Right to appeal in criminal law jurisprudence acquires a special position, since it draws upon the ideological base of Article 21 of the Constitution of India. As per Article 21 of the constitution, life and personal liberty of a person cannot be taken away by state except in accordance with the procedure established by law. The procedure established by law has been creatively interpreted by the Supreme Court to include within its scope the implicit guarantee of a fair, just and reasonable procedure. Right to appeal in guarding against any suffering due to errors of the court ensures fairness of this procedure and therefore forms an essential part of the criminal law system.

Now, under Criminal Procedure Code, 1973 there is a distinction made between right to appeal against acquittal and that of conviction; the latter being more wide, and less restricted. This distinction seems, as is so held in several cases, to be intelligible since the initial presumption in favour of accused has been duly vindicated by the decision of the court and so appeal in such a case would put interests of accused in serious jeopardy.

However, the distinction between right to appeal of a complainant and that of a victim against an acquittal order by a criminal court cannot be similarly described as intelligible, and the purpose of the blog-post to analyze the same.

Right of Complainant to Appeal against Acquittal

A complainant is a person who prefers a complaint as defined under Section 2(d) of CrPC to the magistrate, upon which the court can subsequently take cognizance of the offence under Section 190(1)(a), CrPC.

Section 378(4) provides the complainant with the right to an appeal against an order of acquittal passed by a criminal court to the High Court. However this right is subject to an important condition i.e. grant of special leave to appeal by the HC to appeal from such order, upon application made by the complainant. It is important to note that such leave is important for the "very presentation of appeal", i.e. memorandum of appeal can only be presented when a grant of appeal has been made by the HC.

Right to Victim to Appeal against Acquittal

The Proviso inserted by the 2009 Amendment Act to Section 372, CrPC provides the right to appeal against an order of acquittal to a victim. Victim as defined under section 2 (wa) of Criminal Procedure Code, 1973 as a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir.

Now, as clear from the legislative framing of Section 372 proviso, this right to appeal is not restricted by the condition of obtaining any leave from the High court.

The same has been held in the landmark case of Mallikarjun v. State of Karnataka. The court in this case held that the right of victim to appeal under Section 372, shouldn't be read subject to the condition of Section 384(4) which are applicable to a different class of "compliant". A victim was appeal against an acquittal order a criminal court without obtaining any leave for the same from the High Court.

Victim and Complainant as overlapping classes

Upon perusal of the above mentioned definitions of complainant and a victim, it is beyond clear that the two classes are not distinguishable. A person can be both a complainant and a victim. For eg. if theft is committed by A against B's property, and he makes a complaint of the same under Section 2(d) instead of lodging an FIR under Section 154, CrPC, upon which cognizance is taken under Section 190(1)(a), and subsequently an acquittal order is passed by the court.

In this case, B is a complainant but he is also a victim, since he has suffered loss due to act of A, and so very well falls within the scope of Section 2(wa).

The moot question now emerges, whether a complainant who is also a victim, can move under Section 372 Proviso, or would his right to acquittal be solely limited to section 384(4), CrPC, 1973.

This precise issue was decided by a Madras HC case in S.Ganapathy vs N.Senthilvel where the court held that a victim does not cease to be a victim merely because he also happens to be a complainant and he can avail all the rights and privileges of a victim also. The division bench in this Section 372 gives the right to appeal against acquittal to all victims, including those victims who are also complainants, and overruled the earlier single bench decision of Selvaraj v. Venkatachalapathy which held otherwise.

However, the decision bench judgment, was overruled by a three judge bench decision of K.Rajalingam Vs. R.Suganthalakshmi wherein the court held that a complainant's right to appeal against acquittal to be limited by Section 378(4), CrPC and in such cases, he would have to mandatorily obtain special leave. The court in making such decision categorized the right of complainant victims at a restricted position as compared to non complainant victims.

This leads to twin issues:

1. Firstly, distinguishing between victim and complainant and their rights as distinct categories. This differentiation is not intelligible.

Victim, which in the present situation enjoys better rights, is rather a wider category and includes even the legal heirs and guardians of a person who has suffered any loss/injury. A complainant on the contrary is a narrower category. A complaint is someone who has been invested in the case, from making of the complaint, to the hearing of the case and tendering of the evidence; the institution of the case owes its existence to the action of the complainant. To provide a complainant with weaker rights in this context as opposed to a victim doesn't have any intelligible basis.

2. Secondly, and more importantly, the current position discriminates between a person who is only a victim and not a complainant, and a person who is a victim and also a complainant. While the person in the first category has the right to appeal under Section 372, without any limitation of obtaining a special leave; the second category has to mandatorily obtain the same.

The distinction seems even more absurd, since it tantamounts to snatching the rights of the victim who is otherwise equally placed as other victims, who are not complainants. Article 14 of the Constitution of India, 1950 guarantees equality before the law or equal protection of the laws to all persons, within the territory of India. Classification leading to differential treatment between two category persons can only be justified under Article 14, as held in State of West Bengal v. Anwar Ali Sarkar if there exists [i]that classification must be founded on an intelligible differentia which distinguish those that are grouped together from others left out of the group, and [ii] that the differentia must have a rational relation to the objects sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct and what is necessary is that there must be a nexus between them.

In the present situation of victims v. complainants [including complainants who are also victims], to classify the rights of victim at a lower pedestal merely because he/she initiated the criminal process of law by lodging a complaint is, prima facie, absurd and illogical. The effect would be that a guardian of a person against whom a crime is committed would have better rights than another person, who is himself a sufferer of a crime, but loses his right for choosing to institute a complaint.

The distinction punishes a victim for his initiative of filing a complaint, which is absolutely unsustainable in both law and logic and should be amended by equalizing the position for both categories of complainants and victims.

The Author is a law student at National Law University, Jodhpur.