2012 Supreme(Bom) 884

High Court of Judicature at Bombay
ROSHAN DALVI
Balasaheb Rangnath Khade & Others
Versus
The State Of Maharashtra & Others
CRIMINAL APPEAL NO. 991 OF 2011, 992 OF 2011, 331 OF 2011 & 854 OF 2011
Decided on: 27-04-2012

Headnote:CRIMINAL PROCEDURE CODE, 1973 - Section 372, Proviso - Appeal against acquittal by victim.

       Right of victim of crime to file appeal against acquittal is absolute. - The right of the victim to speak, therefore, corresponds with the obligation of the Court to listen and that listening is a must for the right to be free, full and unfettered; it cannot be shackled upon leave granted by the Court, the hearing of which the Court is obligated to listen. Requiring the victim to obtain leave would mean that it is trammelled by what the Court deems fit to do. The Court in the case of the victim has no right to use its discretion, sagacity or wisdom to decide whether or not a given victim may appeal a judgment of acquittal, lesser offence or inadequate compensation. The Court would be duty bound to hear the appeal on merits and allow it or dismiss it on merits. To grant the Court the right to give leave would be to denude the only right of the victim granted to him or her in Indian criminal jurisprudence. That could never be envisaged to be the intention of the Legislature when the proviso was inserted as an exception/qualification/clarification to the head section of the chapter dealing with the appeals demonstrating in no uncertain terms that through all appeals would be guided by the Code, the victim shall have the right of appeal.

       CRIMINAL PROCEDURE CODE, 1973 - Section 372, Proviso - Appeal against acquittal by victim.

       There is no anomaly in fact that even if leave is refused to State, victim can prosecute appeal against acquittal. - The situation that there would be plurality of appeals must also not deter in the true construction of the proviso. The case of Zahira Sheikh, 2004 All MR (Cri) 2502 (SC) is a telling demonstrative reflection of this position. There is, therefore, no anomaly in the fact that even if leave is refused to the State the victim could be able prosecute the appeal. That is the ultimate justice that the victim could avail to herself/himself by his own effort, endevour and exercise. In fact it is reflective of the present situation in which the victim must bear the brunt of refusal of appeal of the prosecution without having a say in it. The fact that in a given case leave may be refused to the State, but the victims would be heard in appeal is the contemplated check. If such an appeal ultimately results in reversal of acquittal it would be the ultimate test of the melody and the remedy for such melody.

       CRIMINAL PROCEDURE CODE, 1973 - Section 372, Proviso - Appeal against acquittal by victim.

       Victim has a right to file appeal against acquittal even without obtaining prior leave of High Court as Proviso to Section 372 of Code is a complete code in itself. - Chapter XXIX as amended would show that though none can file an appeal except as provided for in that chapter, the victim had a right to appeal.

       That right is also circumscribed under 3 circumstances - (1) acquittal, (2) conviction for lesser offence (3) inadequate compensation.

       The competent Court where the appeal would be filed has also been specified being where the appeal would lie against the order of conviction.

       Hence the proviso provided for the right of the victim for the first time in the criminal jurisprudence of the country and specified the 3 cases when such right was given and the only Court where such rights could be exercised. In fact, it would, therefore, not be a farfetched proposition to take the proviso to Section 372 as a complete code in itself.

       CRIMINAL PROCEDURE CODE, 1973 - Section 372, Proviso - Right of victims.

       Right of victims of crime to file appeal against acquittal, recognized for first time by 2009 Amendment.

       CRIMINAL PROCEDURE CODE, 1973 - Section 372, Proviso - Rights of victims of crime.

       Appeal against acquittal by victim of crime, is on a different footing by virtue of 2009 amendment. - Heeding what was the social scenario at and before the amendment was brought about and us effect upon the society, law, as an instrument of social welfare, came to the rescue of the victims who were then not only the victim of the particular crime but victim in the criminal justice system itself, then neglected and even violated "Revictimised" as has been critiqued certain researchers and jurists of our Justice System. he denial of the rights of the victim were under manifold circumstances which propelled the Legislature into recognizing and granting the victims the specific right to file the appeal which hitherto they did not have. The rights of the victim were, of course, jeopardiz ed, curtailed, restricted, neglected or breached at all stages of the criminal machinery some damage and harm done may be fatal and may not be restorative or remediable e.g. if an important witness is not examined at all by the investigating officer and the victim, not being in charge of the investigation, is unable to assist or even help himself/herself. Similarly at the trial stage an important witness may not be examined leaving an unfillable hole in the prosecution case which would directly affect the victim’s human rights.

