VICTIMS’ RIGHT TO APPEAL UNDER INDIAN CRIMINAL JUSTICE SYSTEM

Introduction

The word “crime” usually gave the perception of the accused in the mind of the reader.
The victim remains a forgotten person in the criminal justice system and it is the accused that remains
the most pampered baby in the criminal justice system. The question for the recognition of victims'
rights arises due to the fact that crime affects the society, victims and the accused in the like manner.
The restoration of equity between the offender and victim, as provided in Code of Hammurabi and
the Restitution Theory of Punishment highlights the role of the victims in the ancient criminal justice
system. However, the rights of the victims drew focused attention in the recent decades only.

The recognition of the rights of the victim which encompasses the study of the victim in comparison
with offender and the society gave rise to the concept of the victimology. The term “victimology” was
first used by Benjamin Mendelsohn in the year 1947 to describe the scientific study of the victims of the
crime. Despite this, it was only in the mid 1990s that the scholar focused on the victims of the crime. The
early programs such as compensation, development of victim's organisations, legislation and policy,
adoption of declaration at the international level plays an important role in shifting the attention to
the victim.

The concept of victims' rights includes right to access to justice and fair treatment, right to restitution,
right to compensation and right to assistance. Right to appeal remains an important mode to access
justice but, since the right to appeal is a statutory right, it remains the discretion of the Legislature to
provide the scope of such right. This article discusses the scope of victim's right to appeal in Indian
criminal justice system.

Victim's Right to Appeal in India

In India, the concept of victimology was formally recognised in the year 2009 and hence, the
amendments were made in the Code of Criminal Procedure, 1973. The “victim” was defined as the
“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

The right to appeal was granted to the victim under the proviso to Section 372 of the Code of Criminal
Procedure, 1973 in the wake of the 154th Report of the Law Commission of India. The victim's right
to appeal is restricted to three circumstances—appeal against any order passed by the court acquitting
the accused or convicting for a lesser offence or imposing inadequate compensation. 2 The victim does
not have a remedy against the inadequate sentence awarded to the accused. Though the State has a
right to appeal against the inadequate sentence3 under Section 377 of the Code of Criminal Procedure,
1973, the victim is at the mercy of the State Government for such remedy. Hence, it is not
comprehensive in nature and suffers from lacuna.

Though the law is clear, the victim approached the courts in appeal against inadequate sentence in the
hope to receive a remedy in such cases. However, the judiciary followed the strict interpretation of law
and dismissed such appeal. The Supreme Court was called upon to decide on the victims' right
to appeal in inadequate sentence in the case of National Commission for Women v. State of
Delhi,4 where it observed that, “the proviso may not thus be applicable, and, in any case, would confer a
right only on a victim and also does not envisage an appeal against an inadequate sentence.” Relying
upon this decision, the Supreme Court in Parvinder Kansal v. State of NCT of Delhi5 held that
the appeal filed by the victim seeking enhancement of sentence is not maintainable.

Analysis

It should be understood that in such a situation, the rights of the victims are not even equitable to that
of the State, when the victim is the aggrieved individual. Especially, when the Supreme Court
in Garikapati Veeraya v. N. Subbiah Choudhry6 held that the right to appeal is not a mere matter of
procedure but is a substantive right. The judiciary in its capacity has always focussed on the plight of the
victims, but has failed to change the reigning status quo, as it only addresses such requirements in
the obiter dictum. Thus, the authority to provide an enhanced right to appeal to victims lies on the
Legislature. As the present condition not only limits the right of the victim to obtain justice but further
reduces an individual's faith in the criminal justice system.

Hence, even if a trial court sentences 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 objective and rationale of the proviso of Section 372, for which it was 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 object of the proviso was reiterated in Rekha
Murarka v. State of W.B.7 which stated that credence should be given to the overall emphasis on
victimology underlying the 2009 amendments.

Conclusion

The Indian legislation allows the victim to file an appeal against the acquittal of the accused and
the victim also has the right to question the judgment of the court when the accused is convicted for a
lesser offence, and he/she can even challenge the inadequate quantum of compensation decided. But
then why cannot the victim file an appeal against the sentence of inadequate quantum of punishment
awarded by the trial court. There are no reasonable justifications and clarifications to verify such
deprivation of rights. Absolute powers to file an appeal against inadequate quantum of punishment
cannot exclusively lie with the State Government under Section 377 of the Code of Criminal Procedure,
1973, as it renders the victim in an abhorrently disadvantageous position. Thus, a legislative change is
required curb this inherently problematic provision which plays a significant part in the Indian criminal
justice system.
1
S. 2(wa), Code of Criminal Procedure, 1973.
2
S. 372, Code of Criminal Procedure, 1973.
3
S. 377, Code of Criminal Procedure, 1973.
4
(2010) 12 SCC 599.
5
2020 SCC OnLine SC 685.
6
AIR 1957 SC 540 : 1957 SCR 488.
7
(2020) 2 SCC 474.

When one thinks about victims of crimes certain questions arise: where is the victim located in our
criminal justice system? Is his role limited only to bring in motion the functionaries of criminal justice
system by registering an FIR or by making complaint to a Magistrate? Is he a mere spectator getting his
sufferings redressed by the State which takes upon itself the task to prosecute and punish the
accused? Prosecuting the accused is the prerogative of the State and victim is merely seen as an
informant or a prosecution witness in the criminal justice process. It is believed that the victim receives
justice through punishing the offender. The Constitution also provides for protection to the rights of the
accused which range from the right of counsel to speedy trial but the victim's plight is not addressed
anywhere. This shows the differential treatment victims had been receiving in their fight for justice. It
has been a deficiency of our criminal justice system that victims of crime do not attract due attention of
the lawmakers.

