Can Victim Appeal Against Acquittal Or Award Of Lesser Sentence By Appellate Court? Bombay High Court Refers Issue To Larger Bench

Justice Modak while dealing with two criminal appeals filed by the victims against acquittal of the accused by the sessions court in appeal, observed,

“I think forum for this (victim’s) Appeal is correlated to forum for an Appeal provided to the Accused against the judgment of conviction. If such forum is not there, how an Appeal against the judgment of acquittal passed by the Appellate Court will be maintainable?. So also, there is a controversy when the Appellate Court convicts the accused, whether victim can prefer an Appeal under Section 372 proviso of the Code (for inadequate compensation/for higher sentence) ?”

The Judge requested the Registry place these matters before the Chief Justice for constitution of a larger bench to decide the question of law.

In the first case, the accused were acquitted by the Judicial Magistrate First Class (JMFC) – Alibag for various offences under the IPC. The state’s appeal before the Court of Session against this acquittal was dismissed in January 2019. Now, the victim seeks to challenge the Sessions Court decision through an appeal before the High Court.

In the second case, the appellant's conviction under Section 509 (insulting the modesty of a woman) of the IPC was set aside by the Additional Sessions Judge. The victim then lodged an appeal against this decision before the high court.

Thus, in both cases, the Sessions Court acquitted the accused in appeals filed by the state and accused respectively.

The common issue before the court was whether a victim can file an appeal before the High Court against a judgment of acquittal passed by the appellate court (Sessions Court).

The court noted that an appeal by the accused, the state as well as the victim against a judgment of conviction by the JMFC lies before the sessions court. Further, an appeal by the state against a judgment of acquittal passed by the JMFC also lies before the sessions court, in case of non-bailable and cognizable offence.

The accused can approach the High Court against a judgment of conviction by the appellate court (sessions court) only through a revision petition and not an appeal, the court noted. Thus, the question was –

If the accused does not have the right to file appeal against the appellate court’s judgment of conviction before the High Court, whether the victim can file an appeal before the HC challenging a judgment of the appellate court of acquitting or awarding lesser sentence to convict.

The proviso to Section 372 of the CrPC provides that an appeal by a victim against any order acquitting or awarding lesser sentence lies before the court where an appeal “ordinarily lies against the order of conviction of such court”. For eg., if JMFC acquits an accused, the victim can appeal to the sessions court, as the appeal against conviction by JMFC also lies before the sessions court.

Justice Modak delved into a series of judgments, including those from other High Courts, to explore the diverse interpretations of this proviso. In case of Sau Jayashree Sunil Mali v. State of Maharashtra which involved a similar issue another Single Judge Bench of the Bombay HC interpreted the phrase ‘any order’ in section 372 CrPC liberally. The court held that right to prefer an Appeal given to the victim cannot be circumscribed by holding that said right is qualified up to a particular stage only.

Justice Modak expressed dissent with this view, stating that forum for victim’s appeal is correlated to forum for an appeal provided to the accused. He highlighted that appeals are creatures of statute, and the CrPC does not provide for appeals by accused persons against judgments of conviction by appellate courts.

Justice Modak concluded that the issue merits deeper consideration by a larger bench to decide whether victims can appeal judgments of acquittal or seek higher sentence or compensation in case of conviction, when no appeal is provided in CrPC against appellate court convictions. He also asked whether the term 'order' in the proviso to Section 372 of CrPC encompasses appellate court judgments of acquittal or conviction. Finally, he asked if victim’s appeal is not maintainable, what is the remedy for victims.

As a result, the judgment of these appeals was kept pending until a larger bench addresses the questions raised in the appeals.

Case no. – Criminal Appeal No. 63 and 1299 of 2022

Case Title – Asha Shivaji More v. State of Maharashtra and Anr. with Sumera Abdul Ali v. Umesh Madhukar Thakur and Ors.