The main legal point established in the judgment is that the proviso to Section 372 Cr.P.C. does not allow a victim to file an appeal against inadequate sentence, and the appeal is a creature of a statute and cannot lie under any inherent power.

JUDGMENT :

MANMOHAN, J (Oral):

1. Present appeal has been filed under Section 372 Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’) on behalf of the complainant (father of the deceased) challenging the order on sentence dated 17th August, 2019 passed by ASJ/Special Judge (NDPS), North District, Rohini Courts, Delhi in Sessions Case No. 58259/2016 arising out of FIR No.742/2007 registered with Police Station Prashant Vihar. The Trial Court had convicted the accused (respondent No. 2) in the said case under Sections 302/364A/201 IPC and sentenced him to imprisonment for life under Sections 302 and 364A IPC and imprisonment for seven years under Section 201 IPC.

2. Learned counsel for the appellant contends that the sentence awarded to the convict is inadequate and needs to be enhanced to death penalty.

3. At this stage, it is pointed out to the learned counsel for the appellant that the present appeal is not maintainable as the same has been filed under Section 372 Cr.P.C. and the said provision does not contemplate an appeal by the victim/complainant against inadequate sentence.

4. Mr. C.L. Gupta, learned counsel for the appellant states that there needs to be a balance between the rights of an accused and that of the victim so that the proceedings are fair to both of them. He submits that the Supreme Court in Mallikarjun Kodagali (Dead), represented through Legal Representatives vs. State of Karnataka & Ors, 2018 (14) SCALE 32 has observed that the victim should be heard by the Court before awarding an appropriate punishment/sentence to the accused person. He contends that the logical sequitur of the observations made by the Supreme Court in Mallikarjun Kodagali (supra) is that a victim has an inherent right to challenge the Trial Court order awarding inadequate sentence.

5. He further contends that since the victim has a right to appeal against an order when the convict has been convicted for a lesser offence, the victim should be deemed to have a right to file an appeal against an order when the convict has been awarded a lesser sentence. He relies upon the judgment of this Court in Jagmohan Bhola vs Dilbagh Rai Bhola and Ors. Crl. A. No. 793 of 2010, which was followed in a subsequent judgment by this Court in Shikha Beniwal vs State and Anr., Cr.A.No.1320 of 2012. The relevant portion of the judgment in Shikha Beniwal (supra) is reproduced hereinbelow:-

“15. The question, therefore, which falls for consideration is whether the victim has the right to approach the Court for enhancement of sentence.

16. In Jagmohan Bhola (supra) although the issue was whether leave to appeal was required to be obtained by a victim for preferring an appeal u/s 372 of the Code but the observations of Division Bench of this Court are material which are as under:-

“...The proviso to Section 372 is a special provision and it deals with three different situations, namely, appeals against acquittal, conviction for a lesser offence and inadequacy of compensation. The proviso to Section 372 is not limited to appeals against acquittals. All the appeals, whether they are against acquittal or conviction for a lesser offence or inadequate compensation, have been placed on the same footing. So, while a parallel is sought to be drawn by the learned counsel for the respondents between an appeal under the proviso to Section 372 with an appeal against acquittal under Section 378, it cannot be forgotten that the appeal under the proviso to Section 372 is not limited to appeals against acquittals but also concerns itself with appeals against conviction for lesser offence which is akin to the State’s appeals for enhancement of sentence under Section 377 which, in turn, does not require any leave of the High Court to be taken. Similarly, there is no requirement under the statute for leave to be taken in respect of an appeal in respect of inadequate compensation. All these three circumstances have been placed on the same footing under the proviso to Section