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2012 DIGILAW 338 (HP)

Joginder Singh v. State of Himachal Pradesh

2012-06-14

DEEPAK GUPTA, V.K.AHUJA

body2012
JUDGMENT : Deepak Gupta, J. The following interesting question arises in this appeal : Whether a victim, who files an appeal u/s 372 of the Code of Criminal Procedure in the High Court against the acquittal of the accused is required to obtain leave to appeal before his appeal can be entertained? Since an important question of law was involved, we had asked the members of the Bar to assist us in the matter. Pursuant to the request, Mr. Jagdish Vats and Mr. Anup Chitkara, Advocates assisted us in the case. 2. To appreciate the issue it would be relevant to refer to certain legal provisions. Sections 372 and 378 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') read 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.} 378. Appeal in case of acquittal.-(1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5),-- (a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Curt of Sessions from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence ; (b) 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 sub-section (3), also direct the Public Prosecutor to present an appeal- (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) 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.} (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 sub-section (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 sub-section (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 sub-section (1) or under sub-section (2). 3. At the outset, we may note that the concept of the victim being allowed to prosecute a criminal case or file an appeal against acquittal of the accused is a new development and trend in law, The old conservative theory was that criminal offences were treated to be offences against the State and therefore, it was the State which prosecuted the case. If the State machinery did not move the victim or the complainant could come to Court but again in terms of Section 156 of the Code the investigation had to be done by the police alone and later normally in such cases the State alone prosecuted the matters. There were rare cases where the criminal proceedings were initiated at the instance of a complainant and were termed as complaint cases. Complaint cases are dealt with under Chapter 15 of the Code which lays down the procedure to be followed in suit cases. Thus, as the law stood prior to the amendment of the Code of Criminal Procedure by the Code of Criminal Procedure (Amendment) Act, 2008, a victim had no right to file an appeal against acquittal. 4. Appeals against acquittal are governed by Section 378 of the Code. As per sub-section (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. Sub-section (2) deals with cases investigated under the Delhi Special Police Establishment Act and in these cases the Central Government may also direct the Public Prosecutor to file the appeal. We are concerned mainly with sub-section (3) of Section 378 of the Code, which provides that no appeal to the High Court cither under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court. Sub-section (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. Sub-section (5) provides the limitation for tiling the petition for grant of special leave to appeal in terms of sub-section (4). Sub-section (6) lays down that in case the application for special leave to appeal filed by a complainant under sub-section (4) is refused then no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2). An analysis of Section 378 of the Code clearly shows that the Code envisaged and granted a predominant role to the State. An analysis of Section 378 of the Code clearly shows that the Code envisaged and granted a predominant role to the State. It was the State alone which was entitled to file an appeal and only in compliant cases, the complainant could file an appeal. He also had to seek special leave to appeal in ease the appeal lay to the High Court. 5. The law never remains static and over period of time it was felt that the rights of the victim also need to be addressed. There can be no manner of doubt that an appeal is a creation of the statute and right to file an appeal cannot be inferred but must be explicitly spelt out in the statute. Reference in this behalf may be made to the judgment of the Apex Court in National Comission of Women Vs. State of Delhi and Another, (2010) 12 SCC 599 wherein the Apex Court held that an appeal is creature of a statute and cannot lie under any inherent power. Interestingly, Section 372 of the Code 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 Code or by any other law in force. The Legislature while giving a victim the right to appeal did not, for reasons best know to it, give this right u/s 378 of the Code or any other specific Section but surprisingly this right to the victim was given as a proviso to Section 372 of the Code. A number of Courts have observed, and we are in agreement with these views, that 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. 