But lately it has been realised that the victims are the actual sufferers, and that they should be situated
in the system. As early as in 1979, Krishna Iyer, J. in Rattan Singh v. State of Punjab1 rightly highlighted
the neglect of victims of crime. He observed:

6. … It is a weakness of our jurisprudence that the victims of the crime, and the distress of the
dependants of the prisoner, do not attract the attention of the law. Indeed, victim reparation is still the
vanishing point of our criminal law. This is a deficiency in the system which must be rectified by the
legislature.2

The Malimath Committee on Criminal Justice Reforms3 (hereinafter referred to as “the Committee”) also
highlighted the position of neglected and marginalised victims by showing that how the system is heavily
loaded in favour of the accused and is insensitive to the victims’ plight and rights:

The victim whose rights are invaded by the accused is not accorded any right to participate except as a
witness. The system does not afford him any opportunity to assist the court such as adducing evidence
or
putting questions to the witnesses. The system is thus utterly insensitive to the rights of the victim. The
focus is all on the accused and none on the victim. The system has denied itself the benefit of this
important source.4

Accordingly, the Committee recommended for empowering the victims with the right to plead
themselves as a party, right to be represented by the counsel, right to produce independent evidence
and cross-examine witnesses with leave of the court, right to be heard in the matter of bail, right to
continue with the case if the prosecution sought withdrawal, and the right to advance arguments and to
prefer an appeal against an adverse order.5

In Para 2.21 of the Report, the Committee had categorically mentioned about the victim's right
to appeal in the following words:

2.21. The victim or his representative who is a party to the trial should have a right to prefer
an appeal against any adverse order passed by the trial court. In such an appeal he could challenge the
acquittal, or conviction for a lesser offence or inadequacy of sentence, or in regard to compensation
payable to the victim. The appellate court should have the same powers as the trial court in regard to
assessment of evidence and awarding of sentence.

Earlier the Law Commission in its 154th Report6 had also addressed the need for victim orientation in
the criminal justice administration.

These initiatives have prompted the legislature to bring changes in the Code of Criminal Procedure,
1973 (hereinafter referred to as “the Code”) to strengthen the position of the victim in the criminal
justice system.

The Code of Criminal Procedure (Amendment) Act, 2008: Attempt to locate victim in the criminal
justice system

Prior to the Amendment Act of 2008, a victim was only seen as an informant/complainant who sets the
system into motion by informing the police about the occurrence of a cognizable offence 7 or by
approaching a Magistrate with his complaint8. The victim was not given the right to seek information on
progress of the investigation and his participation in the investigation process was also dependent on
the need of the investigating agencies.9 At the stage of trial also the victim's rights were not addressed
adequately.

Even in matters of acquittal of the accused the right of appeal against the order/judgment of
acquittal was given to the State10 which was further made

Page: J-15

subject to the leave of the High Court.11 Though in a complaint case the right of appeal against the
order/judgment of acquittal is given to the complainant but the same is also made subject to special
leave from the High Court.12 And in a police case, the said right of appeal is only given to the State and
not to the complainant or the victim. However, in case the State prefers not to file an appeal, the
complainant or the victim has been provided the remedy of revision but the power of revisional court
under Section 401 of the Code was very limited as the revisional court cannot convert the order of
acquittal into the order of conviction and, therefore, the only relief which could be claimed by
the victim in revision was to order either re-trial and remand.13

Keeping in view the recommendations of the Law Commission and the Malimath Committee the
legislature has passed the Code of Criminal Procedure (Amendment) Act, 2008. The Amendment Act has
brought several changes in the Code the most significant being the definition of the word “victim” and
the victim's right of appeal.

The definition of “victim” has been provided in sub-section (wa) of Section 2 of the Code, which reads
as under:

2. (wa) “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;

With the added proviso, Section 372 of the Code 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.

Judicial response to the victim's right to appeal

The newly added proviso to Section 372 of the Code, for the first time confers the right on
the victim to appeal in criminal jurisprudence of our country. The said proviso specifies three situations
in which the victim can file an appeal and these are viz.

(1) against acquittal of the accused, or

(2) conviction of the accused for a lesser offence, or

(3) for inadequate compensation.

 Page: J-16

It is to be noted here that the said proviso does not provide for the victim's right of appeal for
enhancement of sentence which still remains the prerogative of the State under Section 377 of the
Code. Since Section 378 of the Code14 was not amended in consequence of the insertion of proviso to
Section 372 the doubt remains as to whether or not leave of the High Court would be required in case
of appeal against acquittal which can be filed in the High Court by the victim. The language of the
proviso to Section 372 supports the view that the victim can directly file an appeal against the order of
acquittal without seeking leave from the High Court. If such an interpretation is given to the said proviso
it may lead to the following difficulties in the application of the same:

First, the said proviso does not provide for the period of limitation in cases where the victim prefers
an appeal under the proviso for the categories of cases mentioned therein.

Secondly, there is no corresponding provision as contemplated under Section 390 of the Code 15 for
the appeals preferred under the proviso to Section 372 and therefore even if the High Court entertains
such an appeal filed by the victim, the Court would not have the benefit of directing action being taken
under Section 390 as Section 390 is applicable only to appeals filed under Section 378.

Thirdly, if such an interpretation is preferred, it may also invite inconsistency among the procedure
provided for the three streams of appeal i.e. by the State, by the complainant and by the victim.

Fourth, where the victim is also the complainant there is lack of clarity as to whether he needs to
apply for special leave under Section 378(4) or he can directly file an appeal under the proviso to Section
372 of the Code as a victim.

Fifth, it is not clear whether the victim has an absolute right to prefer appeal or such right to
prefer appeal would be available to him only in the case where the State has not preferred the appeal.

Sixth, whether a victim can prefer an appeal in cases where leave to appeal is already rejected by the
High Court to the State?

These issues gained considerable attention from the various High Courts.

On the one hand the Gujarat High Court, the Patna High Court and the Punjab and Haryana High
Court took the stand that the victim's right to appeal under Section 372 is governed by the requirement
of leave for appeal under Section 378 of the Code. On the other side the Bombay High Court,

Page: J-17
the Delhi High Court, the Gauhati High Court and the Calcutta High Court are of the view that the
requirement of leave under Section 378 does not apply on the victim's right of appeal preferred under
Section 372 of the Code. In the process of determining the nature of victim's right of appeal the High
Courts have also considered various incidental issues relating thereto. For the better understanding of
the approaches of different High Courts a brief analysis of cases has been made hereinafter.

