Victim’s Right to Appeal: A Judicial Response

This article was written by Sweta Pochiraju  a student of National Law University, Delhi

The term victim was left undefined in the Indian criminal justice system for a very long time. A very vague and general interpretation was used, until the Code of Criminal Procedure was amended in 2008. This amendment inserted a very rigid definition of victim into the criminal procedural law.

“Victim” means 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.[1]

While the amendments of 2008 are generally commended for being a step in the direction towards providing victims their due rights, courts have been known to take very strict interpretations of the definition of victim, and who can be considered a victim.

In the case of Chattar Singh v. Subhash[2] where the appellant was the father of the deceased. He was a Class-II heir under the Hindu Succession Act[3] and since he did not stand to inherit anything from the deceased, he could not be considered his legal heir. As a result, he was not a victim under Section 2 (wa) of the CrPC. However, this decision was later overruled. A Full Bench of the Delhi High Court held that the laws of inheritance should not determine the entitlement to exercise the right of the victim on his/her death.

It is contended by many judicial decisions that the term ‘victim’ should be given the widest possible amplitude to meet with different peculiar or unforeseen situations.

Section 372, CrPC

The Criminal Procedure (Amendment) Act, 2008, introduced a number of new provisions into the law. The most significant of these amendments is the right of victims to appeal under the proviso in Section 372. This recent provision has been the subject of a number of case laws in the few years since it was enacted. There are three circumstances under which the victim of a crime can file an appeal to a higher court. They are-

• Acquittal of the accused
• Conviction of the accused for a lesser offence
• Inadequacy of victim’s compensation.[4]

However, it is not the only provision which allows for a party other than the prosecution to appeal a judgement of the Trial Court. Such a provision already existed under Section 378(4) of the Code.

Section 378 (4)

This section allows for an appeal of the acquittal of the accused by the complainant. S. 378(4) states that when an accused is acquitted, the complainant may make an application to the High Court, which may then grant a special leave to the complainant to appeal.[5] Clearly, while this section allows for an appeal similar to that of Section 372, the conditions and procedure are not the same.

From the language of the sections, we may locate a few clear distinctions between the two provisions for parties to appeal a decision. They include-

• The word used in Section 372 is On the other hand, S. 378 (4) uses the word complainant.
• Section 372 lays down three conditions under which a victim can appeal- acquittal, conviction for lesser offence and inadequate compensation. Section 378(4) restricts itself to acquittal.
• Section 378(4) speaks of an application to be made to the High Court and the subsequent granting of special leave.

Victim and Complainant

The definition of a victim, given under Section 2 (wa) of the Code, has already been discussed. The term ‘complaint’ is defined under Section 2 (d) as –

Complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.[6]

The term ‘complainant’ has not been defined under the Code, but as far as it’s general meaning is concerned, it can be said that a complainant is a person who makes a complaint under Section 2(d).[7] Therefore, a complainant is not always a victim. A victim is someone who suffers loss or injury as a consequence of the crime, and he may bring about the fact of commission of a crime by submitting a complaint or first information report. But the victim be the one submit the complaint; some other person may do it on his behalf. Hence, it is not necessary that a complainant be a victim, nor that a victim be a complainant. The two terms are entirely different and are not to be conflated in any manner.

There is variance in judicial decision upon this aspect. The Gujarat High Court has held that a complainant, even if he/she is a victim, would not fall under the proviso to Section 372 since the appeal to acquittal to be filed by such a victim is contemplated under Section 378(4). But if the victim wishes to appeal compensation or conviction for a lesser offense, then the same must be done under Section 372.[8] The Andhra Pradesh High Court has held that the victim has a right to avail a remedy under either section and it is the prerogative of such victim/complainant as to which he wishes to avail.

This matter was considered in detail by the Punjab and Haryana High Court in Tata Steel Ltd. v. Atma Tube Products Ltd.[9] The decision which the court arrived at in the case was that-

372. The complainant in a complaint-case, who is also a victim, shall avail the remedy of appeal against acquittal under Section 378(4). However, where he or she does not wish to appeal acquittal but conviction for a lesser offence of the compensation, he or she may avail the remedy under Section 372.
373. The victim who is not a complainant in a private complaint case, is not entitled to appeal against acquittal under Section 372. Rather, they must appeal acquittal only under Section 378(4). This implies that the Court has chosen to interpret the proviso to Section 372 as affording the right to appeal acquittal only to those victims in police-cases.

The court also claimed that the victim in a complaint-case cannot have a remedy superior to the complainant.

Necessity of Taking Leave to Appeal

Section 378(4) mandates that leave must be taken from the High Court by the complainant, before the appeal against acquittal can be made. Clearly, this serves to encumber the process and prevent frivolous appeals by complainants in complaint-cases. In fact, no appeal in complaint cases is maintainable without special leave. Even when the appeal is not to be made by the victim or complainant, but by some State agency, leave must still be taken from the High Court.[10]

On the other hand, the proviso to Section 372 does not lay down any requirement for special leave. High Courts have varied interpretations on when leave to appeal must be taken.

