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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS._1281-82 _OF 2018 (ARISING OUT OF S.L.P. (CRL.) NOS. 7040-7041 OF 2014)

Mallikarjun Kodagali (Dead) represented through Legal Representatives        …Appellants

Versus

State of Karnataka & Ors.        …Respondents

J U D G M E N T

Madan B. Lokur, J.

1. Leave granted.

2.  The rights of victims of crime is a subject that has, unfortunately, only

drawn sporadic attention of  Parliament,  the judiciary and civil  society.

Yet,  it  has made great  progress over the years.  It  is  our evolving and

developing jurisprudence that has made this possible. But we still have a

long way to go to bring the rights of victims of crime to the centre stage

and to recognise them as human rights and an important component of

social justice and the rule of law.

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3. The travails  and tribulations of  victims of  crime begin with the

trauma of the crime itself and, unfortunately, continue with the difficulties

they face in something as simple as the registration of a First Information

Report (FIR). The difficulties in registering an FIR have been noticed by

a Constitution Bench of this Court in  Lalita Kumari v. Government of

Uttar  Pradesh.1 The  ordeal  continues,  quite  frequently,  in  the

investigation that may not necessarily be unbiased, particularly in respect

of  crimes  against  women  and  children.  Access  to  justice  in  terms  of

affordability, effective legal aid and advice as well as adequate and equal

representation are also problems that the victim has to contend with and

which impact on society, the rule of law and justice delivery.

4. What  follows in a  trial  is  often secondary victimisation through

repeated appearances in Court in a hostile or a semi-hostile environment

in the courtroom. Till sometime back, secondary victimisation was in the

form  of  aggressive  and  intimidating  cross-examination,  but  a  more

humane interpretation of the provisions of the Indian Evidence Act, 1872

has made the trial a little less uncomfortable for the victim of an offence,

particularly the victim of a sexual crime. In this regard, the judiciary has

been proactive in ensuring that the rights of victims are addressed, but a

lot more needs to be done. Today, the rights of an accused far outweigh

1(2014) 2 SCC 1

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the rights of the victim of an offence in many respects. There needs to be

some balancing of  the concerns and equalising their  rights so that  the

criminal proceedings are fair to both.2 The Courts have provided solace to

the victim with monetary compensation, but that is not enough.3 There are

victim compensation  schemes  in  force  due  to  the  mandate  of  Section

357A of the Code of Criminal Procedure, 1973 (the Cr.P.C.) but even that

is not enough, though they are being implemented in several parts of the

country. We are of the view that the judiciary is obliged to go and has

gone  beyond  merely  awarding  compensation  and  has  taken  into

consideration the larger picture from the perspective of the victim of an

offence, relating to infrastructure in court buildings and has recommended

and  implemented  some  recommendations  such  as  the  construction  of

child friendly courts and courts that address the concerns of vulnerable

witnesses.4 The Courts have done and are continuing to do their best for

the victims of crime.

5. In  Sakshi  v.  Union  of  India5 this  Court  passed  significant

directions  for  holding  in camera proceedings,  providing  for  a  screen

between the accused and the victim and placed restrictions, in a sense, on

2Girish Kumar Suneja v. Central Board of Investigation, (2017) 14 SCC 809 3Hari Singh v. Sukhbir Singh, AIR 1988 SC 2127; Bodhisattwa Gautam v. Subhra Chakroborty, AIR 1996 SC 922; Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770 4Sampurna Behura v. Union of India, (2018) 4 SCC 433 5(2004) 5 SCC 518

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the cross examination of witnesses. It is true that these directions have

been passed in a case relating to sexual  offences but the trend of this

Court has been to show concern for the rights of victims of an offence and

to address them.

6. Parliament  also  has  been  proactive  in  recognising  the  rights  of

victims of an offence. One such recognition is through the provisions of

Chapter  XXIA  of  the  Cr.P.C.  which  deals  with  plea  bargaining.

Parliament  has  recognised  the  rights  of  a  victim  to  participate  in  a

mutually satisfactory disposition of the case. This is a great leap forward

in the recognition of the right of a victim to participate in the proceedings

of  a  non-compoundable  case.  Similarly,  Parliament  has  amended  the

Cr.P.C.  introducing the right  of  appeal  to the victim of an offence,  in

certain  circumstances.  The  present  appeals  deal  with  this  right

incorporated in the proviso to Section 372 of the Cr.P.C.  

7. In other words, a considerable amount has been achieved in giving

life to the rights of victims of crime, despite the absence of a cohesive

policy. But, as mentioned above, a lot more still needs to be done.

8. Among the steps that need to be taken to provide meaningful rights

to the victims of an offence, it is necessary to seriously consider giving a

hearing to the victim while awarding the sentence to a convict. A victim

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impact  statement  or  a  victim  impact  assessment  must  be  given  due

recognition so that an appropriate punishment is awarded to the convict.

In  addition,  the  need  for  psycho-social  support  and  counselling  to  a

victim may also  become necessary,  depending  upon the  nature  of  the

offence. It is possible that in a given case the husband of a young married

woman gets killed in a fight or a violent dispute. How is the young widow

expected to look after herself in such circumstances, which could be even

more traumatic if she had a young child? It is true that a victim impact

statement  or  assessment  might  result  in  an appropriate  sentence  being

awarded to the convict, but that would not necessarily result in ‘justice’ to

the young widow - perhaps rehabilitation is more important to her than

merely ensuring that the criminal is awarded a life sentence. There is now

a need, therefore, to discuss these issues in the context of social justice

and take  them forward in  the  direction suggested  by some significant

Reports that we have had occasion to look into and the direction given by

Parliament and judicial pronouncements.

9. The  rights  of  victims,  and  indeed  victimology,  is  an  evolving

jurisprudence  and  it  is  more  than  appropriate  to  move  forward  in  a

positive direction, rather than stand still or worse, take a step backward. A

voice has been given to victims of crime by Parliament and the judiciary

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and that voice needs to be heard, and if not already heard, it needs to be

raised to a higher decibel so that it is clearly heard.

10. With this background, we need to consider the questions that arise

before us consequent to the introduction of the proviso to Section 372 of

the  Cr.P.C.  with  effect  from  31st December,  2009.  The  questions  are

somewhat limited: Whether a ‘victim’ as defined in the Cr.P.C. has a right

of appeal in view of the proviso to Section 372 of the Cr.P.C. against an

order of acquittal in a case where the alleged offence took place prior to

31st December, 2009 but the order of acquittal was passed by the Trial

Court after 31st December, 2009? Our answer to this question is in the

affirmative.  The next question is:  Whether the ‘victim’ must  apply for

leave to appeal against the order of acquittal? Our answer to this question

is in the negative.

Factual narrative

11. The appellant (Kodagali – now dead but represented by his legal

representatives) was the victim of an attack on the night of 6 th February,

2009.  He lodged a First  Information Report with the police and after

investigations, necessary proceedings were taken before the District and

Sessions  Judge,  Bagalkot  against  the  accused  persons  under  several

sections of the Indian Penal Code (the IPC).  

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12. In S.C. No. 49 of 2010 the District and Sessions Judge, Bagalkot

(Karnataka)  acquitted the accused by a  judgment and order  dated 28th

October, 2013.

13. Aggrieved thereby, Kodagali preferred an appeal in the High Court

being Criminal Appeal No. 100016 of 2014.  The appeal was preferred

under the proviso to Section 372 of the Cr.P.C. but it was dismissed as not

maintainable by a judgment and order dated 10th June, 2014.  It was held

by the High Court that the proviso to Section 372 of the Cr.P.C. came into

the statute book with effect from 31st December, 2009 but the incident had

occurred  well  before  that  date.  Therefore,  the  appeal  was  not

maintainable.   Reliance  was  placed  by  the  High  Court  on  National

Commission for Women v.  State of Delhi and another6      

14. Kodagali  then preferred another appeal  in the High Court  being

Criminal Appeal No. 100119 of 2014.  This appeal was filed under the

provisions of  Section 378(4) of  the Cr.P.C.   By a judgment and order

dated  4th July,  2014  the  High  Court  held  that  the  appeal  was  not

maintainable.  The view taken by the High Court was on a plain reading

of Section 378(4) of the Cr.P.C., namely, that the appeal was not filed in a

case instituted upon a complaint before a Magistrate.

6(2010) 12 SCC 599

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15. Under these circumstances, Kodagali is before us challenging the

judgment and orders dated 10th June, 2014 and 4th July, 2014.  It is his

contention that he has been left with no remedy against the acquittal of

the accused.  His submission is that one of the accused is a Member of the

Legislative  Assembly  and  it  is  for  this  reason  that  the  State  did  not

challenge the acquittal.  It is not necessary for us to go into the merits of

the controversy or the allegations made by Kodagali.  Suffice it to say, we

are  only  concerned  with  the  question  whether  the  appeal  filed  by

Kodagali  under  the  proviso  to  Section  372  of  the  Cr.P.C.  was

maintainable or not.