In Bhikhabhai Motibhai Chavda v. State of Gujarat16 the complainant/victim preferred

an appeal against the order of acquittal in spite of the fact that the State has already preferred
an appeal against the order of acquittal in which the leave has been granted by the High Court and
the appeal was admitted. The Bench held that the victim's right of appeal is neither absolute nor higher
than that of the State and only if the State is not pursuing the matter with a proper spirit the victim may
validly raise a grievance and file an appeal. The Bench reasoned thus:

12. … If the right of the State to prefer appeal against the order of acquittal is controlled by provision of
Section 378 of the Code, the victim who otherwise cannot 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 inabsolute 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. 17

(emphasis supplied)

The Bench concluded thus:

12. … The essential purpose for bringing 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.18

It is pertinent to note here that the victim's right of appeal under the proviso to Section 372 is an
independent and substantive right which can be exercised by the victim at any point immediately after
the judgment/order of acquittal is passed. Subjecting it to the prerogative of the State to
prefer appeal under Section 378 would not only run counter to the object behind

Page: J-18
creating such a right in favour of the victim but such finding is also against the plain language of the
Code. Therefore, the finding of the Division Bench does not get support from the legislative intent
embodied in the Code.19

In Guru Prasad Yadav v. State of Bihar20 the Division Bench of Patna High Court rejected the
maintainability of the appeal filed by the victim without any application for grant of leave. The Bench
observed that:

… By the proviso, a right to file an appeal has been conferred upon the victim against the order of
acquittal, but the procedure for filing such appeal will be the same as provided under Section 378 of the
Code. Therefore, even if the victim has a right to prefer an appeal against the order of acquittal, he has
to seek leave of the High Court to prefer such an appeal … In my opinion, the appeal is not maintainable
without any application for grant of leave.21

A similar view was taken by the Punjab and Haryana High Court in Ram Kauri v. Jagbir Singh22. In that
case the issue was whether the complainant, who was a near relative of the deceased, is a “victim”
within the meaning of Section 2(wa) of the Code or not. After examining the definition of “victim” as
given in the Code the Court reached the conclusion that the complainant in this case, though a near
relative of the deceased, does not fall in the category of guardian or legal heir as provided in Section
2(wa) of the Code and therefore not the “victim” who can prefer an appeal under Section 372 of the
Code against the order/judgment of acquittal passed by the Court of Session. The Court added a new
dimension and observed that:

By the proviso, a right to file an appeal has been conferred on the victim against the order of acquittal,
but the procedure for filing such appeal will be the same as provided under Section 378 of the Code.
Therefore, even if the victim has a right to prefer an appeal against the order of acquittal, he has to seek
the leave of the High Court to prefer such appeal. He cannot directly file the appeal against the order of
acquittal as a first appeal.23

These High Courts have looked into the matter from technical point of view and, therefore, they
reached at common opinion that though the proviso to Section 372 of the Code has conferred a
substantive right to appeal on the victim the procedure to exercise such a right is the same as applicable
for the other two streams of appeal (by the State and the complainant) i.e. only with the leave of the
High Court under Section 378 of the Code.

This issue was extensively addressed by the Division Bench of the Bombay High Court in Balasaheb
Rangnath Khade v. State of

Page: J-19

Maharashtra24 where the Judges differed in their opinion. The Bench elaborately discussed the
principles of statutory interpretation and also highlighted the philosophy behind creating the said right
of appeal in favour of victims. On one hand, Kanade, J. rejected the argument that the victim's right
of appeal is further fettered by the procedural requirement of Section 378 and stated that:

… It is apparent that the proviso which is an insertion to the main Section 372 was to create a
substantive right of appeal in favour of the victim in three categories of cases and, secondly, to also
create an exception to the general rule which is enunciated in Section 372 which states that
no appeal shall be filed except as laid down in the said Chapter under the Code. It is apparent, therefore,
that by virtue of the proviso, procedure as laid down in Section 378 is not required to be followed in
respect of an appeal against acquittal by a victim. If the legislature wanted that the rights of
the victim to file appeals in these three cases should be circumscribed by further fetter or procedural
provision, it could have made a consequential amendment in Section 378. 25

On the other hand, Thipsay, J. opined that even a victim would be required to obtain the leave of the
High Court in the same way as has been contemplated under sub-section (4) of Section 378 of the Code.
Thipsay, J. brought into notice some anomalies which would follow if the victim's right of appeal is
treated absolute in nature. He reasoned thus:

If the interpretation that the victim need not obtain any leave from the High Court for filing
an appeal against acquittal is accepted, it would lead to absurdity inasmuch as if the complainant files
an appeal as “the complainant”, he would be required to obtain such leave but the complainant, if he
describes himself as a “victim”, can straightaway avoid the scrutiny which is expected to be done by the
High Court at the initial stage. This would be plainly anomalous and unreasonable. 26

Similarly if the State prefers an appeal against acquittal in the High Court and seeks leave, but the High
Court, on considering the merits of the matter refuses such leave. If the view that the
victim's appeal would not require the leave of the High Court is to be accepted, it would mean that
the victim can even thereafter file an appeal, which will have to be entertained even though previously
leave had been refused to the State to file such an appeal.27

As both the Judges disagreed the matter was placed before a third Judge and thereby Roshan Dalvi, J.
had the final say in the matter.28 After referring to the laws existing in various jurisdictions dealing with
the rights of the victim and also meticulously analysing the provisions of the Code Dalvi, J. reached at a
conclusion that the victim's right of appeal under the proviso to

Page: J-20

Section 372 is absolute and unfettered. Declaring that the victim's right of appeal is part of his human
right Dalvi, J. stated that:

The right of the victim to speak corresponds with the obligation of the Court to listen and that listening
is a must for the right to be free, full and unfettered; it cannot be shackled upon leave granted by the
Court, the hearing of which the Court is obligated to listen. Requiring the victim to obtain leave would
mean that it is trammelled by what the Court deems fit to do. The Court in the case of the victim has no
right to use its discretion, sagacity or wisdom to decide whether or not a given victim may appeal a
judgment of acquittal, lesser offence or inadequate compensation. The Court would be duty-bound to
hear the appeal on merits and allow it or dismiss it on merits. To grant the Court the right to give leave
would be to denude the only right of the victim granted to him or her in Indian criminal jurisprudence.29

(emphasis added)

Treating the victim's right of appeal on a par with that of an accused, Dalvi, J. found that the newly
added proviso created a balance between the rights of a victim and an accused as to appeal and
observed that:

