9911796707
TMI Blog2016 (11) TMI 1736X X X X Extracts X X X X X X X X Extracts X X X X ..... authoritative pronouncement on the true purport and effect of different provisions of the JJ Act so as to take a juvenile out of the purview of the said Act. The High Court had declined to answer the question raised on the ground that the petitioner had an alternative remedy under the JJ Act against the order as may have been passed by the Board. The inevitable conclusion is that remedy of appeal is a statutory remedy and powers of Appellate Court under Code of Criminal Procedure is an ordinary appellate power, which is regulated by the provisions meant for appeal against acquittal/conviction under Chapter XXIX (Section 372 to 394) of the Code. Victim - HELD THAT:- The victim means the actual sufferer of offence (receiver of harm caused by the alleged offence) and no person other than actual receiver of harm can be treated as victim of offence, so as to provide him/ her a right to prefer appeal under the proviso of section 372. In absence of the direct sufferer or in a case where the direct sufferer suffers a disability his or her legal heir or guardian would qualify as a victim. Legal heir of actual Victim under Section 2 (wa) - HELD THAT:- The expression Legal Heir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in his application by disclosing his particulars; relationship with the direct sufferer; and the grounds on which such claim of being legal heir or guardian is based. - Criminal Misc. Application Defective U/S 372 CR.P.C (Leave to Appeal) No. - 67 of 2013 - - - Dated:- 11-11-2016 - HON'BLE V.K. SHUKLA, HON'BLE MANOJ MISRA AND HON'BLE RAMESH SINHA, JJ. For the Appellant : Sri Satish Chandra Sinha For the Respondent : Government Advocate JUGDMENT Law should not sit limply, while those who defy it go free and those who seek its protection lose hope. [Jennison V. Baker (1972) 1 All ER 997] Crime affects not only the individual victim and his family but the society at large therefore the fundamental purpose and end of political society is defence against external enemies, and the maintenance of peaceable and orderly relations within the community. Salmond in his treatise Jurisprudence (Eight Edition Chapter V) while discussing the nature and essential functions of the State wrote: A State, then, or political society, may be conceived of as an association of human beings established for the attainment of certain ends by certain mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pawan Kumar Singh were put to trial for offences punishable under Section 304-B/34 IPC with alternative charge of Section 302/34 IPC; and Section 498-A IPC read with Section 3/4 of Dowry Prohibition Act. The trial court acquitted them vide judgment and order dated 26.10.2012. It appears that the father (PW-1) and mother (PW-2) of the deceased turned hostile and did not support the prosecution version. The prosecution evidence even failed to substantiate the prosecution case of dowry demand or cruelty or that the deceased committed suicide as a consequence thereof. Under the circumstances, neither the parents of the deceased nor the State preferred appeal against the order of acquittal. However, the brother-in-law (Jija) of the deceased has come forward to prefer this appeal against acquittal by claiming himself to be a victim . The Division Bench seized of the matter, while dealing with the locus of the appellant to maintain the appeal, came across a judgment dated 10.4.2014 of a coordinate Bench of this Court in the case of Edal Singh vs. State of U.P. 3 others in Criminal Misc. Application U/S 372 Cr.P.C. (Leave to Appeal) No. 172 of 2014; and judgments of other High Courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therwise provided for cannot be indirectly introduced by liberal / wider interpretation of the word victim and, as such, the reference in question should be answered in negative by clarifying the legal position that the word 'victim' as defined in Section 2 (wa) of the Code of Criminal Procedure would remain confined to a person who falls within the categories specified therein and, in his or her absence or disability, as the case may be, it would include his or her legal heir or guardian and nothing beyond the same. Sri Manish Singh, Advocate, has supported the reference in question by submitting that the word 'victim' should not be limited to a person, who has suffered loss or injury, rather it should include even those who have faced or suffered any sort of harm including emotional harm or injury so that the object of the amendment that a person guilty does not go unpunished is fully served and a wider base of persons is created who could appeal against an erroneous judgment of the lower court. He has also suggested that keeping in mind the object of the amendment, the word victim should not be confined to specific individuals but needs to be interpreted on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed all enthusiasm to protect the interest of accused but, on the other hand, ignored the victim by treating him as a hapless sufferer of the crime having no right to challenge the verdict acquitting the accused. The Punjab Haryana High Court in paragraphs 24 to 26 of its judgment in the case of M/s. Tata Steel (supra) proceeded to consider the legislative development qua the evolution of right to appeal against judgment of acquittal as follows: Evolution of Right to Appeal: (24). The Code of Criminal Procedure when originally enacted in the year 1861 did not provide for any right to appeal against acquittal to anyone including the State. 