Point of Law: Proviso to Section 372 CrPC makes it discernible that a victim shall have a right to prefer an appeal against any order passed by Court acquitting accused or convicting accused for a lesser offence or imposing inadequate compensation, and that such appeal shall lie to Court to which an appeal ordinarily lies against order of conviction of such Court.

JUDGMENT :

A.M.Bujor Barua, J.

Heard Mr. D Talukdar, learned counsel for the applicant/appellant, Ms. B Bhuyan, learned Additional Public Prosecutor for the State of Assam and Mr. A Ganguly, learned counsel for the accused respondents No. 1 to 7 in Crl.A. No. 350/2018 arising out of Sessions T(1) Case No. 138(N)/2003 in the Court of the learned Additional District and Sessions Judge, Nagaon.

2. On being acquitted by the judgment dated 16.02.2016 in the aforesaid Sessions Case, the accompanying Criminal Appeal No. 350/2018 has been instituted by Md. Abul Hussain under the proviso to Section 372 of the Code of Criminal Procedure, 1973 (in short CrPC) by virtue of being the victim in the occurrence that had taken place. The appeal was admitted by the order dated 10.12.2018. In the meantime, the respondents No. 1 to 7 had been duly served and Mr. A Ganguly, learned counsel appears for them.

3. During the pendency of Criminal Appeal No. 350/2018, the appellant Md. Abul Hussain died on 30.07.2021. On his death, the instant interlocutory application has been instituted for allowing the applicant Amradul Hussain to further pursue with the Criminal Appeal No. 350/2018.

4. Mr. A Ganguly, learned counsel for the respondents No. 1 to 7 has raised an objection by referring to the provisions of Section 394 of the CrPC to raise the contention that on the death of the appellant Md. Abul Hussain, the Criminal Appeal No. 350/2018 stood abated and as the appeal itself is no longer in existence, therefore, there cannot be any order to allow the present applicant to further pursue the Criminal Appeal No. 350/2018. The learned counsel by referring to the objection filed also takes the stand that there is no specific provision in the CrPC to allow another person to pursue and continue with the appeal once the original appellant had died during the pendency of the appeal. Mr. Ganguly, learned counsel specifically urges that the said contention would also be applicable even in a case where it is an appeal against acquittal.

5. We have heard the learned counsel for the parties. We take note that the Criminal Appeal No. 350/2018 had been instituted by Md. Abul Hussain under the proviso to Section 372 of CrPC. We also take note that Md. Abul Hussain was the father of the deceased, whose death was the subject matter of Sessions T(1) Case No. 138(N)/2003. The proviso to Section 372 of CrPC reads as follows:-

“Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court”

6. A reading of the proviso to Section 372 CrPC makes it discernible that a victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting the accused for a lesser offence or imposing inadequate compensation, and that such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. In other words, the proviso to Section 372 CrPC entitles the victim to a right to prefer an appeal against any order acquitting the accused or convicting the accused for a lesser offence or imposing inadequate compensation.

7. Section 2(wa) of CrPC defines the victim as extracted:-

“victim’ means a person who has suffered any loss or injury caused by reason of the act or omission of which the accused person has been charged and the expression ‘victim’ includes his or her guardian or legal heir;”

8. The meaning given to the expression ‘victim’ under Section 2(wa) of CrPC is that the victim means a person who has suffered any loss or injury caused by reason of an act or omission for which the accused person has been charged.

9. In the instant case, as already noted Md. Abul Hussain was the father of the deceased in the occurrence related to Sessions T(1) Case No. 13