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TMI Blog2013 (10) TMI 1485X X X X Extracts X X X X X X X X Extracts X X X X ..... on 372 proviso or is he confined to the earlier remedy provided for under Section 378(4) Cr.P.C. of filing an appeal before the High Court after obtaining special leave. 2. An unimaginative hasty amendment, little aware of its consequences, though intended to be progressive and beneficial, has created confusion regarding the remedy available to certain group of persons. The matter has engaged the attention of various High Courts in the country, but the decisions have not been uniform. While some of the High Courts have taken the view that a complainant in a private complaint, which after trial ends in the acquittal of the accused, can now, if he falls within the definition of victim under Section 2(wa) of Cr.P.C., resort to the remedy by way of appeal as provided under the proviso to Section 372 of Cr.P.C., some other High Courts have taken the view that in the light of the earlier provision, namely, Section 378(4) Cr.P.C. which continues to exist in the Statute book and is unamended, the remedy of the complainant is only to resort to the remedy under that provision. 3. Most of the cases dealt with in this judgment arise out of acquittal of accused in a private complaint file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he introduction of the definition under Section 2(wa) Cr.P.C. is not intended to cover them as they were already conferred with statutory remedies. The Court has to see the object and purpose of the amendment and that the right introduced by way of amendment must remain confined to those persons who are intended to be conferred a statutory benefit. The learned counsel supporting this view contended that by a process of interpretation, the scope of the amendment cannot be enlarged. According to them, if this Court is to hold that the complainant in a private complaint, who may be a victim also, is entitled to the benefit of the proviso to Section 372 Cr.P.C., then there will be an apparent conflict between the said proviso and Section 378(4) Cr.P.C., which necessarily needs to be avoided. The Legislature was fully aware of the existence of remedy by way of Section 378(4) Cr.P.C. in favour of the complainants and it must be presumed that by conferring a new right of appeal to the victims, the Legislature did not intend that the same benefit should be extended to the complainants, who already had a remedy. In support of these contentions, the Law Commission Report and Justice Malimath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bit of the proviso to Section 372 Cr.P.C. That may infact lead to the creation of a separate class of persons who are similarly placed as victims in a case instituted on a police report contemplated under the new amended provision and such a classification cannot be said to have any nexus to the object sought to be achieved. Moreover, it is pointed out that as far as the proviso to Section 372 Cr.P.C. is concerned, right of appeal is available on three grounds, while under Section 378(4) Cr.P.C. the right of appeal is confined to only as against acquittal and under no other grounds. Merely because a victim of offence may be driven to the necessity of filing a private complaint to have his grievances redressed, it cannot be said that he is disentitled from the benefits conferred on a victim. By adopting the contention that since Section 378(4) Cr.P.C. has not been amended, the right of complainants against an order of acquittal is confined to the remedy under Section 378(4) Cr.P.C., those complainants who are compelled to file private complaints either statutorily or otherwise, would be losing a valuable right which certainly is not intended. It is incorrect to say that by extending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and for the said purpose, he relied on the decision reported in Shivanarayan Kabra v. State of Madras 1967 KHC 613 : AIR 1967 SC 986 : 1967 (1) SCR 136 : 1967 (1) MLJ (SC) 159 : 1967 Cri.L.J. 946. Reliance was also placed on the decision reported in Shashikant Laxman Kale v. Union of India 1990 KHC 900 : 1990 (4) SCC 366 : AIR 1990 SC 2114 : 1990 (185) ITR 104 : 1990(36) CTR 201 : 1990 (52) Taxman 352. Learned Addl. DGP contended that the purpose and object of the amendment was to provide relief to the victims of offence who hitherto had no role to play in the criminal proceedings and who were to remain as mere spectators even though they were the really affected parties. It is with that object that the amendment to Section 372 Cr.P.C. was made and the definition of 'victim' incorporated. It is not to cover a situation where the complainant in a private complaint who already had a remedy by way of appeal for redressal of his grievances. Accordingly, it is contended that the proviso to Section 372 Cr.P.C. enabling the victim to file an appeal cannot cover the complainant in a private complaint. 