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. The Law Commission of India in its 41st Report given in September, 1969 as also in 48th Report pertaining to the Criminal Procedure Bill, 1970, however, recommended to restrict the right of appeal given to the State Government against an order of acquittal by introduci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of Home Affairs by its order dated 24.11.2000 to consider measures for revamping the Criminal Justice System. In this connection, for providing justice to victims of crime, Committee made its recommendation as follows: i) The victim, and if he is dead, his legal representative shall have the right to be impleaded as a party in every criminal proceeding where the offence is punishable with 7 years imprisonment or more. ii) In select cases notified by the appropriategovernment, with the permission of the court an approved voluntary organization shall also have the right to implead in court proceedings. iii) The victim has a right to be represented by anadvocate of his choice; provided that an advocate shall be provided at the cost of the State if the victim is not in a position to afford a lawyer. iv) The victim's right to participate in criminal trials shall,inter alia, include: a) To produce evidence, oral ordocumentary, with leave of the Court and/or to seek directions for production of such evidence b) To ask questions to the witnesses or tosuggest to the court questions which may be put to witnesses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inclusive of his or her guardian or legal heir; ii) Proviso to sub section (8) of Section 24(8) of theCode which provided that the Court may permit the victim to engage advocate of his choice to assist the public prosecutor. iii) Proviso to clause (a) of Section 26 of the Code,which provided that offenses under section 376 and 376 (A) to 376 (D) of the Indian Penal Code shall be tried as far as practicable by a court presided over by a woman. iv) Proviso 2nd to sub section (1) of Section 157 of the Code by which it was provided that the statement of a rape victim will be recorded at the residence of the victim or in the place of her choice as far as practicable by a woman police officer in the presence of her parent or guardian or near relative or a social worker of the locality. v) Sub section (1-A) of Section 173(1-A) of the Code bywhich it was provided that in relation to rape of a child investigation would be completed within three months from the date of receipt of information. vi) Section 357-A of the Code so as to provide for the Victim compensation scheme for the purpose of compensation to the victim or h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant had a right to present an appeal under sub section (4) of section 378 of the Code. Thus, by insertion of the proviso an exception to the general rule was carved out by providing victim a right to prefer an appeal against an order of acquittal or of convicting for a lesser offence or imposing inadequate compensation. The term victim has been defined in section 2 (wa), inserted in the Code by Act No. 5 of 2009, and the same provides as follows: Victim 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 and the expression victim includes his or her guardian or legal heir. The discussion of the term 'victim' has been subject matter of interpretation by a Division Bench of this Court in Criminal Misc. Application U/S 372 Cr.P.C. (Leave to Appeal) No. 172 of 2014, Edal Singh Vs. State of U.P. 3 others, which was decided by order dated 10.4.2014. The operative portion of the said order provides as follows: We also have some doubts where the appellant, who is not the grand father, but grand uncle of the deceased Babloo has any locus standi to file this appeal, as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the Code. (iv) The 'victim', who is not the complainant in a privatecomplaint-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. (v) Those 'victims' of complaint-cases whose right toappeal 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) of the Code. Questions - (C) (D) (vi) The right conferred on a 'victim' to present appeal under proviso to Section 372 is a substantive and independent right which is neither inferior to nor contingent upon the filing of appeal by the State in that case. Resultantly, the condition of seeking 'leave to appeal' or 'special leave to appeal' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of the said proviso to Section 372 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. (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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an 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. 50. Now coming to the case at hand, in the facts andcircumstances appearing from the records, this Court is not satisfied that the appellant, who happens to be 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. 51. This appeal is accordingly dismissed as notmaintainable. The judgments, quoted above, would go to show that while analysing the definition of victim various High Courts have taken note of various sources to find out as to what is the true meaning of 'victim'. In the meantime, after passing of reference order, a Full Bench of Delhi High Court has also pronounced its judgment on the above aspect on 28.5.2015 in Criminal Appeal No. 1415 of 2012 (Ramphal Vs. Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt except as provided by the Code. Consequently, in view of dictum of Apex Court in Satya Pal Singh (supra), the legal position stands clarified that proviso of Section 372 is an exception to its main provision and cannot be construed as an independent statutory right in complete detachment with main statutory arrangement. In the said case the deceased s father had preferred appeal. The Apex Court in that context observed as follows: 9. We have carefully examined the above mentioned provisions of Cr.P.C. and the Full Bench decision of Delhi High Court referred to supra upon which strong reliance is placed by the learned counsel for the appellant. There is no doubt that the appellant, being the father of the deceased, has locus standi to prefer an appeal before the High Court under proviso to Section 372 of Cr.P.C. as he falls within the definition of victim as defined under Section 2(wa) of Cr.P.C. to question the correctness of the judgment and order of acquittal passed by the trial court in favour of respondent nos. 2 to 6 in Sessions Case No. 293/2010. In the said case the Apex Court at no point of time has proceeded to deal with the term 'victim' to find out, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case in hand. Before we do that let us remind ourselves that it is trite law that an appeal is a creature of statute and there can be no inherent right of appeal unless expressly provided for by the law itself. Apex Court in the case of Durga Shankar Mehta Vs. Raghuraj Singh, AIR 1954 SC 520 as well as in the case of National Commission for Women Vs. State of Delhi and another reported in 2010 (12) SCC 599, has held as follows: 8. Chapter XXIX of the Code of Criminal Procedure deals with Appeal (s). Section 372 specifically provides that no appeal shall lie from a judgment or order of a Criminal Court except as provided by the Code or by any other law which authorizes an appeal. The proviso inserted by Section 372 (Act 5 of 2009) w.e.f. 31st December, 2009, gives a limited right to the victim to file an appeal in the High Court against any order of a Criminal Court acquitting the accused or convicting him for a lesser offence or the imposition of inadequate compensation. The proviso may not thus be applicable as it came in the year 2009 (long after the present incident) and, in any case, would confer a right only on a victim and also does not envisage an appeal against an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... least a single right of appeal on facts, where criminal conviction is fraught with long loss of liberty, is basic to civilized jurisprudence. It is integral to fair procedure, natural justice and normative universality save in special cases like the original tribunal being a high bench sitting on a collegiate basis. In short, a first appeal from the Sessions Court to the High Court, as provided in the Cr. P. C., manifests this value upheld in Art. 21. In a criminal appeal against conviction, a duty is cast upon the appellate forum to reappraise the evidence itself and it cannot proceed to dispose of the appeal according to the appraisal of evidence by the trial court alone, particularly when appeal has already been admitted and placed for final hearing as per the view of the Apex Court in the case of Rama vs. State reported in 2002 CrLJ 2533 SC. In other words, the Appellate Court has liberty to take a different view than the trial court and, if two views are possible, it may lean towards the view, which is in favour of accused whereas in an appeal against acquittal, if the view taken by the trial court is a reasonably possible view though not the only view that could be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on thebasis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. In view of such context and in the light of Satya Pal Singh s case (supra) decided by Apex Court, it is clear that the proviso of Section 372 is an exception to the general provision i.e., No appeal shall lie............... and as such, the definition of the word 'victim' is required to be construed in a manner that it sub-serve the purpose of the main enactment and, in any case, does not defeat the same. The question of interpretation of any term given and defined in the statute has been dealt with by Apex Court in several judgments. In Jagir Singh: Goel Roadways vs. State of Bihar reported in 1976 (2) SCC 942: AIR 1976 (SC) 997, Apex Court has laid down the requirement to look at the context, in which the word is being used. Apex Court in the case of United Bank of India, Calcutta V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a policy that an offence i.e. an act or omission made punishable by any law for the time being in force is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a straitjacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception. To hold that such an exception exists that a private complaint for offences of corruption com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch of the stages and, in fact, does not recognize the right of a third party/stranger to participate or even to come to the aid of the State at any of the stages. On merits the SLP was held to be maintainable as the adjudication that the Petitioner was seeking had implications beyond the case /proceedings. It was held that the interpretations of the provisions of Juvenile Justice Act would have effect on all juveniles, who may come in conflict