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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Debasish Kar Gupta and Md. Mumtaz Khan, JJ.
State of West Bengal - Appellants
Versus
Subhas Bhowmik @ Baban & Ors. - Respondents
GA No. 3 of 2015 With CRA No. 98 of 2015
Decided On : 04-08-2016
CRIMINAL APPEAL - Preliminary Objection - Maintainability of Appeal - Right of Victim to prefer Appeal - Interpretation of Section 372 of the Code of Criminal Procedure (Cr.P.C.) - Necessity of obtaining Leave of High Court - Scope of Proviso to Section 372 of the Cr.P.C. - Applicability of Sub-section (3) of Section 378 of the Cr.P.C. - Legislative Intent - Pre-Amendment Legislative History - Object and Purpose of Amendment - Widening of Definition of "Victim" - Creation of Statutory Right of Appeal for Victim - Procedure for Preferring Appeal - Grammatical Meaning of Terms "to Prefer" and "to Present" - Binding Effect of Supreme Court Judgment in Satya Pal Singh - Harmonious Construction of Section 372 and Sub-section (3) of Section 378 of the Cr.P.C. - Prospective Effect of Judicial Interpretation - Applicability of Settled Propositions of Law - Dismissal of Appeal for Default or Non-Prosecution - Effect of Supreme Court Judgments in L. Chandra Kumar and Mohd. Ramzan Khan - Maintainability of Appeal without Leave - Existence of Appeal in Eye of Law.
Fact of the Case:
Two appeals were filed against a judgment and order of acquittal of five accused persons in a case of murder and other offenses. One of the appeals was filed by the State of West Bengal, and the other was filed by the daughter of the deceased person under the proviso to Section 372 of the Cr.P.C. A preliminary objection was raised regarding the maintainability of the latter appeal, as the appellant had not obtained the leave of the High Court as required under sub-section (3) of Section 378 of the Cr.P.C.
Finding of the Court:
The Court held that the preliminary objection was well-founded and that the appeal filed by the daughter of the deceased person was not maintainable. The Court interpreted the provisions of Section 372 of the Cr.P.C., as amended by the Criminal Procedure Code (Amendment) Act, 2008, and held that the right of a victim to prefer an appeal against an order of acquittal is subject to the requirement of obtaining the leave of the High Court under sub-section (3) of Section 378 of the Cr.P.C. The Court further held that the intention of the legislature was to create a statutory right of appeal for victims while also providing a safeguard to the accused persons similar to that provided in case of appeals by the prosecutor.
Issues: 1. Whether the appeal filed by the daughter of the deceased person was maintainable without obtaining the leave of the High Court? 2. Interpretation of Section 372 of the Cr.P.C. in light of the amendment introduced by the Criminal Procedure Code (Amendment) Act, 2008. 3. Scope of the proviso to Section 372 of the Cr.P.C. and its relationship with sub-section (3) of Section 378 of the Cr.P.C.
Ratio Decidendi: 1. The right of a victim to prefer an appeal against an order of acquittal under the proviso to Section 372 of the Cr.P.C. is subject to the requirement of obtaining the leave of the High Court under sub-section (3) of Section 378 of the Cr.P.C. 2. The intention of the legislature in amending Section 372 of the Cr.P.C. was to create a statutory right of appeal for victims while also providing a safeguard to the accused persons similar to that provided in case of appeals by the prosecutor. 3. The proviso to Section 372 of the Cr.P.C. must be interpreted harmoniously with sub-section (3) of Section 378 of the Cr.P.C., and the procedure prescribed in sub-section (3) of Section 378 of the Cr.P.C. must be followed by victims seeking to prefer an appeal against an order of acquittal.
Final Decision: The Court dismissed the appeal filed by the daughter of the deceased person for being not maintainable, as she had not obtained the leave of the High Court as required under sub-section (3) of Section 378 of the Cr.P.C.
