[S.413 BNSS] Person Cannot Be Treated As Victim To Prefer An Appeal When Damage Or Loss Suffered Is Not Direct Consequence Of Crime: Kerala High Court

Section 413 of BNSS corresponds to Section 372 of CrPC, where the proviso laid down the right of a victim to appeal against an order of acquittal, or an order convicting the accused for a lesser offence, or imposing inadequate compensation. Section 2 (1)(y) of the BNSS defines victim as someone who has suffered loss or injury due to the actions or omissions of the accused.

Justice C Jayachandran quashed the appeal preferred by the appellant who claims to be a victim. The Court observed that the loss or damage claimed to have been suffered is too remote a cause while considering the allegations made by the appellant.

“When the damage/loss claimed to have been suffered by the appellant is not the direct consequence of the accusations constituting the crime in question, such a person cannot be treated as a victim in law, for the purpose of the remedy contemplated in the proviso to Section 413 of the BNSS. It cannot be lost sight of the doctrine that every crime is deemed to have been committed against the State, which explains the conferment of the power to prefer an appeal, on the State in cases of acquittal; and in cases instituted upon complaint, on the complainant, upon obtaining special leave. The victim gets a right only as per the proviso to Section 413, wherefore he should squarely fall within the definition of Section 2 (1)(y).”

The appellant in this case is a Professor who agreed to be a surety for one of his students (3^rd respondent) to help him with financial problems. It was stated that instead of showing him as surety, he was made the principal borrower and the loan was taken in his name with the help of other respondents, bank employees. It was stated that this manipulation allowed the loan to be taken out in the appellant's name, effectively ensuring that the 3rd respondent would not have to repay it and that the appellant's property would be at risk of seizure.

The appellant herein pointed out irregularities in the functioning of the Bank to the Bank Manager. This led to the registration of a case with the CBI. It was submitted that even though Bank Manager is the de facto complainant, the appellant is the victim here.

The appellant thus challenges the order of the Special Court, CBI acquitting the accused by way of an appeal under proviso to Section 413 of the BNSS. It was argued that he was cheated and that a person who suffers financial loss and economic disadvantage is a victim and the appeal was maintainable.

On the other hand, the Public Prosecutor stated appellant is a witness and cannot claim the status of a victim to prefer an appeal under Section 413 of the BNSS. It was argued that compliant to the CBI was preferred by the Bank Manager and not by the appellant.

The respondents also contended that the appeal under Section 413 of BNSS was not maintainable since the appellant cannot be considered as victim.

Court noted that Section 2 (wa) of CrPC defines a victim as someone who has suffered loss or injury due to the actions or omissions of the accused for which he has been charged with. However, the Court noted that Section 2 (1)(y) of the BNSS defines a victim as someone who has suffered loss or injury due to the actions or omissions of the accused.

The Court stated that the scope of the term victim as provided in Section 2 (wa) of the CrPC has been expanded by way of the definition in Section 2 (1)(y) of the BNSS.

Comparing the definitions, the Court said, “It could thus be seen that the requirement of an act or omission for which the accused person has been charged is obliterated in the new definition. Instead, a loss of injury has to be sustained to a person by the act or omission of the accused person, so as to claim the status of victim as per the Sanhita.”

In the facts of the case, the Court stated that even as a surety, the property of the appellant is at the risk of being proceeded against.

The Court further stated that the complaint that led to the acquittal of the accused was not one moved by the appellant.

As such the Court held that the appeal was not maintainable and dismissed it.

Counsel for Petitioners: Advocates Jose Pallattukaran, Sidharth Murali

Counsel for Respondents: Advocates R. Bindu (Sasthamangalam), K.Rajesh Kannan, George Mathew Karamayil, G.Rajagopal (Kummanam), Manuel Thomas, Sunil Kumar A.G, Mathew K.T., George K.V.

Case Number: C.R.A.(V.) No.53 of 2024

Case Title: Dr Jacob Mani v State of Kerala

Citation: 2024 LiveLaw (Ker) 652