The victim's rights are considered alongside and on a par with that of the accused. Whereas the accused
appeals from an order of conviction, the victim appeals from an order of acquittal, lesser offence or
inadequate compensation. Since the right of the accused to appeal is absolute (though denoted by the
word “may”) so has been made the right of the victim (in fact, denoted by the word “shall”). Both would
be equally prejudiced from an order of acquittal or an order of conviction as the case may be. Both are
the parties who have been harmed or prejudiced by the order of the trial court. They prosecute their
personal rights as human beings. Theirs are, therefore, human rights which are to be considered. The
power balancing which is required to be done by the State has been done albeit at only the appellate
stage. Consequently a victim of crime is not left to the arbitrariness or the vagaries of the State officials
and not left to accept any verdict in which he/she does not play an effective part for its final
determination at least in the appeal.30

Dalvi, J. made a distinction between a victim in a private complaint and the victim who is the first
informant and opined that the expression “victim” as defined in Section 2(wa) only covers a person who
is the first informant in a police case and not the complainant in a private complaint. 31 Reading the
definition of the expression “victim” together with the proviso to Section 372, Justice Dalvi reached at
the conclusion that a private complainant even though being the victim of an offence cannot take
recourse to the proviso to Section 372. It was reasoned thus:

A complainant in a private complaint, even if he/she has been the victim of the offence, would not fall
under the said proviso as a victim since the appeal to be filed by him has been separately contemplated
under the specific provision being Section 378(4). Hence though describing him as a

Page: J-21

victim, which inclusive definition came to be incorporated in the Code only alongside the incorporation
of the proviso to Section 372, it would apply only to those who fall within the proviso. The complainant
in a private complaint would not be able to avoid the scrutiny of the Court for being granted the leave
contemplated in Section 378(4) which provision stands.32
 Recently, a Full Bench of the Gujarat High Court in Bhavuben Dineshbhai Makwana v. State of
Gujarat33 has also pointed out that in cases where the victim also happens to be the complainant he is
required to file an application for special leave under sub-section (4) of Section 378 of the Code. 34

The observation made by the Division Bench of the Delhi High Court in Jagmohan Bhola v. Dilbagh
Rai Bhola35 is also worth mentioning. In this case an appeal was preferred by the brother of the
deceased against the order of acquittal of the accused. The Bench expressed its disagreement with the
views of the Punjab and Haryana High Court in Ram Kaur case36 and the Gujarat High Court
in Bhikhabhai case37.

The incidental issue of non-availability of action under Section 390 of the Code for appeals preferred
under the proviso to Section 372 was also adverted to in Balasaheb case38. Dalvi, J. agreed with the view
taken by Kanade, J. that the newly added Section 437-A39 would fill the procedural lacuna so created by
the proviso to Section 372 of the Code. In order to ensure that a person who is acquitted does not
abscond or his presence is properly secured Section 437-A confers an obligation on the Court passing
the order of acquittal to direct the person to execute a bond with sureties which would continue for a
period of six months. Therefore, if a victim

Page: J-22

prefers an appeal the appellate court can, thereafter, impose fresh conditions on the acquitted
accused.40

Recently this issue has again come before another Division Bench of the Bombay High Court
in Praneeta Prakash Navage v. State of Maharashtra41. One of the issues before the Bench was whether
an action under Section 390 of the Code can be initiated against the accused in an appeal so preferred
by the victim under the proviso to Section 372.

The Bench found that the power to issue a warrant is vested in the High Court under Section 390 only
when an appeal is presented under Section 378. As per the law laid down in Balasaheb
case42 the appeal preferred by the victim will not be governed by Section 378 of the Code and thus the
power under Section 390 cannot be invoked by the High Court in an appeal under the proviso to Section
372.43 The Bench has also observed that the power so conferred by Section 437-A of the Code can only
be exercised before passing an order of acquittal either in the trial or in the appeal. Therefore, the High
Court after admitting the appeal under the proviso to Section 372 of the Code cannot take recourse to
Section 437-A and direct the respondent-accused to execute the bail bond. 44

Consequently the Bench has read the source of such power to order arrest and detention of the
accused in Section 482 of the Code and stated that:

… In case of an appeal against acquittal governed by the proviso to Section 372 of the Code, the power
to order arrest and detention of the accused in prison pending the final disposal of the appeal or
directing his enlargement on bail, will have to be read as a power ancillary to and necessary for effective
exercise of the power of appeal under the proviso to Section 372 of the Code. But for the existence of
such an ancillary power, the right conferred by the legislature on the victim to prefer an appeal against
acquittal will become ineffective and redundant … Thus, in absence of applicability of Section 390, the
exercise of the said power will be under Section 482 of the Code.45

The Court also suggested that in case of all three categories of appeals under the proviso to Section
372, there is always a power conferred on the High Court under Chapter VI of the Code to issue process
for compelling the appearance of the accused before the Court.46

It is submitted that the procedure provided under Section 437-A is sufficient enough to ensure the
presence of the accused before the higher

Page: J-23

court provided the same is followed strictly by the acquitting court. In case the appeal is filed before the
High Court against the judgment of the acquitting court, the High Court will adopt the procedure under
Section 437-A and will issue notice to the accused for his appearance before the same. Therefore, the
procedural lacuna created by the proviso to Section 372 is well addressed by Section 437-A of the Code.

So far as the question of period of limitation to prefer an appeal by the victim is concerned, the same
was considered by the Delhi High Court in Kareemul Hajazi v. State of NCT of Delhi47. It was brought to
the notice of the Court that while specific periods of limitation have been prescribed for the earlier
three kinds of appeals either in the Code itself or by virtue of the Limitation Act, 1963, there is no period
of limitation prescribed for the filing of an appeal by a victim under the proviso to Section 372.48

The Court observed that if no period of limitation is prescribed by the statute a reasonable period is
required to be ascertained by the Court. Consequently, the Bench stated that the period of limitation
which would be appropriate in the case of appeals filed by the victim would be the same period which is
prescribed for appeals by convicts against conviction or by complainant against acquittal i.e. 60 days.
The Bench reasoned thus:

… The period of limitation, which has been prescribed for public servants and/or the State Government
and the Central Government is greater than the period of limitation, which has been prescribed in
respect of convicts and complainants. Therefore, since the victim is in a similar position to that of a
complainant and is a private individual, a lesser period of limitation than that provided to the State
Government/Central Government ought to be considered as reasonable. Therefore, the reasonable
period of limitation for a victim's appeal should be 60 days from the date of the order appealed from.49