10. To understand the controversy involved in these cases, it becomes necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated under Section 386 Cr.P.C. The procedures for filing of an appeal, admission and further hearing are governed by Sections 383, 384 and 385 of Cr.P.C. It must at once be noticed that against an order of acquittal, in a case cognizance of which was taken on police report, the de facto complainant or the victim as the case may be had no remedy by way of appeal. They could only invoke the revisional jurisdiction which is more in the nature of supervisory jurisdiction. 16. By the amending Act 25 of 2005, Section 378(1) Cr.P.C. was amended incorporating Section 378(1)(a) and (b). Those provisions provided right of appeal to Sessions Court and High Court from acquittal on direction by the District Magistrate or State Government as the case may be. However, the provision that the State had to obtain leave for filing appeal against acquittal to High Court continues to exist. 17. By the amending Act 5 of 2009, as far as the cases on hand are concerned, two provisions were introduced. They are (i) proviso to Section 372 Cr.P.C. and (ii) definition of 'victim', was provided as per Section 2(wa) Cr.P.C. Those provisions read as follows: 372 xxxx xxxx xxxx Provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e report and is not available to a complainant in a private complaint. The view of the High Court of Bombay is that the definition of victim does not cover complainant in a private complaint. In fact the view taken was that proviso to Section 372 Cr.P.C. comes into play only if the State does not go up in appeal against acquittal or the leave to appeal by State is rejected. It was also held that a complainant in a case filed under Section 138 of NI Act is not a victim. So is the view taken by the High Court of Punjab and Haryana also following the decision of Bombay High Court. However, the High Court of Jharkhand is of the view that complainant in a prosecution under Section 138 of NI Act answers the definition of 'victim' as contained in Section 2(wa) of Cr.P.C. and therefore, such a person is entitled to take the remedy provided for under Section 372 proviso. The High Court of Madras has taken the view that the victim as well as the complainant in a private complaint who are interested persons can file appeal on acquittal before the District Court as provided under Section 372 proviso. The High Court of Allahabad while dealing with a private complaint in which offences u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dment, if any other provision will have to be amended and that the amending Act is consistent with other provisions of the Statute. 23. It is well settled that there is no inherent power of appeal and the right of appeal is a creation of a Statute. The right of the State and the individual to prefer appeal is limited into specific grounds. 24. It may be remembered that in a complaint (i) a complainant may also be the victim, (ii) complainant and victim may be different, and (iii) in a case cognizance of which is taken on police report also, complainant and victim may be different. As far as the third category is concerned, prior to the amendment brought about by Act 5 of 2009, neither the complainant nor the victim had a right of appeal. In the case of acquittal on a private complaint, the complainant had a right of appeal under Section 378(4) Cr.P.C. after obtaining special leave to the High Court. 25. The Law Commission as well as Justice Malimath Committee had taken note of the fact that victims of offence had practically no role to play in the prosecution of the cases in which they were the really affected parties. They were silent spectators unable to participate in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order of acquittal, (ii) against an order of conviction for a lesser offence, (iii) an order imposing inadequate compensation. It must at once be noticed that no right of appeal is conferred on the victim against inadequacy of sentence and appeal in that regard remains as a prerogative of the State. 29. Heydon's Rule of Interpretation has been invoked to agitate for the position that the term Victim' does not include complainant. The rule stipulates that when construing a Statute, it is necessary to ascertain (i) what is the object of the enactment, (ii) what was the existing law before the legislation was passed, (iii) what was the mischief or defect for which the existing law had not provided, (iv) what remedies the legislation has provided for, and (v) reasons for such remedy. 