Victims of crime and their rights

16. In recent times, four Reports have dealt with the rights of victims

of  crime and the  remedies  available  to  them.  The first  Report  in  this

sequence is the 154th Report of the Law Commission of India of August

1996. While this Report did not specifically deal with the right of a victim

of  crime  to  file  an  appeal,  it  did  discuss  issues  of  victims  of  crime,

compensation to be paid to the victim and rehabilitation of  the victim

including the establishment of a Victim Assistance Fund.

17. The  second  important  Report  is  the  March  2003  Report  of  the

Committee on Reforms of Criminal Justice System commonly known as

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the  Report  of  the  Justice  Malimath  Committee.  In  the  Chapter  on

Adversarial Rights, it is recommended under the sub-heading of Victims

Right to Appeal as follows:

“2.21. The victim or his representative who is a party to the trial should have a right to prefer an appeal against any adverse order passed by the trial court. In such an appeal he could challenge the acquittal,  or  conviction  for  a  lesser  offence  or  inadequacy  of sentence, or in regard to compensation payable to the victim. The appellate court should have the same powers as the trial court in regard to assessment of evidence and awarding of sentence.”

18. Thereafter, in the substantive Chapter on Justice to Victims, it is

noted  that  victims  of  crime,  in  many  jurisdictions,  have  the  right  to

participate  in  the  proceedings  and  to  receive  compensation  for  injury

suffered. It was noted as follows:

“6.3  Basically  two  types  of  rights  are  recognized  in  many jurisdictions  particularly  in  continental  countries  in  respect  of victims of crime. They are, firstly, the victim’s right to participate in criminal  proceedings  (right  to  be impleaded,  right  to  know, right to be heard and right to assist the court in the pursuit of truth) and secondly, the right to seek and receive compensation from  the  criminal  court  itself  for  injuries  suffered  as  well  as appropriate interim reliefs in the course of proceedings.”

19. Following up on this, and extending the rights of victims of crime,

it  was observed in paragraph 6.5 that  “The right  of  the victim should

extend to prefer an appeal against any adverse order passed by the trial

court. The appellate court should have the same powers to hear appeals

against  acquittal  as  it  now has  to  entertain  appeal  against  conviction.

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There is no credible and fair reason why appeals against acquittals should

lie only to the High Court.”

20. On this basis, the Justice Malimath Committee made the following

recommendation enabling the victim of a crime to prefer an appeal. The

recommendation (made in the Chapter having the same heading) reads as

follows:

“The victim shall  have a right to prefer an appeal against  any adverse  order  passed  by  the  court  acquitting  the  accused, convicting for a lesser offence, imposing inadequate sentence, or granting inadequate compensation. Such appeal shall  lie to the court  to  which  an  appeal  ordinarily  lies  against  the  order  of conviction of such court.”

21. The third Report worth considering is the July 2007 Report of the

Committee on the Draft National Policy on Criminal Justice also known

as the Professor Madhava Menon Committee. While this Committee does

not specifically deal with providing a right of appeal to the victim of a

crime, it does refer to victim orientation to criminal justice and providing

for a balance between the constitutional rights of an accused person and a

victim of crime. One of the suggestions given by the Committee is to

permit the impleadment of a victim in the trial proceedings. Obliquely

therefore, it follows that if a victim is impleaded as a party to the trial

proceedings,  the victim would certainly have a  right  to  file  an appeal

against an adverse order, particularly an order of acquittal.

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22. The fourth Report that deserves a mention is the 221st Report of the

Law  Commission  of  India  April  2009.  In  this  Report,  the

recommendation of the Law Commission of India was to the effect that as

the law stands, an aggrieved person cannot file an appeal against an order

of acquittal. However, a revision petition can be filed. The powers of a

revisional court are limited and the process involved is cumbersome and

it  also  involves  a  wastage  of  money  and  time.  It  was,  therefore,

recommended by the Law Commission that against an order of acquittal

passed  by  a  Magistrate,  a  victim should  be  entitled  to  file  an  appeal

before the revisional court. It was also recommended that in complaint

cases also an appeal should be provided in the Sessions Court instead of

the High Court. In all such cases, the aggrieved person or complainant

should have the right to prefer an appeal, though with the leave of the

Appellate Court. The view of the Law Commission was expressed in the

following words:

“2.9 All appeals against orders of acquittal passed by Magistrates were being filed in High Court prior to amendment of section 378 by Act 25 of 2005. Now, with effect from 23.06.2006, appeals against  orders  of  acquittal  passed by Magistrates in respect of cognizable  and  non-bailable  offences  in  cases  filed  on  police report  are being filed in the Sessions Court,  vide clause (a) of sub-section (1) of the said section. But, appeal against order of acquittal passed in any case instituted upon complaint continues to be filed in the High Court, if special leave is granted by it on an application made to it by the complainant, vide sub-section (4) of the said section.

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2.10 Section 378 needs change with a view to enable filing of appeals in complaint cases also in the Sessions Court, of course, subject to the grant of special leave by it.

2.11  Further,  at  present,  against  orders  of  acquittal  passed  by Magistrates (where the offence is cognizable and non-bailable) or by Sessions Courts, appeal in cases filed on police reports can be filed only at the instance of the District Magistrate or the State Government, as the case may be, vide sub-section (1) of section 378.  In  such  matters,  the  aggrieved  person  or  the  informant cannot himself file an appeal. However, he can prefer a revision. If the revisional Court finds that the accused has been wrongly acquitted,  it  cannot  convict  him in  view of  sub-section  (3)  of section 401, but it  has to remand the case. It is a cumbersome process and involves wastage of money and time. This provision also needs a change and in such matters also, where the District Magistrate or the State does not direct the Public Prosecutor to prefer appeal against an order of acquittal, the aggrieved person or the informant should have the right to prefer appeal, though with  the  leave  of  the  Appellate  Court.  This  will  also  give  an opportunity to the aggrieved person to challenge the findings of fact  recorded  by  lower  court.  Also,  this  will  introduce  more transparency  and  accountability  in  the  lower  judiciary,  as  at present, the percentage of acquittal is quite high.”

23. It is, apparently, on the basis of all these Reports and other material

that Section 372 of the Cr.P.C. was amended on 30th December, 2009 with

effect from 31st December, 2009. Section 372 of the Cr.P.C. as it stands

today reads as follows:

“372. No appeal to lie unless otherwise provided. - No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:

Provided that  the  victim shall  have a  right  to  prefer  an appeal  against  any  order  passed  by  the  Court  acquitting  the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal  ordinarily  lies  against  the  order  of  conviction  of  such Court.”

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Decision in the case of the National Commission for Women

24. In  National  Commission  for  Women,  the  victim,  a  young lady

aged 21 years committed suicide on or about 14th April, 2003.  She left

behind a note in which she stated that the accused had physical relations

with her and held out a promise of marriage but later backed off.  He had

exploited her and therefore she was committing suicide.   

25. The Trial Judge relied on the dying declaration and convicted the

accused by his judgment and order dated 21st April, 2008.  The accused

preferred an appeal in the Delhi High Court which acquitted him of an

offence under Section 306 of the IPC while maintaining his conviction

under Section 376 of the IPC.  The sentence was reduced to that already

undergone which was about five years and six months.  The judgment and

order of the High Court is dated 9th February, 2009.

26. Feeling aggrieved by the decision of the High Court, the National

Commission for Women preferred a petition for special leave to appeal

admittedly invoking the inherent powers of this Court.    In that context

this Court held that in view of Section 372 of the Cr.P.C. no appeal shall

lie from a judgment or order by a criminal Court except as provided by

the Cr.P.C. or by any other law which authorises an appeal. The proviso

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to Section 372 of the Cr.P.C. 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.  This Court then observed as follows:  

“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 inadequate sentence.”

27. It was further held that an appeal being the creation of a statute, it

would not be maintainable under any inherent power.  Article 136 of the

Constitution does confer discretionary power on this Court to entertain a

petition at the behest of the State or an affected private individual but to

permit  anybody or an organisation  pro bono publico to  file an appeal

would be a dangerous doctrine and would cause utter confusion in the

criminal justice system. On this basis it was held that the special leave

petition  filed  by  the  National  Commission  for  Women  was  not

maintainable.