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 of the quantum of compensation imposed and this will relate to Sections 357 and 357-A of the Code. 6. We are not at all concerned with the third types of appeal in the present case. It is, however, obvious that u/s 372 of the Code the appeal by the victim lies against the acquittal of the accused or against inadequate compensation. Even under this provision, no appeal can be filed by the victim for enhancement of sentence. 7. Another surprising aspect of the matter is that while framing this provision, the Legislature, for reasons best, known to it, provided that an appeal by the victim under this proviso would lie to the Court to which an appeal against the order of conviction would lie. We make it clear that we are not dealing with this issue also and that issue has been dealt with by a learned Single Judge of this Court in Cr. M.P. (M) No. 609 of 2011 titled Sh. Kanwar Singh v. Sh. Surjan Singh and another, decided on 2.11.2011. The only issue which we are dealing with is whether a victim is bound to apply for leave to appeal in case his appeal lies to the High Court. To appreciate this issue we must understand what was 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 gels fortified and strengthened when the said accused is acquitted by the trial 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. 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 time of deciding whether the leave 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 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 arc not again unnecessarily dragged to the High Court. 8. At this stage, it would also be pertinent to mention that u/s 378 of the Code an appeal against the order of acquittal passed by a Magistrate in respect of cognizable and non-bailable offences lies to the Sessions Court and no leave to appeal is required. From the Court of the Magistrate it is only appeals in respect of offences which are non-cognizable and bailable i.e. less serious offences which would lie to the High Court. This was done with a view to ensure that these 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 acquittal must be scrutinized with greater care. 9. 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 has been contended before us that proviso to Section 372 of the Code does not in any manner indicate that a victim is bound to seek permission of the High Court and file a petition for leave to appeal before his appeal can be entertained. It has been contended before us that proviso to Section 372 of the Code does not in any manner indicate that a victim is bound to seek permission of the High Court and file a petition for leave to appeal before his appeal can be entertained. It is also contended that since the Legislature has not introduced the concept of leave to appeal in proviso to Section 372 of the Code, this Court should not insist that a victim should seek leave to appeal. At this stage reference may be made to Section 2(wa) which was also introduced in the Code by the Code of Criminal Procedure (Amendment) Act, 2008 and the definition of victim was introduced which reads as follows:-- 2(wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir. 10. The contention on behalf of other side is that the proviso to Section 372 of the Code no doubt gives a right to victim to file an appeal but it neither lays down to limitation for filing an appeal nor does it lay down the procedure for filing an appeal, it is contended that the provision of Section 378 of the Code must be read into the proviso to Section 372 of the Code and a victim must also obtain leave of the High Court before an appeal filed by the victim can be entertained. 11. There are divergent views of various High Courts on this issue. The High Courts of Allahabad, Bombay, Delhi and Calcutta have taken a view that no leave to appeal is required whereas the High Courts of Patna and Punjab and Haryana have taken the view that leave is required. 12. As far as the judgment of Full Bench of the Calcutta High Court in PCS Industries Ltd. Vs. State of West Bengal and Another, (2012) CriLJ 135, is concerned, we are of the view that this judgment may not he strictly applicable. In that case the question was whether an appeal against acquittal could be dismissed for default simplicitor. However, while deciding this case, the Calcutta High Court observed as follows:- 7. State of West Bengal and Another, (2012) CriLJ 135, is concerned, we are of the view that this judgment may not he strictly applicable. In that case the question was whether an appeal against acquittal could be dismissed for default simplicitor. However, while deciding this case, the Calcutta High Court observed as follows:- 7. xxxxxxxxx by the Code of Criminal Procedure (Amendment) Act, 2008, a substantive right of appeal against an order of acquittal has been conferred on a victim and thus all future controversy over the selfsame question may be avoided. By virtue of the aforesaid amendment now a "victim" defined in Section 2(wa) of the Code can challenge the order of acquittal before a High Curt when such order of acquittal has been passed by a Court of Sessions and before a Court of Sessions when such order is passed by any Judicial Magistrate. The provisions for obtaining leave to appeal before filing of substantive appeal in case of a victim has been dispensed with by the aforesaid amendment. There are no reason given in this judgment and it seems that before the Full Bench of Calcutta High Court all parties accepted that leave to appeal is not required. 