30. In the decision reported in Shivanarayana Kabra v. State of Madras 1967 KHC 613 : AIR 1967 SC 986 : 1967 (1) SCR 138 : 1967 (1) MLJ (SC) 159 : 1967 Cri.L.J. 946, it was held as follows: 7. .....It is a sound rule of interpretation, that a Statute should be so construed as to prevent the mischief and to advance remedy according to the true inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strict Legal Services Authority shall, after due enquiry-award adequate compensation by completing the enquiry within two months. (6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the Police Officer not below the rank of the officer-in-charge of the Police Station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit. Section 357A of Cr.P.C. provides for victim compensation scheme and the provision does not draw a distinction between a victim in a case cognizance of which is taken on a police report and cognizance is taken on a private complaint. It deals with adequate compensation and other measures for the victims of the offence. It is to be noted that going by Section 357A(3) of Cr.P.C., the Trial Court, on conclusion of trial, for reasons stated therein, can make recommendation for compensation, then, the liability falls in the State Government. As per Section 357A(4) Cr.P.C., even if the offender is not traced or identified, but the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases, the person who suffered loss or injury at the hands of the accused has necessarily to be treated as a victim. 36. Again, it may so happen that the complainant in a private complaint and the victim may be different. It may be that both are one and the same person. If one is to say that complainant in a private complaint can never be a victim, then necessarily, that would mean that the complainant in a private complaint who is also the victim will be deprived of the benefit of Section 357A Cr.P.C. and other provisions of the Code. That certainly cannot be the purpose and intention of the Legislature. There cannot be a situation that for certain purposes a complainant can be held as a victim and for certain other purposes, it cannot be so. 37. Further, Section 372 proviso, as already mentioned, provides appeal under three contingencies. But under Section 378(4) Cr.P.C., the right of appeal is confined to an order of acquittal alone. It does not provide for appeal against conviction for a lesser offence or for inadequacy of compensation. To differentiate between a victim in a case instituted on a police report from a case instituted on a private complaint, may not be justif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pects of the amendment brought to Section 372 Cr.P.C. In the decision reported in John v. Shibu Cherian 2011 (3) KHC 776 : 2011 (4) KLT 340 : 2011 (2) KLD 547 : 2011 (4) KLJ 25, this Court has occasion to consider the applicability of the proviso to Section 372 Cr.P.C. That was a case in which cognizance was taken on a police report and the prosecution ended in acquittal of the accused. This Court opined that after the introduction of proviso to Section 372 Cr.P.C., the victim has a right of appeal in the Court to which the appeal is provided for. In the said decision it was held as follows: 4. Mr. Sooraj T. Elenjickal, counsel appearing for the respondents has taken a preliminary objection against the maintainability of the appeal itself on the basis of proviso to Section 372 of Cr.P.C. which objection, according to me, is sustainable. The judgment sought to be challenged is connected with the case instituted upon a police report and therefore, the provisions contained under Section 372 are not applicable. Recently an amendment is brought to Section 372 of Cr.P.C., which came into force with effect from 31/12/2009 and thereby, a proviso is introduced to Section 372 of Cr.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly lies in the event of conviction of the accused in such case. The incident giving rise to the prosecution of the accused was before the commencement of the operation of the proviso to Section 372 of the Code cannot be given any merit in deciding the right conferred on the victim to prefer the appeal, which has to be looked into with reference to the date of commencement of the amending Act and also the circumstances enabling the victim to prefer the appeal against the accused. 45. In the decision reported in Ahammed v. Abdul Latheef : 2011 (2) KHC 604 : 2011 (2) KLT 889 : ILR 2011 (2) Ker. 704 : 2011 (2) KLJ 858, this Court had occasion to consider the question whether the victim or the complainant, as the case may be, is entitled to file an appeal against inadequacy of sentence. In the said decision, it was held as follows: The impugned order in this case is not an order of acquittal. It is not an order convicting the accused for a lesser offence, it is also not an order, directing payment of any compensation. Learned counsel for petitioner argued that petitioner is aggrieved since lower Court did not allow any compensation and hence, petitioner can file an appeal agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in Section 372 proviso does not comprehend a complainant. 