28. The thrust of the decision of this Court, which appears to have been

misunderstood by the High Court, is with regard to entertaining a petition

under Article 136 of the Constitution by a third party.  As far as criminal

matters are concerned, this Court undoubtedly held that permitting a third

party to prefer a petition under Article 136 of the Constitution would be

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dangerous and would cause confusion.  The reasoning of this Court was

not directed towards the proviso to Section 372 of the Cr.P.C.   It is only

in  passing  that  this  Court  observed  that  on  the  facts  of  the  case,  the

proviso to Section 372 of  the Cr.P.C.  might not  be applicable since it

came into the statute book after the incident.   

29. The decision of this Court in National Commission for Women is

quite clearly distinguishable and reliance on this decision by the High

Court is inapposite.  

Decisions of the Full Bench

30. The interpretation of the proviso to Section 372 of the Cr.P.C. has

been considered in Full Bench decisions rendered by a few High Courts.

31. Among the first few Full Bench decisions that addressed this issue

was the judgment of the Gujarat High Court in Bhavuben Dineshbhai

Makwana  v.  State  of  Gujarat  &  Ors.7 The  questions  framed  for

consideration in this case were:

(i)  Whether  an  appeal  filed  by  the  victim,  invoking  his  right under  proviso  to  Sec.  372  of  Cr.P.C,  challenging  acquittal,  or conviction  for  a  lesser  offence,  or  awarding  inadequate compensation, is not maintainable, on the ground that the State has  filed  an  appeal  against  the  same  order  and  for  the  same purpose?

(ii)  Whether  an  appeal  filed  by  the  State  should  not  be entertained, on the ground that the appeal preferred by the victim

7MANU/GJ/1137/2012 - Criminal Appeal No. 238 of 2012, decided on 23rd October,  2012  

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invoking his right under proviso to Sec. 372 of Cr.P.C., against the same order, is admitted by the Court?

(iii) If the victim prefers an appeal before this Court, challenging the  acquittal,  invoking  his  right  under  proviso  to  Sec.  372  of Cr.P.C., whether that appellant is required to first seek leave of the Court, as is required in case of appeal being preferred by the State?

32. While  discussing these  issues,  the Full  Bench observed that  the

Legislature had conferred a substantive statutory right of appeal and such

a right could not be diluted by a judicial pronouncement since the right of

a party to file an appeal is an independent, substantial and statutory right.

33. Analysing the proviso to Section 372 of the Cr.P.C. and juxtaposing

it with Section 377 of the Cr.P.C. the Full Bench noted that the victim has

no right  to prefer  an appeal  against  “inadequacy of  sentence”,  a right

available only to the State and the State does not have any right to file

any appeal against “inadequacy of compensation”, a right available only

to a victim. Noting the availability of different rights, it was held:

“In  light  of  different  types  of  right  of  appeal  provided  to  the victim and to the State/Prosecution, it will not be proper to hold that the right of either of them is dependent upon the other. To put it differently, only victim can file an appeal against an order of imposing ‘inadequate compensation’ in addition to his  right  of appeal against acquittal and convicting the accused for a lesser offence and therefore, to club his right and make it  dependent upon the exercise of right of appeal at the instance of the State would be not only be unworkable, but would run contrary to the scheme and lead to absurdity.”

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34. The Full  Bench then concluded that  the correct  position in  law

would be that the right to file an appeal by the victim of an offence is an

independent and statutory right not subservient to the rights of the State

to  file  an  appeal.  It  was  further  concluded  that  each  victim  has  an

independent right of appeal and in a given case, the grievance of different

victims may be completely different. It was held as follows:

“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  Sec.  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 charged, there may be more than one victim and the loss suffered by the victims may vary from one victim to the other victims. Therefore, each of such victims will have separate right of appeal and in such appeals, the grievance of each of the appellant may be different. For instance, in an act of arson when a joint property of different persons has been set on fire, the loss suffered by each of the co-sharers may be different. In such a case, each co-sharer has a separate right of appeal and such right of one does not depend even on the filing of such appeal by another victim.”

35. The first two questions were accordingly answered by the Gujarat

High  Court  by  holding  that  the  appeals  filed  by  the  victim  were

maintainable.

36. On  the  third  question,  the  Full  Bench  noted  that  if  the  victim

restricts the appeal to the grievance to inadequacy of the compensation or

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punishment for a lesser offence,  it  does not  become an appeal  against

acquittal but the appeal is really directed against “any other sentence or

order not being an order of acquittal” within the meaning of Art. 115(b)

of the Limitation Act, 1963 and thus, no question of taking special leave

arises.  The Full Bench took the view that  for the purposes of Section

378(4) of the Cr.P.C. a victim who is not a complainant will not come

within  the  purview of  that  section  and would  not  be  required to  take

recourse to the provision of special leave as provided therein. It was held:

“Therefore, in the case before us, the legislature while conferring the right of appeal upon the victim, who is not a complainant, not having imposed any condition of taking leave or special leave, we cannot infer such condition and impose the same upon the victim, although, the legislature was quite conscious of existence of such provision in case of an appeal by a complainant and has retained that provision without consequential amendment thereby making its  intention  clear  that  the  provision  of  special  leave  is  not applicable to an appeal preferred by a victim against acquittal if he is not the complainant.”

The third question was then answered in the following words:

“If the victim also happens to be the complainant and the appeal is against acquittal, he is required to take leave as provided in Sec.  378 of  the  Criminal  Procedure  Code but  if  he  is  not  the complainant, he is not required to apply for or obtain any leave. For  the  appeal  against  inadequacy  of  compensation  or punishment  on  a  lesser  offence,  no  leave  is  necessary  at  the instance of a victim, whether he is the complainant or not.”

37. In  our  opinion,  the  Gujarat  High  Court  made  an  artificial  and

unnecessary distinction between a victim as a victim and a victim as a

complainant in respect of filing an appeal against an order of acquittal.

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The  proviso  to  Section  372  of  the  Cr.P.C.  does  not  introduce  or

incorporate any such distinction.

38. The next significant  decision has been rendered by the Division

Bench of  the Calcutta  High Court  in  Mahafuja  Banu v.  Md.  Asadul

Islam & State.8 In this case, the prosecutrix lodged a complaint on 13th

December, 2003 and the judgment and order of acquittal was delivered by

the Trial Court on 22nd December, 2009. An appeal to the High Court was

(presumably) filed only after 31st December, 2009. While considering the

maintainability of the appeal, the High Court referred to the decision of

the Gujarat High Court in Bhavuben Dineshbhai Makwana.

39. Reference  was  also  made  to  a  Division  Bench  decision  of  the

Agartala Bench of the Gauhati High Court in Gouranga Debnaih v. State

of Tripura.9 In that case the alleged offence took place on 14th November,

2006  and  the  judgment  of  acquittal  was  delivered  on 30th September,

2010. The High Court held that the appeal against acquittal filed by the

victim was maintainable. It was held that if the interpretation given to the

proviso to Section 372 of the Cr.P.C. is that the right to appeal accrued on

the date of the incident, then it would unreasonable and unfair, more so

since the proviso to Section 372 of the Cr.P.C. is given prospective effect.

8(2013) 1 Cal LT 109 92011 (4) GLT 379

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40. Reference was also made to a decision by a learned Single Judge

decision of the Kerala High Court in  T. Balakrishnan Master v. K.M.

Ramachandran Master.10 In  that  case  it  was  held  that  the  proviso  to

Section 372 of the Cr.P.C. confers on the victim a substantive right to

prefer an appeal in certain circumstances. The right is dependent on the

judgment rendered by the Court and not in relation to the incident that

gave rise to the prosecution.

41. The  Calcutta  High  Court  also  considered  the  question  whether

there is finality attached to the judgment of acquittal and whether that

finality could be disturbed on the basis of a right subsequently conferred

on the victim. It was held that the judgment of acquittal had not attained

finality in that the victim had a right to file a revision petition and the

State had the right to file an appeal. All that the proviso to Section 372 of

the Cr.P.C. had done was to replace the right of a revision with the right to

appeal.

42. While  it  is  true  that  there  is  a  qualitative  difference  between  a

revision and an appeal,  the Calcutta High Court  drew attention to the

221st Report  of  30th April,  2009 of the Law Commission.  This  Report

noted  the  distinction  and  observed  that  the  revision  process  was

10Crl. M.A. No. 7423 of 2011, decided on 22nd September, 2011 -  MANU/KE/1620/2011

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cumbersome  and  involved  a  wastage  of  time  and  money.  It  was,

therefore,  recommended  by  the  Law  Commission  that  the  aggrieved

person should have the right to prefer an appeal, though with the leave of

the  Appellate  Court.  This  would  also  give  the  aggrieved  person  an

opportunity to challenge the findings of fact recorded by the Trial Court.

43. On the  basis  of  the  above  decisions  and the  reasons  given,  the

Calcutta High Court concluded that there was nothing to suggest that the

victim could exercise the right to appeal under the proviso to Section 372

of the Cr.P.C. only if it existed on the date of the “cause of action” (the

alleged  offence  or  incident)  or  the  date  on  which  the  complaint  was

lodged.