But Chavan, J. of the Bombay High Court in Roma Sukhajitsingh Saini v. Nirmalsingh
Habhansingh50 did not subscribe to the above view of the Delhi High Court. It was argued before the
Court that an absence of limitation would result in appeals being filed by the victims even long after the
judgments of acquittals are rendered and would keep the accused person in uncertainty. But Chavan, J.
reasoned that since the legislature has chosen not to impose any limitation on the victims for exercise of
their right of appeal under the proviso to Section 372, it would not be permissible for the court to
impose any limitation when none exists.51 To substantiate the

Page: J-24

conclusion Chavan, J. has further added that a victim who is not a party to the proceedings may not
come to know about the delivery of judgment in his/her case and therefore, may be for good reasons,
no period of limitation has been prescribed for exercise of such right by the victims. 52

On a comparison of the views of the Delhi High Court53 and the Bombay High Court54 regarding the
period of limitation for appeals preferred by the victims, the view taken by the Delhi High Court appears
to be more reasonable and justified. Keeping the accused waiting in eternity with the apprehension that
the appeal against his acquittal may be preferred by the victim is more terrifying than conviction.
Therefore, the Delhi High Court view seems preferable.

Conclusion

By making the amendments to the Code the legislature has attempted to give due recognition to the
rights of the victim in the criminal justice system. The right of appeal was brought with an idea to ensure
that the victim would not go without remedy even if the State fails to perform its duty. But when the
said right of appeal of the victim came for application the provision led to disparate interpretation. The
judicial pronouncements have shown that the proviso to Section 372 was added without much
deliberation and reflects a clear example of non-application of mind on the part of the lawmakers.
Nevertheless, some High Courts have gone into the philosophy behind introducing such right in favour
of the victim and declared the proviso to Section 372 complete in itself. Other High Courts got engaged
into the technicalities of statutory interpretation and read the proviso to Section 372 subordinate to
Section 378 of the Code. At this juncture it is pertinent to note that the judiciary has been filling the gaps
left open in the legislation. Hence, in case of the victim's right of appeal also the judiciary is expected to
work in the direction of achieving the object behind creating such a right in favour of the victim by
harmoniously construing the provisions of the Code.

———
†
An earlier version of this article is published in Madras Law Journal (2013) 1 MLJ J-19.
*
Research Fellow, National Judicial Academy, Bhopal. The author may be reached at
<[email protected]>. The views expressed in this article are to be attributed to the author
solely—including any errors. The author wishes to thank Prof. (Dr) K.N.C. Pillai for his interest in and
discussion on the subject of this article.
1
(1979) 4 SCC 719 : 1980 SCC (Cri) 17.
2
Ibid, 721, para 6.
3
Government of India, “Report: Committee on Reforms of Criminal Justice System” (Ministry of Home
Affairs, 2003) <http://mha.nic.in/pdfs/criminal_justice_system.pdf>.
4
Ibid, para 1.36.
5
Government of India, Report: Committee on Draft National Policy on Criminal Justice (Ministry of Home
Affairs, 2007) 13 <http://mha.nic.in/pdfs/DraftPolicyPaperAug.pdf>.
6
See Law Commission of India, 154th Report on the Code of Criminal Procedure, 1973, Vol. I, Chapter XV
(1996).
7
Section 156(3) of the Code.
8
Section 190 of the Code.
9
But see Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985 SCC (Cri) 267. In case of closure
report the informant was asked to be communicated.
10
Sections 378(1) & (2) of the Code.
11
Section 378(3) of the Code.
12
Section 378(4) of the Code.
13
Section 401(3) of the Code.
14
Section 378 provides for appeals by the State and the complainant in cases of acquittal.
15
Section 390 provides for procedure of arrest of the accused in cases of appeal from acquittal. It says:

390. Arrest of accused in appeal from acquittal.—When an appeal is presented under Section 378, the
High Court may issue a warrant directing that the accused be arrested and brought before it or any
subordinate court, and the court before which he is brought may commit him to prison pending the
disposal of the appeal or admit him to bail.
16
2010 Cri LJ 3325 (Guj).
17
Ibid, 3328, para 12.
18
Ibid, 3328-29, para 12.
19
Recently a Full Bench of the Gujarat High Court in Bhavuben Dineshbhai Makwana v. State of Gujarat,
Criminal Appeal No. 238 of 2012, decided on 23-10-2012 (Guj) reversed the findings of the Division
Bench in Bhikhabhai case, 2010 Cri LJ 3325 (Guj). The Full Bench opined that the right of a victim to
prefer an appeal is a separate and independent statutory right and is not dependent either upon or is
subservient to right of appeal of the State.
20
Criminal Appeal No. 582 of 2011, decided on 2-8-2011 (Pat).
21
Ibid, 4.
22
(2010) 3 RCR (Cri) 391.
23
Ibid, para 14.
24
Criminal Appeal No. 991 of 2011, decided on 21-9-2011 (Bom).
25
Ibid, para 20.
26
Ibid, para 48.
27
Ibid, para 49.
28
Balasaheb Rangnath Khade v. State of Maharashtra, 2012 Bom CR (Cri) 632.
29
Ibid, para 51.
30
Ibid, para 60.
31
Ibid, paras 48, 49 and 50.
32
Ibid, para 56.
33
Criminal Appeal No. 238 of 2012, decided on 23-10-2012 (Guj).
34
Ibid, paras 27.1 and 34.1.1.
35
(2011) 2 JCC 777 [Criminal Appeal No. 793 of 2010, decided on 24-1-2011 (Del)].
36
See (2010) 3 RCR (Cri) 391.
37
See 2010 Cri LJ 3325 (Guj). The Gauhati High Court also disagreed with the Punjab and Haryana High
Court in L. Premlata Sharma v. State of Tripura, Criminal Appeal No. 23 of 2011, decided on 6-6-2012
(Gau).
38
See 2012 Bom CR (Cri) 632.
39
Section 437-A provides:

