Back
IN THE HIGH COURT OF JUDICATURE AT PATNA
J.N. Singh and Aditya Kr. Trivedi, JJ.
Parmeshwar Mandal - Appellant
vs.
The State of Bihar & Ors. - Respondents
Cr. Appeal (DB) No. 1078 of 2012
Decided on : 26.11.2013
The Court held that the proviso to Section 372 of the Code of Criminal Procedure, 1973 (CrPC) gives an unqualified right to a victim to prefer an appeal against an order of acquittal, conviction for a lesser offense, or imposition of inadequate compensation. The right is higher than that of the prosecuting agency or complainant and does not require leave to appeal or special leave. No limitation period is provided for such appeals, and the court must determine if the appeal is entertainable based on the absence of a bona fide explanation for delay. The yardsticks laid down for consideration of appeals under Section 378 apply to appeals under the proviso to Section 372. The expression "long after the present incident" used by the Supreme Court in National Commission for Women v. State of Delhi is an obiter dictum and not a law under Article 141 of the Constitution. The proviso came into operation on December 31, 2009, and applies to judgments and orders passed on or after that date, irrespective of the date of occurrence or subsequent events. If the victim is dead or incapacitated, a next of kin who can establish loss or injury to themselves may maintain an appeal. Loss and injury must be assessed by the court in each case based on the definition of injury in Section 44 of the Indian Penal Code. A person appealing solely as a guardian or legal heir must establish their status according to applicable law. Once an appeal under the proviso to Section 372 is entertained on merits, no fresh or second appeal can be entertained against the same order. No distinction can be made between cases instituted by a complainant with the police or directly before the court, and the victim's right to appeal under the proviso is not fettered by other sections of Chapter XXIX of the CrPC, including Section 378.
Fact of the Case:
The informant, who is the cousin father-in-law of the deceased, filed an appeal against the acquittal of the accused in a criminal case. The appeal was filed under the proviso to Section 372 of the CrPC, which gives a victim the right to appeal against an order of acquittal, conviction for a lesser offense, or imposition of inadequate compensation.
Finding of the Court:
The Court held that the appellant did not suffer any loss or injury as a result of the crime and therefore did not qualify as a victim under the proviso to Section 372 of the CrPC. The appeal was dismissed as not maintainable.
Issues: 1. Whether the appellant, who is the cousin father-in-law of the deceased, has suffered any "loss" or "injury" as a result of the crime complained of, so as to qualify as a "victim" to maintain this appeal? 2. Whether the proviso to Section 372 of the CrPC gives an unqualified right to a victim to prefer an appeal against an order of acquittal, conviction for a lesser offense, or imposition of inadequate compensation? 3. Whether the right of a victim to prefer an appeal under the proviso to Section 372 is higher than that of the prosecuting agency or complainant? 4. Whether leave to appeal or special leave is required for a victim to maintain an appeal under the proviso to Section 372? 5. Whether there is a limitation period for appeals by victims under the proviso to Section 372? 6. Whether the yardsticks laid down for consideration of appeals under Section 378 apply to appeals under the proviso to Section 372? 7. Whether the expression "long after the present incident" used by the Supreme Court in National Commission for Women v. State of Delhi is a law under Article 141 of the Constitution? 8. When did the proviso to Section 372 of the CrPC come into operation? 9. To which judgments and orders does the proviso to Section 372 apply? 10. Can a next of kin maintain an appeal under the proviso to Section 372 if the victim is dead or incapacitated? 11. How should loss and injury be assessed by the court in appeals under the proviso to Section 372? 12. What must a person appealing solely as a guardian or legal heir establish to maintain an appeal under the proviso to Section 372? 13. What happens if an appeal under the proviso to Section 372 is entertained on merits? 14. Can a fresh or second appeal be entertained against the same order? 15. Can a distinction be made between cases instituted by a complainant with the police or directly before the court for the purposes of determining the victim's right to appeal under the proviso to Section 372? 16. Is the victim's right to appeal under the proviso to Section 372 fettered by other sections of Chapter XXIX of the CrPC, including Section 378?