44. After a short hiatus, this issue again came up for consideration and

this time before the Full Bench of the Punjab and Haryana High Court in

Tata Steel v. Atma Tube Products Ltd.11 The decision is much more than

elaborate and only two of the seven questions framed for consideration

are relevant for the present discussion. These two questions are:

(1) Whether the ‘rights’ of a victim under the amended Cr. P.C. are accessory and auxiliary to those perceived to be the exclusive domain of the ‘State’?

(2)  Whether  proviso  to  Section  372  CrPC  inserted  w.e.f. December 31, 2009 is prospective or retrospective in nature and whether a revision petition pending against an order of acquittal

11(2014) 173 (1) PLR 1

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before the insertion of the said proviso, can be converted into an appeal and transferred to the Court of competent jurisdiction?

45. In  answering  the  first  question,  the  High  Court  noted  that  the

scheme of the Cr.P.C. provides, after various amendments, the right of

appeal  to  the  accused;  the  State;  the  victim  and  the  complainant  in

complaint cases. It was observed that if a victim also happens to be the

complainant in a police case, then that victim is not required to take leave

under Section 378 of  the Cr.P.C. to file an appeal  against  an order of

acquittal. To this extent, the Full Bench of the Punjab and Haryana High

Court differed with the view taken by the Full Bench of the Gujarat High

Court in Bhavuben Dineshbhai Makwana.  

46. The  reasons  for  disagreement  stem  from  the  fact  that  the

Legislature was aware of the provisions of the existing statute including

the fetter imposed on the State in filing an appeal against  an order of

acquittal. However, that fetter was not placed on the right to appeal given

to a victim under the proviso to Section 372 of the Cr.P.C. The view of

the Full Bench of the Punjab and Haryana High Court was that if such

fetter were to be placed on the right of the victim, it would amount to

rewriting the proviso to Section 372 of the Cr.P.C. and would also defeat

the legislative will. The Punjab and Haryana High Court expressed it’s

opinion in the following words:

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“The  Court  shall  always  presume  that  while  amending  or bringing a new enactment, the Legislature was fully aware of the provisions of the existing Statute. The Parliament had thus full knowledge of  the  fetters  imposed by it  on the  presentation  of appeals by the State or a complaint through Section 378(3) & (4) of the Code, yet it gave the right to appeal to a ‘victim’ free from any  obstacle  under  proviso  to  Section  372  of  the  Code.  The legislative  policy  to  grant  unconditional  right  to  appeal  to  a ‘victim’ is thus writ large. It would indeed not only amount to re- writing  the  proviso  to  Section  372  but  would  also  defeat  the legislative will if the restrictions expressly embedded in Section 378(3) & (4) are impliedly planted into proviso to Section 372 of the  Code  also.  Since  leave  to  appeal  under  Section  378(3)  is confined only to such appeals which are presented by the State or Central Governments under sub-Section (1)(b) or sub-Section (2) (b) of Section 378 of the Code, with due regard at our command, we are unable to agree with the view taken by the Division Bench of this Court in Smt. Ram Kaur's case (supra)12 that a ‘victim’ shall  be  required  to  seek  leave/special  leave  to  appeal  while exercising his/her right to appeal under proviso to Section 372 of the  Code  and  overrule  the  same  to  that  extent.  On  the  same analogy, we express our inability to agree with the view taken by the Patna High Court in Guru Prasad Yadav's case (supra).13

The cumulative effect of the above discussion is that the right(s) of a ‘victim’ under the amended Code are substantive and not mere brutam fulmen hence these are not accessory or auxiliary to those of the State and are totally incomparable as both the sets of rights or duties operate in different and their respective fields. We thus hold that a ‘victim’ is not obligated to seek ‘leave’ or ‘special leave’ of the High Court for presentation of appeal under proviso to Section 372 of the Code.”

47. With regard to the second question, the High Court concluded that

the right to appeal is a substantive right. Consequently, the inescapable

conclusion would be that the right to appeal given to a victim would be

prospective and enforceable with effect from 31st December, 2009 only.

12Smt.  Ram  Kaur  @  Jaswinder  Kaur  v.  Jagbir  Singh  alias  Jabi  and  others, MANU/PH/4500/2010 decided on 1st April, 2010 13Guru Prasad Yadav v. State of Bihar, Criminal Appeal No. 582 of 2011

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This would be irrespective of the date of registration of the FIR or the

date of the occurrence. The High Court held as follows:

“Since  right  to  appeal  is  a  substantive  right  and  it  cannot  be inferred by implication unless the Statute expressly provides so, the only inescapable conclusion would be to hold that the right to appeal given to a ‘victim’ under proviso to Section 372 of the Code is prospective and has become enforceable w.e.f. December 31, 2009 only. A ‘victim’ is entitled to prefer appeal in respect of any type of order referred to in the proviso to Section 372 if such order has been passed on or after December 31, 2009 irrespective of the date of registration of FIR or the date of occurrence etc. To be more specific, it is clarified that it is the date of passing of the order to be appealed from and not any other fact situation, which shall determine the right to appeal of a ‘victim’. As a corollary thereto, it is held that the remedy availed by a ‘victim’ including revision  petition  against  acquittal  of  the  accused  by  an  order passed before December 31, 2009, cannot be converted into an appeal under proviso to Section 372 and it shall have to be dealt with  in  accordance  with  the  parameters  settled  for  exercising revisional jurisdiction by a superior Court.”

48. The Full Bench of the Delhi High Court also considered this issue

in Ram Phal v. State & Ors.14 The question considered by the Delhi High

Court was:

“Whether the appellate remedy [under the proviso to Section 372 of  the  Cr.P.C.]  is  available  with respect  to  only  such offences which were committed as on the date when the appellate right was conferred by law or the appellate right would be available with respect to the date of the decision or the appellate remedy is without any reference to the two points of time i.e. the date when the  offence  was  committed  or  when  the  appellate  right  was conferred  by  law,  (Act  No.5  of  2009  with  effect  from 31.12.2009).”

49. While  answering the question,  the Delhi  High Court  referred to

142015 (151) DRJ 562

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Tata Steel decided by the Punjab & Haryana High Court. The Delhi High

Court referred to the conclusion that a victim “is entitled to prefer appeal

in respect of any type of order referred to in the proviso to Section 372 if

such order has been passed on or after December 31, 2009 irrespective of

the date of registration of FIR or the date of occurrence etc.”

50. Reference was also made to the Division Bench of the Patna High

Court  in  Parmeshwar  Mandal  v.  State  of  Bihar15 and  parts  of  the

following  passages  were  referred  to  and  relied  upon.  It  was  said  in

Parmeshwar Mandal:

“Proviso to Section 372 of the Code is in two parts. First clause of  the  said  proviso  begins  with  ‘provided  that’ and ends  with ‘Inadequate compensation’ and creates  a right  in the  victim to prefer  appeal  against  any  order  passed  by  a  court  either  (i) acquitting the accused or (ii) convicting for a lesser offence or (iii) imposing inadequate compensation. Thereafter, by inserting conjunction ‘and’,  another  clause  has  been added in  the  same sentence  by  which  forum for  preferring  such appeal  has  been identified, which relates to procedural part of law. Thus, the said proviso contains both substantive part, creating right in the victim to prefer an appeal, and procedural part, by identifying the forum for filing such an appeal. It is not in dispute that the substantive part of law operates prospectively, unless made retrospective, and the  procedural  part  is  presumed to  be  retrospective  within  its defined limits.

xxx xxx xxx xxx

………The  Central  Government,  by  Notification  No.  S.O. 3313(E)  dated  30th  December,  2009,  appointed  31st  day  of December 2009, as the date for the Act. 5 of 2009 to come into force, which was published in Gazette of India, Ext., Pt.II, S.3(ii), dated  30-12-2009.  Hence,  in  absence  of  any express  intention notified by the Legislature to the contrary, it has to be concluded

152014 (1) PLJR 377

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that  the  right  of  victim,  to  prefer  an  appeal  in  terms  of  said proviso to Section 372, became available to the victim(s) of all cases  in  which  orders  were  passed  by  any  criminal  court acquitting the accused or convicting him for a lesser offence or imposing inadequate compensation, on or after 31st of December, 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.”

51. The  Delhi  High  Court  held  that  in  light  of  the  settled  law  as

explained above, it was in respectful agreement with these decisions.

52. The Full Bench of the Rajasthan High Court in Baldev Sharma v.

Gopal & Ors16 considered (amongst others) the following two questions:

(i)  Whether  the  proviso  to  Section  372  as  introduced  by  the amending Act No. 5 of 2009 which has been brought into effect on 31.12.2009 can be given effect to in cases where the offence occurred  prior  to  31.12.2009  and  thereby  given  the  right  of appeal to the victim in the event; (a) whether the court below has acquitted the accused or (b) has convicted the accused for a lesser offence or (c) has imposed inadequate compensation. Though the judgment in such cases may have been passed by the court below after 31.12.2009.