437-A. Bail to require accused to appear before next appellate court.—(1) Before conclusion of the trial
and before disposal of the appeal, the court trying the offence of the appellate court, as the case may
be, shall require the accused to execute bail bonds with sureties, to appear before the higher court as
and when such court issues notice in respect of any appeal or petition filed against the judgment of the
respective court and such bail bonds shall be in force for six months.
(2) If such accused fails to appear, the bond stand forfeited and the procedure under Section 446 shall
apply.
40
Balasaheb Rangnath Khade, at para 57. See also, Balasaheb Rangnath Khade, Criminal Appeal No. 991
of 211, decided on 21-9-2011 (Bom).
41
Criminal Application No. 1129 of 2012 in Criminal Appeal No. 1548 of 2011, decided on 1-8-2012
(Bom).
42
2012 Bom CR (Cri) 632.
43
Ibid, para 5.
44
Ibid, para 16.
45
Ibid, para 11.
46
Ibid, para 15.
47
(2011) 1 JCC 500. [Criminal Misc. Appeal No. 13541 of 2010, decided on 7-1-2011 (Del)]. The Full
Bench of the Gujarat High Court in Bhavuben, Criminal Appeal No. 238 of 2012, decided on 23-10-2012
suggested for a period of 90 days as the reasonable period of limitation being the longest period of
limitation for filing an appeal against the order of acquittal provided by the legislature in the Limitation
Act.
48
Ibid, para 11.
49
Ibid, para 12.
50
Criminal Appeal of 2010 (Stamp No. 978 of 2010), decided on 4-8-2011 (Bom).
51
Ibid, para 4.
52
Ibid, para 4.
53
See Kareemul Hajazi, Criminal Misc. Appeal No. 13541 of 2010, decided on 7-1-2011 (Del).
54
See Roma Sukhajitsingh Saini, Criminal Appeal of 2010 (Stamp No. 978 of 2010), decided on 4-8-2011
(Bom).
Section 372 CrPC - Victim's Right To Prefer Appeal
Against Acquittal Absolute, Not Necessary To Obtain
Special Leave: Supreme Court
Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752, the court observed:
10.1 It cannot be disputed that now after the amendment in Section 372 Cr.P.C. after
2009 and insertion of proviso to Section 372 Cr.P.C., a victim has a statutory right of
appeal against the order of acquittal. Therefore, no revision shall be entertained at
the instance of the victim against the order of acquittal in a case where no appeal is
preferred and the victim is to be relegated to file an appeal. Even the same would be
in the interest of the victim himself/herself as while exercising the revisional
jurisdiction, the scope would be very limited, however, while exercising the appellate
jurisdiction, the appellate Court would have a wider jurisdiction than the revisional
jurisdiction. Similarly, in a case where an order of acquittal is passed in any case
instituted upon complaint, the complainant (other than victim) can prefer an appeal
against the order of acquittal as provided under sub-section (4) of Section 378
Cr.P.C., subject to the grant of special leave to appeal by the High Court. As observed
by this Court in the case of Mallikarjun Kodagali (supra), so far as the victim is
concerned, the victim has not to pray for grant of special leave to appeal, as the
victim has a statutory right of appeal under Section 372 proviso and the proviso to
Section 372 does not stipulate any condition of obtaining special leave to appeal like
subsection (4) of Section 378 Cr.P.C. in the case of a complainant and in a case
where an order of acquittal is passed in any case instituted upon complaint. The right
provided to the victim to prefer an appeal against the order of acquittal is an
absolute right. Therefore, so far as issue no.2 is concerned, namely, in a case where
the victim and/or the complainant, as the case may be, has not preferred and/or
availed the remedy of appeal against the order of acquittal as provided under Section
372 Cr.P.C. or Section 378(4), as the case may be, the revision application against
the order of acquittal at the instance of the victim or the complainant, as the case may
be, shall not be entertained and the victim or the complainant, as the case may be,
shall be relegated to prefer the appeal as provided under Section 372 or Section
378(4), as the case may be.
"However, considering the fact that even otherwise being victims they are having the
statutory right of appeal as per proviso to Section 372 Cr.P.C., we deem it fit and
proper to remit the matter to the High Court to treat the revision applications as
petition of appeals under Section 372 Cr.P.C. and to decide the same in accordance
with law and on their own merits. The same would be in the interests of all, namely,
the victims as well as the accused, as the appellate Court would have a wider scope
and jurisdiction as an appellate Court, rather than the revisional court", the court said
while allowing the appeal.
Mallikarjun Kodagali Judgment
In Mallikarjun Kodagali, a three judge bench of the Supreme Court (2:1) had held that
a victim can file an appeal in the High Court against the acquittal without seeking
leave to appeal. The majority judgment authored by Justice Madan B. Lokur (Justice
S. Abdul Nazeer concurring) concluded: "On the basis of the plain language of the
law and also as interpreted by several High Courts and in addition the resolution of
the General Assembly of the United Nations, it is quite clear to us that a victim as
defined in Section 2(wa) of the Cr.P.C. would be entitled to file an appeal before the
Court to which an appeal ordinarily lies against the order of conviction."

I. INTRODUCTION

Victims of crime play an important role in criminal justice administration both as a complainant and as a
witness for the police or prosecution. Although the system is profoundly dependent on the victim, our
present criminal justice system is more concerned with the offender, his activities, his rights and
correctional needs. The right of the accused or the convict is safeguarded by the constitution as well as
various statutory provisions. But the victim who put the law in motion is usually the forgotten people in
the criminal justice delivery system. His participation remains at the periphery of the criminal justice
system as the initiator of the prosecution and as witness if the prosecution desires. He is neither
participant in the proceeding launched against the offender nor a guiding element in any stage of
prosecution. There has been gross neglect of the victims need and interest. In addition he is made to
suffer not only in the hand of accused and their associates but at the hand of prosecution agencies.

But lately it has been realized that the victims are the actual sufferers, and they should be situated in the
system. As early as in 1979, Justice Krishna Iyer in Rattan singh v. State of Punjab1 highlighted the need
of victims of crime. He observed: “…..it a weakness of our jurisprudence that the victims of crime, and
distress of the dependent of the prisoner, do not attract the attention of the law. Indeed, victim
reparation is still the vanishing point of our criminal law. This is a deficiency in the system which must be
rectified by the Legislature.”

