Back
IN THE HIGH COURT OF CALCUTTA
Joymalya Bagchi, J.
MRINAL KANTI SIL – Appellant
Versus
SAMPA KABIRAJ – Respondent
C.R.R. Nos. 3048, 3049, 3108, 3433 of 2016 & C.R.M.S.P.L. Nos. 3, 101 of 2016, 29 of 2015 & C.R.A.N. No. 3895 of 2016
Decided On : 14-03-2017
Right of Appeal - Victim - Code of Criminal Procedure - Section 372 - 378 - 2008 Amendment Act - Victim's right to appeal against an order of acquittal or conviction for lesser offences or inadequate compensation - Interpretation of the proviso to Section 372 Cr.P.C. - Differing views of High Courts - Election of remedies - Period of limitation for appeal by the Victim
Fact of the Case:
The court addressed the issue of whether a victim in a complaint case can avail of the right to appeal under the proviso to Section 372 Cr.P.C. and the form and manner of availing such remedy. The court also discussed the differing views of various High Courts on the matter, the concept of election of remedies, and the period of limitation for appeal by the Victim.
Finding of the Court:
The court held that a Victim in a complaint case is entitled to prefer appeal against an order of acquittal or conviction for lesser offence or inadequate compensation in terms of proviso to Section 372 Cr.P.C. notwithstanding the existence of pre-existing appellate remedy in favor of the complainant under Section 378(4)/(5) Cr.P.C. The court also held that where the complainant is also the Victim of crime, he is entitled to prefer appeal as a Victim in terms of proviso to Section 372 Cr.P.C. against conviction for lesser offence or inadequate compensation in addition to the appellate remedy under Section 378(4)/(5) Cr.P.C. The court further held that the period of limitation to prefer appeal by a Victim in a complaint case in terms of proviso to Section 372 Cr.P.C. shall be sixty days from the date of the impugned order.
Issues: The issues addressed by the court included whether a victim in a complaint case can avail of the right to appeal under proviso to Section 372 Cr.P.C. and the form and manner of availing such remedy.
Ratio Decidendi: The court held that a Victim in a complaint case is entitled to prefer appeal against an order of acquittal or conviction for lesser offence or inadequate compensation in terms of proviso to Section 372 Cr.P.C. notwithstanding the existence of pre-existing appellate remedy in favor of the complainant under Section 378(4)/(5) Cr.P.C. The court also held that where the complainant is also the Victim of crime, he is entitled to prefer appeal as a Victim in terms of proviso to Section 372 Cr.P.C. against conviction for lesser offence or inadequate compensation in addition to the appellate remedy under Section 378(4)/(5) Cr.P.C. The court further held that the period of limitation to prefer appeal by a Victim in a complaint case in terms of proviso to Section 372 Cr.P.C. shall be sixty days from the date of the impugned order.
Final Decision: The court referred the questions for decision by a larger Bench due to the conflicting views on the matter.
Joymalya Bagchi, J.
1. The questions which arise for determination in these cases are as follows:-
(a) Whether a victim in a complaint case can avail of the right to appeal under proviso to Section 372 Cr.PC?
(b) If so, what is the form and manner of availing of such remedy?
2. In order to answer the aforesaid questions a discussion as to evolution of the right to appeal against an order of acquittal in a criminal case under the Code of Criminal Procedure may be apposite.
Evolution of Right of Appeal against Acquittal
3. The right of appeal against an order of acquittal was expressly barred in the Code of Criminal Procedure as enacted in 1861. Section 407 of the said Code, inter-alia, provided as follows:-
"S. 407.- No Appeal in cases of acquittal: There shall be no appeal from a judgment of acquittal passed in any Criminal Court."
4. The remedy of appeal against acquittal was incorporated for the first time in 1872 in the interest of public safety, peace and order.
5. The 1861 Code was replaced by the 1898 Code which, inter-alia, provided for an appeal against acquittal to the High Court which could be preferred by the provincial Government only through Public Prosecutor against an original or appellate order passed by any other court other than High Court. Post Independence, Code of Criminal Procedure (Amendment) Act, 1955, introduced Section 417 Cr.P.C. to the 1898 Code which laid down such right of appeal as follows:-
S. 417.- Appeal in case of acquittal: (1) Subject to the provisions of sub-section (5), the appeal in State Government may, in any case, direct the Public prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment Constituted under the Delhi Special Police Establishment Act, 1946, the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal.
(3) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(4) No application under sub-section (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal.
(5) If, in any case, the application under sub-section (3) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1)."
6. The aforesaid provision for the first time extended the right to appeal to a complainant also in a complaint case which, however, was subject to grant of special leave by the High Court.
7. The next seminal change in procedural law was the enactment of the Code of Criminal Procedure, 1973 which repealed the 1898 Code. The right to appeal against an order of acquittal in the 1973 Code was provided in Section 378 Cr.P.C. which reads as follows:-
"378. Appeal in case of acquittal.- (1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
