Research › Search › Judgment

Bombay High Court · body

2020 DIGILAW 106 (BOM)

Ramdas Nivrutti More v. State Of Maharashtra

2020-01-13

N.B.SURYAWANSHI, S.S.SHINDE

body2020
JUDGMENT N.B. Suryawanshi, J. - Heard. 2. The learned advocate representing the Respondent Nos. 2 to 6/ Original accused questions the maintainability of this Appeal filed by the victim against the order of acquittal passed by Appellate Court. 3. Brief facts are as follows. The respondent Nos. 2 to 6/original accused were charged for the offences punishable under sections 326, 325, 147, 148, 149, 323, 504, 506 r/w 34 of the Indian Penal Code in R.C.C. No.26 of 2003. The learned trial court, after full-fledged trial, convicted the accused for the offences under section 324 r/w 149 of the I.P.C. and sentenced them to suffer Simple Imprisonment for two years each and to pay a fine of Rs.1,000/- each, under sections 323, 147, 148, 504, 506 r/w 149 of the IPC and further sentenced them to suffer Simple Imprisonment for one year each, for each offence and to pay a fine of Rs.1,000/- each for each offence. 4. Being aggrieved by the conviction, the accused persons preferred Criminal Appeal No.53 of 2012 and the learned Appellate Court was pleased to allow the appeal, quashed and set aside the conviction and acquitted the accused persons. Hence, the victim has preferred the present appeal under section 372 of the Code of Criminal Procedure (for short ''Cr.P.C.'') questioning the legality and propriety of the order of acquittal by Appellate Court. 5. Mr. Joshi, learned counsel representing the respondent Nos.2 to 6, viz., original accused, has raised preliminary objection as to the maintainability of the present appeal contending that proviso to section 372 of the Cr.P.C. carves out an exception thereby providing a right to the victim to prefer an appeal against any order 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. The learned counsel, therefore, contends that the wordings ''an appeal ordinarily lies against the order of conviction of such court'' would necessarily mean that the right of appeal to the victim coexists with the right of the accused to prefer an appeal. The provision has to be read strictly and if section 372 being the substantive provision and the proviso is read harmoniously, then the appeal does not lie unless provided otherwise. The learned counsel further contends that since in the present case the respondent Nos. The provision has to be read strictly and if section 372 being the substantive provision and the proviso is read harmoniously, then the appeal does not lie unless provided otherwise. The learned counsel further contends that since in the present case the respondent Nos. 2 to 6/original accused were convicted for a lesser offence by the learned Trial Court, they challenged the conviction by filing criminal appeal before the Court of Session, Pune and the learned Appellate Court acquitted the respondent Nos. 2 to 6/ original accused. He emphasized the aspect that the victim/ appellant did not challenge the conviction of the accused persons for a lesser offence by preferring an appeal to the Sessions Court. In this view of the matter, he contends that the remedy of appeal under section 372 of the Cr.P.C. would not be available to the appellant and his only remedy is to challenge the order of acquittal by filing Criminal Revision under 401 of the Cr.P.C. He would urge that if in the present case, the conviction of the accused would have been confirmed by the learned appellate Court, in that case they only had the remedy of filing Revision challenging the orders of the Trial Court as well as the appellate court and since the right of victim coexists with the right of accused, the only remedy for the appellant was to file Criminal Revision under section 401 of the Cr.P.C. to challenge the acquittal. In that view of the matter also the appeal filed by the appellant is not maintainable and the appellant ought to have filed Criminal Revision. 6. In reply, the learned counsel for the appellant, by pointing out proviso to section 372 of the Cr.P.C., would urge that the wording used in the proviso is ''any order'' passed by the court. In that view the appeal filed by the appellant is a proper remedy. He further submits that by way of Amendment Act, 2008 (5 of 2009), proviso was added to section 372, whereby right of appeal was given to the victim, which was not earlier available. If the interpretation as is being made by the learned counsel for the respondent Nos. He further submits that by way of Amendment Act, 2008 (5 of 2009), proviso was added to section 372, whereby right of appeal was given to the victim, which was not earlier available. If the interpretation as is being made by the learned counsel for the respondent Nos. 2 to 6/original accused is to be accepted, it would take away the right of victim granted by proviso to section 372 of the Cr.P.C. He further placed reliance on the Law Commission Report of April, 2009, on the basis of which the amendment was effected by inserting proviso to section 372, to contend that the intention of Legislature for enacting the proviso was to provide a remedy to the victim, which was not earlier available. By relying upon the judgments, he contends that section 372 is interpreted by the Hon''ble Supreme Court wherein the object with which the said provision introduced is discussed. He, therefore, states that the objection is devoid of any substance. 7. For appreciating the rival contentions, it is necessary to quote the relevant provision of section 372 of the Code of Criminal Procedure, which reads 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 inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. 8. On plain reading of the said provision, it is clear that a right is given to the victim for the first time by introducing Proviso by Amendment Act, 2008 (5 of 2009) to prefer an appeal against any order passed by the court in three contingencies enumerated in the proviso, viz., (a) acquittal of the accused, (b) convicting the accused for a lesser offence, and (c) imposing inadequate compensation. Such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court. Such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court. Thus, it is clear that the victim has a right to prefer an appeal in these three contingencies quoted hereinabove, against any order and such appeal lies to the court to which an appeal ordinarily lies against the order of conviction of such court. 9. There can not be any dispute that the right of appeal which was not available to the victim earlier is for the first time introduced by the Legislature by way of amendment Act, 2008 (5 of 2009). Prior to this amendment, there was no right to appeal available to the victim, all that the victim could do was to challenge the acquittal by filing Revision Application under the Cr.P.C. The same was not adequate remedy as is observed in the Law Commission report of 2009. The Law Commission has taken note of the fact that the appeal provided under section 378 of the Cr.P.C. could be filed in the cases filed on police report only, at the instance of District Magistrate or State Government. Thus, the aggrieved person or the informant did not have right to appeal. He could only prefer a Revision. In case the revision court finds that accused has been wrongly acquitted, it cannot convict him in view of sub-section (3) of section 401, but it could only remand the case back to the trial court. The Law Commission, thus, observed that it was a cumbersome process and involved wastage of money and time. This provision 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. Thus, on the recommendation of the Law Commission, the Amendment Act, 2008 (5 of 2009) was introduced, thereby giving right of appeal to the victim. 