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TMI Blog2016 (4) TMI 1295X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent herein (complainant) was to approach this Court (High Court) under Section 378(4) within the period stipulated in Section 378(5) seeking Special Leave to file an appeal against acquittal. Instead of adopting such a procedure, the respondent herein (complainant) chose to prefer an appeal under the Proviso to Section 372 Cr.P.C before the Sessions Court and the learned Appellate Judge either without considering the scope of the Proviso to Section 372 or in an erroneous interpretation of the said provision, assumed jurisdiction and decided the appeal which went against the appellant herein (accused). The appellant is right in challenging the judgment of the learned lower Appellate Judge on the ground of absence of jurisdiction. Whether a complainant, who is also a victim, should seek special leave, from the High Court as provided under Section 378(5) of the Code or whether as a matter of right, he can avail a statutory right of appeal is one question, which arises herein. In the cases arising out of Section 138 of the Negotiable Instruments Act, invariably it is the complainant (either as a victim of the offence or otherwise), who sets the law in motion. But, in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5959 of 2014 MP(MD)No.1of 2013 in Crl.A(MD)SR.No.40383 of 2013 MP(MD).No.1 of 2014 in Crl.A.(MD)SR.No.41392 of 2013 AND Crl.OP(MD)No.10762 of 2015 in Crl.A(MD)No.SR 11019 of 2015, Crl. OP (MD). No. 18479 of 2014 in Crl. A (MD) [SR]. No. 23860 of 2014, Crl.OP(MD).No.18868 of 2014 in Crl.A(MD)[SR].No.23866 of 2014, Crl.OP(MD).No.18872 of 2014 in Crl.A(MD)[SR].No.23862 of 2014, Crl. OP (MD). No. 6646 of 2015 in Crl. A (MD) [SR]. No. 11098 of 2015, Crl.OP.(MD)No.3501 of 2015 in Crl.A(MD)[SR] No.39639 of 2014, Crl. OP (MD). No. 6835 of 2015 in Crl. A (MD) [SR]. No. 38577 of 2014, Crl. OP (MD). No. 18584 of 2014 in Crl. A (MD) [SR]. No. 23864 of 2014, Crl.OP(MD)No.7678 of 2015 in Crl.A(MD)[SR].No.22091 of 2014, Crl.OP(MD)No.7273 of 2015 in Crl.A(MD)[SR]38477 of 2014, Crl.OP(MD)No.7274 of 2015 in Crl.A(MD)[SR]No.37980 of 2014, Crl.OP(MD)No.7605 of 2015 in Crl.A(MD)[SR]No.12833 of 2015, Crl.OP(MD) No.7620 of 2015 in Crl.A(MD)[SR]No.13252 of 2015, Crl.OP(MD) No.7648 of 2015 in Crl.A(MD)[SR] No.11108 of 2015, Crl.OP(MD).No.7649 of 2015 in Crl.A(MD)[SR] No.11110 of 2015, Crl.OP.(MD) No.7650 of 2015 in Crl.A.(MD)[SR]No.11112 of 2015, Crl.OP(MD)No.7651 of 2015 in Crl.A(MD)[SR] No.11114 of 2015, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The appellant in the present appeal was the complainant before the Lower Court. As against the acquittal, he filed the present appeal under Section 378 of Cr.P.C. The papers in the appeal were presented before this Court on 20.10.2014. The Registry raised an objection as to how the appeal was maintainable, as it was filed beyond 60 days as laid down under Section 378(5) of Cr.P.C. 3. The counsel for the appellant produced a copy of the judgment of the Supreme Court in A.V.Murthy Vs.B.S.Nagabasavanna [2002 (2) SCC 642] to contend that the complaint was not based upon a dishonoured cheque drawn in respect of a debt or a liability payable under contract and hence, not legally enforceable and such a claim was prohibited under law. Perhaps the Registry, convinced of such a representation, numbered the appeal and it was directed to be posed along with Criminal Appeal (MD) Nos. 100 and 101 of 2015 by a learned Single Judge having the roster. When these three matters were grouped and posed before the learned Judge (Nagamuthu,J) on 20.4.2015, he passed the following order:- Considering the complicated question of law involved in these matters, the Registry is directed to issue not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ]. The learned Judge surveyed several decisions of the other High Courts and the Supreme Court with reference to the interpretation of Proviso to Section 372 and Section 378 (4) of Cr.P.C. In so far as the sixth question posed by him was concerned, in para 41 of the order, he had observed as follows: In view of the discussions made thus far, with due respect, I regret, I find it very difficult to persuade myself to fall in line with the view taken by this Court in Selvaraj?s case and also the Judgments of various courts, holding the view that the victim cum complainant has got no right to file appeal under Proviso to Section 372 of the Code of Criminal Procedure. I agree with the view taken by various High Courts, taking the view that the complainant, who happens to be a victim, has got right of appeal under Proviso to Section 372 of the Code of Criminal Procedure.? 