2019 (8) TMI 1861 - HC - Indian Laws

Maintainability of appeal - who is the victim - whether the appellant Mahendrasinh Jorubha Zala who is merely examined as a witness during the course of the trial cannot be considered as the victim of the crime in question and as such cannot validly maintain the appeal under Section 372 of the Cr.P.C.? HELD THAT - Undisputedly the appeal is a creature of statute and the said right inheres in no one. Right of appeal cannot be assumed to exist unless expressly provided for by the statute and a remedy of appeal must be legitimately traceable to the statutory provisions. If the express words employed in a provision do not provide for an appeal from a particular judgment and order the court is bound to follow the express words of the statute. For its maintainability the appeal must have the clear authority of law. Section 372 of the Cr.P.C. in terms makes it clear that no appeal can lie from any judgment and order of a criminal court except provided for by the Cr.P.C. or by any other law for the time being in force. Proviso clause of Section 372 of the Cr.P.C. empowers the victim to prefer an appeal. Thus an appeal under the Criminal Procedure Code is also a creature of statute and cannot be assumed until and unless clearly provided under the Cr.P.C. Therefore in view of the aforesaid statement of law no appeal under the Criminal procedure Code can be filed except as provided in the said Code. The said right of appeal cannot be read into any class of citizen/party to a trial if not expressly contemplated under the Cr.P.C. From a bare perusal of the text of Section 372 of the Cr.P.C. it is clear that legislature in its wisdom has given a right of appeal only as provided in the Cr.P.C. and has expressly forbidden any appeal which is not contemplated under the Cr.P.C. Further perusal of Sections 372 and 378 of the Cr.P.C. manifest the nature of order. The party who is competent to file an appeal against the said order is also clearly and unambiguously stipulated in the Cr.P.C. It is thus clear that victim is a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged. Thus whether a person is a victim or not is required to be judged qua the Charge framed against the accused persons in the concerned trial in the light of averments made in the charge-sheet filed by the prosecuting agency. The Charge framed by the trial court against the accused must be in respect of that act of the accused by which the victim has actually suffered any loss or injury. Therefore it becomes relevant to reproduce the Charge framed against the accused persons in the said sessions cases. An appeal by a witness who cannot be termed as a victim as defined by Section 2(wa) of the Cr.P.C. against an order of acquittal would be a fortiori and ex-facie barred under section 372 of the Code. An appeal against an order of acquittal by the appellant who is not the victim is not at all maintainable under the provisions of the Cr.P.C. and the same is liable to be dismissed at the very threshold it being a circuitous attempt to impugn the Judgment of acquittal without any authority of law - Appeal dismissed.

Summary

Issues Involved:
1. Maintainability of the appeal by the appellant under Section 372 of the Cr.P.C.
2. Definition and rights of a "victim" under Section 2(wa) of the Cr.P.C.
3. Examination of whether the appellant qualifies as a "victim" in the context of the charges framed.

Detailed Analysis:

1. Maintainability of the Appeal:
The primary issue addressed was whether the appellant, Mahendrasinh Jorubha Zala (PW205), could maintain an appeal under Section 372 of the Cr.P.C. The court examined the statutory provisions and concluded that the right of appeal is a creature of statute and cannot be assumed unless expressly provided. Section 372 of the Cr.P.C. clearly states that no appeal shall lie from any judgment or order of a criminal court except as provided by the Cr.P.C. or any other law for the time being in force. The proviso to Section 372 allows a victim to prefer an appeal against an order of acquittal. However, for an appeal to be maintainable, the appellant must be recognized as a victim under the statutory definition.

2. Definition and Rights of a "Victim":
The court referred to Section 2(wa) of the Cr.P.C., which defines a "victim" as a person who has suffered any loss or injury caused by the act or omission for which the accused person has been charged. The definition also includes the victim's guardian or legal heir. The court cited judgments from the Full Bench of the Allahabad High Court and the Division Bench of the Madhya Pradesh High Court, which clarified that a victim is the actual sufferer of the offense and no person other than the actual sufferer can be treated as a victim.

3. Examination of Whether the Appellant Qualifies as a "Victim":
The court scrutinized the charges framed against the accused and the allegations in the charge-sheet. The charges were related to the criminal conspiracy, abduction, and murder of Sohrabuddin Shaikh, his wife Kausarbi, and Tulsiram Prajapati. The court noted that the appellant, PW205, was an accused in a separate case (Crime No. 1124 of 2004) and not a direct sufferer of the crimes for which the accused were charged in the present case. The appellant's deposition did not mention any loss or injury suffered by him due to the acts for which the accused were charged. Therefore, the court concluded that the appellant could not be considered a victim as defined by Section 2(wa) of the Cr.P.C.

Conclusion:
The court held that the appeal by PW205 Mahendrasinh Jorubha Zala was not maintainable under Section 372 of the Cr.P.C. as he did not qualify as a victim of the crime in question. The appeal was dismissed on the grounds that it was a circuitous attempt to impugn the judgment of acquittal without any authority of law. The court emphasized that an appeal must have the clear authority of law for its maintainability.

Order:
The appeal is dismissed.