A.F.R.

Court No. - 42

Case :- CRIMINAL MISC. APPLICATION DEFECTIVE U/S 372

CR.P.C (LEAVE TO APPEAL) No. - 1 of 2014

Applicant :- Archana Devi

Opposite Party :- State Of U.P. And 5 Others

Counsel for Applicant :- P.K. Singh

Counsel for Opposite Party :- Govt. Advocate,Apul

Mishra,Rakesh Dubey

Hon'ble Vivek Kumar Birla,J.

Hon'ble Vikas Budhwar,J.

List revised. None is present to present this appeal on behalf of the

applicant. Sri Rakesh Dubey, learned counsel for the accused-

respondents is present.

The present appeal has been filed with delay condonation

application.

Office has reported a delay of 122 days.

Sri Rakesh Dubey, learned counsel for the accused-respondent

while drawing attention to the prayer clause has submitted that the

present appeal has been filed for enhancement of the sentence. The

prayer so made in the memo of appeal is quoted as under:-

"It is, therefore, most respectfully prayed that this Hon'ble Court may

graciously be pleased to enhance the sentence of accused respondents No. 2

& 3 and convict the accused respondent No. 3 to 6 who have been acquitted

from the charges ignoring the evidence And /or pass such other and further

order which this Hon'ble court may deem fit and proper in the circumstances

of the case."

By placing reliance on the judgment of Hon'ble Apex Court in the

case of Parvinder Kansal Vs. The State of NCT of Delhi and Anr.

reported in 2020 (113) ACC 676, Sri Rakesh Dubey submitted that

the appeal for enhancement of punishment u/s 372, Cr.P.C. is not

maintainable, paragraph no. 9 which is quoted as under:-

"9. Chapter XXIX of the Code of Criminal Procedure, 1973 deals with

‘Appeals’ and Section 372 makes it clear that no appeal to lie unless

otherwise provided by the Code or any other law for the time being in force.

It is not in dispute that in the instant case appellant has preferred appeal only

under Section 372, Cr.P.C. The proviso is inserted to Section 372, Cr.P.C. by

Act 5 of 2009. Section 372 and the proviso which is subsequently inserted

read as under:

“372. No appeal to lie unless otherwise provided. –

No appeal shall lie from any judgment or order of a

Criminal Court except as provided for by this Code or

by any other law for the time being in force:

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.” A reading of the proviso makes it clear that so far as victim’s

right of appeal is concerned, same is restricted to three eventualities, namely,

acquittal of the accused; conviction of the accused for lesser offence; or for

imposing inadequate .A.@S.L.P.(Crl.)No.3928 of 2020 compensation. While

the victim is given opportunity to prefer appeal in the event of imposing

inadequate compensation, but at the same time there is no provision for

appeal by the victim for questioning the order of sentence as inadequate,

whereas Section 377, Cr.P.C. gives the power to the State Government to

prefer appeal for enhancement of sentence. While it is open for the State

Government to prefer appeal for inadequate sentence under Section 377,

Cr.P.C. but similarly no appeal can be maintained by victim under Section

372, Cr.P.C. on the ground of inadequate sentence. It is fairly well settled that

the remedy of appeal is creature of the Statute. Unless same is provided either

under Code of Criminal Procedure or by any other law for the time being in

force no appeal, seeking enhancement of sentence at the instance of the

victim, is maintainable. Further we are of the view that the High Court while

referring to the judgment of this Court in the case of National Commission

for Women v. State of Delhi & Anr. (2010) 12 SCC 599 has rightly relied on

the same and dismissed the appeal, as not maintainable."

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