6. In Selvaraj, another learned Single Judge namely P.R.Sivakumar,J dealt with the case of a complainant having filed an appeal before the Sessions Court under Section 372 and got the Trial Court?s order reversed. As against the conviction by the Sessions Court, the accused in that case filed an appeal before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uently, when 26 other criminal appeals (both numbered and unnumbered) were put up before the Judge in-charge of administration in the Madurai Bench at the relevant time, he, by an order dated 7.7.2015, directed those matters also to be listed along with the batch of these cases. Hence, those cases are also tagged together in order to answer the order of reference. HISTORICAL BACKGROUND 8. Perhaps it was in 2009 that for the first time the Parliament realized the need to think of victims under the criminal justice system. The need for making several amendments under the Central Act 5/2009 arose due to the development of public opinion on the need for victims to be given due place. Dr.Justice A.S.Anand, the Former Chief Justice of India, in his Shri P.Babulu Reddy Foundation Lecture on Victims of Crime (Hyderabad, 28th of September 1997), made a passionate plea for improving victimology in our country. On the question of victims in criminal law, he observed :- The term victim is lacking descriptive precision. It implies more than the mere existence of an injured party, in that innocence or blamelessness is suggested as well as a moral claim to a compassionate response fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssurance doubly sure, before irrevocable deprivation of life or liberty comes to pass, a full-scale re- examination of the facts and the law is made an integral part of fundamental fairness or procedure. We are aware and mindful that the above observations were made in connection with an appeal at the instance of the accused. But the principle underlying the above rule lies in the doctrine of human fallibility that `Men are fallible' and `Judges are also men'. It is keeping in view the said object that the principle has to be understood and applied.? Now, every crime is considered as an offence against the Society as a whole and not only against an individual even though it is an individual who is the ultimate sufferer. It is, therefore, the duty of the State to take appropriate steps when an offence has been committed. 11. In what was known as the Best Bakery's case, the Supreme Court heavily came down upon the role of the Investigating Agency and the lethargy of the State in protecting the lives of the citizens. It held as follows: Though justice is depicted to be blind-folded, as popularly said, it is only a veil not to see who the party before it is wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 38 of the Negotiable Instruments Act, 1881. Until the introduction of this provision, the matter relating to dishonour of negotiable instruments were dealt with as a civil matter and aggrieved parties moved the civil courts. By the introduction of Section 138 of the Negotiable Instruments Act, it has now become a crime and if proved, punishable with imprisonment. 14. However, under Section 142, the taking cognizance of the offence has been defined and only upon a complaint made by the payee or holder in due course, the Court can take cognizance of any offence. Section 142 of the Negotiable Instruments Act reads as follows:- 142 Cognizance of offences. ?Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)? (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under Clause (c) of the Proviso to Section 138 Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.' 20. Whether a complainant, who is also a victim, should seek special leave, from the High Court as provided under Section 378(5) of the Code or whether as a matter of right, he can avail a statutory right of appeal is one question, which arises herein. In the cases arising out of Section 138 of the Negotiable Instruments Act, invariably it is the complainant (either as a victim of the offence or otherwise), who sets the law in motion. But, in the case of other offences under the Indian Penal Code or other Enactments, the position may not be the same. In those cases, the law could be set in motion either on a police report or through a private complaint. Hence, an interpretation of Section 372 vis- -vis Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code. [the Central Government may, subject to the provision of Sub-Section (3), also direct the Public Prosecutor to present an appeal- (a) to the Court Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.] (3) No appeal [to the High Court] under Sub-Section (1) or Sub-Section (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under Sub-Section (4) for the grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecember, 2009. In other words, date of judgment of a criminal court has to be necessarily treated as the relevant date for applying the test of maintainability of appeal by the victim under three contingencies laid down under the proviso to Section 372 of the Code, irrespective of the date of occurrence, institution of the case, cognizance or commitment? 