(ii) Whether the appeal by the victim under proviso to Section 372 is also required to be dealt with in the same manner as an appeal  filed  by  the  State  under  Section  378  Cr.P.C.  and  the provisions  of  Section  378  are  required  to  be  read  into  the provisions of Section 372 Cr.P.C. with regard to appeals filed by the victims.

53. It  was  held,  relying  upon  the  same passages  in  Tata  Steel and

Parmeshwar Mandal that “judgments passed on or after the said date

162017 (3) RLW 2604 (Raj.)

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[31st December, 2009] are the ones in respect whereto, irrespective of the

date of the offence, the victim can avail the right to file an application

seeking leave to appeal.”

Division Bench decisions

54. Among the first few decisions rendered by the Division Bench of

the High Court was the judgment and order passed by the Division Bench

of  the  Gauhati  High  Court  in Gouranga  Debnaih.  In  this  case,  the

alleged incident took place on 14th November, 2006 and the judgment and

order of acquittal was passed by the Trial Court on 30th September, 2010.

On the question of the maintainability of the appeal under the proviso to

Section  372  of  the  Cr.P.C.  the  Division  Bench  framed  the  following

question  for  consideration:  “Whether  he  [the  victim]  has  any  right  to

prefer an appeal against the impugned judgment and order of acquittal

taking the benefit of proviso to Section 372 of the Code which has been

inserted  by  way  of  amendment  giving  effect  and  if  so,  the  present

condonation petition is maintainable?”  

55. In answering this question, the Gauhati High Court expressed the

view that has already been adverted to above and need not be repeated

here. This is what the High Court had to say:

“Now question  is  whether  an  appeal  can  be  preferred  for  an incident that happened prior to giving effect of the amendment of

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the Code. There is no doubt that if a Court considers that from the date of incident, the right to appeal accrued, then obviously that would be unreasonable and unfair, more so, when the amendment is given prospective effect and that would also go against the law of limitation as prescribed under Article 114 of  the Limitation Act. In this case it is not necessary for us to discuss even that aspect, as right to appeal of the petitioner accrued only after the decision in the sessions case by the trial Court i.e. the date on which the judgment was delivered i.e. on 30.9.2010.”

56. In Parmeshwar Mandal  an appeal  was filed by a victim in the

High Court against a judgment and order of acquittal dated 28 th August,

2012. The Division Bench of the High Court sought assistance on the

maintainability of the appeal. After hearing arguments, the Court noted

the  distinction  in  the  language  of  Section  372  of  the  Cr.P.C.  and  the

language of Sections 377 and 378 of the Cr.P.C. The High Court noted

that  Section  372  of  the  Cr.P.C.  was  framed  in  affirmative  terms.

Moreover, the use of the word ‘shall’ in the proviso to Section 372 of the

Cr.P.C., in contradistinction to the use of the word ‘may’ in Sections 377

and 378 of the Cr.P.C. gives a clear indication that the right of a victim to

file an appeal was placed on a higher pedestal than the rights of the State,

or even the accused. This is what the High Court had to say in this regard:

“What is significant to notice is that this right to appeal, which is clearly  in  affirmative  terms,  has  been  given  to  the  victim  by inserting  the  said  proviso  in  Section  372  itself,  which  is  the opening  section  of  the  Chapter,  and  not  by  any  insertion  in Sections 377 or 378, which deal with appeals against inadequate sentence  and  acquittal.  In  contradistinction  to  wordings  of Sections 377 and 378, which are apparently enabling provisions, and  only  give  a  liberty  to  the  District  Magistrate,  State

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Government,  the Central  Government,  and the  complainant,  to prefer an appeal by use of the word ‘may’, a victim, under the said  proviso  to  Section  372  has  been  given  a  right  to  prefer appeal by use of the expression ‘shall have a right to appeal’. It is also significant to notice that, whereas in Section 378, grant of leave has been made a condition precedent for entertaining any appeal against acquittal preferred under sub-sections (1) and (2), and  grant  of  special  leave  for  entertaining  an  appeal  by  a complainant  preferred  under  sub-section  (4),  there  is  no  such qualification prescribed in the said proviso to section 372 for a victim to maintain his  appeal  against  an order  of  acquittal,  or against a conviction for a lesser offence or against imposition of inadequate  compensation…….   Hence,  in  the  opinion  of  this Court, the Legislature, by a conscious act, has put the right of a victim to prefer an appeal under the Code, in terms of the said proviso to Section 372, at a much higher pedestal than the right of a prosecuting agency or a complainant to present an appeal. Any otherwise intention of the Legislature is ruled out from the fact that, had it been so, it would have inserted a new sub-section in Sections  377  or  378,  putting  his  right,  with  limitations  and qualifications, at par with that of the prosecuting agency or the complainant,  instead  of  inserting  this  right  of  victim  in  the opening section of the chapter itself.”

57. Thereafter,  the  High  Court  gave  its  reasons  and  conclusion  for

holding that the 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  Cr.P.C.  irrespective  of  the  date  of

occurrence, institution of the case, cognizance or commitment. The Delhi

High Court had referred to the relevant passages of the judgment of the

Patna High Court and we have extracted these passages above and they

need not be repeated here.  

58. The Division Bench of the Kerala High Court dealt with this issue

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in  Vanaja  K.C.  v.  State  of  Kerala  & Ors.17  In  this  case  the  alleged

offence or incident took place on 27th January, 2005 and the judgment of

acquittal  by the Trial  Court was rendered on 24th February,  2010. The

question considered by the High Court was:

“Whether the victim gets a right of appeal under the proviso to Section 372 Cr.P.C. in a case where the date of occurrence was before  and  the  judgment  was  pronounced  after  the  date  of commencement of Act 5 of 2009?”

59. The Division Bench relied upon an earlier  decision of  the High

Court in  Balakrishnan Master which referred to the letter and spirit of

the  law.  The following passage  from the  decision  of  the Kerala  High

Court is instructive:

“The question is  whether  the  right  of  appeal  conferred on the victim  by  the  proviso  to  Section  372  of  the  Code,  has  to  be determined  with  regard  to  the  date  of  order  of  acquittal  or conviction of the accused for a lesser offence or order providing inadequate compensation, or, with respect to the date of incident giving rise to the prosecution of the accused. What is conferred by the Amendment Act 5 of 2009 on the victim is a substantive right to prefer an appeal in certain circumstances as specified, and that alone. Act 5 of 2009 has come into effect from 31.12.2009. Such right is available to a victim where a judgment is rendered by the  court  on or  after  31.12.2009,  provided,  any one of  the three  circumstances  covered  by the  proviso  is  involved in  the case.  The  right  is  dependent  on the  judgment  rendered by the court and not in relation to the incident which gave rise to the prosecution of the accused, whether or not it was at the instance of the victim…... Where there is no doubt that what is conferred under the proviso to Section 372 of the Code enabling the victim to prefer an appeal in the circumstances specified is a substantive right conferred on him by the Statute its effect cannot be nullified taking a view that the applicability of the proviso inserted has to

17ILR 2016 (2) Kerala 713

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be reckoned with reference to the  date of  incident in  the case which  led  to  the  prosecution  of  the  accused.  Any  such  view would be against the letter and spirit of the aforesaid proviso and also the very purpose for which a right of appeal is conferred on the victim, illustrating and defining the person falling thereunder, and specifically limiting to what situation such a right could be exercised.”

60. Reference was also made to  Parmeshwar Mandal wherein it was

held  that  the  intention  of  the Legislature  was not  to  vest  the  right  of

appeal in only those victims in whose cases the occurrence was after the

amendment to the Cr.P.C. If that proposition were to be accepted, then for

years to come, the right of the victim to prefer an appeal in terms of the

proviso would remain illusory (given the delay in disposal of cases).

61. On the basis of these decisions it was held that the appeal filed by

the victim would be maintainable since the judgment of acquittal passed

by the Trial Court was post 31st December, 2009.

62. There are decisions rendered by learned Single Judges of  a few

High Courts, but it is not necessary to further burden this judgment with

an analysis of those decisions (we have referred to one of them). Suffice

it to say that the decisions have more or less followed the reasons and

conclusions arrived at in the Full Bench decisions rendered by different

High Courts.

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63. Broadly speaking, in the above cases, the view expressed by the

High Courts is that if the judgment of the Trial Court is delivered after the

proviso  came  into  force,  that  is,  after  31st December,  2009  then,

irrespective of  the date of  the offence,  the victim can avail  a right  of

appeal.  In some of the decisions it has been held that the right of appeal

is not an absolute right conferred on the victim, but it is subject to an

application seeking special leave to appeal.  

