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Why Victim Cannot Appeal Against Inadequate Sentence Under Section 372 CPC?

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 victim 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 under:

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 30.12.2009.

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The Code of Criminal Procedure when originally enacted in the year 1861 did not provide for any right to appeal against acquittal to anyone including the State.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 Court.

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 acquittals. 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:
  1. 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.
     
  2. 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.
     
  3. 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.
     
  4. The victim's right to participate in criminal trials shall, inter alia, include:
    1. To produce evidence, oral or documentary, with leave of the Court and/or to seek directions for production of such evidence
    2. To ask questions to the witnesses or to suggest to the court questions which may be put to witnesses
    3. 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 for truth.
    4. To be heard in respect of the grant or cancellation of bail
    5. To be heard, whenever, prosecution seeks to withdraw or offer to withdraw and not continue the prosecution
    6. To advance arguments after the prosecutor has submitted arguments
    7. To participate in negotiations leading to settlement of compoundable offences.
       
  5. 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.
     
  6. Legal services to victims in select crimes may be extended to include psychiatric and medical help, interim compensation and protection against secondary victimization.
     
  7. 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.
     
  8. 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 or withdrawn.

In this long journey it was found that victim's right comprises of the following ingredients:

  1. Access to Justice & fair treatment,
  2. Restitution,
  3. Compensation &
  4. Assistance.

Based on said recommendations amendments were made in the Code showing sensitivity to the rights of a victim, by incorporating the following provisions:
  1. Section 2 (wa) was incorporated in the Code defining a victim and making it inclusive of his or her guardian or legal heir;
     
  2. 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 Public Prosecutor.
     
  3. 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.
     
  4. 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.
     
  5. 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.
     
  6. 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.
     
  7. 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 a 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:
  1. accused;
  2. State;
  3. victim; and
  4. complainant in complaint cases and none else.

A victim 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.

The victim 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 a victim (including complainant 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 or 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 the victim 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.

Judicial Prouncements
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 offence

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, C.

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 Court held:
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 regard.

The Delhi High Court, in a case of [Ram Phal Vs. State & Others (Decided on 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:
persons who, 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 eventualities:
  1. acquittal of the accused;
  2. Conviction of the accused for lesser offence;
  3. for imposing inadequate compensation (as mentioned in the Judgement of Parvinder Kansal).

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)

Conclusion
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 victim 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.

Meaning thereby, 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 has a 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 Judicature, Jammu.
Email: [email protected], [email protected]

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