24. In this regard, it is necessary to refer to the decision of the Supreme Court interpreting Section 378(4) in the light of the amendment made to the Code by Central Act 25 of 2005. The Supreme Court, vide its judgment in Subhash Chand Vs. State (Delhi Administration) [2013 (2) SCC 17], held that a complainant of an offence can file an appeal only in the High Court after getting a special leave. It was further held as follows : Mr.Malhotra is right in submitting that it is only when Section 147 of the Criminal Procedure Code, 1898 was amended in 1955 that the complainant was given a right to seek special leave from the High Court to file an appeal to challenge an acquittal order. Section 147 was replaced by Section 378 in the Code. It contained similar provision. But, Act No.25 of 2005 brought about a major amendment in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it makes filing of appeals against certain types of acquittal orders described in Section 378(1)(a) easier, less cumbersome and less time consuming. we conclude that a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court.? 25. A Division Bench of the Delhi High Court in Chattar Singh Vs. Subhash Ors. [176 (2011) DLT 356] made a narrow reading of the word victim limiting it to persons suffering direct and proximate physical harm and also narrowly read the term 'legal heir' limiting it to the lines of succession under the personal law. The correctness of the view taken by the Division Bench and also on the question of locus-standi of private parties maintaining appeals under the Proviso to Section 372 of Cr.P.C., was referred to a Larger Bench in the case of Ramphal Vs. State Ors. The Full Bench answered that reference on 28.5.2015 (though subsequent to the date of reference made by the learned Judge in this case). The Full Bench of the Delhi High Court, vide its judgment reported in 221 (2015) DLT LNIND : 2015 DEL 3471, held as follows:- victim can possibly also comprehend those who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the (deceased) victim and the one who seeks to appeal under proviso to Section 372, sufficient locus standi has to be conceded?..? The anxiety of Parliament to confine the right of appeal to a restricted category of cases is evident from the subject-object predicate, i.e. the nexus between the victim and injury is apparent from the fact that appeals are admitted to only those injured by the crime or offence (?means 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?), where injury is defined by Section 44 of the IPC, as discussed earlier. In this first sense, the class of persons, i.e victims being those suffering loss or injury, is clear enough; only the actual victim, wherever available, directly affected by the crime or offence (?act or omission?) attributable to the offender (?accused person?) are conferred the right to appeal. The second part of the definition (the pull in if one may use that expression) is the associative part, in that, by way of the expression ?includes?, Parliament sought to bring in those persons and individuals who are not per se victims of the crime, but a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n his/her death, application of Heydon's mischief rule, given that the object of the 2008 Amendment Act was to ensure the involvement of the victim, who has a presumably personal interest in the fair and efficient prosecution of the trial/appeal. Resultantly, it is impermissible for an appellate court to shut out an appeal by a legal heir based only on her/his not being an immediate heir, or being lower down in hierarchy vis- -vis entitlement to the crime victim's estate. 54. As a concluding remark on the specter of uncertainty (of defending multiple appeals) which would possibly hover over, and weigh down those acquitted of offences goes, this Court is in agreement with the view of the Punjab and Haryana High Court that all such 'victims' or 'legal heirs' appeals would be heard together, and the issue can be resolved by proper docket management. The court is reminded of the view in Pakala Narayana Swamy Vs. Emperor AIR 1939 PC 47 that ... in truth when the meaning of words is plain, it is not the duty of the Courts to busy themselves with supposed intentions - and one may add in the context, imagined difficulties.? 