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1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. 690   of 2017  (Arising out of SLP (Crl.) No.7014 of 2012)

Roopendra Singh                     ….Appellant

Versus

State of Tripura & Anr.           …. Respondents

WITH

Criminal Appeal Nos. 691-692  of 2017 (Arising out of SLP (Crl.) Nos.8316-8317/2012

J U D G M E N T  

Uday Umesh Lalit, J.

1. Leave granted in both the matters.

I            Criminal Appeal  @ out of SLP (Crl.) No.7014 of 2012)

2. The appellant was tried in Sessions Trial No.22 (WT/K) 2010 in the

Court  of  Additional  Sessions  Judge,  Khowai,  West  Tripura  for  having

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2 committed offences punishable under Sections 342, 376(2)(b) and 506 IPC

and was acquitted of all the charges leveled against him vide judgment of the

Trial Court dated 28.04.2011.  Respondent No.2, i.e. the victim challenged

the acquittal by filing Criminal Appeal No.23 of 2011 in the Gauhati High

Court, Agartala Bench.  This appeal was filed under Section 372 of Code of

Criminal Procedure, 1973 (‘Cr.P.C.’ for short). When the appeal was listed

for admission, an objection was taken that unless “leave” was granted under

Section 378(4) of Cr.P.C., the appeal could not be admitted. At this juncture,

a petition under Section 482 of Cr.P.C. was filed by Respondent No.2 for

treating  said  criminal  appeal  under  Section  372  read  with  Section  378

Cr.P.C.

3. The matter was contested.  The High Court by its judgment and order

dated  06.06.2012  concluded  that  there  was  an  unfettered  right  conferred

upon the victim by Section 372 Cr. P.C. and that no leave was required for

the victim to file such appeal. Consequently, the High Court observed that

there was no necessity for converting the appeal to one under Section 372

read with 378 Cr.P.C.  The following observations are noteworthy:-

“The  proviso  to  Section  372  has  created  a  right  to  appeal unfettered of any leave or sanction and it shall automatically lie to the forum where an appeal ordinarily lies against the order of conviction of such court if the said appeal against the judgment

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3 and  order  of  acquittal  is  filed  by  the  victim  as  defined  in Section 2 (wa) of Cr.P.C.

For the reasons as stated above, this court is of the view that  even though the right  to appeal  for  the victim has  been created by the proviso to Section 372 of Cr.P.C, the said proviso itself is a comprehensive provision, not fettered by any leave or sanction as required for the categories of appeals as depicted in Section  378(1),  378(2)  and  378(4)  of  Cr.P.C.  No  leave  is required for the victim to file an appeal as against the order of acquittal under the proviso to Section 372 of Cr.P.C.”

4. The correctness of the decision of the High Court is questioned by the

appellant-accused.  By  order  dated  13.08.2014,  Mr.  Shekhar  Naphade,

learned Senior Advocate was requested to assist the Court as Amicus Curiae

and the matter was directed to be listed for final hearing.  In the meantime a

decision was rendered by this Court on 06.10.2015 in  Satya Pal Singh  v.

State of Madhya Pradesh1.  Paras 14, 15, 17 and 18 of the decision are as

under:-  

”14. Thus, from a reading of the above said legal position laid down  by  this  Court  in  the  cases  referred  to  supra,  it  is abundantly clear that the proviso to Section 372 Cr.P.C. must be read along with its main enactment i.e. Section 372 itself and together with sub-section (3) of Section 378 Cr.P.C. otherwise the  substantive  provision  of  Section  372  Cr.P.C.  will  be rendered nugatory, as it clearly states that no appeal shall  lie from  any  judgment  or  order  of  a  criminal  court  except  as provided by Cr.P.C.

15. Thus, to conclude on the legal issue:

1 2015 (15) SCC 613

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4 “whether the appellant herein, being the father of the deceased, has statutory right to prefer an appeal to the High Court against the order of acquittal under the proviso to Section 372 Cr.P.C. without obtaining the leave of the High Court as required under sub-section (3) of Section 378 Cr.P.C.?”

this  Court  is  of  the  view  that  the  right  of  questioning  the correctness of the judgment and order of acquittal by preferring an  appeal  to  the  High  Court  is  conferred  upon  the  victim including the legal  heir  and others,  as  defined under Section 2(wa) Cr.P.C., under the proviso to Section 372, but only after obtaining  the  leave  of  the  High  Court  as  required  under sub-section (3) of Section 378 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.

17. Hence, the impugned judgment and order of the High Court is not sustainable in law and the same is liable to be set aside by this Court and the case is required to be remanded to the High Court  to consider for  grant  of  leave to file an appeal  by the appellant  as  required  under  sub-section  (3)  of  Section  378 Cr.P.C. and thereafter proceed in the matter.

