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IN THE HIGH COURT OF PUNJAB AND HARYANA
[FULL BENCH]
Before
The Hon’ble Mr. Justice Surya Kant
The Hon’ble Mr. Justice Paramjeet Singh
The Hon’ble Mr. Justice R.P. Nagrath
CRM-790-MA-2010 (O&M)
M/s. Tata Steel Ltd.
v.
M/s. Atma Tube Products Ltd. & Ors.
{Decided on 18/03/2013}
Appeal against acquittal--Leave to appeal--Held; That a 'victim' is not obligated to seek 'leave' or 'special leave' of the High Court for presentation of Appeal under proviso to Section 372 of the Code.
(A) Criminal Procedure Code, 1973, S.2(wa) & S.372 proviso--Meaning of expression 'victim'--Held; It includes all categories of his/her legal heirs for engaging an advocate or to prefer an appeal under S.372 proviso of the Code.
(i) a 'victim' as defined in Section 2(wa) which includes his/her 'legal heirs' can be permitted by the Court under Section 24(8) to engage an Advocate of his/her choice to assist the prosecution and if he/she is aggrieved at the acquittal of an accused (except acquittal in a case instituted on a complaint), the conviction of the accused for a lesser offence or the imposition of inadequate compensation on such accused, such 'victim' (including his/her legal heirs) have got a right under proviso to Section 372 to prefer an appeal to the Court to which an appeal ordinarily lies against the order of conviction of such Court;
(ii) the legal heirs comprising the wife, husband, parent and child of a deceased 'victim' only are entitled to the payment of compensation under Section 357(1)(c) of the Code;
(iii) in the case of death of a 'victim', only those of his/her dependants who have suffered loss or injury as a result of the crime and who require rehabilitation, are eligible to seek compensation in terms of the scheme formulated under Section 357-A of the Code;
(iv) While the persons falling within the categories at Sr.No.(ii) & (iii) above shall necessarily include and form part of the persons falling in category No.(i), however, vice versa may not always be true. (Para 70)
(B) Criminal Procedure Code, 1973, S.378(4) & S.372 --Appeal against Acquittal--'Complainant' in a private complaint-case, is also the 'victim'--Complainant -cum victim are entitled to file appeal against acquittal u/s 378(4)--Appeal regarding quantum of sentence or inadequate compensation would lie u/s 372 proviso.
(i) the 'complainant' in a complaint-case who is a 'victim' also, shall continue to avail the remedy of appeal against acquittal under Section 378(4) only except where he/she succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser offence or imposition of an inadequate compensation, for which he/she shall be entitled to avail the remedy of appeal under proviso to Section 372;
(ii) the 'victim', who is not the complainant in a private complaint-case, is not entitled to prefer appeal against acquittal under proviso to Section 372 and his/her right to appeal, if any, continues to be governed by the unamended provisions read with Section 378 (4) of the Code;
(iii) the Legislature has given no separate entity to a 'victim' in the complaint-case filed by a public servant under a special Statute and the appeal against acquittal in such a case can also be availed by the 'complainant' of that case under Section 378(4) of the Code only.
(iv) those 'victims' of complaint-cases whose right to appeal have been recognized under proviso to Section 372, are not required to seek 'leave' or 'special leave' to appeal from the High Court in the manner contemplated under Section 378(3) & (4), for the Legislature while enacting proviso to Section 372 has prescribed no such fetter nor has it applied the same language used for appeals against acquittals while enacting sub-Section (3) & (4) of Section 378 of the Code. (Para 83)
(C) Criminal Procedure Code, 1973, Ss.372 & 378--Appeal against acquittal--Leave to appeal--Held; That a 'victim' is not obligated to seek 'leave' or 'special leave' of the High Court for presentation of Appeal under proviso to Section 372 of the Code. (Para 93)
Since leave to appeal under Section 378(3) is confined only to such appeals which are presented by the State or Central Governments under sub-Section (1)(b) or sub-Section (2)(b) of Section 378 of the Code, with due regard at our command, we are unable to agree with the view taken by the Division Bench of this Court in Smt. Ram Kaur's case (supra) that a 'victim' shall be required to seek leave/special leave to appeal while exercising his/her right to appeal under proviso to Section 372 of the Code and overrule the same to that extent.
