(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) The present Appeal No.45/12 has been preferred against the judgment and the order passed by the learned Sessions Judge in Sessions Case No.4/06, whereby the accused Nos.1, 5 and 7 have been acquitted for the offences under sections 143, 147,148, 149, 302, 307, 323, 324, 325, 326, 435, 436, 295 and 153 of IPC read with section 135 of the Bombay Police Act.
Since there is a delay of 85 days in preferring the appeal, the application for condonation of delay being Criminal Misc. Application No.623/12 has been preferred by the applicant who is the injured eye witness, p.w.13.
We have heard Mr.S.M.Vatsa for the original appellant-applicant and Mr.Panchal, appearing upon an advance copy as Special Public Prosecutor for the State.
It is an admitted position that against the very judgment and order passed by the learned Sessions Judge, so far as acquittal of the original accused nos. 1,5 and 7 together with the original accused no.4 is concerned, the State has already preferred appeal being Criminal Appeal No.1203/11 with the application for leave to prefer appeal being Misc. Criminal Application No.13457/11.
This Court has today passed the order in the aforesaid appeal preferred by the State with the application to leave to prefer appeal whereby the leave has been granted and the appeal has been preferred by the State has been admitted.
Under the aforesaid circumstances, the only aspect to be considered would be whether this Court should entertain the appeal preferred by one of the injured witness against the order of acquittal passed by the learned Sessions Judge in a case where the State has already preferred appeal against the order of acquittal and such appeal has been entertained by this Court by granting leave and the State appeal has already been admitted. Similar question had come up for consideration before this Court (Coram: Jayant Patel & Z.K.Saiyed, J.J.) (where one of us was party) in Criminal Misc. Application No.5522/09 in Criminal Appeal No.783/10 decided 10.05.2010 and this Court had observed thus -
The question which arise for consideration in the present matter is the aspect of entertainment of appeal, preferred by the original complainant, inspite of the fact that the State has preferred Appeal against the order of acquittal in which the leave has been granted by this Court and the Appeal is admitted.
Reference to certain facts may be relevant.
The applicant - appellant before this Court is the original complainant/victim of Special Case No.35 of 2006 which arose from the complaint filed vide CR No. 37 of 2005 of Panshina Police Station for the offences under Sections 394, 325, 504, 506(2) read with Section 114 of I.P. Code and for the offence under Section 3(1)(10) of the Prevention of Atrocity (Scheduled Tribes & Scheduled Caste) Act, 1989 (for short "Atrocity Act"). At the conclusion of the trial the learned Special Judge passed the judgment and order dated 13.4.2009 whereby the accused therein, who are the respondents herein, have been acquitted for the offences under Sections 394, 504, 506(2) read with Section 114 of I.P. Code and for the offence under Section 3(1)(10) of the Atrocity Act read with Section 135 of the Bombay Police Act. However, so far as the offence under Section 323 r/w 114 of I.P. Code is concerned, the learned Special Judge convicted the accused Nos.1,2 & 3 with the imprisonment of one month and the fine of Rs.500/- and in default simple imprisonment for 10 days. The pertinent aspect is that against the Judgment and the order of the learned Special Judge, so far as it relates to the acquittal of the accused for certain offences, namely, Sections 394, 504, 506(2) and 114 of I.P. Code and for the offence under Section 3(1)(10) of the Atrocity Act and for the offence under Section 135 of the Bombay Police Act, the State has preferred Appeal, being Criminal Appeal No.1412 of 2009, and as the Appeal was arising from the order of acquittal, the application for leave to prefer appeal has also been preferred by the State being Criminal Misc. Application No. 9201 of 2009. This Court (K.S.Jhaveri & Z.K.Saiyed,JJ) vide order dated 9.10.2009 in Criminal Misc. application No.9201 of 2009 had granted leave to prefer Appeal and thereafter on 25.11.2009 this Court had admitted the Appeal and the bailable warrant in the sum of Rs.5000/- has been issued against all the accused.
The aforesaid aspect makes it clear that the State has vigilantly pursued the matter so as to see that the offenders are booked and the victim may not suffer. The said aspect is coupled with the circumstance that this Court has granted leave to prefer appeal against the order of acquittal and the appeal against the order of acquittal has been admitted by this Court. It appears that thereafter the present proceedings, viz. leave to prefer appeal and the appeal against the order of acquittal have been preferred by the original complainant/victim.