13. As far as the judgment of the High Court of Bombay in Mr. Balasaheb Rangnath Khade v. The State of Maharashtra and others is concerned, there was a difference of opinion between Hon'ble Justice V.M. Kanade who held that no leave to appeal is required to be obtained but Hon'ble Justice A.M. Thipsay held that the appeal was required. Thereafter, the matter was referred to a third Judge Justice Roshan Dalvi who held that the victim was not required to apply for grant of leave. The learned Judge was of the view that not only the accused bill the victim is also entitled to justice and therefore, came to the conclusion that the victim was not required to apply for grant of leave. There can be no quarrel of proposition that now the victim also has certain rights including the right to file an appeal u/s 372 of the Code. The important question is that are these rights taken away if the High Court examines the matter at the threshold to decide whether an appeal should be entertained or not. Revenge is one of the baser human instincts. The important question is that are these rights taken away if the High Court examines the matter at the threshold to decide whether an appeal should be entertained or not. Revenge is one of the baser human instincts. A victim may have suffered but a victim may also seek revenge. Therefore, the State had been burdened with a duty to prosecute the accused and the victims had no right. The victim now has rights but that does not mean that an appeal filed by a victim must be entertained without examining whether there is any merit in it or not. On the one hand, are the rights of the victim but on the other hand is the well settled principle of criminal jurisprudence that, each man is presumed to be innocent till proven guilty. Once this presumption of innocence is strengthened by the acquittal of the accused why should the accused go through the long, painful and expensive process of an appeal if at the stage of grant of leave to appeal the High Court can decide that the appeal is totally without any merit. 14. The Delhi High in Jgmohan Bhola v. Dilbagh Rai Bhola and others, Court held as follows:-- 9. All these provisions were existing when the proviso to Section 372 was introduced with effect from 31.12.2009. It is apparent that in some appeals i.e., in the case of convicts appeals against conviction and the State's appeals seeking enhancement of sentence, no leave to appeal was necessary whereas in other appeals i.e., appeals by the State against acquittals and appeals by the complainant against acquittals, leave and special leave from the High Court was necessary. The legislature was aware of this position. We cannot assume that the legislature was ignorant of the fact that in some appeals leave was necessary while in others it was not. Keeping this in mind, upon a plain reading of the proviso to Section 372, we cannot discern any limitation in respect of the requirement to take leave of the High Court before an appeal is presented by a victim. The proviso to Section 372 is a special provision and it deals with three different situations, namely, appeals against acquittal, conviction for a lesser offence and inadequacy of compensation. The proviso to Section 372 is not limited to appeals against acquittals. The proviso to Section 372 is a special provision and it deals with three different situations, namely, appeals against acquittal, conviction for a lesser offence and inadequacy of compensation. The proviso to Section 372 is not limited to appeals against acquittals. All the appeals, whether they are against acquittal or conviction for a lesser offence or inadequate compensation, have been placed on the same footing. So, while a parallel is sought to be drawn by the learned Counsel for the respondents between an appeal under the proviso to Section 372 with an appeal against acquittal u/s 378, it cannot be forgotten that the appeal under the proviso to Section 372 is not limited to appeals against acquittals but also concerns itself with appeals against conviction for lesser offence which is akin to the State's appeals for enhancement of sentence u/s 377 which, in turn, does not require any leave of the High Court to be taken. Similarly, there is no requirement under the statute for leave to be taken in respect of an appeal in respect of inadequate compensation. All these three circumstances have been placed on the same footing under the proviso to Section 372 and, therefore, no limitation with regard to the requirement of taking leave or special leave of the High Court before an appeal is presented to it by a victim can be read into the proviso to Section 372. 