       The harm and damage could also be done by an ineffective prosecution at the appeal stage. The Legislature, though late in the day took note of that situation and sought to remedy it by putting in the hands of the victim the carriage of the proceedings hitherto unavailable to him/her.

       The law, for the first time, sought to remedy that situation albeit at a later hour after the trial in an appeal so that the victim can lay bare the facts of the case to the Appeal Court and to demonstrate before the Appeal Court the miscarriage of justice done to him/her directly.

       The fact that an appeal may be filed from an order of acquittal is not all and is not enough. The worth of the appeal can be seen from the case made out by the prosecution in appeal. The practice of the prosecution is to the knowledge of the Court. The prosecutor who prosecutes the trial never prosecutes the appeal. It is he/she alone who knows the merits of the prosecution case shown to the trial Court but not appreciated or accepted. He/she must file he appeal. That is not done. Another prosecutor in the Appeal Court filed the appeal not knowing the nuances of the case or its strong points. It is the victim who knows his/her case better. It is the victim who can assist the Court better. It is that victim who alone was until the amendment of 2009 sidelined, ignored and kept down. It is he/she who is then sought to be given a right until then denied to him/her. It is, therefore, not in not filing the appeal against acquittal, but in not prosecuting such appeal that a departure was merited and has been done. The appeal by the victim is, therefore, on a different footing.

       CRIMINAL PROCEDURE CODE, 1973 - Sections 372, Proviso and 378 - Appeal against acquittal.

       Complainant, in a private complaint, cannot avoid scrutiny of Court for being granted leave contemplated in Section 378(4) of Code. - The question whether a private complainant would take recourse to the provision to Section 372 is not threatening. A complainant in a private complaint, even if he/she has been the victim of the offence, would not fall under the said proviso as a victim since the appeal to be filed by his has been separately contemplated under the specific provision being Section 278(4). Hence though describing him as a victim, which inclusive definition came to be incorporated in the Criminal Procedure Code only alongside the incorporation of the proviso to Section 372, it would apply only to those who fall within the proviso. The complainant in a private complaint would not be able to avoid the scrutiny of the Court for being granted the leave contemplated in Section 378(4) which provision stands.

       CRIMINAL PROCEDURE CODE, 1973 - Sections 372, Proviso and 378 - Appeal against acquittal.

       It is not necessary for victim of crime to obtain prior leave of High Court for filing appeal against acquittal as contemplated under Section 378 of Code. - The appeals under proviso to Section 372 do not fall within the parameters of Section 378 of the Code of Criminal Procedure. Consequently the requirement of obtaining leave read into the provision with regard to the substantive right given to the victim to file such appeal.

       If the victim was required to take leave to appeal against acquittal only, why would the Legislature not provide for such requirement expressly? This question would be more acute since the Legislature has provided expressly for the requirement of leave by the State as well as the private complaint both of whom have prosecuted the crime and have failed. If that was so, the Legislature could have provided for the additional appeal by a victim by incorporating another sub-para in Section 378 itself in the same terms as Section 378(4). But the Legislature added a proviso setting out an exception to the whole chapter of appeals in conferring the right to the victim to appeal instead. There are no consequential amendments to Section 378.

       The procedural requirement about the application and grant of the leave of the High Court has remained uncharged. It would apply with all force in case of State appeals as also appeals by complaint in private complaints, but none else. Reading into such a proviso away from the other provision of leave in Section 378, a mandate for leave would be to rewrite the legislation and to go against its implicit intention. The would do injustice to the amendment and the mischief that it sought to remedy. That would also lead to anomaly and absurdity not be contemplated by the Legislature. Since the particular procedural requirement is not provided, it must be taken to be intended to be excluded or exempted upon reading the statute as a whole.

       The right to bring before the appeal Court the merits of the matter would be denuded and diluted by the various road blocks that leave would necessitate when the Legislature specifically refrained from putting the victim on par with the State or the private complainant in the section elating to appeals - Section 378 of the Cr PC and put the m in the head section excepting them from the rigours of the procedure relating to appeal s. There is therefore, no need or requirement to read into the proviso any procedural act which would denude it if its effectiveness or the read down the express statutory right.

       Criminal Procedure Code, 1973 - Sections 372 Proviso and 2(wa) - Right of victim to file appeal. Since victim also has right to appeal from order of acquittal, lesser offence or inadequate compensation hence leave of Court not required to be obtained by victim for filing any of appeals under Proviso to Section 372 of Code.