Since 2009, the victim
has officially entered in the textbook of Criminal Law.
For the first time, a victim is defined under Section 2 (wa) of the Code of
Criminal Procedure, 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.
The proviso to Section 372 of Code of Criminal Procedure, 1973 is an exception
to the general law and same confers on a victim
a right to appeal against
acquittal, which is subject to the grant of leave by the Court. The first part
of the definition of victim
as given under Section 2 (wa) of Code of Criminal
Procedure, 1973 is required to be construed in its literal sense and no liberal
interpretation is required.
Accordingly, only such person would be treated as
who is the subject matter of trial being direct sufferer of crime in
terms of loss or injury caused to his own body, mind, reputation and property
and such loss or injury is one of the ingredient of the offence for which the
accused person has been charged and, therefore, any other person cannot be
accepted as a victim
within the first part of Section 2 (wa) for the purpose
of maintaining appeal.
Section 372 Chapter XXIX in of Code of Criminal Procedure, 1973 defines as
372. No appeal to lie unless otherwise provided - No appeal shall lie from any
judgment or order of a Criminal Court except as provided for by this Code or by
any other law for the time being in force.
- [Provided that the victim shall have a right to prefer an appeal against
any order passed by the Court acquitting the accused or convicting for a
lesser offence or impose inadequate compensation, and such appeal shall lie
to the Court to which an appeal ordinarily lies against the order of
conviction of such Court.]
- Inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (Act
No. 5 of 2009) dated 07.01.2009 w. e. f 31.12.2009 Vide SO 3313 (E) dated
Evolution of Right to Appeal:
The Code of Criminal Procedure when originally enacted in the year 1861 did not
provide for any right to appeal against acquittal to anyone including the State.
It was in the Code of Criminal Procedure of 1898 that Section 417 was inserted
enabling the Government to direct the Public Prosecutor to present an appeal to
the High Court from an original or appellate order of acquittal passed by any
Court other than a High Court.
The Law Commission of India in its 41st Report given in September, 1969 as also
in 48th Report pertaining to the Criminal Procedure Bill, 1970, however,
recommended to restrict the right of appeal given to the State Government
against an order of acquittal by introducing the concept of 'leave to appeal'
and that all appeals against acquittal should come to the High Court though it
rejected the right to appeal to the victim of a crime or his relatives
The Code of Criminal Procedure, 1973 came into being on January 25, 1974
repealing the Code of Criminal Procedure, 1898. The recommendations made by the
Law Commission of India, referred to above, largely found favour with the
Parliament when it inserted an embargo in sub-Section (3) to Section 378 against
entertainment of an appeal against acquittal except with the leave of the High
Sub- section (4) of Section retained the condition of maintainability of an
appeal at the instance of a complainant against an order of acquittal passed in
a complaint-case only if special leave to appeal was granted by the High Court.
Save in the manner as permitted by Section 378, no appeal could lie against an
order of acquittal in view of the express embargo created by Section
372 according to which no appeal shall lie from any judgment or order of a
Criminal Court except as provided for by this Code or by any other law for the
time being in force.
The Code of Criminal Procedure (Amendment) Act, 2005:
Hon'ble Supreme Court in a string of decisions recognized time and again one or
the other right of the victim
including locus standi of his/her family members
to appeal against acquittal in the broadest sense. Notwithstanding these
decisions or the chorus of such like rights being heard in all civic societies,
the Legislature in its wisdom did not deem it necessary to permit a victim
to appeal against the acquittal of his wrong-doer even while carrying out
sweeping amendments in the Code in the year 2005.
The only significant amendment brought into force was in Section 378, whereby,
the appeals against acquittal in certain cases are now maintainable in the Court
of Session without any leave to appeal. The afore-stated amendment has been
brought to guard against arbitrary exercise of power and to curb reckless
. Section 377 was also suitably amended enabling an appeal on the
ground of inadequacy of sentence to the Court of Session, if the sentence is
passed by a Magistrate.
The Committee on reforms of Criminal Justice System was constituted by
Government of India, Ministry of Home Affairs by its Order dated 24.11.2000 to
consider measures for revamping the Criminal Justice System.
In this connection, for providing Justice to victims of crime, Committee made
its recommendation as follows:
- The victim, and if he is dead, his legal representative shall
have the right to be impleaded as a party in every criminal proceeding where
the offence is punishable with 7 years imprisonment or more.