48. In the unreported decision7 referred to above it is significant to notice that the various provisions regarding the rights conferred on the victim were not considered and it may not be possible to say that complainant in a proceedings under Section 138 cannot be a victim. A complainant in a proceedings under Section 138 of NI Act is certainly a person who has suffered loss and also injury going by the definition of 'victim', 'loss' and 'injury' as already noticed. It may not be correct to say that determination of loss or injury to such a person depends on the outcome of the prosecution. There may be cases where after conviction for offence under Section 138 of NI Act, the compensation awarded may be inadequate. He then certainly can take recourse to proviso to Section 372 Cr.P.C. and file an appeal, otherwise he will have to be satisfied with whatever compensation awarded by the Court. Probably, he may not be able to take aid of Section 357A of Cr.P.C., but, he is certainly a person who is affected by the act of the accused. This Court in the unreported decision7 was primarily guided by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The amount of financial detriment caused by an insured person's death or an insured property's damage, for which the insurer becomes liable. The failure to maintain possession of a thing. If one considers the definition of the words loss or injury, movable property etc., there can be no manner of doubt that complainant in a proceedings under Section 138 of NI Act is also a victim. 50. If infact the Legislature wanted to exclude the category of complainant from the term victim, as already stated, it could have been easily done. The Legislature must be deemed to be aware of the existing law. The Legislature must have known that Section 378(4) Cr.P.C. existed in the Statute book and still continues to exist. The Legislature must also be credited with the wisdom that they were aware of the fact that the complainant, who may also be the victim in a private complaint, is also entitled to compensation and it is significant to notice that no distinction is drawn regarding victim and complainant in Section 357A Cr.P.C. 51. New rights have been created by the Amending Act 5 of 2009 introducing various provisions. It has conferred various benefits on the victims of offence. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case will have a right of appeal as a matter of right. To say that a complainant, who may also be the victim, will have to take recourse to Section 378(4) Cr.P.C. does not appear to be reasonable. The position would be different if the complainant and the victim are not the same person. We need not consider this aspect as it does not arise for consideration in these proceedings. But it would appear that Statute having given a substantive right of appeal to a victim, the complainant, who is also the victim, will have as a matter of right, to prefer an appeal before the High Court and Section 378(4) Cr.P.C. in such cases may not be an impediment. 56. It was strenuously argued that if a private complainant is to be treated as a victim under Section 372 proviso, then Section 378(4) Cr.P.C. will be rendered redundant. It may not be so. There are several circumstances when there may be a complainant but no victim as defined under Section 2(wa) of Cr.P.C. For example, statutory offences in which complaint has to be filed by the statutory authorities. There may be cases where the complainant and victims are different in a private complaint. In all these cases, the remedy available in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the private complainant can be a victim were considered at all. Therefore, it may not be possible to say that the principle laid down in that decision that on acquittal in a proceedings based on a private complaint, the only remedy available is appeal under Section 378(4) Cr.P.C., can apply to the facts of the present case. 60. For the reasons already stated, this Court finds no reason or justification to consider the proviso to Section 372 Cr.P.C. which creates a substantive right in such a manner to exclude the complainant in a private complaint from the ambit of the provision. It is felt unnecessary to undertake an exercise of interpretation and to read something into the Statute which is neither intended nor is desirable. 61. From the above discussion, the following conclusions emerge: (a) Complainants in private complaints, who satisfy the definition of victim as contained in Section 2(wa) of Cr.P.C., are entitled to file appeal as provided under the proviso to Section 372 Cr.P.C. as a matter of right. (b) Complainant in a complaint under Section 138 of NI Act is also a victim and is entitled to the same benefit as the victim in any other case insti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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