Breaking: Victim Can File Appeal Against Acquittal Without Seeking Leave To Appeal: SC, Justice Gupta Dissents

In a landmark judgment, the Supreme Court has held that a victim can file an appeal in the High Court against the acquittal without seeking leave to appeal.

A three Judge Bench comprising  Justice Madan B. Lokur ,Justice S. Abdul Nazeer and Dipak Gupta was considering the following questions;

1.Whether a ‘victim’ as defined in the Cr.P.C. has a right of appeal in view of the proviso to Section 372 of the Cr.P.C. against an order of acquittal in a case where the alleged offence took place prior to 31st December, 2009 but the order of acquittal was passed by the Trial Court after 31st December, 2009?  

2.Whether the ‘victim’ must apply for leave to appeal against the order of acquittal? 

The majority answered the first question in the affirmative and second question in the negative.

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.”

On the aspect of necessity of Special Leave to file appeal, the majority said: “The language of the proviso to Section 372 of the Cr.P.C. is quite clear, particularly when it is contrasted with the language of Section 378(4) of the Cr.P.C. The text of this provision is quite clear and it is confined to an order of acquittal passed in a case instituted upon a complaint. The word ‘complaint’ has been defined in Section 2(d) of the Cr.P.C. and refers to any allegation made orally or in writing to a Magistrate. This has nothing to do with the lodging or the registration of an FIR, and therefore it is not at all necessary to consider the effect of a victim being the complainant as far as the proviso to Section 372 of the Cr.P.C. is concerned.”

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.

Background

Kodagali, a victim of attack filed, FIR. The Sessions court, after trial, acquitted the accused. He preferred appeal before the High court under the proviso to Section 372 of the Cr.P.C. but it was dismissed as not maintainable on the ground that the proviso to Section 372 of the Cr.P.C. came into the statute book with effect from 31st December, 2009 but the incident had occurred well before that date. He then filed another appeal under the provisions of Section 378(4) of the Cr.P.C. This was also dismissed as not maintainable as the appeal was not filed in a case instituted upon a complaint before a Magistrate. He assailed both these orders before the Apex court.

High Court decisions taken note of

The majority judgment takes note of decisions of various High courts (full bench and division bench) and observed: “The view expressed by the High Courts is that if the judgment of the Trial Court is delivered after the proviso came into force, that is, after 31st December, 2009 then, irrespective of the date of the offence, the victim can avail a right of appeal. In some of the decisions it has been held that the right of appeal is not an absolute right conferred on the victim, but it is subject to an application seeking special leave to appeal.”

Victim can file appeal against acquittal order passed after 31 Dec 2009

The judgment breaks the ice in the beginning itself when it said: “Whether a ‘victim’ as defined in the Cr.P.C. has a right of appeal in view of the proviso to Section 372 of the Cr.P.C. against an order of acquittal in a case where the alleged offence took place prior to 31st December, 2009 but the order of acquittal was passed by the Trial Court after 31st December, 2009? Our answer to this question is in the affirmative. The next question is: Whether the ‘victim’ must apply for leave to appeal against the order of acquittal? Our answer to this question is in the negative.”

It added: “The significant date is the date of the order of acquittal passed by the Trial Court. In a sense, the cause of action arises in favour of the victim of an offence only when an order of acquittal is passed and if that happens after 31st December, 2009 the victim has a right to challenge the acquittal, through an appeal. Indeed, the right not only extends to challenging the order of acquittal but also challenging the conviction of the accused for a lesser offence or imposing inadequate compensation. The language of the proviso is quite explicit, and we should not read nuances that do not exist in the proviso.”

Victim entitled to file appeal against acquittal

The majority judgment reached the following conclusion: “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.”

378(4) CrPC has no effect on 372 CrPC

On the aspect of necessity of seeking Leave from the High court to file appeal, the majority said: “The language of the proviso to Section 372 of the Cr.P.C. is quite clear, particularly when it is contrasted with the language of Section 378(4) of the Cr.P.C. The text of this provision is quite clear and it is confined to an order of acquittal passed in a case instituted upon a complaint. The word ‘complaint’ has been defined in Section 2(d) of the Cr.P.C. and refers to any allegation made orally or in writing to a Magistrate. This has nothing to do with the lodging or the registration of an FIR, and therefore it is not at all necessary to consider the effect of a victim being the complainant as far as the proviso to Section 372 of the Cr.P.C. is concerned.”

The bench also said that decision rendered in National Commission for Women by two judge bench of the Apex court has been misunderstood and misinterpreted and is clearly distinguishable on facts and is was only an obiter not binding upon a three judge bench. It also said that Section 372 of the Cr.P.C. must also be given a meaning that is realistic, liberal, progressive and beneficial to the victim of an offence. It then set aside the High court order of dismissal of appeals and directed it to hear and decide the appeal filed by Kodagali.

Justice Deepak Gupta Dissents On Leave Aspect

Justice Deepak Gupta, in his separate opinion, observed that can file the appeal against the following orders:

• Any order passed by a Court acquitting the accused;


• 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;


• An appeal lies where the victim is not satisfied by the quantum of compensation awarded.

Justice Deepak Gupta disagreed 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.

The victim cannot be placed on a higher pedestal than the State or the complainant.

The judge said that concept of ‘seeking leave’ is to prevent the High Court from being flooded with appeals and also to ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court. “One also cannot be oblivious to the fact that one of the bedrocks of our criminal jurisprudence is that every person is presumed innocent unless found guilty. This presumption of innocence gets strengthened when the person is acquitted. Therefore, the legislature felt that before a person who has been acquitted after a protracted trial is called to face proceedings in the High Court in an appeal, the High Court should look into the matter and first decide whether there are sufficient reasons to grant leave to file appeal or not. This is, in a manner of speaking a preliminary hearing to decide whether the matter is worth looking into or not. I see no reason why such scrutiny should not be done in appeals filed by the victim. The victim cannot be placed on a higher pedestal than the State or the complainant.”

He also opined that that the proviso of Section 372 should not be read in isolation and should be read along with Sections 378(3), 378(4) of CrPC. “Though the victim may have a right to file an appeal, this right of filing an appeal vested in the victim, cannot be larger than the right of filing an appeal which inheres in the State and the complainant in a complaint case. Therefore, I am of the view that when the victim files an appeal against acquittal in the High Court he has to seek leave to appeal under Section 378(3) CrPC.”, Justice Gupta said.

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