Section 372 CrPC - Victim's Right To Prefer Appeal Against Acquittal Absolute, Not Necessary To Obtain Special Leave: Supreme Court

The Supreme Court observed that the right provided to the victim to prefer an appeal against the order of acquittal is an absolute right and there is no necessity to obtain a special leave.

"The victim has not to pray for grant of special leave to appeal, as the victim has a statutory right of appeal under Section 372 proviso and the proviso to Section 372 does not stipulate any condition of obtaining special leave to appeal like subsection (4) of Section 378 Cr.P.C", the bench comprising Justices MR Shah and Sanjiv Khanna observed in a judgment yesterday.

In this case, the Chief Judicial Magistrate, Tiruchirapalli convicted the accused under the Sections 147, 148, 324, 326 IPC. and acquitted them under Sections 307 and 506(ii) IPC. The first appellate Court allowed the appeal preferred by the accused and acquitted the accused. The criminal appeals filed by the victims against acquittal of the accused under Sections 307 and 506(ii) IPC were dismissed. The victims thus preferred criminal revision application before the Madras High Court under Section 397 r/w 401 Cr.P.C. The High Court set aside the judgment and order passed by the first appellate Court and consequently  restored the judgment and order of conviction and sentence passed by the trial Court.

The issues raised in the appeal before the Supreme Court by the appellant-accused were the following:

i) Whether the High Court in exercise of the revisional jurisdiction under Section 401 Cr.P.C. is justified in setting aside the order of acquittal and convicting the accused by converting the finding of acquittal into one of conviction? 

ii) In a case where the victim has a right of appeal against the order of acquittal, now as provided under Section 372 Cr.P.C and the victim has not availed such a remedy and has not preferred the appeal, whether the revision application is required to be entertained at the instance of a party/victim instead of preferring an appeal?; and

iii) While exercising the powers under sub-section (5) of Section 401 Cr.P.C. treating the revision application as petition of appeal and deal with the same accordingly, the High Court is required to pass a judicial order?

Regarding the first issue, the bench observed that a High Court while exercising revisional jurisdiction under Section 401 of Code of Criminal Procedure cannot convert a finding of acquittal into one of conviction.

While answering the second issue, the bench took note of the amendment in Section 372 Cr.P.C. after 2009. The proviso reads thus: 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. Referring to Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752, the court observed: 

10.1 It cannot be disputed that now after the amendment in Section 372 Cr.P.C. after 2009 and insertion of proviso to Section 372 Cr.P.C., a victim has a statutory right of appeal against the order of acquittal. Therefore, no revision shall be entertained at the instance of the victim against the order of acquittal in a case where no appeal is preferred and the victim is to be relegated to file an appeal. Even the same would be in the interest of the victim himself/herself as while exercising the revisional jurisdiction, the scope would be very limited, however, while exercising the appellate jurisdiction, the appellate Court would have a wider jurisdiction than the revisional jurisdiction. Similarly, in a case where an order of acquittal is passed in any case instituted upon complaint, the complainant (other than victim) can prefer an appeal against the order of acquittal as provided under sub-section (4) of Section 378 Cr.P.C., subject to the grant of special leave to appeal by the High Court. As observed by this Court in the case of Mallikarjun Kodagali (supra), so far as the victim is concerned, the victim has not to pray for grant of special leave to appeal, as the victim has a statutory right of appeal under Section 372 proviso and the proviso to Section 372 does not stipulate any condition of obtaining special leave to appeal like subsection (4) of Section 378 Cr.P.C. in the case of a complainant and in a case where an order of acquittal is passed in any case instituted upon complaint. The right provided to the victim to prefer an appeal against the order of acquittal is an absolute right. Therefore, so far as issue no.2 is concerned, namely, in a case where the victim and/or the complainant, as the case may be, has not preferred and/or availed the remedy of appeal against the order of acquittal as provided under Section 372 Cr.P.C. or Section 378(4), as the case may be, the revision application against the order of acquittal at the instance of the victim or the complainant, as the case may be, shall not be entertained and the victim or the complainant, as the case may be, shall be relegated to prefer the appeal as provided under Section 372 or Section 378(4), as the case may be.

"However, considering the fact that even otherwise being victims they are having the statutory right of appeal as per proviso to Section 372 Cr.P.C., we deem it fit and proper to remit the matter to the High Court to treat the revision applications as petition of appeals under Section 372 Cr.P.C. and to decide the same in accordance with law and on their own merits. The same would be in the interests of all, namely, the victims as well as the accused, as the appellate Court would have a wider scope and jurisdiction as an appellate Court, rather than the revisional court", the court said while allowing the appeal.

Mallikarjun Kodagali Judgment

In Mallikarjun Kodagali, a three judge bench of the Supreme Court (2:1) had held that a victim can file an appeal in the High Court against the acquittal without seeking leave to appeal. The majority judgment authored by Justice Madan B. Lokur (Justice S. Abdul Nazeer concurring) concluded: "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(wa) of the Cr.P.C. would be entitled to file an appeal before the Court to which an appeal ordinarily lies against the order of conviction."

Justice Deepak Gupta wrote separate opinion dissenting with the majority view that there is no need of seeking leave to appeal in terms of Section 378(3) of CrPC. "In case, I 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 case the accused is acquitted and the victim who is the complainant wants to file an appeal in the High Court, he 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.", the Judge said.

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