1. These two appeals are directed against a judgment and order of acquittal of five accused persons, namely, (1) Ashit Gayen, (2) Sasti Gayen, (3) Kartick Das, (4) Subhas Bhoumik @ Baban and (5) Ramesh Mahato dated December 6, 2014 passed by the learned Additional District & Sessions Judge, Fast Track 1st Court, Howrah in S.T. No. 88 of 2012 arising out of Bally Police Station Case No. 205 of 2011 (G.R. Case No.2097 of 2011) dated May 6, 2011 under Sections 302/120B/34 of the Indian Penal Code (hereinafter referred to as the I.P.C.) read with Sections 25/27/35 of the Arms Act.
2. A separate charge sheet dated September 26, 2011 was filed against two other accused persons, namely, Santosh Singh and B. Raju under Sections 302/120B/34 of the I.P.C. read with Sections 27/35 of the Arms Act showing both of them as absconder before the learned Chief Judicial Magistrate, Howrah. Consequent thereupon, the names of the aforesaid two accused persons were “filed for the present” by an order dated March 22, 2012 passed by the aforesaid learned Chief Judicial Magistrate, Howrah.
3. An application bearing CRMSPL No.1 of 2015 filed by the State of West Bengal against the aforesaid judgment and order of acquittal filed under Section 378 (1) (b) of the Cr.P.C. was allowed by an order dated April 6, 2015 granting special leave to prefer the appeal. Subsequently, the appeal bearing GA No.3 of 2015, the former one before us, was admitted by an order dated May 15, 2015.
4. The later appeal bearing CRA No.98 of 2015 preferred by Priyanka Dutta daughter of the deceased person Tapan Dutta under the proviso to Section 372 of the Cr.P.C. has been directed to be heard by an order dated April 8, 2015.
5. At the very outset, a preliminary objection is raised by Mr. Sekhar Basu, learned Senior Advocate appearing on behalf of the accused persons with regard to the maintainability of the later appeal bearing CRA 98 of 2015. According to Mr. Basu, the above appeal has been filed by the appellant as a victim as defined under sub-section (wa) of Section 2 of the Cr.P.C. It is further contended by him that the right of questioning correctness of the judgment and order of acquittal by preferring an appeal to the High Court, under the proviso to Section 372 of the Cr.P.C., which is conferred upon the victim including the legal heir and others as defined under sub-section (wa) of Section 2 of the Cr.P.C., is subject to obtaining of a leave of the High Court as provided under sub-section (3) of Section 378 of the Cr.P.C. It is submitted by Mr. Basu that since the appellant failed to file an application praying for a leave to appeal under sub-section (3) of Section 378 of the Cr.P.C., there is no scope to hear the appeal on merit at this stage.
6. Reliance is place by Mr. Basu on the decisions of Satya Pal Singh, reported in 2016 (1) AICLR 7 (S.C.) 7, P.V. George & Ors. vs. State of Kerala & Ors., reported in (2007) 3 SCC 557, M.A. Murthy vs. State of Karnataka & Ors., reported in (2003) 7 SCC 517, B.A. Linga Reddy & Ors. vs. Karnataka State Transport Authority & Ors., reported in (2015) 4 SCC 515 and State of West Bengal vs. Munwar Ali Khan, reported in (2010) 3 C Cr. LR (Cal) 256 in support of his above submissions.
7. It is submitted by Mr. Sudipta Moitra, learned State Advocate, that the intention of the legislature to incorporate a proviso into the body of Section 372 of the Cr.P.C. by virtue of the Criminal Procedure Code (Amendment) Act, 2008 is to create a status of the “victim” widening the definition of “victim” by insertion of sub-section (wa) of Section 2 of the Cr.P.C. According to him, it gives a locus to the victim creating a right of appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation in favour of the victim which is a creature of the statute. According to him, while a procedure is provided in the principal Section to the effect that no appeal should lie from an
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