The cases of Smt. Ran Kaur[11], Guru Prasad Yadav and Balasaheb Rangnath Khade[12] had held that victims must take leave from the High Court to appeal an acquittal, irrespective of their status of complainants or the nature of the case as a police-case or complaint-case.

A Full Bench of the Gujarat High Court disagreed with this in Bhavuben’s case. They laid down that if the victim happens to be a complainant and the appeal is against acquittal, then he is required to take leave under Section 378 of the Code, but if he is not the complainant then he is not required to apply for or obtain any leave.

This matter was finally taken up by the Supreme Court in Satya Pal Singh v. State of MP. The Supreme Court held that the right to question the judgement by preferring an appeal is conferred upon the victim under Section 372, but only after obtaining the leave of the High Court as under Section 378. It mandated that leave must be sought to appeal any acquittal.

Victim’s Right to Appeal Subject to State’s Right

Another question which arises is whether the rights of the victim under the recent amendments through the Criminal Procedure (Amendment) Act are accessory to those perceived to be the exclusive domain of the State, and whether the right of a victim to appeal is subordinate to that of the State.

One viewpoint on this matter, expressed in Bhikabhai[13] and Jusabhai[14] is that the State’s rights and decision is superior to the victim. Hence these cases, in their decisions, held that if the State files an appeal challenging the acquittal of the accused, then the victim’s appeal will not be entertained. However, the converse has also been held. In a case where the victim had already filed an appeal against the order of acquittal, the subsequent application by the State of appeal was denied due to the previous appeal by the victim.[15]

Another view of the Allahabad High Court is that the right of appeal given to a victim is more comprehensive and superior to that of the State. Hence, the victim should be given preference in the filing of an appeal against acquittal.[16]

The third and final view regarding the superiority of the victim or the State to appeal an acquittal is that of the Gujarat High Court. A Full Bench held that the rights of the victim and the rights of the State operate in completely different spheres. They are not to be placed in a hierarchy and neither right ousts the other. Hence, filing of an appeal by one will not rob the other of the right to appeal. These rights are not inter-dependent. For example, a State may appeal on inadequacy of sentence, while a victim may appeal for conviction of lesser offence. They are incomparable and distinct from one another.

Conclusion

The victim of a crime is one of the most ignored parties in the criminal justice system of India. The right to appeal against an acquittal was not even considered until the 41^st Law Commission Report.  Even then, such a right was exclusively granted to the State. However, the 154^th Law Commission Report attributed an entire chapter to victimology and suggested the establishment of a victim compensation scheme. Lastly came the Malimath Committee Report, which made a number of recommendations.

Finally, the change came in the form of the Criminal (Procedure) Amendment Act, 2008. This Act amended provisions of the Criminal Procedural Code and instituted a number of basic provisions. This included Section 372, the right of a victim to appeal in cases of acquittal, conviction of lesser offence and inadequate compensation.

Although the intention behind this section is noble, there are many practical problems of interpretation that the courts are facing. This ranged from the definition of a victim and the difference between a victim and a complainant, which is crucial to judge whether the concerned person had the right to appeal or not. There is also no clear decision as to whether the victim’s rights are superior to the State’s. The country is riddled with varied decisions from High Courts regarding the matter, and no clear and established law is yet in sight.

[1] Section 2 (wa), Code of Criminal Procedure, 1973.

[2] Chattar Singh v. Subhash (2011) 123 DRJ 257 (DB).

[3] Section 8, Hindu Succession Act, 1956.

[4] Section 372, Code of Criminal Procedure, 1973.

[5] Section 378(4), Code of Criminal Procedure, 1973.

[6] Section 2(d), Code of Criminal Procedure, 1973.

[7] Dhanne Singh v. State of Rajasthan, D.B Criminal Revision Petition No. 411/2012.

[8] Bhavuben Dineshbhai Makwana v. State of Gujarat, 2013 CrLJ 4225.

[9] M/s Tata Steel Ltd. v. M/s Atma Tube Products Ltd. & Ors, 2013(2) RCR (Criminal) 1005.

[10] Section 378(3), Code of Criminal Procedure, 1973.

[11] Smt. Ram Kaur @ Jaswinder Kaur v. Jagbir Singh @ Jabi, Criminal Appeal No. 205 of 2010, Punjab and Haryana High Court.

[12] Balasaheb Rangnath Khade v. State of Maharashtra, Criminal Appeal No. 992 of 2011, Bombay High Court.

[13] Bhikabhai Motibhai Chavda v. State of Gujarat, 2011(6) RCR (Crl.) 1323

[14] Jusabhai Ayubbai Miyana v. State of Gujarat, Criminal Appeal No. 45 of 2012.

[15] State of Gujarat v. Chaudhary Patabhai Devabhai, Criminal Misc. Application No. 4350 of 2011.

[16] Ajay Misra v. Rajiv Gupta, Crl. Misc. Case No. 32 of 2011