The Malimath Committee on Criminal Justice Reforms recommended for empowering the victims with
the right to plead themselves as a party, right to be represented by counsel, right to produce
independent evidence and cross examine witnesses with the leave of court, right to be in heard the
matter of bail, right to continue with the case if the prosecution sought withdrawal, and right to advance
argument and prefer an appeal against an adverse order.2

The Malimath Committee has categorically mentioned about victim’s right to appeal in the

following words:

“The victim or his representatives who is a party to the trial should have a right to
prefer an appeal against any adverse order passed by the trial court. In such an appeal he

could challenge the acquittal, or conviction for a lesser offence or inadequacy of sentence, or

in regard to compensation payable to the victim. The appellate court should have the same

powers as the trial court in regard to assessment of evidence and awarding of sentence.”3

Earlier Law Commission in its 154th Report4

had also addressed need for victim orientation in

the criminal justice administration.

II. NEED AND SIGNIFICANCE OF THE STUDY

(1979) 4 SCC 719

Government of India, Report: Committee on Reforms of Criminal Justice System (Ministry of Home

Affairs,2003) available at: http//mha.nic.in/pdf/criminal_justice_system.pdf

Id.at para 2.21

See Law Commission of India, 154th Report on the Code of Criminal Procedure, 1973, Vol.1,Chptr XV
(1996)

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Prior to the amendment Act of 2008, Victim was only seen as an informant/complainant who

set the system in motion by informing police about the occurrence of a cognizable offence or

by approaching a magistrate with his complaint. The victim was not given the right to seek

information on progress of the investigation and his participation in the investigation process
was also dependent on the need of the investigating agencies. At the stage of trial also

victim’s rights were not addressed adequately. Even in matters of acquittal of the accused the

right of appeal against the order/ judgement of acquittal were given to the state which was

further made subject to the leave of the High Court. Though in a complaint case the right of

appeal against the order/ judgement of acquittal is given to the complainant but the same is

also made subject to the special leave from the High Court. And in a police case, the said

right of appeal is given only to the state and not to the complainant. The amendment act has

brought to several changes in the code the most significant being the definition of ‘victim’

and ‘victim’s right to appeal.’ But this amendment has created some technical difficulties

which has gained considerable attention from the various High Courts. It is utmost necessary

to know the stand of various High Courts in different issues. With this eminence the present

study has been considered as significant one.

II. OBJECTIVES

The objectives of the study are as follows1. To study the changes brought by the Amendment Act of
2008 with regard to victim

right to appeal.

2. To study the difficulties which has arisen after the amendment.

3. To discuss the decision of various High Courts in relation to victims right to appeal.

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IV. RESEARCH METHODOLOGY

Researcher has used doctrinal method in this research. The status of victim in indian

criminal justice system have been studied from various books and journals. The

recommendation of law commission in relation to victim has been studied from the Report of

Law Commission of India. The legislative framework relating to victim has been studied
from different books. The Judicial response relating to victim punishment has been studied

from Judgments of the concerned High Courts and various commentaries on the Judgments.

V. CODE OF CRIMINAL PROCEDURE (AMENDMENT) ACT, 2008

Keeping in view the recommendation of Law Commission and the Malimath Committee the

Legislature has passed the Code of Criminal Procedure Amendment Act 2008.

The amendment act has made several changes in the code the most significant being the

definition of the word ‘victim’ and victim’s right to appeal.

Section 2 (wa) of the of the code defined victim as under:

“Victims 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 legal heir.”

With the added proviso, Section 372 of the code reads as under –

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.

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VI. JUDICIAL RESPONSE TO VICTIMS RIGHT TO APPEAL

The newly added proviso to Secion 372 of the Code, for the first time confers the

right on the victim to appeal in criminal jurisprudence of our country. It is to be noted that the

said proviso does not provide for Victims right of appeal for enhancement of sentence which
still remains the prerogative of the state under Section 377 of the code. Since Section 378 of

the code5was not amended in consequence of the insertion of proviso to Section 372 the

doubt remains as to whether or not leave of the High Court would be required in case of

appeal against acquittal which can be filed in the High Court by the Victim. The language of

the proviso to Section 372 supports the view that the victim can directly file an appeal against

the order of acquittal without seeking leave from the High Court. If such an interpretation is

given to the said proviso it may lead to the following difficulties application of the same:

Firstly it is not clear whether the victim has an absolute right to prefer an appeal or such right

to prefer appeal would be available to him only in the case where the state has not prefers the

appeal.

Secondly Whether 'complainant' in a private complaint-case, who is also the 'victim' and the

'victim' other than the 'complainant' in such cases are entitled to present appeal against the

order of acquittal under proviso to Section 372 or have to seek 'special leave' to appeal from

the High Court under Section 378(4) CrPC?

Thirdly, Where would the appeal of a 'victim' preferred under proviso to Section 372 lie when

the State also prefers appeal against that order of acquittal under Clause(a) of Section 378(1)

CrPC?

Fourthly, the said proviso does not provide for the period of limitation in cases where the

victim prefer an appeal under the proviso for the categories of cases mentioned therein.

Fifthly, there is no corresponding provision as contemplated under section 390 of the Code6

for the appeal preferred under the proviso to section 372 and therefore even if the High Court

Section 378 provides for appeals by the state and the complainant in case of acquittal.

6
Section 390 provides for procedure of arrest of the accused in cases of appeal from acquittal. It says
“When

an appeal is presented under section 378, the High Court may issue a warrant directing that the accused
be

arrested and brought before which he is brought before it or any subordinate court, and the court
before

which he is brought commit him to prison pendig the disposal of the appeal or admit him to bail”

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entertain such appeal filed by the victim, the court would not have benefit of action being

taken under section 390 as section 390 is applicable only to appeal filed under section 378.

A brief analysis of the cases decided by different High Court in relation to the

abovementioned issues are discussed hereinafter.

With regard to the first issue In Bhikabhai Motibhai Chavda v State of Gujarat7

the

complainant/ victim preferred an appeal against the order of acquittal in spite of the fact that

the state has already preferred an appeal against the order of acquittal in which the leave has

been granted by high court and the appeal was admitted. The bench held that the victim’s

right of appeal is neither absolute nor higher than that of the state and only if the state is not

pursuing the matter with a proper spirit the victim may validly raise a grievance and file an

appeal.