Dissenting decisions

64. In  D.  Sudhakar  v.  Panapu  Sreenivasulu  @  Evone  Water

Sreenivasulu and Ors.18 the Andhra Pradesh High Court dismissed an

appeal filed by the victim of an offence against an order of acquittal dated

30th November,  2011 on the ground that  it  was not  maintainable.  The

High Court relied upon the observation made by this Court in National

Commission for Women for this conclusion. Reference was also made,

incidentally, to a decision of the learned Single Judge of the Kerala High

Court in John v. Shibu Cherian19 which also held to the same effect.  

65. A  similar  view  was  expressed  by  the  Division  Bench  of  the

Chhattisgarh High Court in Bhisam Prasad Bareth v. Dinesh Mahant &

Ors.20 relying upon the decision of this Court in National Commission

18MANU/AP/1172/2012 decided on 7th December, 2012 19MANU/KE/1839/2011 decided on 5th August, 2011 20MANU/CG/0079/2012 decided on 15th March, 2012

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for  Women.  It  may  be  mentioned  here  that  the  appeal  filed  in  the

Chhattisgarh High Court was against an order of acquittal passed on 18th

March, 2009 in respect of an incident that occurred on 5th March, 2008

both dates being well before the insertion of the proviso to Section 372 of

the Cr.P.C.

66. In  the  dissenting  set  of  decisions,  the  view  taken  by  the  High

Courts is to the effect that if the incident or the offence occurred prior to

31st December, 2009 the victim cannot file an appeal under the proviso to

Section 372 of the Cr.P.C. regardless of the date of decision of the Trial

Court.     

67. An  analysis  of  the  decisions  rendered  by  various  High  Courts

indicates that the overwhelming view is that the date of the judgment and

order passed by the Trial Court is the relevant date for determining the

applicability of the proviso to Section 372 of the Cr.P.C.  and if, as in the

present case, the judgment and order is post 31st December, 2009 then the

victim can prefer an appeal to the High Court.

Another view expressed by this Court

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68. In  Satya Pal Singh v.  State of Madhya Pradesh & Ors.21  this Court

gave  what  appears  to  be  a  rather  expansive  interpretation  to  the  proviso  to

Section 372 of the Cr.P.C. and concluded as follows:

“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.”      

69. In this case the offence occurred on or about 19th July, 2010 and the

decision of the Trial Court was delivered on 13th June, 2013. On a plain

reading of the cited passage, it does appear that the date of the alleged

offence and the judgment and order of the Trial Court is not relevant,

meaning thereby that  even if  the offence  was committed prior  to  31st

December, 2009 and the judgment and order was rendered prior to 31st

December, 2009 the victim could prefer an appeal to the High Court after

obtaining leave.  This is not so, and therefore the misunderstanding of the

expansive nature of the view expressed.

70. The  two  decisions  of  this  Court  mentioned  above  arise  in  two

different fact situations. In National Commission for Women the offence

and the judgment of the Trial Court were before 31st December, 2009. In

Satya Pal Singh, the offence and the judgment of the Trial Court were

21(2015) 15 SCC 613

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after 31st December, 2009. None of these situations arise in the present

appeals in which the offence was said to have been committed before 31st

December, 2009 while the judgment of the Trial Court was delivered after

31st December, 2009. We are concerned in these appeals only with the

maintainability of an appeal by the victim under the proviso to Section

372 of the Cr.P.C. where the alleged offence was committed before 31st

December, 2009 and the judgment and order has been delivered by the

Trial  Court  post  31st December,  2009.   Therefore,  none  of  the  two

decisions of this Court are of any real assistance to us.

Our conclusions  

71. It was submitted by learned counsel for the accused that the right to

file an appeal is a substantive right and it should not be easily recognized

unless specifically conferred by statute. We agree.  There is no doubt that

from  the  time  of  the  Constitution  Bench  decision  of  this  Court  in

Garikapati Veeraya v.  N. Subbiah Choudhry22 it has been held that the

right to appeal is not a mere matter of procedure but is a substantive right.

We are bound by this decision as well as other decisions following this

view.  The question is whether this substantive statutory right has been

conferred on the victim in a case such as the present.

221957 SCR 488

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72. It was also submitted by learned counsel for the accused that in the

present fact situation, if we were to hold that Kodagali was entitled to file

an appeal against the acquittal of the accused, then we would be giving

retrospective effect to the proviso to Section 372 of the Cr.P.C. It was

submitted that if Parliament intended to confer a statutory right of appeal

on a victim with retrospective effect, it would have specifically said so.

Since the proviso to Section 372 of the Cr.P.C. was not specifically given

retrospective effect, it must operate prospectively and the crucial date in a

case such as the present would be the date of the alleged offence.  

73. To  counteract  this,  it  was  submitted  by  learned  counsel  for

Kodagali that the view expressed by this Court in National Commission

for Women was only an obiter and is not binding upon this Court.  It is

not necessary for us to go into this aspect of the matter since we are of the

view that the decision rendered in National Commission for Women has

been misunderstood and misinterpreted and is clearly distinguishable on

facts.  Even otherwise, the decision has been rendered by a Bench of the

two learned judges and while the view expressed therein certainly has

great persuasive value but it would not be binding on a Bench of three

Judges. Besides, the obiter dicta of this Court would not bind us.

74. What  is  significant  is  that  several  High  Courts  have  taken  a

consistent view to the effect that the victim of an offence has a right of

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appeal under the proviso to Section 372 of the Cr.P.C. This view is in

consonance with the plain language of  the  proviso.  But  what  is  more

important is that several High Courts have also taken the view that the

date of the alleged offence has no relevance to the right of appeal. It has

been  held,  and  we  have  referred  to  those  decisions  above,  that  the

significant date is the date of the order of acquittal passed by the Trial

Court. In a sense, the cause of action arises in favour of the victim of an

offence only when an order of acquittal is passed and if that happens after

31st December,  2009 the victim has  a  right  to  challenge  the  acquittal,

through an appeal. Indeed, the right not only extends to challenging the

order of acquittal but also challenging the conviction of the accused for a

lesser offence or imposing inadequate compensation. The language of the

proviso is quite explicit, and we should not read nuances that do not exist

in the proviso.

75. In our opinion, the proviso to Section 372 of the Cr.P.C. must also

be given a meaning that is realistic, liberal, progressive and beneficial to

the victim of an offence. There is a historical reason for this, beginning

with the Declaration of Basic Principles of Justice for Victims of Crime

and Abuse of  Power,  adopted by the General  Assembly of  the United

Nations  in  the  96th Plenary  Session  on  29th November,  1985.  The

Declaration is sometimes referred to as the Magna Carta of the rights of

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victims. One of the significant declarations made was in relation to access

to  justice  for  the  victim  of  an  offence  through  the  justice  delivery

mechanisms, both formal and informal. In the Declaration it was stated as

follows:

“4.   Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice  and  to  prompt  redress,  as  provided  for  by  national legislation, for the harm that they have suffered.

5.   Judicial and administrative mechanisms should be established and  strengthened  where  necessary  to  enable  victims  to  obtain redress  through  formal  or  informal  procedures  that  are expeditious, fair, inexpensive and accessible.  Victims should be informed  of  their  rights  in  seeking  redress  through  such mechanisms.  

6.   The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:

    (a)  Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information;

    (b)   Allowing  the  views  and  concerns  of  victims  to  be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the  accused  and consistent  with  the  relevant  national  criminal justice system;

    (c)  Providing proper assistance to victims throughout the legal process;

    (d)  Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;

    (e)  Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.

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7.   Informal mechanisms for the resolution of disputes, including mediation,  arbitration  and  customary  justice  or  indigenous practices,  should  be  utilized  where  appropriate  to  facilitate conciliation and redress for victims.”

76. Putting  the  Declaration  to  practice,  it  is  quite  obvious  that  the

victim  of  an  offence  is  entitled  to  a  variety  of  rights.  Access  to

mechanisms of justice and redress through formal procedures as provided

for in national legislation, must include the right to file an appeal against

an  order  of  acquittal  in  a  case  such as  the  one  that  we are  presently

concerned  with.  Considered  in  this  light,  there  is  no  doubt  that  the

proviso to Section 372 of the Cr.P.C. must be given life, to benefit the

victim of an offence.

77. Under the circumstances, on the basis of the plain language of the

law and also as interpreted by several High Courts and in addition the

resolution of the General Assembly of the United Nations, it is quite clear

to us that a victim as defined in Section 2(wa) of the Cr.P.C. would be

entitled to file an appeal before the Court to which an appeal ordinarily

lies  against  the  order  of  conviction.  It  must  follow from this  that  the

appeal  filed by Kodagali  before the High Court was maintainable and

ought to have been considered on its own merits.

