The Supreme Court held that the victim cannot prefer an appeal against a conviction basis inadequacy of sentence imposed. The bench comprising Justices Ashok Bhushan and R Subhash Reddy while upholding Delhi High Court judgment dismissing an appeal filed by a victim, held that no appeal can be maintained by the victim under section 372 of CrPC.
The accused was convicted by the trial court under sections 364A [kidnapping for ransom], 302 [murder] and 201 [Causing disappearance of evidence] of Indian Penal Code (IPC) and was sentenced for life. The deceased boy’s father, who was the complainant in the case sought death penalty for the convict under provisions of section 372 of CrPC.
The Delhi high court, against which this appeal was filed, held that “An appeal by the victim under Section 372 CrPC, is not maintainable if it only challenges the order on sentence on the ground that it imposes inadequate punishment.” The high court had further stated that an appeal is a creature of a statue and cannot lie under any inherent power.
The high court further observed that the proviso to Section 372 CrPC (no appeal to lie, unless otherwise provided) confers upon the victim, the right to prefer an appeal against the order of the Criminal Court in the following three instances: (a) Acquittal of the accused person; (b) Conviction of the accused person for a lesser offence; and (c) Imposition of inadequate compensation.
The counsel for the petitioner contended before the Supreme court that “there is no reason to restrict the scope of appeal only for a lesser offence but not for lesser sentence”. The bench held that victim’s right of appeal is restricted to three eventualities, namely, acquittal of the accused; conviction of the accused for lesser offence; or for imposing inadequate compensation. Hence, the bench, finding no merit in the appeal, upheld the Delhi High Court order and dismissed the appeal.
The Supreme Court order may be read here.
Victim’s right to appeal
Section 372 of CrPC along with the proviso reads as follows:
“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 imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”
The right of the victim to appeal gets limited here but the state still has powers in this regard. Under section 377 of the CrPC, 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 CrPC 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 offence”
“Before the amendment to CrPC section 372, the remedy of appeal was provided under CrPC section 378 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 CrPC section 372, 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,” Advocate Aniket Nikam told TOI.
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 CrPC.
In Mallikarjun Kodagali vs The State Of Karnataka, the Supreme Court in 2:1 majority judgment stated that section 372 of CrPC 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 CrPC 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.
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