10. This being the position, the present appeal would be clearly maintainable, inasmuch as there is no requirement for first obtaining leave of this Court. We, however, agree with the submission made by the learned Counsel for the respondents 1 to 5 that the victim's appeal against acquittal under the proviso to Section 372 does not stand on the same footing as that of a convict's appeal against conviction. The victim must demonstrate prima facie that there is some serious error in the judgment of the trial Court which the High Court must look into and for this purpose, admit the appeal for an in- depth examination. All that we are saying is that while in the case of an appeal by a convict, admission is more or less a formality and a matter of course, in the case of an appeal by a victim against an order of acquittal something more has to be shown before the appeal is admitted. All that we are saying is that while in the case of an appeal by a convict, admission is more or less a formality and a matter of course, in the case of an appeal by a victim against an order of acquittal something more has to be shown before the appeal is admitted. The issue of maintainability stands decided accordingly. 15. We are not in total agreement with the view of the Delhi High Court According to the Delhi High Court Section 37J of the Code covers a wide gamut of cases i.e. appeals against acquittals, appeals for conviction for a lesser offence and appeals against inadequacy of compensation. We are of the opinion that the appeal in the case of conviction for a lesser offence is also an appeal against acquittal of the accused inasmuch as the accused has been acquitted of a more serious offence and convicted of a lesser offence and the victim feels that his acquittal for the higher offence is wrong. We agree with the Delhi High Court that an appeal by the victim against acquittal under the proviso to Section 372 of the Code does not stand on the same footing as an appeal against conviction filed by a convict. Whereas the appeal by a convict is normally admitted as a matter of course an appeal against acquittal is not admitted as matter of right. We, however, do not agree with the Delhi High Court that no leave to appeal is required by the victim. Each type of appeals has to be dealt with separately and in case the appeal against acquittal has to be filed in the High Court then we feel that leave to appeal must be obtained before the appeal is entertained. 16. The Patna High Court in Guru Prasad v. State of Bihar and others, held as follows:-- By proviso to Section 372 of the Code, a right has been conferred to the victim to prefer an appeal against the order of acquittal being sufferer from the act or commission of the offender. The main provision of Section 372 provides that no appeal shall lie from the order of acquittal as provided for by this Court or by any other law for the time being in force. The main provision of Section 372 provides that no appeal shall lie from the order of acquittal as provided for by this Court or by any other law for the time being in force. So, by the proviso, a right to file an appeal has been conferred upon the victim against the order of acquittal, but the procedure for filing such appeal will be the same as provided u/s 378 of the Code. Therefore, even if the victim has a right to prefer an appeal against the order of acquittal, he has to seek leave of the High Court to prefer such an appeal. The Hon'ble Supreme Court in case of State of Rajasthan Vs. Ramdeen and Others, (1977) 2 SCC 630 has held that in filing an appeal against acquittal the prayer for leave may be included in the memo of appeal. Here, I find that the appellant has not prayed for leave even in memo of appeal. In my opinion, the appeal is not maintainable without any application for grant of leave. 17. The Punjab and Haryana High Court in Smt. Ram Kaur @ Jaswinder Kaur v. Jagbir Singh Alias Jabi and others, held as follows:-- .....The main provision of Section 372 provides that no appeal shall lie from the order of acquittal except as provided for by this Code or by any other law for the time being in force. So, by the Proviso, a right to file an appeal has been conferred on the victim against the order of Criminal Appeal No. 205-DB of 2010-10-acquittal, but the procedure for filing such appeal will be the same as provided u/s 378 of the Code. Therefore, even if the victim has a right to prefer an appeal against the order of acquittal, he has to seek the leave of the High Court to prefer such appeal. He cannot directly file the appeal against the order of acquittal as a first appeal. In the instant case, the complainant has filed the appeal, though, which, in our opinion, is not maintainable, without any application for grant of leave. Therefore, in our opinion, without first fully complying with the provisions contained in Section 378 of the Code, the instant appeal, which has been directly filed by the victim, without any application for grant of leave, cannot be entertained. 18. Therefore, in our opinion, without first fully complying with the provisions contained in Section 378 of the Code, the instant appeal, which has been directly filed by the victim, without any application for grant of leave, cannot be entertained. 