78. As far as the question of the grant of special leave is concerned,

once again, we need not be overwhelmed by submissions made at the Bar.

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The language of the proviso to Section 372 of the Cr.P.C. is quite clear,

particularly when it is contrasted with the language of Section 378(4) of

the Cr.P.C. The text of this provision is quite clear and it is confined to an

order of acquittal passed in a case instituted upon a complaint. The word

‘complaint’ has been defined in Section 2(d) of the Cr.P.C. and refers to

any allegation made orally or in writing to a Magistrate. This has nothing

to do with the lodging or the registration of an FIR, and therefore it is not

at all necessary to consider the effect of a victim being the complainant as

far as the proviso to Section 372 of the Cr.P.C. is concerned.

Final order

79. For the reasons mentioned above, the appeals are allowed and the

judgment  and orders  passed  by the  High Court  are  set  aside  and  the

matters are remitted back to the High Court to hear and decide the appeal

filed by Kodagali against the judgment and order of acquittal dated 28th

October,  2013  passed  by  the  District  and  Sessions  Judge,  Bagalkot

(Karnataka) in S.C. No.49 of 2010.

 ...……………………J  (Madan B. Lokur)  

 ...……………………J New Delhi;  (S. Abdul Nazeer)  October 12, 2018  

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REPORTABLE

IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.                              2018 (ARISING OUT OF S.L.P. (CRL.) NOS. 7040­7041 OF 2014)

MALLIKARJUN KODAGALI (DEAD) REPRESENTED THROUGH LEGAL REPRESENTATIVES              …APPELLANT(S)

Versus

THE STATE OF KARNATAKA & ORS.        …RESPONDENT(S)

J U D G M E N T

Deepak Gupta, J.

1. I have had the privilege of going through the detailed and

erudite judgment of my brother Justice Lokur.  I am in complete

agreement  with  my learned brother that the pain  which the

victim of a criminal offence suffers should be understood by the

courts and keeping in view the emerging trends in law, the rights

of the victim should not be trampled.   Victims must be treated

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with  sensitivity, compassion  and respect.  They  also  must  be

permitted to access justice because it  is sometimes found that

the investigating and prosecuting agencies do not follow up cases

with the zeal which is required.  Therefore, I fully agree with my

learned brother that the proviso to Section 372 of Code of

Criminal Procedure, 1973 (for short ‘CrPC’)  must be given a

meaning that is realistic, liberal, progressive and beneficial to the

victims of the offences.   

2. However, at the same time, one cannot ignore the rights of

the accused and the procedure prescribed by law.  I am unable to

agree with my learned brother that a victim can file an appeal in

the High Court without seeking leave to appeal in terms of

Section 378(3) of CrPC.   

3. Sections 372 and 378 of CrPC read as under:

“372. No appeal to lie unless otherwise provided. ­ No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:

[Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing

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inadequate compensation, and such appeal  shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.]”

xxx xxx xxx

“378. Appeal in case of acquittal. ­  (1) Save as otherwise provided in sub­section (2), and subject to the provisions of sub­sections (3) and (5),­

1. the District Magistrate may, in any case, direct the Public Prosecutor  to present an appeal  to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non­bailable offence;

2. the State Government may, in any case, direct the Public Prosecutor  to present an appeal  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.

(2) If such an order of acquittal is passed in any case in which the offence  has been investigated by the  Delhi 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 provisions of sub­section (3), also direct the Public Prosecutor to present an appeal­

2. to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non­bailable offence;

3. 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.

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(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 sub­section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the  High  Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.

(6) If, in any case, the application under sub­section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal  shall lie  under  sub­section  (1)  or  under  sub­ section (2).”

The  proviso to  Section 372 was  added by  way  of  amendment

inserted by Act 5 of 2009 with effect from 31.12.2009.

4. As  far as the present case is concerned,  the offence took

place on 06.02.2009  i.e.  prior to  31.12.2009 and the order  of

acquittal was passed by the trial court on 28.10.2013.   I am in

agreement with my learned brother that the right to file an appeal

to the victim will arise only on the date when the judgment is

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passed by the trial  court because then alone the victim has a

right to  urge that the  acquittal is  wrong or that the  sentence

awarded to the accused  is not commensurate with the offence

which the accused may have committed.   Therefore, I have no

doubt that the victim has a right to appeal and to that extent the

judgment of the High Court is liable to be set aside.   

5. My only difference of opinion is with regard to the

conclusion drawn in the judgment of my learned brother that the

victim, even in appeal filed in the High Court, is not required to

seek leave of the High Court.  In my considered view, this matter

is, in fact, no longer res integra.  This Court has specifically dealt

with this issue in  Satya Pal Singh v. State of M.P. and

Others23, wherein it held as follows:

“10. The Full Bench of the High Court of Delhi in  Ram Phal v. State, 2015 SCC Online Del 9802, after examining the relevant provisions under Section 2(wa) and the proviso to Section 372 CrPC, in the light of their legislative  history  has  held that the right to  prefer  an appeal conferred upon the victim or relatives of the victim by virtue of the proviso to Section 372 is an independent statutory right.  Therefore, it  has  held that there is  no need for the victim in terms of definition under Section 2(wa) CrPC to seek the leave of the High Court as required under  sub­section  (3)  of  Section 378 CrPC to prefer an appeal under the proviso to Section 372 CrPC. The said view of the High Court is not legally correct for

23 (2015) 15 SCC 613

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the reason that the substantive provision of Section 372 CrPC clearly provides that no appeal shall lie from any judgment and order of a criminal court except as provided for by CrPC. Further, sub­section (3) of Section 378 CrPC provides that for preferring an appeal to the High Court against an order of acquittal it is necessary to obtain its leave.

xxx xxx xxx

xxx xxx xxx

15. Thus, to conclude on the legal issue:

“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 CrPC without obtaining the  leave of the High Court as required under sub­section (3) of Section 378 CrPC?”

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) CrPC, under the proviso to Section 372, but only after obtaining the leave of the High Court as required under sub­section (3) of Section 378 CrPC. 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.”

6. The only issue with which I am dealing is whether a victim

while filing an appeal under Section 372 of  CrPC  in  the High

Court against the acquittal of an accused is required to obtain

leave of the court under Section 378(3) CrPC.   Prior to the

amendment of Section 372 of CrPC the victim had no right to file

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an appeal.   The traditional view has always been that the State

represents the victim of the crime.  Criminal offences have always

been treated to be offences against the State and it is the State

alone which investigated and prosecuted such cases.  In case the

State machinery does not  take action on the complaint  of the

victim, the said victim has a right under Section 156 of CrPC to

approach the court.   Under Section 156(3) CrPC, the magistrate

may order an investigation to be done by the police.   Once the

investigation is done, then again the victim has no hand in the

investigation except to assist the investigating officer and to bring

evidence to the notice of the investigating officer.   After

investigation,  the  investigating officer  files a final  report under

Section 173 CrPC.  The  investigating  officer  may come  to the

conclusion that either no offence is made out or may file report

showing  what  offences  are  made  out in  which case the  court

proceeds further.   Even in those cases where the investigating

agency files a report that no criminal offence is made out, the

victim has a right to object to the report and he can argue before

the court that a case is made out on the basis of the evidence

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collected or he can even urge that the police must be directed to

carry out further and more investigation.   

7. Chapter  XXIX of the  CrPC  deals  with appeals.   Appeals

against acquittal are governed by Section 378 of CrPC. As per

sub­section (1) of this section only a District Magistrate or the

State as the case may be is entitled to direct the Public

Prosecutor to file an  appeal.  Sub­section (2)  deals  with cases

investigated under the Delhi  Special  Police  Establishment  Act,

1946 and in these cases the Central Government may also direct

the Public Prosecutor to file an appeal. I am concerned mainly

with sub­section (3) of Section 378 of CrPC, which provides that

no appeal to the High Court either under sub­section (1) or sub­

section (2) shall be entertained except with the leave of the High

Court. Sub­section (4) deals with appeals filed by the

complainant in case the order of acquittal  is passed in a case

instituted upon a complaint. In such cases if the appeal has to be

filed in the High Court it cannot be entertained unless the High

Court grants special leave to appeal from the order of acquittal.

Sub­section (5) provides the limitation for filing the petition for

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grant of special leave to appeal in terms of sub­section (4). Sub­

section (6) lays down that in case the application for special leave

to appeal filed by a complainant under sub­section (4) is refused

then no appeal from that order of acquittal shall lie under sub­

section (1) or under sub­section (2). An analysis of Section 378 of

CrPC clearly shows that the CrPC envisaged and granted a

predominant role to the State. It was the State alone which was

entitled to file an appeal.   The only exception was in complaint

cases where the complainant could file an appeal. He also had to

seek special leave to appeal in case the appeal lay to the High

Court.