- In select cases notified by the appropriate Government, with the
permission of the Court an approved voluntary organization shall also have
the right to implead in Court proceedings.
- The victim has a right to be represented by an advocate of his
choice; provided that an advocate shall be provided at the cost of the State
if the victim is not in a position to afford a lawyer.
- The victim's right to participate in criminal trials shall, inter alia,
- To produce evidence, oral or documentary, with leave of the Court and/or
to seek directions for production of such evidence
- To ask questions to the witnesses or to suggest to the court questions
which may be put to witnesses
- To know the status of investigation and to move the Court to issue
directions for further investigation on certain matters or to a supervisory
officer to ensure effective and proper investigation to assist in the search
- To be heard in respect of the grant or cancellation of bail
- To be heard, whenever, prosecution seeks to withdraw or offer to
withdraw and not continue the prosecution
- To advance arguments after the prosecutor has submitted arguments
- To participate in negotiations leading to settlement of compoundable
- The victim shall have a right to prefer an appeal against any adverse order
passed by the Court acquitting the accused, convicting for a lesser offence,
imposing inadequate sentence, or granting inadequate compensation. Such appeal
shall lie to the Court to which an appeal ordinarily lies against the order of
conviction of such Court.
- Legal services to victims in select crimes may be extended to include
psychiatric and medical help, interim compensation and protection against
- Victim compensation is a State obligation in all serious crimes, whether
the offender is apprehended or not, convicted or acquitted. This is to be
organized in a separate legislation by Parliament. The draft bill on the
subject submitted to Government in 1995 by the Indian Society of Victimology provides a
tentative framework for consideration.
- The Victim Compensation law will provide for the creation of a Victim
Compensation Fund to be administered possibly by the Legal Services
Authority. The law should provide for the scale of compensation in different
offences for the guidance of the Court. It may specify offences in which
compensation may not be granted and conditions under which it may be awarded
In this long journey it was found that victim's right comprises of the following
- Access to Justice & fair treatment,
- Compensation &
Based on said recommendations amendments were made in the Code showing
sensitivity to the rights of a victim
, by incorporating the following
- Section 2 (wa) was incorporated in the Code defining a victim and making it
inclusive of his or her guardian or legal heir;
- Proviso to sub section (8) of Section 24 (8) of the Code which provided
that the Court may permit the victim to engage advocate of his choice to assist the
- Proviso to clause (a) of Section 26 of the Code, which provided that
offenses under Section 376 and 376 (A) to 376 (D) of the Indian Panel Code
shall be tried as far as practicable by a Court presided over by a woman.
- Proviso 2nd to sub section (1) of Section 157 of the Code by which it
was provided that the statement of a rape victim will be recorded at the
residence of the victim or in the place of her choice as far as practicable by a woman
Police Officer in the presence of her parent or guardian or near relative or a
social worker of the locality.
- Sub-section (1-A) of Section 173 (1-A) of the Code by which it was
provided that in relation to rape of a child investigation would be
completed within three months from the date of receipt of information.
- Section 357-A of the Code so as to provide for the Victim Compensation
Scheme for the purpose of compensation to the victim or his dependents who
suffered loss or injury as a result of the crime.
- Proviso to Section 372 of the Code conferring right on a victim
to file appeal
Prior to 31.12.2009, that is before the enforcement of amending Act No. 5 of
2009, Section 372 was as follows:
No Appeal shall lie from any Judgment or Order of a Criminal Court except as
provided for by this Code or any other law for the time being in force.
The aforesaid amendment is based upon the 154th report of Law Commission.
The Statement of Object & Reasons of Act 5 of 2009 mentioned, is as follows:
........ 2. The need has also been felt to include measures for preventing the
growing tendency of witnesses being induced or threatened to turn hostile by the
accused parties who are influential, rich and powerful. At present, the victims
are the worst sufferers in a crime and they don't have much role in the court
proceedings. They need to be given certain rights and compensation, so that
there is no distortion of the Criminal Justice System.......
Prior to insertion of the proviso, appeal against inadequacy of sentence lay
under Section 377 of the Code and against acquittal lay under Section 378 of the
Code but in neither case the victim
had a right to appeal though in a case
instituted upon a Complaint, the Complainant had a right to present an appeal
under sub- section (4) of Section 378 of the Code. Thus, by insertion of the
proviso an exception to the general rule was carved out by providing victim
right to prefer an appeal against an order of acquittal or of convicting for a
lesser offence or imposing inadequate compensation.