We have heard Mr. Raval, learned Counsel, appearing for the original complainant - applicant herein and Mr. Kamal B. Trivedi, learned Advocate General with Mr. P.K. Jani, learned Public Prosecutor for the State.
In order to consider the aforesaid question, reference to certain provisions of the Code of Criminal Procedure would be relevant.
Section 372 Cr.P.C., which provides for appeal under Chapter - XXIX, reads 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 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]".
Section 378 Cr.P.C. provides for appeal in case of acquittal, which reads as under :
"378. Appeal in case of acquittal - (1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-section (3) and (5) -
(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Sessions from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.] (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, [the Central Government may, subject to the provisions of sub-section (3), also direct the Police Prosecutor to present an appeal -
(a) to the Court of Sessions, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
(b) to the High Court from an original or appellate order of an acquittal passed by any court other than a High Court (not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.] (3) [No appeal to the High Court] under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.
(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
(6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2)."
Section 24(8) Cr.P.C. would also be relevant, which reads as under :
"24(8)
- The Central government or the state Government may appoint, for the purpose of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor :
[Provided that the Court may permit the victim to engage an advocate of the choice to assist the prosecution under this sub-section]"
The pertinent aspect is the scope and ambit of proviso inserted by Act No.5 of 2009 with effect from 31.12.2009. As per Section 372 read with proviso, the first part of Section 372 provides that no appeal shall lie from any judgment and the order of criminal court except as provided by this Code or by any other law for the time being in force. Therefore, the general bar of appeal against any judgment or the order of a criminal court unless expressly provided by this Code or any other law for the time being in force is maintained. There is no amendment in the first part of Section 372. The Parliament has only added the proviso which enables the victim to prefer appeal against the order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. Therefore, the right is given by virtue of proviso to the victim concerned to prefer an appeal.
The further question may arise for consideration is that whether the victim shall have absolute right to prefer appeal or such right to prefer appeal may be available to the victim only in the case where the State has not preferred the appeal against the order of acquittal or against conviction for a lesser offence or against imposition of inadequate compensation and the next aspect may be required to be considered is that even if such right is made available to the victim by virtue of proviso, should this Court exercise the discretion of entertaining the appeal of a victim even if the State is pursuing the litigation against the order of acquittal by preferring the appeal together with the leave to prefer appeal and such leave has been granted and the appeal has been admitted of the State. The another incidental aspect which may be required to be considered is whether, by virtue of proviso to Section 372 would the victim claim a better right on a high pedestal in comparision to the right of the State to prefer appeal being dominion of a prosecution case.
It is hardly required to be stated that in the matter of commission of offence and for ensuring that the offenders are booked, the primary responsibility is of the State and it is for the State to ensure that the offenders are booked and the victims are not made to suffer. If one has committed offence he is bound to be punished, but, if one is innocent he would be entitled to the benefit thereof. The aforesaid is one of the sovereign function of the State which can neither be abdicated nor can be diluted in any welfare State. If the State is not pursuing his matter with proper spirit and zeal, the victim may validly raise grievance and also compel the State to take appropriate action for ensuring that the offenders are booked. But, such right cannot be read at the only as per the desire or will of the victim and while pursuing such right the victim can not claim a higher pedestal than that of the State whose basic duty is to ensure that the offenders are booked. In normal circumstance if the State is showing any lethargy or not pursuing the matter for ensuring that the offenders are booked the victim may legitimately make grievance and may also step into litigation by ensuring that the culprits are prosecuted and the suffering of the victim are sufficiently given solace and compensation. But, it appears that such right as may be available to the victim is not by way of taking revenge against the accused or by aggravating the situation against the accused, but, is limited to the extent of ensuring the punishment to the culprit in accordance with law. It is by now recognized principles that justice to one party should not result into injustice to the other side and it will be for the Court to balance the right of both the sides and to up-hold the law.
