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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