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Thursday, April 13, 2017

The widow of the deceased in the present matter comes within the definition of “victim” as incorporated in Section 2(wa). = 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 appellant in the light of paragraphs 17 and 18 of the decision of this Court in Satya Pal Singh.

                                                                  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.


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
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 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 Pradesh[1].   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:
“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
others[2], 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 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  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 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 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
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 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


-----------------------
[1]    2015 (15) SCC 613
[2]    2015 SCC Online Delhi 9802=2015 221 DLT 1


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