10. We are unable to accept the interpretation canvassed by the learned counsel for the respondents/original accused as the said interpretation would defeat the very object, with which the said provision was introduced. Thus, on the recommendation of the Law Commission, the Amendment Act, 2008 (5 of 2009) was introduced, thereby giving right of appeal to the victim. 10. We are unable to accept the interpretation canvassed by the learned counsel for the respondents/original accused as the said interpretation would defeat the very object, with which the said provision was introduced. The right which is granted to the victim to file an appeal against any order would be rendered nugatory, if the interpretation of the learned counsel for the respondents/ original accused is accepted. 11. If we test the argument of the learned counsel for the Respondent Nos. 2 to 6/ Original accused by applying the settled principles of interpretation, still it is not possible to accept the interpretation propounded by him. If we interpret the said provision by applying the Hydeon''s Rule, which is commonly known as ''Mischief Rule'', it is explicit that the mischief of non-availability of remedy of right of appeal to the victim was sought to be remedied by introduction of said proviso vide Amendment Act, 2008 (5 of 2009), thereby providing right of appeal to the victim against acquittal, against conviction for lesser sentence or against imposing inadequate compensation. The Legislature has introduced the said proviso to carve out an exception to the main provision to section 372 of the Cr.P.C. If we apply the rule of purposive construction to interpret the said provision, the only interpretation is that provision was introduced with a purpose to make available remedy of right of appeal to the victim, which was not available earlier. 12. We draw support to these observations from the exposition of law by the Hon''ble Supreme Court in Mallikarjun Kodagali (dead) represented through Legal Representatives Vs. State of Karnataka & Ors., (2019) 2 SCC 752 , wherein in was observed as follows :- 73. In our opinion, the proviso to Section 372 CrPC 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 29-11-1985. The Declaration is sometimes referred to as the Magna Carta of the rights of victims. 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 29-11-1985. The Declaration is sometimes referred to as the Magna Carta of the rights of 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. 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." 74. Putting the Declaration to practice, it is quite obvious that the victim of an offence is entitled to a variety of rights. 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." 74. 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 CrPC must be given life, to benefit the victim of an offence. 75. 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 of CrPC 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. 13. The argument of the learned counsel for the respondents /original accused that right of the victim would be coexistent with the right of accused to prefer an appeal, in view of the last wording of the proviso that ''such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court'' is stated to be rejected at the threshold. The provision will have to be read as a whole and this sentence cannot be separated and interpreted to give different meaning to it. Merely because appeal to be filed by the victim lies before the court to which appeals from the conviction lie, that by itself does not mean that right of the victim to file appeal is coexistent with the right of appeal given to the accused. Merely because appeal to be filed by the victim lies before the court to which appeals from the conviction lie, that by itself does not mean that right of the victim to file appeal is coexistent with the right of appeal given to the accused. Thus applying any principle of interpretation, the only irresistible conclusion is that the proviso to section 372 of Code of Criminal Procedure gives a right of Appeal to the victim to challenge any order passed by the court acquitting the accused or order of imposing lesser sentence or inadequate compensation. In any case, the said right gives unfettered right to the victim. Therefore the interpretation canvassed by the learned advocate for the accused/ Respondent is unacceptable. The learned Advocate is trying to interpret the proviso in erroneous manner and is trying to co-relate the right of victim with that of the accused. As we have already observed that the said interpretation is fallacious and if accepted would defeat the very object with which the said proviso is introduced. 14. We are not at all impressed by the argument of the learned counsel for the respondent Nos. 2 to 6/original accused that since the victim did not challenge the conviction of the accused for lesser offence by filing appeal before the first appellate court, he is not entitled to file the present appeal against acquittal. The said argument is devoid of any substance and merely because the victim did not challenge the conviction of the accused for lesser sentence that by itself does not take away and/or extinguish his right to prefer appeal against the order of acquittal, given to him under the Proviso to section 372 of the Cr.P.C. Hence, we see no merit in the challenge raised by the learned counsel for the respondent Nos.2 to 6/original accused about the maintainability of present appeal and we hold that the appeal filed by the appellant against acquittal is maintainable. 15. In the light of the above, we find no merit in the challenge raised by the learned counsel for the respondent Nos. 2 to 6/original accused to the maintainability of the present appeal filed by the victim and the said challenge needs to be rejected. 16. Appeal ''Admit''. 17. On admission, learned counsel for the private respondents waives service. 18. List the appeal for final hearing on 05/02/2020 at 3.00 p.m. 19. 2 to 6/original accused to the maintainability of the present appeal filed by the victim and the said challenge needs to be rejected. 16. Appeal ''Admit''. 17. On admission, learned counsel for the private respondents waives service. 18. List the appeal for final hearing on 05/02/2020 at 3.00 p.m. 19. Meantime, Registry shall ensure that original Record & Proceeding be procured from the concerned trial court. 20. Action under section 390 of Cr.P.C. to follow against the private respondents, i.e., original accused before the Sessions Court at Pune.