(D) Criminal Procedure Code, 1973, S.378--Appeal against acquittal--Held; there shall be no legal distinction between an appeal preferred by the 'State' or a 'victim'. (Para 96)
In an era of enlightened and well-informed society who justifiably demands its rights or frowns upon the belied promises, it will be too farfetched to say that the 'duty' of the State under Sections 377 or 378 is actually a 'right' exercisable at the discretion of State Executive--The fact that the Legislature has chosen to grant unconditional right to appeal to a 'victim' as compared to the conditional right given to a State under Section 378(3) implies towards the failure of the State machinery in preserving the fair balance upto the expectations of the people.
(E) Criminal Procedure Code, 1973, S.372--Appeal against acquittal--Appeal filed by Victim and State--Where would appeal lie--Held; That while in view of proviso to Section 372 an appeal preferred by a 'victim' against the order of acquittal passed by a Magistrate in respect of a cognizable offence whether bailable or non-bailable shall lie to the Court of Session, the State's appeal under Section 378(1)(a) of the Code against that order shall also be entertained and/or transferred to the same Sessions Court. (Para 120)
(F) Criminal Procedure Code, 1973, S.372--Appeal against acquittal--Proviso to 372 CrPC inserted wef 31th December 2009 is prospective in nature--A 'victim' is entitled to prefer appeal in respect of any type of order referred to in the proviso to Section 372 if such order has been passed on or after December 31, 2009 irrespective of the date of registration of FIR or the date of occurrence etc.--Date of passing of the order to be appealed from and not any other fact situation, which shall determine the right to appeal of a 'victim'. (Para 126)
(G) Criminal Procedure Code, 1973, S.372--Appeal against acquittal--Remedy availed by a 'victim' including revision petition against acquittal of the accused by an order passed before December 31, 2009, cannot be converted into an appeal under proviso to Section 372 and it shall have to be dealt with in accordance with the parameters settled for exercising revisional jurisdiction by a superior Court. (Para 126)
(H) Criminal Procedure Code, 1973, S.372--Appeal against acquittal--Limitation--
(a) In case of acquittal -
(i) Where appeal lies 90 days Date of order appealed against
to the High Court 90 days
(ii) Where appeal lies 60 days Date of order appealed against
to any other Court 60 days
(b) Any other sentence or order -
(i) to the High Court 60 days The date of sentence or order
(ii) Where appeal lies 60 days The date of sentence or order
to any other Court (Para 138)
Limitation ought to be counted from the date such 'victim' acquires knowledge of the order appealable under proviso to Section 372--We say so for the reason that in most of the State cases, the 'victim' has no participatory role at the trial stage and the possibility of his/her remaining in the dark about the adverse order cannot be lightly brushed aside--The above rule of limitation, therefore, cannot be mechanically enforced even if the victim had no informed knowledge regarding culmination of the trial proceedings as it might cause serious prejudice to his/her rights, close to the extent of snatching away the right to appeal earned by the victims after a long drawn battle.
Based on the provided legal document, an informant who is also a victim in a criminal case has the right to file an appeal against an order of acquittal. This right is generally conferred under the provisions relating to appeals by victims, specifically under the proviso to Section 372 of the Criminal Procedure Code. The appeal by the victim or informant shall lie to the same Court where an appeal against the order of conviction would normally be filed, which is typically the Court to which appeals against such orders are ordinarily made (!) (!) .
Furthermore, the document indicates that the right of an informant who is also a victim to appeal against an acquittal is independent and substantive. The condition of seeking leave or special leave of the Court, which is applicable to appeals by the State or other parties, does not apply to the victim or informant exercising their right under the proviso to Section 372 (!) (!) .