8. Interestingly, Section 372 of CrPC which was amended in

the year 2008 to give a right to the victim is a negative section

which specifically provided, before its amendment, that no appeal

would lie from any judgment or order of a criminal Court except

as provided for by the CrPC or by any other law in force. The

Legislature while giving a victim the right to appeal did not, for

reasons  best  known  to it,  give this right to file  appeal to the

victim under Section 378 of CrPC or any other specific section.

Surprisingly this  right to the victim was given as a proviso to

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Section 372 of CrPC.  This proviso is not very happily worded. Be

that as it may, the fact is that a victim now has a right to appeal

under this proviso. He can file the appeal against the following

orders:­

(i)  any order passed by a Court acquitting the accused;

(ii)  any order passed by a Court  where the accused  is

convicted of a lesser offence but the victim feels that

he should have been convicted for a higher offence.

Obviously the appeal lies against the acquittal of the

accused for a higher offence;

(iii) an appeal lies where the victim is not satisfied by the

quantum of compensation awarded.

9. Dealing with the issue, as to whether a victim should seek

leave to appeal, one must first understand the concept behind

introducing the concept of leave to appeal, especially when the

appeals are filed in the High Courts. The presumption of

innocence which is attached to every accused gets fortified and

strengthened  when the said accused is acquitted  by the trial

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Court. Probably, for this reason, the law makers felt that when

the appeal is to be filed in the High Court it should not be filed as

a matter of course or as matter of  right but leave of the High

Court must be obtained before the appeal is entertained.

Therefore, the High Court would at the initial stage of deciding

whether the leave is to be granted or not go into the merits of the

case. Only if arguable points are involved, the High Court

normally grants leave to appeal. This would not only prevent the

High Court from being flooded with appeals but more importantly

would ensure that innocent persons who have already faced the

tribulation of a long drawn out criminal trial are not again

unnecessarily dragged to the High Court.

10.  At this  stage, it  would  also  be  pertinent to  mention that

under Section 378 of CrPC an appeal against the order of

acquittal  passed  by  a  Magistrate in respect  of cognizable  and

non­bailable offences lies to the Sessions Court and no leave to

appeal is required. From the Court of Magistrate it is only

appeals in respect of offences which are non­cognizable and

bailable i.e. less  serious  offences  which would  lie to the  High

Court.   In such cases, leave to appeal is a pre­requisite. This was

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done with a view to ensure that the persons who had faced trial

for relatively lesser offences should not have to bear the expenses

of an appeal in the High Court. The other appeals which lie to the

High Court are appeals  from the Court of  Sessions.  These are

serious criminal matters and relate to much graver offences. Here

the concept of leave to appeal was probably introduced because

these cases are decided by relatively senior Judges i.e. Sessions

Judges. The Legislature felt that in such cases also the appeals

against acquittals must be scrutinized with greater care.

11. As pointed out above, even a complainant when he files an

appeal against an order of acquittal in a case instituted upon a

complaint is required to obtain special leave to appeal. It is true

that the proviso to Section 372 of CrPC does not indicate that a

victim while filing an appeal in the High Court must file a petition

for leave to appeal before his appeal can be entertained.  

12. I am of the considered view that though the proviso to

Section 372 of  CrPC does give a right  to the victim to  file  an

appeal, this proviso cannot be read in isolation. It has to be given

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a  meaning  which fulfills the intention  of the  Legislature. The

proviso to Section 372 of CrPC does not lay down the procedure

as to how, in what manner, and within which time the appeal has

to be filed. An appeal, being a creature of the statute, it is also

necessary to prescribe the limitation and procedure for filing the

appeal.

13. Adverting to sub­section (4) of Section 378 of CrPC, if  an

order of acquittal is passed on a case instituted upon a complaint

then the High Court before entertaining an appeal by the

complainant must grant special leave to appeal. The expression

"Special leave to appeal" has no different  meaning than the

expression "leave to appeal" and it appears to me that the word

“special”  has  been added only to  distinguish  “leave to  appeal”

sought by the complainant from the “leave to appeal” sought by

the State. Thus, in a complaint case where the complainant has

set the wheels of the Court in motion even if the complainant files

the appeal he must obtain special leave  to appeal.  This  again

gives rise to an interesting question­ Can the victim be placed on

a higher pedestal than the complainant? More often than not, the

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victim and the complainant are likely to be one and the same

person.

14.  In case, I  accept the proposition that the victim need not

seek leave to appeal in case the appeal is to be filed in the High

Court there shall be another anomalous situation.  Supposing

there are two victims  in a case and one of the victims files  a

complaint and sets the wheels of justice moving and the case is

tried as a complaint case. In case the accused is acquitted and

the victim who is the complainant wants to file an appeal in the

High Court, he will have to seek special leave to appeal whereas

the victim who had not even approached the Court at the initial

stage will be entitled to file an appeal without seeking leave to

appeal. This could not have been the intention of the Legislature.

15. I am fully conscious of the changes in criminal

jurisprudence referred to by my learned brother and the

expanding rights of the victim, which the victim must have.   At

the same time, these rights must be balanced with the rights of

the accused.  According to the records of National Crime Record

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Bureau, the conviction rate in the country in  2016  was  only

21.25% and 78.75% cases ended in discharge or acquittal.  One

cannot lose sight of the fact that out of these 78.75% cases in

which acquittal was recorded, there may be many cases which

are totally false.   

16. It  may be that  many people are set  free because of  poor

investigation and on account of indifferent prosecution.   At the

same time, it is not uncommon for individuals to file false cases.

In fact, this Court has noted the misuse of Section 498A of Indian

Penal  Code,  1860  in the case of  Rajesh Sharma  v.  State of

U.P.24 and of Scheduled Caste and Scheduled Tribe (Prevention of

Atrocities)  Act,  1989 in the case  of  Dr.  Subhash Kashinath

Mahajan  v.  State of Maharashtra25.   Therefore, while

interpreting the law one cannot shut one’s eyes to the fact that a

large number of false cases are filed and appeals will more likely

than not be filed in such cases when the acquittal of the accused

is ordered.   

24 2017 SCC Online SC 821 25 (2018) 6 SCC 454

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17. One  also  cannot  be  oblivious  to the fact that  one  of the

bedrocks of  our criminal  jurisprudence is  that every person is

presumed  innocent  unless found  guilty.  This  presumption  of

innocence gets strengthened when the person is acquitted.

Therefore, the legislature felt that before a person who has been

acquitted after a protracted trial is called to face proceedings in

the High Court in an appeal, the High Court should look into the

matter and first decide whether there are sufficient reasons to

grant leave to file appeal or not.  This is, in a manner of speaking

a preliminary hearing to decide  whether the  matter is  worth

looking into or not.   I see no reason why such scrutiny should

not be done in appeals filed by the victim.  The victim cannot be

placed on a higher pedestal than the State or the complainant.

18. The right of the victim to file an appeal is not taken away or

in any manner weakened only because he has to seek leave to

appeal.   If  Sections  378(3),  378(4) and  372 of  CrPC are read

together, it is clear that the victim is also required to apply for

leave to appeal before his appeal can be entertained.

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19. Though the victim has rights, one cannot forget that a

victim who may have suffered, may also seek revenge.  Therefore,

an  obligation  has  been cast  upon the  State to prosecute the

accused.  In  fact,  even now a trial  under the CrPC has to be

conducted by the Public Prosecutor or Assistant Public

Prosecutor.  No private lawyer can be engaged to conduct the trial

under Section 301(2) of  CrPC.   A private person  including the

victim, can only instruct a pleader to act on his behalf in court

but the  prosecution has  to  be  conducted either  by the  Public

Prosecutor or Assistant Public Prosecutor and the pleader

engaged by the private person can only act as per the directions

of the  Public  Prosecutor or  Assistant  Public  Prosecutor.   The

reason behind this is that the victim may fabricate evidence or

hide true facts whereas the Public Prosecutor or Assistant Public

Prosecutor is expected to be fair to the court, to the accused and

to the victim.   

20. On the one hand are the rights of the victim and on the

other hand, is the well settled principle of criminal jurisprudence

that  every  man  is  presumed  to  be innocent till  proved  guilty.

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Therefore, though the victim may have a right to file an appeal,

this right of filing an appeal vested in the victim, cannot be larger

than the right of filing an appeal which inheres in the State and

the complainant in a complaint case.  Therefore, I am of the view

that when the victim files an appeal against acquittal in the High

Court he has to seek leave to appeal under Section 378(3) CrPC.

 .….…………………….J. (DEEPAK GUPTA)

New Delhi October 12, 2018

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