18. For  the  reasons  stated  supra,  this  appeal  is  allowed  by setting  aside  the  impugned  judgment  and  order  of  the  High Court.  The  case  is  remanded  to  the  High  Court  to  hear  the appellant with regard to grant of leave to file an appeal as the appellant is legal heir of the victim as defined under Section 2(wa) Cr.P.C. and dispose of the appeal in accordance with law in the light of observations made in this order as expeditiously as possible.

5. The decision in Satya Pal Singh shows that reliance was placed on a

Full  Bench  decision  of  High Court  of  Delhi  in  Ram Phal v. State  and

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5 others2,  according to which the right to prefer an appeal conferred upon a

victim by virtue of proviso to Section 372 Cr.P.C. is an independent statutory

right and there is no need for the victim to seek leave of the High Court. Said

decision of the Full Bench of the High Court of Delhi was not found to be

legally correct by this Court in Satya Pal Singh.

6. When  this  matter  came  up  for  final  hearing,  the  learned  Amicus

Curiae submitted that the decision of this Court in Satya Pal Singh required

reconsideration. It was submitted that proviso to Section 372 Cr.P.C. is an

independent provision conferring a substantive right on the victim to prefer

an appeal against the judgment of acquittal, conviction for lesser offence or

inadequate  compensation.  It  was  further  submitted  that  appeals  under

Sections 373, 374, 377, 379 and 380 in Chapter XXIX of Cr.P.C. constitute

one category of appeals which can be presented without obtaining leave of

the appellate court while appeals under Section 378 whether by the State

Government, Central Government or by the Complainant against the order

of acquittal constitute another category of appeals which are circumscribed

by the requirement of obtaining leave of the High Court.  In his submission,

the appeal under proviso to Section 372 falls in the first category of appeals

and as rightly observed by the High Court of Gauhati in the present case, no

2 2015 SCC Online Delhi 9802=2015 221 DLT 1

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6 leave of  the High Court  was required.   The learned Amicus Curiae then

traced  the  legislative  history  and  submitted  that  in  the  1898  Code  of

Criminal  Procedure  as  originally  enacted  no right  was conferred on the

Complainant to file an appeal against acquittal, which for the first time was

introduced in Section 417 of the 1898 Code in the year 1955. He further

submitted that though the Law Commission in its 41st Report had rejected

the  suggestion  of  permitting  the  victim  to  file  appeals  against  order  of

acquittal, in its 154th Report the Law Commission had relied on the 1985

Union  Nations  Declaration  of  Basic  Principles  of  Justice  for  victims  of

crimes and abuse of power. The Report of the Law Commission noted that

the victims were the worst sufferers in the crime and needed to be given

certain rights and compensation. The learned Amicus Curiae then stated that

these developments led to the constitution of Malimath Committee which

recommended that the victims should have the right to file appeal against

acquittal and that is how the proviso to Section 372 came to be inserted by

Amendment Act of 2008. He laid emphasis on following portion from the

Objects and Reasons which weighed with the Parliament while inserting the

proviso:-

“At present, the victims are the worst sufferers in a crime and they do not have much role in the court proceedings. They

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7 need to be given certain rights and compensation, so that there is no distortion of the criminal justice system.”

He  submitted  that  the  Statement  of  Objects  and  Reasons  clearly

stressed that the administration of Criminal Law has tendency to distort and

therefore the victims are the worst sufferers and as such the Parliament had

given an unrestricted right to the victim to prefer appeal against acquittal.

7. In his written submissions the learned Amicus Curiae sought to bring

out  the  anomalies  in  the  decision  of  this  Court  in  Satya  Pal Singh in

following terms:-

“(1) This Hon’ble Court in Satya Pal Singh’s case has missed out  the  significance  of  the  word  “conviction”  used  in  the proviso to S. 372 Cr. P.C.  Under the code, against a conviction, an appeal does not necessarily lie to the High Court. Section 374 lays down different foras for preferring an appeal against conviction.

i  If a person is convicted in a trial held by the High Court in its extraordinary original criminal Jurisdiction, an appeal lies to the Supreme Court.

ii  Any  person  convicted  by  the  Sessions  Judge  or  the Assistant Sessions Judge, an appeal lies to the High Court.

iii  If  a  person  is  convicted  by  any  Court  in  which  the sentence of Imprisonment for more than 7 years is passed he may appeal to the High  Court.

iv   Any person convicted in a trial  held in the Court  of  a Metropolitan  Magistrate  or  Assistant  Sessions  Judge  or

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8 Magistrate of the first class or second class, his appeal will lie to the Court of Sessions.

v If  any  person  is  sentence  by  the  aforesaid  Judicial authorities  i.e.  Metropolitan  Magistrate,  Assistant  Judge, Sessions Judge and sentenced under Section 325, an appeal lies to the Court of Sessions.

vi Any person convicted and sentenced by the Magistrate u/S 360 an appeal lies to the Court of Sessions.