18. Reference has also been made to a judgment of learned Single Judge of this Court in Sh. Kanwar Singh v. Sh. Surjan Singh and another, decided on 2.11.2011. In our opinion this judgment has no applicability to the facts and circumstances of the case since in that ease the point in issue was whether an appeal by the victim lies before the Sessions Court or before this Court. Once the appeal lies to the Sessions Court then there is no requirement of obtaining leave to appeal. 19. We are of the considered view that though the proviso to Section 372 of the Code does give a right to the victim to file an appeal, this proviso cannot be read in isolation. It has to be given a meaning which fulfills the intention of the Legislature. The Proviso to Section 372 of the Code does not lay down the procedure as to how, in what manner, and most importantly 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 for filing the appeal and the procedure for filing the same. In some judgments, it has been held that if no limitation is prescribed we can put an interpretation whereby a reasonable limitation is provided. Reference in this behalf may be made to the judgment of the Delhi High Court in Kareemul Hajazi Vs. State of NCT of Delhi and Others, (2011) 1 JCC 500. 20. The second division of the Schedule to the Limitation Act deals with appeals. Article 114 deals with appeals against acquittal and Article 115 deals with appeal against conviction. It is obvious that only Article 114, if at all, can apply. Article 114 deals with two types of appeals and the maximum limitation to file an appeal is 90 days. This has also been held by the Apex Court in State (Delhi Administration) Vs. Dharampal, (2001) 10 SCC 372 Therefore, even if we have to hold that Article 114 applies then the limitation would be 90 days. 21. Article 114 deals with two types of appeals and the maximum limitation to file an appeal is 90 days. This has also been held by the Apex Court in State (Delhi Administration) Vs. Dharampal, (2001) 10 SCC 372 Therefore, even if we have to hold that Article 114 applies then the limitation would be 90 days. 21. As pointed out above the proviso to Section 372 of the Code does not lay down the procedure for filing the appeal. To us the reasoning of the Punjab and Haryana and Patna High Courts appeals more than that of the Bombay and Delhi High Courts. In addition to the reasoning given by these Courts we would like to add that even if the victim has a right to prefer an appeal, the procedure of filing an appeal must be governed by Section 378 of the Code except insofar as Section 372 of the Code specifically provides the forum for appeal. 22. As pointed out earlier, as per the settled criminal jurisprudence it is only the State which could prosecute the case and file an appeal. When the State files an appeal in the High Court, it must seek leave to appeal. The reason being that the Court must be satisfied that there are sufficient reasons to entertain an appeal even after the presumption of innocence of the accused has been further strengthened by his acquittal. We are of the clear cut opinion that the victim in this system cannot be placed on a higher pedestal than the State. A Counsel for the victim can assist the Court only with the permission of the Public Prosecutor. We cannot forget that-sometimes the motive of the victim may be to take revenge. One has to be even more careful in the appeals filed by the victims especially when they are against acquittals. 23. Coming to sub-section (4) of Section 378 of the Code, we find that if an order of acquittal is passed on a case instituted upon 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 expressing "leave to appeal" and it appears to us 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. The expression "Special leave to appeal" has no different meaning than the expressing "leave to appeal" and it appears to us 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 ease 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 a similar question- Can the victim be placed on a higher pedestal than the complainant? More often than not, the victim and the complainant are likely to be one and the same person. 24. In case, we 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 such a case the victim who is the complainant 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. 25. For the aforesaid reasons, we answer the question by holding that when a victim files an appeal against the acquittal of the accused in the High Court then he is required to obtain leave to appeal before his appeal is entertained. It is made clear that no leave to appeal would be required if the appeal lies to the Sessions Court or even in an appeal filed to the High Court where the only issue is with regard of the adequacy of the compensation. We place on record our appreciation for the valuable assistance rendered to us by S/Shri Jagdish Vats, Advocate, Vivek Singh Thakur, Additional Advocate General, Anup Chitkara, Advocate and Mr. Haminder Chandel, Advocate.