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ALLAHABAD HIGH COURT
Amreshwar Pratap Sahi and
Om Prakash-VII, JJ.
Manoj Kumar Singh —Applicant
versus
State of U.P. & Ors. —Opp.Parties
Criminal Miscellaneous Application Defective No. 67 of 2013
Decided on 13.1.2015
Counsel for the Parties:
For the Applicant: Satish Chandra Sinha
For the Opp.Parties:Govt. Advocate
IMPORTANT POINT
Whether the definition of the word “victim” as used in Section 2 (wa) would mean any person other than a “guardian” or “legal heir” also for the purpose of maintaining an appeal under Section 372 Cr. P.C., matter referred to large bench.
Headnote:Criminal Procedure Code, 1973 — Section 372 — Appeal against acquittal — Application for grant of leave to appeal — Applicant-appellant was brother-in-law of deceased i.e. husband of sister of deceased — Acquittal was founded on witnesses having become hostile including parents of deceased — It was difficult to accept appellant as a “victim” so as to entitle him to file appeal — In view of another Division Bench judgment in case of Edal Singh matter needed authoritative pronouncement on the question “Whether the definition of word “Victim” as used in Section 2(wa) would mean any person other than a “guardian” or “legal heir” also for purpose of maintaining an appeal u/s 372 CrPC, to larger bench.
Held: With the aforesaid definitions and the judgments at hand it would be appropriate to refer to the status of the present appellant who is the husband of the sister of the deceased. He does not appear to be either the informant or the witness of the crime. There is no fact or foundation that may indicate any loss having been suffered by the appellant. There is no authorisation by any of the family members of the deceased in favour of the appellant. The parents of the deceased Prem Singh and her mother Madhuri Singh had virtually not supported the prosecution story. The trial court did not find any evidence worth the name to prosecute the accused, but that is a different matter altogether which can be looked into when the appeal is filed by an aggrieved person or any other person who may fall within the definition of the word “victim”, as aforesaid. The appellant, in our opinion, does not fall within the definition either as a guardian, legal heir or victim himself, more so when the own sister of the deceased has not come forward to file the appeal. In the aforesaid circumstances, we prima facie do not find any locus of the appellant to present this appeal.
This, however, does not in any way prevent any other person who may fall within such definition to file an appeal or the State which is under an obligation to file an appeal particularly in such matters. It is, therefore, open to the State to maintain its appeal and a copy of this order shall be made available to the learned Government Advocate for information.
We, however, find that the view that has been expressed by us herein above may require an authoritative pronouncement as we have come across another Division Bench judgment in the case of Edal Singh Vs. State of U. P. and others in Criminal Misc. Application u/s 372 Cr.P.C. (Leave to Appeal) No. 172 of 2014 decided on 10.4.2014 where the learned Division Bench has made the following observations :-
We also have some doubts where the appellant, who is not the grand father, but grand uncle of the deceased Babloo has any locus standi to file this appeal, as the right of filing the appeal, which has been conferred under section 372 Cr.P.C. has been given to a victim who has been defined under section 2(wa) to mean a person who has suffered any loss or injury caused by reason of the act or omission for which the accused persons have been charged and the expression “victim” includes his or her guardian or legal heir. It cannot be said that the grand uncle i.e. the brother of the grand father would be any person, who could be considered to have suffered any loss or injury. Also the grand uncle not being a lineal ascendant or descendant would not be his legitimate legal heir and we doubt that such an enlarged meaning as has been suggested by the learned counsel for the appellant has been given to any person to file an appeal. We, therefore, do not find any perversity or illegality in the judgment of the Trial Court calling for interference in the order of acquittal recorded by the Trial Court. The application for leave to appeal is rejected and the appeal is, consequently, dismissed.”
The aforesaid Division Bench, however, does not take notice of the judgments which have been referred to by us herein above. In particular we would refer to the judgment of the Full Bench of Punjab & Haryana High Court in the case of M/s. Tata Steel Ltd. (Paras 16 to 19)
Result: Order accordingly.
JUDGMENT
Heard Sri Satish Chandra Sinha, learned counsel for the appellant and Sri Rajiv Sharma for the State.
2. This appeal has been preferred under Section 372 Cr. P.C. along with Delay Condonation Application. At the time of entertaining the same following order was passed by the Division Bench on 31.05.2013 :
“This application for grant of leave to appeal has been filed by Manoj Kumar Singh, who is the brother-in-law of the deceased. The informant father of the deceased has not preferred any appeal against acquittal.
The application for condonation of delay in filing the appeal has been filed supported by an affidavit.
The question arises that as to whether the applicant Manoj Kumar Singh has a right to file an appeal under section 372 Cr.P.C. or not.
Learned counsel appearing on behalf of the applicant prays for and is granted three weeks’ time to prepare the case.
List this application along with appeal in the second week of July, 2013 before the appropriate Bench.”
3. One of the questions that was posed at the time of entertaining the appeal, as to whether the present applicant Manoj Kumar Singh did have any right to prefer the appeal under Section 372 Cr. P.C. or not.
4. It is admitted on record that the appellant has described himself as the brother-in-law of the deceased i.e. husband of the sister of the deceased.
5. The acquittal is founded on the witnesses having become hostile including the parents of the deceased. In these circumstances, it is difficult to accept the appellant as a victim so as to entitle him to file the present appeal when his wife, who is the sister of the deceased, is alive and could have filed an appeal.
6. It would be apt to quote Section 2 (wa) of the Code of Criminal Procedure, 1973 which provision has been inserted by Act No. 5 of 2009 w.e.f. 31.12.2009. The same is extracted hereunder :
“(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;
7. Prior to the coming of the said amendment, the issue as to who would be entitled to file an Appeal under Section 372 Cr.P.C. can be gathered from the position that was explained in the case of J. K. International Vs. State (Govt. of NCT of Delhi) and others, (2001) 3 SCC 462. The Apex Court considered the provisions of Section 301 and 302 of the Code of Criminal Procedure and deliberated on the issue as to when a private person can be permitted to conduct a prosecution and then also relied on the decision, Bhagwant Singh Vs. Commissioner of Police, (1985) 2 SCC 537 to speak in favour of the informant where the Apex Court gave its opinion with reference to Section 173(2)(i) of the Code. The Apex Court then held that the doors cannot be closed in such a situation and the complainant deserves to be heard.
8. Then comes the next decision in the case of Puran Vs. Rambilas and another, (2001) 6 SCC 338 where also this issue was considered, though in a different context of cancellation of a bail. That was a case where a third party had moved a bail cancellation application. It was held that the power that was vested in the High Court for cancellation under Section 439 of Code of Criminal Procedure can be invoked either by the State or by any aggrieved party.
9. However, problems were being faced and consequently an amendment was brought and Section 2 (wa) was introduced.
10. The power of the court and the filing of appeal where the State was lagging behind also came up for consideration in the conduct of fair trial in the case of Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi), (2010) 6 SCC 1. It was after the media had reflected extensively on the credibility of the investigation and the trial that the matter was taken up by the Delhi High Court and suo motu directions were issued for filing of an appeal. However, the aforesaid, provision does not appear to have been consider