(2)  The Proviso to Section 372 not only deals with filing of appeal by the victim but it also provides for Forum. The Forum of such appeals is same as in case of appeals against conviction. Section 374 shows that  some appeals  against   conviction lie before Session  Court.  Therefore,  some appeals  of  the  victim against acquittal would lie before the Sessions Court. In respect of such appeals there is no question of obtaining leave.  This creates serious anomaly.

(3) The proviso to S. 372 deals with the rights of the victim to file an appeal against the following order:

i. against acquittal ii. against conviction for a lesser offence and  iii. against imposition of inadequate compensation

As  far  as  imposing  inadequate  compensation  is concerned, the Government has no role to play. Once it is laid down that a right of appeal under the proviso is controlled by Section 378 (3) Cr. P.C. then such a stipulation would apply to appeals against all the three orders.”

8. Though the learned Amicus Curie has suggested that these matters be

referred to larger Bench to reconsider the decision of this Court in Satya Pal

Singh, we do not think that such course ought to be adopted in the present

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9 matter. The special leave petition has been pending in this Court for last 5

years.    In  any  case,  in  the  present  matter  the  victim  had  preferred  an

application to treat  the appeal  initially filed under Section 372 to be one

under Section 372 read with Section 378 Cr.P.C.  Though the High Court

observed that no such leave was necessary, the matter now assumes different

complexion in the light of the decision in Satya Pal Singh.  However, since

there was already an application on behalf of the victim to treat the appeal

under Section 372 read with Section 378 Cr.P.C., in our considered view the

leave ought to be granted, which we presently do.  The pending appeal shall

now be considered on merits by the High Court.  This appeal, thus, stands

disposed of.

II           Criminal Appeals arising out of SLP(Crl) Nos.8316-17 of 2012

9. These appeals, at the instance of the original informant question the

orders  dated  20.06.2012  and  28.06.2012  passed  by  the  High  Court  of

Judicature at Bombay, Nagpur Bench, Nagpur.  By order dated 20.06.2012

Criminal  Application  No.399  of  2012  preferred  by  State  of  Maharashtra

seeking leave to appeal against the judgment and order dated 04.02.2012

passed  by the  Extra  Joint  Ad-hoc Additional  Sessions  Judge,  Kelapur  in

Sessions  Trial  No.6  of  2011  acquitting  the  accused  of  the  offences

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10 punishable under Section 302, 201 read with Section 34 IPC was rejected by

the  High Court.   The  appeal  under  Section 372 Cr.P.C.  preferred  by the

Informant, who also happens to be the widow of the deceased was rejected

in the light of the earlier rejection dated 20.06.2012.  It appears that State of

Maharasthra  did  not  challenge  the  rejection  of  their  application  seeking

leave  to  appeal.   This  Court  issued  notice  in  the  aforesaid  matter  on

12.10.2012 and the matter was thereafter tagged with SLP(Crl) No.7014 of

2012, namely, the earlier matter arising out of the judgment of the Gauhati

High Court.

10. Section 372 Cr.P.C.  has conferred upon a  victim a substantive  and

independent right to maintain an appeal against acquittal.  The widow of the

deceased in the present matter comes within the definition of “victim” as

incorporated in  Section 2(wa).   Merely  because  leave  to  appeal  was  not

granted to the State to prefer an appeal against acquittal, the appeal preferred

by the victim Informant ought not to have been rejected by the High Court

summarily.  We, therefore, set aside the order dated 28.06.2012 passed by

the High Court  rejecting Criminal  Appeal  preferred by the appellant  and

remit the matter to the High Court for fresh consideration.  It will be open to

the High Court to consider the matter for grant of leave to appeal to the

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11 appellant in the light of paragraphs 17 and 18 of the decision of this Court in

Satya Pal Singh.   

11. These appeals are thus allowed in the aforesaid terms.

12.      Before we part, we must express and record our sincere appreciation

for  the  assistance  rendered  by  the  learned  Amicus  Curiae.  The  Court  is

deeply grateful to him.

………………………J. (Adarsh Kumar Goel)

………………………J. (Uday Umesh Lalit)

New Delhi, April 11, 2017