27. The view taken by the Full B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court is conferred upon the victim including the legal heir and others, as defined under Section 2(wa) of Cr.P.C., under proviso to Section 372, but only after obtaining the leave of the High Court as required under sub-Section (3) to Section 378 of Cr.P.C. The High Court of M.P. has failed to deal with this important legal aspect of the matter while passing the impugned judgment and order.? 28. A Division Bench of the Himachal Pradesh High Court, in its judgment in Joginder Singh Vs. State of Himachal Pradesh through its Secretary (Home) [2013 (2) Crl.CC 566 : 2013 (3) Crimes 160], held as to how the procedure for filing appeal under the Proviso to Section 372 should be regarded and observed as follows:- We are of the considered view that though the proviso to Section 372 of the Code does give a right to the victim to file an appeal, this proviso cannot be read in isolation. It has to be given a meaning which fulfils the intention of the Legislature. The Proviso to Section 372 of the Code does not lay down the procedure as to how, in what manner, and most importantly within which time the appeal has to be filed... As pointed out above the proviso to Section 372 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he scheme and lead to absurdity? In the circumstances, the very basic premise upon which the law is laid down in Bhikhabhai (supra), i.e. the rights of both State and victim are similar and therefore, the right of one (victim) can be dependent upon exercise of the right by the other (State) is, in our opinion, not correct and against the plain and simple language used by the legislature in the proviso to Section 372. Similarly, Section 24(8) of the Code has nothing to do with the right of appeal conferred upon the victim and by taking aid of that section, the substantive right conferred upon a victim cannot be made conditional? In our opinion, the correct law, as emerging from the Scheme of the Code, would be that the right of a victim to prefer an appeal (on limited grounds enumerated in proviso to Section 372 of the Code) is a separate and independent statutory right and is not dependent either upon or is subservient to right of appeal of the State. In other words, both the victim and the State/prosecution can file appeals independently without being dependent on the exercise of the right by the other. Moreover, from the act or omission for which the accused has been charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. (3) - 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 bonafide explanation for delay by the appellant. The limitation laid down by the Full Bench of Punjab and Haryana High Court is a judicial fiat and not based on interpretation of the provisions of the Code or the Limitation Act, 1963. Hence the same is applicable only within the territorial jurisdiction of that High Court and not beyond. (4) - However, in view of the legal presumption of innocence in favour of the accused, the yardsticks laid down by judicial pronouncements for consideration of appeals under Section 378 shall be applicable in case of an appeal under he said proviso to Section 372. (5) - The expression - long after the present incident - used under brackets by the Apex Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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. 31. Since, subsequent to the Full Bench reference, the Supreme Court in Satyapal Singh interpreted these provisions, we are duty bound to follow the same to the extent it binds us. With that in mind and in the light of the above legal precedents and the discussion, we answer the questions posed by the Referral Judge as follows:- (1) A victim of the crime, who has prosecuted an accused by way of a private complaint, has a statutory right of appeal within the limits prescribed under Section 372 of Cr.P.C. (2) A complainant (in a private complaint), who is not a victim, has a remedy and can file an appeal in the event of acquittal of the accused after obtaining leave to appeal under Section 378(4) of Cr.P.C (3) In a private complaint, even if the victim is not a complainant, he has a right to appeal under the proviso to Section 372 of Cr.P.C., but he has to seek leave as held by the Supreme Court in Satyapal Singh. (4) The term victim has been correctly interpreted by the Full Bench of the Delhi High Court in Ramphal and w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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