Ratio Decidendi: 1. The right of a victim to prefer an appeal under the proviso to Section 372 of the CrPC is an unqualified right and no "leave to appeal" or "special leave" is required to be obtained by him/her for the purpose, as required by the State or the complainant for maintaining an appeal in terms of Section 378 of the Code. 2. No limitation of time has been provided by the Legislature for exercise of such a right of appeal by the "victim" in terms of the said Proviso. Hence, in the fact and circumstances of each case, the Court has to determine as to whether the appeal was entertainable, or not, on the ground of absence of bona fide explanation for delay by the appellant. 3. The expression-long after the present incident-used under brackets by the Apex Court in paragraph 5 of its judgment in case of National Commission for Women vs. State of Delhi and Another [AIR 2011 SC (Sup.)392] : [(2010)12 SCC 599] is only an obiter dictum of the Court and it does not lay down a law in terms of Article 141 of the Constitution of India. 4. Proviso to section 372 of the Code came into operation w.e.f. December 31, 2009. Hence, in absence of any legislative intent to the contrary, in all cases, in which a judgment and order has been passed by a criminal court on and after that date, a right accrues to the "victim" to prefer appeal in terms of the said Proviso, irrespective of the date of occurrence and any subsequent event in the case prior to such judgment and order. 5. If the subject of the crime is dead or incapacitated to the extent or suffers from such a disability that he/ she cannot take steps to exercise his/ her right under the Proviso to Section 372, any of his/her next of kin, who can establish before the Court, to its satisfaction, that the crime had caused "loss" or "injury" to him/he-r also, besides to the subject of the crime, can maintain an appeal under the said proviso. 6. The "loss" and "injury" to an appellant before it (if he/she is other than the de-facto sufferer) has to be assessed by the Court in each and every case in the backdrop of definition of "injury" provided in Section 44 of the Indian Penal Code, and not beyond it, before entertaining the appeal, in terms of the proviso to Section 372 on merits. 7. If any person prefers an appeal in terms of the proviso to Section 372, solely on the basis of his status as a "guardian" or a "legal heir", he/ she will have to establish the legal basis of his/her such status in reference to the law, as may be applicable in the matter, with all its limitations and qualifications, or otherwise also (e.g. judicial order). 8. Once an appeal preferred in terms of the said proviso to Section 372, against an order is entertained by an appellate court on merits, to whatever result, no fresh/second appeal by any party/person can/should be entertained against the same order. 9. No distinction can be made between a case instituted by a complainant/informant with the police and by a complainant before the Court directly, and an absolute right of a victim (a complainant or not) to file an appeal under Proviso to Section 372 does not get fettered by any other section of the Code contained in Chapter-XXIX, which includes Section 378.
Final Decision: The appeal was dismissed as not maintainable.
This appeal has been filed by the informant against judgment and order dated 28.8.2012 passed by the Ad-Hoc Additional Sessions Judge-IV, Araria in Sessions Trial No. 846 of 2003/Tr. No. 259 of 2011, arising out of Jokihat P.S. Case No. 169 of 1999, acquitting respondent nos. 2 to 9 of charges under Sections 341, 342 and 302/34 of the Indian Penal Code framed against them.
2. Since the appellant-informant happens to be cousin father-in-law of the deceased, as pointed out by learned Additional Public Prosecutor, this Court, by order dated 17.5.2013, granted time to learned counsel for the appellant to address the Court on the issue of maintainability of the appeal, preferred by the appellant in terms of the proviso to Section 372 of the Code of Criminal Procedure. Accordingly, the matter was heard on 19.7.2013.
3. It is a settled proposition of law that a right vested in an aggrieved to appeal against any judgment and order of any judicial or quasi judicial authority is a creature of statute, to be preferred before a forum prescribed and according to the procedure laid down. Nobody can claim this right as a fundamental right or even as a constitutional right. Hence, scope and limitation of this right has also to be governed by the statute creating that right. For that reason this Court considers it appropriate to look back a little to find out the origin of the provisions of right of appeal in our criminal justice system against any judgment and order or acquittal of an accused by any competent court of law.
4. Criminal Justice System of the Country in the present form was first conceived in the Code of Criminal Procedure framed in 1861. Though in this Code, provisions were made for appeals against judgments and orders of conviction, there was no provision for any appeal against acquittal. It was in the Code of Criminal Procedure of 1898 that Section 417 was inserted enabling the Government to 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. However, the recommendations of the Law Commission of India, made in its 41st Report, as also in 48th Report, caused restrictions imposed in such right of appeal of the Government in the Section 378 (corresponding to old Section 417) of the new Code of Criminal Procedure, 1973 by insertion of concept of "leave to appeal", besides 'retaining the provision for appeal by a complainant against an order of acquittal passed in a complaint case after obtaining special leave. Though the 1861 Code, the 1898 Code as well as the 1973 Code contained elaborate provisions with regard to different facades of criminal justice system and the right of an accused at different stages, but they were earlier conspicuously silent in respect of the rights of the victim of a crime and his/her right to participate or to have a say in the proceedings of the criminal justice delivery system at any level. In fact, the victims of the crime remained an ignored lot for centuries throughout the Globe and were left to fend for themselves irrespective of the fate meted out to the offender.
5. As per the available records, in Modern Times, it was an English Magistrate, Margery Fry, who, in 1950s, was first to advocate for state compensation for crime victims. This led the British Government to set up its programme in 1964, and taking cue from the ancient Code laid down by Emperor Hammurabi of Bebilonia in 1775 BC, providing for compensation to the victim of a crime in different manner, depending on gravity of suffering, the Government of England, for the first time, drew up an elaborate scheme for payment of compensation to the victims, and was brought into force through the exercise of Royal Prerogative, which practice was adopted by many other countries across the Globe as well. Subsequently, in 1985, United Nations adopted a Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power i
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