with law- both in the immediate and near future. Having examined various authorities, the inevitable conclusion is that remedy of appeal is a statutory remedy and powers of Appellate Court under Code of Criminal Procedure is an ordinary appellate power, which is regulated by the provisions meant for appeal against acquittal/conviction under Chapter XXIX (Section 372 to 394) of the Code. Now, we proceed to deal with the word 'victim' as used in Section 2 (wa) for the purpose of maintenance of appeal under Section 372 of the Code. The definition given in section 2(wa) say Victim 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 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in the case of Punjab Land Development Reclamation Corporation Ltd. Vs. Presiding Officer, 1990 (3) SCC 682, has mentioned that when a statute says that a word or phrase shall mean - not merely that it shall 'include' certain things or acts - the definition is a hard and fast definition, and no other meaning can be assigned to the expression than is put down in definition. A definition is an explicit statement of full connotation of term. Apex Court in the case of Black Diamond Beverages Vs. CTO, 1998 (1) SCC 458, in context of use of words means and includes has discussed in detail about the synthesis of phrase Means X and includes Y as has been used in various enactments and has held that the 1st part of the phrase Means X usually refers to the ordinary and natural meaning but with an extension of the 2nd part i. e., Includes Y . The first part of the definition should be given its ordinary, popular or natural meaning and second part which includes certain others will not prevent the main provision from receiving its meaning. What is Loss or Injury under Section 2 (wa): If we take up all the said terminology one by one, we may see that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o of section 372. In absence of the direct sufferer or in a case where the direct sufferer suffers a disability his or her legal heir or guardian would qualify as a victim. Who is Legal heir of actual Victim under Section 2 (wa): So far as this expression legal heir is concerned, the Apex Court in Satya Pal Singh s case has held that father of the deceased has locus standi to prefer an appeal before the High Court under proviso to Section 372 of Cr.P.C. as he falls within the definition of victim as defined under Section 2(wa) of Cr.P.C. Although the Apex Court has not elaborately discussed in the aforesaid judgment as to whether father would qualify as a victim because he himself had suffered loss or injury/ or as Legal Heir or Guardian of such person i.e. the deceased. But nonetheless father of the deceased has been held by the Apex Court a victim, within the meaning of section 2(wa) of the Code. At this stage, it would be appropriate to consider the reasoning and conclusions drawn by the Full Benches of Delhi High Court and Punjab Haryana High Court. Both the judgments observe that the expression legal heir is required to be read in a sense different from w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by different succession laws applicable for that particular community. Broadly speaking, succession is either under the Hindu Succession Act or the Indian Succession Act or the Muslim Shariat laws. With the exception of Muslims, the Indian Succession Act, 1925 has a common set of rules for persons of all religions. Even the Muslims are governed by certain provisions of the Indian Succession Act, 1925 in respect of testamentary disposition, if the will relates to immovable property situated within the State of West Bengal and within the jurisdiction of the Madras and Bombay High Courts. In Civil law pertaining to Hindu Community, according to the law of Succession, the legal heir of class-I category though, in terms of preference, would oust the legal heir of class-II category, but class-II legal heirs are nevertheless legal heirs. This preferential right have been recognized under civil law by way of statutory arrangements. But in the Code of Criminal Procedure no such statutory arrangement is available to provide for classes of legal heirs or for a preferential order amongst them. Hence in the context of Code of Criminal Procedure, the expression legal heir cannot be constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e claim of being a Guardian or Legal heir of the victim ought to be decided by the court at the time of considering grant of leave to appeal. There is another aspect which needs to be considered which is that claims of being Guardian or Legal heir of the victim may lead to multiplicity of Appeals against same judgment. In this regard, it may be considered that after admission of earliest Appeal against acquittal preferred by any Guardian or Legal heir of the victim, a subsequent appeal may either be disposed of by permitting the subsequent appellant to have a right to intervene in the earlier admitted appeal or by directing the subsequent appeal to be connected with the earlier admitted appeal. From the discussions that have been made above, it is clear that the proviso of Section 372 is an exception to the general law and same confers on a victim a right to appeal against acquittal, which is subject to the grant of leave by the Court. The first part of the definition of 'victim' as given under Section 2 (wa) (i.e. Victim 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 charg ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
