnataka & Ors. – Respondents
CRIMINAL APPEAL NOS. 1281-82 OF 2018 (ARISING OUT OF S.L.P. (CRL.) NOS. 7040-7041 OF 2014)
Decided On : 12-10-2018

IMPORTANT POINT:
The relevant date for filing appeal against acquittal would be the dare of order of the trial court.

Headnote:Per Madan B. Lokur, J.

       (a) Criminal jurisprudence – Right of the victim – Rights of an accused far outweigh the rights of the victim in many respects – Victim at receiving end right from registering FIR, investigation and trial – Fair criminal proceedings needs balancing rights of the accused and the victim – Monetary compensation is not enough – Section 357A, Code of Criminal Procedure, 1973 – Efforts and directions of the Court – Holding in camera proceedings, providing for a screen between the accused and the victim and placing restrictions, in a sense, on the cross examination of witnesses – Plea bargaining – Chapter XXIA, and section 372 Proviso, Cr.P.C. – Victim impact statement or victim impact assessment must be given due recognition. (Para 4, 6, 8)

       (2004) 5 SCC 518 – Relied upon

       (2014) 2 SCC 1; (2017) 14 SCC 809; AIR 1988 SC 2127; AIR 1996 SC 922; (2013) 6 SCC 770; (2018) 4 SCC 433 – Referred

       (b) Code of Criminal Procedure, 1973 – Section 372, Proviso – Coming into force on 31.12.2009 – Appeal against acquittal, lesser sentence, inadequate compensation by victim – Applicability – Relevant date – Date of judgment and order of trial court – Date of occurrence not material. (Para 63, 67, 74)

       Criminal Appeal No. 238 of 2012 (Guj.); (2013) 1 Cal LT 109; 2011 (4) GLT 379; Crl. M.A. No. 7423 of 2011; (2014) (1) PLR 1; 2015 (151) DRJ 562; 2014 (1) PLJR 377; 2017 (3) RLW 2604 (Raj.); ILR 2016 (2) Kerala 713 – Cited with approval

       (2010) 12 SCC 599; (2015) 15 SCC 613 – Distinguished

       (c) Administration of justice – Right to appeal – A substantive right – Not a mere matter of procedure. (Para 71)

       1957 SCR 488 – Relied upon

       (d) Administration of justice – Judicial propriety and judicial discipline – Binding precedent – Judgment by a two Judge Bench – Not binding on a three Judge Bench – More so when it is an obiter dicta. (Para 73)

       (e) Code of Criminal Procedure, 1973 – Section 327, Proviso – appeal by victim – Leave of the court – Not requited – Contradistinction with section 378 which is applicable only in case of acquittal in a complaint case. (Para 79)

       Per Deepak Gupta, J.

       (f) Code of Criminal Procedure, 1973 – Section 372, Proviso – Appeal to High Court against acquittal – Relevant date – Right to appeal will arise only after judgment and order of the trial court – Relevant date therefore would be date of judgment and order of the trial court. (Para 83)

       Code of Criminal Procedure, 1973 and section 378(3) – Appeal to High Court against acquittal – Whether leave of the Court necessary – Section 378 not giving any right of appeal to victim – appeal to High Court against acquittal can only be filed with leave of the court – Proviso to section 372 not very happily worded – Section 372 not providing any procedure for appeal, i.e. the manner and limitation for filing appeal – The victim cannot be placed on a higher pedestal than the State or the complainant – Reading Sections 378(3), 378(4) and 372 of CrPC together, the victim is also required to apply for leave to appeal before his appeal can be entertained. (Para 87, 91, 96, 98)

       (2015) 15 SCC 613 – Relied upon

       2017 SCC Online SC 821; (2018) 6 SCC 454 – Referred

       Facts of the case:

       The questions arising in this appeal u/s 372, Proviso, CrPC are: (i) Whether a `victim' as defined in the Cr.P.C. has a right of appeal against an order of acquittal in a case where the alleged offence took place prior to 31st December, 2009 but the order of acquittal was passed by the Trial Court after 31st December, 2009? (ii) Whether the `victim' must apply for leave to appeal against the order of acquittal?

       The appellant was the victim of an attack on the night of 6th February, 2009. He lodged a First Information Report with the police and after investigations, necessary proceedings were taken before the District and Sessions Judge..

       The District and Sessions Judge acquitted the accused by a judgment and order dated 28th October, 2013.

       Kodagali preferred an appeal in the High Court under the proviso to Section 372 of the Cr.P.C. It was dismissed as not maintainable by the High Court holding that the proviso to Section 372 of the Cr.P.C. came into the statute book with effect from 31st December, 2009 but the incident had occurred well before that date. Therefore, the appeal was not maintainable.

       Kodagali then preferred another appeal in the High Court under the provisions of Section 378(4) of the Cr.P.C. The High Court held that the appeal was not maintainable on the ground that on a plain reading of Section 378(4) of the Cr.P.C., namely, that the appeal was not filed in a case instituted upon a complaint before a Magistrate.

       Finding of the Court;

       The appeal filed by Kodagali before the High Court was maintainable and ought to have been considered on its own merits.

       Result: Appeals allowed. Judges are divided on whether victim is required to obtain leave of te Court to file appel u/s 372, Provions