If the State is to prefer appeal against the order of acquittal it has to follow the procedure as laid down under Section 378 of Cr.P.C., namely, that unless the leave is granted by the High Court, such appeal would not be entertained. It is only after the application for leave is made and such leave is granted by the High Court, the appeal shall be entertained by the High Court against the order of acquittal. If the right of the State to prefer appeal against the order of acquittal is controlled by provision of Section 378 Cr.P.C., the victim who otherwise can not claim higher pedestal in the criminal prosecution, cannot be heard to say that merely because the proviso is amended in section 372, such right of preferring appeal with the victim is in-absolute and not controlled by any provision of Section 378. If such a contention is accepted, the consequence could arise of treating the status of victim in any criminal prosecution higher than that of the State which can never be the intention of the legislative body nor can be allowed to be maintained in a welfare State where the right of the victim as well as of the accused are required to be balanced and the State is dominion of the criminal prosecution. Further, if the victim is permitted to claim higher pedestal than that of the State in a criminal prosecution it may also result into giving the treatment unequally in comparison to the right of the State and such may touch to the aspects of unreasonableness or discriminatory treatment by a statute. The attempt on the part of the Court would be to see that reasonable interpretation is given so as to ensure that real purpose and the intention of the statute is maintained. The purposive interpretation of any of the provision is to be made by the courts while giving effect to any provision of the statute. The essential purpose for ensuing the amendment in Section 372 is to see that if the State does not prefer appeal against the order of acquittal the victim should not be left to the helplessness condition. The right should equally be made available to the victim to make grievance by preferring the appeal, but, such right, in our view would be available only if the State has not preferred appeal. If the State is pursuing the matter properly of a criminal prosecution and the appeal has already been preferred by the State against the order of acquittal for which the grievance is also of the victim and such appeal is entertained by grant of leave and subsequently admitted, it can be said that the grievance of the victim to that extent is taken care of. It is only at the time when the final hearing of appeal is to take place, the victim can make the submission to the appellate court against the order of acquittal by assisting the Public prosecutor as per the scheme of Section 24(8) of Cr.P.C.
Apart from the above, once the leave is granted and the appeal is admitted, the appeal results into continuous proceeding of the trial Court, therefore, after admission of the appeal, the right of the victim may stand govern by the rights as existed in trial Court. As per the provision of the Code of Criminal Procedure the right as existed to the victim in the trial Court is to assist the Public Prosecutor as per the provision of Section 24(8) of Cr.P.C. such may be available to the victim in the event the State has already preferred appeal with the leave and such leave is granted and the appeal has been admitted by this Court. However, if the right is read to the victim in-absolute, such may leave the room for permitting the victim to take revenge or may also leave room for the other circumstances of exploitation of the situation by the victim inspite of the fact that the State is already pursuing the matter properly of a criminal prosecution.
Under these circumstances, it can be concluded that if the State has not preferred appeal against the order of acquittal or if the leave is not granted and the appeal of the State is not entertained, the victim may claim right of preferring the appeal in-absolute, but such right of preferring the appeal may not be available if the appeal of the State is already admitted and the leave has been granted against the order of acquittal of the State. In any case, even if it is read for the sake of consideration that the victim has absolute right to prefer appeal then also the judicial discretion would demand that when the State has already preferred appeal against the order of acquittal and the leave has been granted by this Court and the appeal has been admitted against the order of acquittal, preferred by the State, it would not be a case to entertain the another appeal of the victim by this Court and the only observation deserves to be made is to enable the victim to assist the Public prosecutor as per the provision of Section 24(8) Cr.P.C., at the time of final hearing of the appeal and/or by making the submission before the Court with the P.P. against the order of acquittal.
In view of the aforesaid, the application for leave to prefer appeal preferred by the applicant - victim - original complainant as well as the appeal preferred against the order of acquittal is not entertained. However, it is observed that the applicant - original complainant - victim shall be at liberty to assist the P.P. at the time of final hearing of the criminal Appeal No.1412 of 2009, preferred by the State and shall also be at the liberty to make submission with the P.P. against the order of acquittal at the time of final hearing of the appeal.
Subject to the aforesaid observation and direction the present application, with appeal, is disposed of."
We find that similar view deserves to be taken in the present matter also. Hence, the following order -
The application for condonation of delay as well as appeal preferred against the order of acquittal are not entertained. However, it is observed that the applicant herein shall be at the liberty to assist the Special Public Prosecutor/Public Prosecutor at the time of final hearing of Criminal Appeal No.1203/11 preferred by the State and shall also be at the liberty to make submission with the Special Public Prosecutor/Public Prosecutor against the order of acquittal at the time of final hearing of the appeal.
Subject to the aforesaid observations and directions, the present application for condonation of delay with the appeal shall stand disposed of accordingly.
(JAYANT PATEL, J.) (PARESH UPADHYAY, J.) *bjoy Top