Right to challenge conviction or acquittal or any sentence
Right to challenge a conviction or acquittal or any other sentence or order
emanates only from a Statute.
The Scheme of the Code after various amendments, confers right of appeal only on
four categories of persons:
- victim; and
- complainant in complaint cases and none else.
who happens to be thecomplainant
in the police cases, if files
appeal against acquittal is not required to take leave
under Section 378 (4)
of the Code of Criminal Procedure, 1973 nor such victim
is required to seek
leave in cases where appeal is against inadequacy of compensation and punishment
for lesser offence.
or a complainant
under Chapter XXIX of the Code of Criminal
Procedure, 1973 are not inter se dependent and each right operates within its
own sphere. For example, the State has got a right to appeal on the ground of
inadequacy of sentence (Section 377 of the Code of Criminal Procedure, 1973) but
who is also a victim
in police case) has
got no such right though he/she can prefer appeal if the accused is convicted
for a lesser offence. State has no right to appeal against conviction of an
accused for a lesser offence.
The legislative scheme thus does not permit an
inter se comparison of the right or duties granted or assigned to a victim
the State under the afore-stated Chapter of the Code. The cumulative effect is
that the rights(s) of a victim
under the amended Code are substantive and not
mere brutal flume, hence these are not accessory or auxiliary to those of the
State and are totally incomparable as both the sets of rights or duties operate
in different and their respective fields. Thus a victim
is not obligated to
seek 'leave' or 'special leave' of the High Court for presentation of Appeal
under proviso to Section 372 of the Code of Criminal Procedure, 1973.
The right of the victim
to appeal gets limited here but the State still has
powers in this regard. Under Section 377 of the Code of Criminal Procedure,
1973, the State can move an appeal on the ground of inadequacy of sentence but
has not been accorded a similar right. This amendment was brought
in, in 2009 after the famed Best Bakery case, fought by the Citizens for Justice
and Peace, supporting star witness Zahir Shaikh.
Section 372 of the Code of Criminal Procedure, 1973 was amended in December 2009
stating that the victim
shall have a right to prefer an appeal against any
order passed by the Court acquitting the accused or convicting for a lesser
offence or imposing inadequate compensation.
The meaning of conviction of lesser offence has been explained by the Supreme
Court in [Mallikarjun Kodagali Vs The State Of Karnataka (decided on
October 12, 2018)]. The Court explained:
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
Before the amendment to Cr. P. C Section 372, the remedy of appeal was provided
under Section 378 Cr. P. C and the same could be filed on a police report only
at the instance of District Magistrate or State Government. The aggrieved victim
of complainant had no right to appeal and he could only prefer a revision… the
revision would be a cumbersome process as the Revision Court has no powers to
convict an accused in case it finds that the latter has been wrongly acquitted.
At the most it could remand the case back to the Trial Court. This involved
wastage of time and money – as has been observed by the Law Commission on whose
recommendation an exception was added to Section 372 Cr. P. C, providing right
of appeal to the victim
against any order passed by the Court acquitting the
accused or conviction for a lesser offence or an inadequate compensation.
In February 2020, Bombay High Court affirmed victim’s right to appeal against an
order of acquittal as being absolute and unfettered under section 372 of Cr. P,
In Mallikarjun Kodagali's case
, the Supreme Court in 2:1 majority Judgment
stated that Section 372 of Cr. P. C has to be given realistic, liberal,
progressive interpretation to benefit the victim
of an offence. It also held
that there is no doubt that the proviso to Section 372 of the Cr. P. C must be
given life, to benefit the victim
of an offence and also referred to the
United Nation's General Assembly's resolution to hold that besides the State,
the victims are also entitled to appeal against the acquittal of the accused.
Upholding the right of the victim
to prefer an appeal against acquittal, the
Access to mechanisms of Justice and redress through formal
procedures as provided for in national legislation, must include the right to
file an appeal against an order of acquittal.
Hence, when it comes to right of victim
to appeal, the Courts have so far held
that the victim
need not seek leave to appeal to a Higher Court in cases of
acquittal, conviction on lesser offence and inadequate compensation. The ambit
of lesser offence has not been read into or expanded into including appeal
against inadequate sentence and that right lies only with the State Government.
