Karnataka High Court Suggests Centre To Amend S.372 CrPC To Allow Victims To File Appeal Seeking Enhancement Of Sentence Of Convicts

A single judge bench of Justice H P Sandesh said,

"No doubt, when the remedy provided to the State to file an appeal in the event of inadequate sentence, It requires consideration to suitably amend Section 372 of Cr.P.C., conferring the right to the victim also to file an appeal making necessary amendment to Section 372 of Cr.P.C, or otherwise it is a discrimination against the victim, when the appeal is provided to the State."

It added, "Hence, it is appropriate to direct the Central Government to make necessary amendment to provide an opportunity to the victim also to approach the Court for seeking an enhancement of sentence and the said right of anomaly under the provisions of Section 372 of Cr.P.C., requires to be set right, for insertion of a right to a victim to question the order of sentence and seek for an enhancement of sentence."

Presently under section 372 of Cr.P.C, the victim is qualified to file an appeal in the event of acquittal of the accused or conviction for lesser offence or for imposing inadequate compensation only.

The bench made this suggestion while dismissing a criminal revision petition filed by the original complainant, former IAS officer BA Harish Gowda seeking to enhance the sentence of nine months imposed on Ravi Kumar, Editor, Publisher and Printer of Parivala Pathrike Journal, who was convicted under Section 500 of the Indian Penal Code.

Instead, it allowed the revision petition filed by the accused and set aside the order of the lower appellate court which enhanced the sentence of six months imposed on the accused by the trial court to nine months, on an appeal filed by the complainant.

The bench said,

"In the case on hand, the appeal was filed under Section 374 of Cr.P.C., before the Trial Court and under Section 374 of Cr.P.C., no such provision is provided to file an appeal by the victim against the order of the Trial Court for enhancement of sentence. No doubt, there is a provision under Section 372 of Cr.P.C, the same is also not provided for an appeal for enhancement of sentence. Hence, the Appellate Court ought not to have entertained the said appeal for enhancement of sentence and committed an error in enhancing the sentence when the statute does not provide such an appeal."

It added, "No statutory provision is provided to the victim to file an appeal, the revision filed by the complainant against the order of the Appellate Court and the Trial Court for lesser sentence, is not maintainable. Consequently, the revision filed by the accused deserves to be allowed and the order of the Appellate Court requires it to be set aside."

Case Details:

On the complaint made by Gowda against the accused in the year 2000, the accused after a long drawn litigation was found guilty by the trial court on judgment dated 30.08.2017, the Trial Court convicted the accused and sentenced him for a period of 6 months for the offence under Section 500 of IPC and imposed fine of Rs.25,000.

Following which the complainant as well as the accused filed an appeal. The complainant, in his appeal sought for an order to enhance the sentence and the accused in his appeal questioned the conviction and sentence passed by the Trial Court.

The Appellate Court, dismissed the appeal filed by the accused and allowed the appeal filed by the complainant, however modified the sentence enhancing the imprisonment for a period of 9 months with a fine of Rs.10,000/-. Being aggrieved by the order of modification of sentence, these three revision petitions are filed by the accused as well as the complainant.

Complainant's submissions:

It was said the accused had indulged in making false imputations in the journal and the document on record reveals that it is defamatory per-se which fact has not been rebutted by the accused either before the Trial Court or before the Appellate Court or before this Court in these petitions or on the earlier occasions.

The false and concocted imputations directed against the complainant by the accused are not only defamatory, but they are also very grave in nature meant to ensure deep impact on the minds of the reader and words will not be sufficient to describe the mental agony, humiliation and physical hardship undergone by the complainant in the past 20 years. The very nature of false imputations reproduced in the complaint is sufficient to prove that the punishment imposed upon the accused to convict is insufficient.

Further relying on several judgments of the Supreme Court, it was said that the accused has not been examined before the Trial Court to prove either good faith or the imputations have been made for public good.

Accused on the other hand argued that the entire facts does not reveal that there is no intention to damage the reputation of the respondent, the appellants did not have any intention or mens rea to commit the offence under Section 500 of IPC. This fact has not been considered by both the Courts and also not considered the cross-examination of P.Ws.1 and 2 and failed to consider his defence.

It was further submitted that the appeal filed by the respondent complainant under Section 374(3) of CrPC itself is not maintainable because Section 374 of CrPC provides for an appeal against the conviction and the complainant does not have any right to file an appeal. It is also contended that the alleged defamatory statement was published in the year 2000 and 20 years have elapsed and the accused is put to great hardship.

The very appeal filed before the Appellate Court is not maintainable but, the Appellate Court enhanced the sentence erroneously even without jurisdiction.

Court findings:

The court though dismissed the petition filed by the complainant seeking enhancement of sentence it upheld the order of the trial court convicting the accused to suffer six months imprisonment under section 500 IPC.

It said, "Though defence was taken in the cross-examination that the said article was published with good faith and for the benefit of the public good, in order to substantiate the same, no material is placed before the Court."

The court opined, "It is also important to note that the complainant also fought before the Court almost from the last two decades to prove the fact that his reputation has been spoiled on account of the defamatory per-se allegations made against him and these aspects are also considered by both the Trial Court as well as the Appellate Court. "

It then held, "When the material has been considered by the Trial Court as well as the Appellate Court and given finding on the basis of the evidence available on record, it cannot be said that the order passed by both the Courts are perverse and no material on record to substantiate the same."

It added, "When such being the case and when the accused has also not led any evidence before the Trial Court to substantiate his contention that the same was made with good faith and for the public good, both the Courts have not committed any error while appreciating the material on record and have given anxious consideration to the evidence available on record."

Accordingly it dismissed the appeal filed by the complaint seeking enhancement of sentence of 9 months and quashed and set aside the appellate court order which enhanced the sentence from six months to nine months. The bench also confirmed the order of the trial court which convicted the accused and sentenced him to 6 months imprisonment and to pay fine of Rs.10,000.

Further it directed the Registry to send this copy of the judgment to the Ministry of justice to examine and do the needful, as observed in the judgment while answering point Nos.(i) and (ii) regarding anomaly in the statute to set right of appeal to the victim for necessary amendment to provide right of appeal to the victim for enhancement of sentence.

Case Title: B.A.HARISH GOWDA v. RAVI KUMAR

Case No: CRIMINAL REVISION PETITION NO.175/2021

Citation: 2022 LiveLaw (Kar) 181

Date of Order: 31ST DAY OF MAY, 2022

Appearance: Advocate S.R.RAVI PRAKASH for petitioner; Advocate PAVAN KUMAR G for respondents

Click Here To Read/Download Order