In summary, an informant who is also a victim has a recognized right to appeal against an acquittal order, and such appeal shall be made to the Court where appeals are normally filed against conviction or other orders of that Court, without the need to seek leave of the Court (!) (!) .
Mr. Surya Kant, J.: The length and width of the right to appeal bestowed on the victim of a crime through the amendment(s) carried out in the Code of Criminal Procedure, 1973 by Act No.5 of 2009 w.e.f. December 31, 2009 is still eluded of unanimity amongst different High Courts. A Division Bench of this Court in Smt. Ram Kaur @ Jaswinder Kaur vs. Jagbir Singh @ Jabi & Ors., [2010(2) Law Herald (P&H) (DB) 1434] : 2010(3) RCR (Crl.) 391, also made an attempt to define the expression “victim” within the meaning of Section 2(wa) for the purpose of his right to appeal under proviso to Section 372 CrPC. A learned Single Judge while considering an application seeking leave of this Court to prefer appeal against the order of acquittal passed in relation to the accusations under Sections 279, 337, 338 and 304-A IPC found an apparent conflict between proviso to Section 372 and Section 378 CrPC and vide his order dated September 5, 2011 passed in CRM- 547-MA-2011 opined that :-
“….. as proviso to Section 372 of the Code unequivocally provides the remedy of appeal to a victim before a Court to which an appeal shall ordinarily lie against the order of conviction of such a Court while Section 378 of the Code refers to filing of an appeal to the Court of Session from an order of acquittal passed by a Magistrate only in respect of cognizable and non-bailable offences. There would thus be ambiguity in so far as the remedy of appeal provided to a victim in the cases where the offences are bailable and in which cases the aforesaid ambiguity amounts to giving with a left hand only to be taken away by the right hand.”
2. Since the Division Bench in Smt. Ram Kaur’s case (supra) did not address the afore-mentioned issue, the learned Single Judge referred the matter to a larger Bench. Another learned Single Judge came across yet another issue in Crl. Misc. No. 790-MA of 2010 (O&M), namely, whether a ‘victim’ under proviso to Section 372 CrPC includes the ‘complainant’ also and owing to its importance, he too vide order dated May 09, 2012 referred the following question to a larger Bench:-
“Whether the word “victim” as mentioned in the proviso of Section 372 CrPC include complainant also for the purpose of availing the remedy of appeal as given to the victim by aforesaid proviso?”
3. The above question was framed in an application filed by the complainant seeking special leave to appeal under Section 378(4) against the order of acquittal passed by the Magistrate in a case under Section 138 of Negotiable Instruments Act.
4. Both the references made by two different learned Single Judges were considered by two of us on July 18, 2012 and having regard to the newly emerging principles of criminal jurisprudence, the Division Bench formulated four questions (reformulated along with additional questions in para 6) and referred them for determination to a larger Bench.
5. The continued quest for true answers to the questions so rephrased, in an arena witnessing a note of discordance amongst different High Courts on one question or the other, led to fairly long hearings with remarkable assistance rendered by a team of bright young lawyers comprising Sarvshri PS Ahluwalia, Deepak Sabharwal and Arjun Sheoran, with an equally meaningful assistance rendered by a battery of State counsel representing the States of Punjab and Haryana, who addressed the issues with totally non-adversarial approach.
6. During the course of hearing, learned counsel for the parties rightly pointed out that besides the re-modulation of four questions which found mention in the reference order dated July 18, 2012, some issues, ancillary but of paramount importance, also deserve to be answered by the larger Bench. We, therefore, formulate the following seven questions that arise for our consideration:-
(A) What is the true import and meaning of the expression ‘victim’ as defined under Section 2(wa) read with proviso to Section 372 Cr.P.C.?
(B) Whether ‘complainant’ in a private co
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