The Hon'ble Supreme Court of India, in recent case of [Parvinder Kansal Vs The
State of NCT of Delhi & Anr.
], held that Appeal filed by Victim seeking
enhancement of sentence is not maintainable. Though, while arriving at this
principle, the Supreme Court has affirmed the view taken in [National
Commission for Women Vs State of Delhi & Anr.
, (2010) 12 SCC 599], as these
decisions are based upon strict interpretation of law and showed that the
legislature has failed to take into account the plight of the victim in this
The Delhi High Court, in a case of [Ram Phal Vs. State & Others
28-05-2015) noted the legislative history of this newly inserted proviso that:
… A victim-oriented approach to certain aspects of criminal procedure was
advocated in the Law Commission of India's 154th Report, 1996, which noted that
increasingly, the attention of criminologists, penologists and reformers of
criminal justice system has been directed to victimology, control of
victimization and protection of the victims of crimes.
(Chapter XV, Paragraph 1) While focused on issues of compensation, the Law
Commission Report cited the 1985 United Nations Declaration of Basic Principles
of Justice for Victims of Crime and Abuse of Power for its definition of victim
individually or collectively, have suffered harm, including physical or mental
injury, emotional suffering, economic loss or substantial impairment of their
fundamental rights, through acts or omissions that are in violation of criminal
laws. (Chapter XV, Paragraph 6.2).
The said report prompted the Code of Criminal Procedure (Amendment) Bill
of 2006. Its Statement of Objects and Reasons noted that the Law Commission has
undertaken a comprehensive review of the Code of Criminal Procedure in its 154th
report and its recommendations have been found very appropriate, particularly
those relating to provisions concerning arrest, custody and remand, procedure
for summons and warrant-cases, compounding of offences, victimology, special
protection in respect of women and inquiry and trial of persons of unsound mind
It also noted that:
… at present, the victims are the worst sufferers in a crime and they don't have
much role in the court proceedings. They need to be given certain rights and
compensation, so that there is no distortion of the criminal justice system.
In wake of the above, the proviso under Section 372 of the Cr. P. C added in
2009. However, due to legislative lapse or inadvertence (or unknown intention of
legislature, as it is not found anywhere), it is restricted only to three
- acquittal of the accused;
- Conviction of the accused for lesser offence;
- for imposing inadequate compensation (as mentioned in the Judgement of
Hence, even if a Trial Court sentenced the accused only a token sentence e. g.
Till the rising of the Court or only with fine for a particular offence … then
also, the victim does not have any right to seek enhancement of sentence by way
of an independent and/or separate appeal. This seems to frustrate the very
statement of objects and reasons of the proviso of the section, for which it has
specifically inserted or brought in for effective implementation of law on
victim side, which intends to balance the rights of the accused vis-à-vis rights
of the victim.
The Supreme Court has also reiterated the statement of Objects and reasons
behind the proviso of Section 372 of the Cr. P. C in a case of [Rekha Murarka
Vs The State of West Bengal & Anr.
[Decided on 20-11-2019] by stressing that:
Furthermore, credence should be given to the overall emphasis on victimology
underlying the 2009 Amendment Bill,:
… Statement of Objects and Reasons.– The need to amend the Code of
Criminal Procedure, 1973 to ensure fair and speedy justice and to tone up the
criminal justice system has been felt for quite sometimes…(then, repetition of
the same as mentioned above in a case before the Delhi High Court)
In view of the above and by re-reading the proviso under Section 372 of the Cr.
P. C, the 2nd eventuality, which the Supreme Court has categorized: 'convicting
for a lesser offence' – this phrase, actually does not give any right to
for prefer an appeal for enhancement of sentence. The plain and simple
reading of these words suggest that: 'convicting for a lesser offence' means,
conviction is imposed, but it is in respect of lesser offence.
if a person is charged with an offence of Murder under Section 302 of the Indian
Panel Code and if at the end of trial the Session Court found him guilty for
culpable homicide not amounting to murder under Section 304, the victim
right to prefer an appeal against the same, because this is tantamount to
'convicting for a lesser offence'.
Criminal Law, no doubt, clearly differentiates between the conviction and
sentence. In fact, Conviction is 'the act or process of judicially finding
someone guilty of a crime; the state of having been proved guilty, whereas the
Sentence is the (actual) punishment imposed on a criminal wrongdoer.'
Written By: Dinesh Singh Chauhan, Advocate
- J&K High Court of