Victim May Seek Enhancement Of Accused' Sentence By Filing Revision Application: Bombay High Court

The division bench of Justices Sadhana S. Jadhav and Milind N. Jadhav noted that the victim can prefer an appeal in view of the proviso under section 372 of the CrPC, only under three circumstances.

1.Against the acquittal of an accused.

2.When the accused is convicted for a lesser offence or

3.Inadequate compensation is awarded to the victim.

And while victim's appeal against sentence may not be maintainable under section 372 of the CrPC, a revision application under section 401 of the CrPC for the same relief would survive. Such an application is also recognised under Rule 2(II)(a) of the Bombay High Court Appellate Side Rules 1960, the court said. The revision would go before a division bench.

"It is seen that undoubtedly a revision application for enhancement of sentence at the instance of the victim / complainant would be maintainable…However in view of the specific observations of the Supreme Court in the case of Parvinder Kansal (supra) and Mallikarjun Kodagali (supra), it is seen that the right to appeal against the sentence will not be available to the Appellant (victim) in view of the specific provisions of the statute," the court held.

Case

The bench ruled thus while dismissing the criminal appeal filed by a woman working for a multinational company who was sedated (328), conned (417) and threatened (506) by a prospective groom from Uttar Pradesh, after the woman's father placed a matrimonial advertisement in the 'Times of India,' in 2010.

The woman had filed an appeal in 2015, under section 372 of the CrPC seeking to enhance the punishment awarded to the man, from seven years to the maximum punishment of ten years. Despite two notices the woman was untraceable, after which, the court appointed advocate Mihir Joshi to espouse her cause.

As for the accused, he was released after serving his entire sentence, in 2016. Therefore, his appeal against conviction was infructuous.

Arguments

Advocate Mihir Joshi for the woman cited the judgement of Mallikarjun Kodagali v. State of Karnataka reported in (2019) 2 SCC 752, wherein it was observed that the proviso to section 372, under which a victim seeks remedy, is a social welfare legislation to empower a victim and challenge an unfavourable order passed by the trial court.

Therefore, the section should be given a meaning that is realistic, liberal, progressive and beneficial to the victim of an offence, he argued.

He pointed out notes of the Code of Criminal Procedure (Amendment) Bill, 2006 through which the proviso to section 372 was introduced. The notes, talk about a victim's right to appeal against "any adverse order" of the trial court.

The APP, PP Shinde for the State, argued that the victim's appeal was not maintainable. Because even though the Malimath Committee submitted a report recommending certain rights for victims in 2003, the parliament in its wisdom didn't specify that the victim had a right to appeal for enhancement of sentence.

Observations

The bench relied on the judgement of Parvinder Kansal Vs. The State of NCT of Delhi & Anr , wherein the Supreme Court held that the father's appeal, to enhance the convict's sentence from life imprisonment to death for murdering his child, was not maintainable. The court noted that only the state government can file an appeal against sentence under 377 of the CrPC.

The court observed that it was bound by the SC's decision but a perusal of the report presented to the Parliament of India / Rajya Sabha Secretariat and the Lok Sabha Secretariat, in 2007, did mention that the "Victim shall have a right to prefer an appeal against any adverse order passed by the court."

Finally the bench held that a victim's revision application against sentence would be maintainable.

Case Title: Anand Singh Versus The State of Maharashtra, with connected matters

Citation: 2022 LiveLaw (Bom) 212

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