A full bench of Gujarat High Court in the case of Bhavuben Dineshbhai Makwana v

State of Gujarat & others8

reversed the finding of the Division Bench in Bhikabhai case. The

Full Bench opined that the right of victim to prefer an appeal is a separate and independent

statutory right and is not dependent either upon or is subservient to right to appeal of the
state. The court held that the rights of the 'victim' and the State operate in different spheres

and neither ousts the other, therefore, filing of appeal by the one will not rob the other of its

right to appeal

A similar view was taken by the Punjab and Haryana High Court in the case of M/s.

Tata Steel Ltdv M/s. Atma Tube Products Ltd. &Ors. 9

and held that the right conferred on a

'victim' to present appeal under proviso toSection 372 is a substantive and independent right

which is neither inferior to nor contingent upon the filing of appeal by the State in that case.

In relation to the second issue in the case of Smt. Ram Kaur @ Jaswinderkaur v

Jagbir Singh alias Jabi10the court added a new dimension and observed that :

“By the proviso, a right to file an appeal has been conferred on the victim against the

order of acquittal, but the procedure for filling such appeal will be the same as provided

2010 CriLJ 3325 (Decided on 10.05.2010)

Criminal Appeal No.238 of 2012 decided on 2012

CRM-790-MA-2010 (O&M)Date of Decision: March 18, 2013

102010 (3) RCR (Cri) 391. (Criminal appeal No.205 of 2010,decided on 01.04.2010)

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under sec.378 of the Code. Therefore, even if the victim has a right to prefer an appeal

against the order of acquittal, he has to seek leave of the high court to prefer such an
appeal.He can not directly file the appeal against the order of acquittal as a first appeal”11

A similar view was taken by Patna High Court in the case of Guru Prasad Yadav v

State of Bihar12 and rejected the maintainability of the appeal filed by the victim without any

application for grant of leave.

This issue was extensively addressed by the Division Bench of the Bombay High

Court in the case of Balasaheb Rangnath Khade v. State of Maharashtra13 where the judges

differed in their opinion.On one hand, Justice Kanade rejected the argument that the victim’s

right of appeal is further fettered by the procedural requirement of section 378.On the other

hand, Justice Thipsy opined that even a victim would be required to obtain the leave of the

High Court in the same way as has been contemplated under sub-section (4) of section 378 of

the Code. As both the judges disagree the matter was placed before a third judge and thereby

Justice Roshan Dalvi has final say in this matter.14 After referring to the existing laws in

various jurisdictions Justice dalvi stated that

“The right of the victim to speak corresponds with the obligation of the court to listen

and that listening is a must for the right to be free, full and unfettered; it cannot be shackled

upon leave granted by the court, the hearing of which the court is obligated to listen.

Requiring the victim to obtain leave would mean that it is trammeled by what the court deems

fit to do.”15

In Bhavuben Dinesh Bhai Makwana vs. State of Gujarat and 9 others16.The Full

Bench also disagreed with the view taken by this Court in Smt. Ram Kaur's17 case; the Patna

11Id at para 14.

12Criminal Appeal (DB) No 582 of 2011(Decided on 02.08.2011)

13Criminal Appeal No. 991 of 2011(Decided on 21.09.2011)

14 2012 BomCR(Cri)632(Decided on 27.04.2012)

15 Id at para 51

16Criminal Appeals No. 238 of 2012 and 608 of 2012

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High Court in Guru Prasad Yadav vs. State of Bihar18; and the Bombay High Court in

Balasaheb Rangnath Khade's19 case, and held that:-

"If the victim also happens to be complainant and the appeal is against acquittal, he is

required to take leave as provided in Section 378 of the Criminal Procedure Code but if he is

not the complainant, he is not required to apply for or obtain any leave. For the appeal against

inadequacy of compensation or punishment on a lesser offence, no leave is necessary at the

instance of a victim, whether he is the complainant or not."

In the case of M/s. Tata Steel Ltd v M/s. Atma Tube Products Ltd. &Ors.20 has laid down

following principles

(i) the 'complainant' in a complaint-case who is a 'victim' also, shall continue to avail

the remedy of appeal against acquittal under Section 378(4) only except where he/she

succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser

offence or imposition of an inadequate compensation, for which he/she shall be entitled to

avail the remedy of appeal under proviso to Section 372;

(ii) the 'victim', who is not the complainant in a private complaint-case, is not entitled

to prefer appeal against acquittal under proviso to Section 372 and his/her right to appeal, if

any, continues to be governed by the un- amended provisions read withSection 378 (4) of the

Code;

(iii) those 'victims' of complaint-cases whose right to appeal have been recognized

under proviso to Section 372, are not required to seek 'leave' or 'special leave' to appeal from
the High Court in the manner contemplated under Section 378(3) & (4), for the Legislature

while enacting proviso to Section 372 has prescribed no such fetter nor has it applied the

same language used for appeals against acquittals while enacting sub-Section (3) & (4) of

Section 378 of the Code

17Supra note 10

18Supra note 12

19Supra note 13

20Supra note 9

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In Dhanne Singh Vs. State of Rajasthan21 the learned Division Bench relied on the

case of M/s Tata Steel Ltd. Vs. M/sAtma Tube Products Ltd. &Ors.22and laid down the same

principle.

Similarly, a learned Division Bench of Kerala High Court in the case of Omana Jose

Vs. State of Kerala23 reported in, has held that the complainant cannot challenge the order of

acquittal passed by a Magistrate for an offence under Section 138 of the Act before Sessions

Court under proviso to Section 372 Cr.P.C. and his remedy is to file an appeal to the High

Court with Special Leave under Section 378 (4) of the Code.

In Smt Yuvraj Mehta vs State Of Rajasthan And Anr,24 the Rajastan High Court

dismissed an appeal filed by the complainant under proviso to Section 372Cr.P.C against the

order of acquittal.

In of M/s. Tata Steel Ltd v M/s. Atma Tube Products Ltd. &Ors25 held that while in

view of proviso to Section 372 an appeal preferred by a 'victim' against the order of acquittal
passed by a Magistrate in respect of a cognizable offence whether bailable or non-bailable

shall lie to the Court of Session, the State's appeal under Section 378(1)(a) of the Code

against that order shall also be entertained and/or transferred to the same Sessions Court.

Various High Courts have experienced difficulty in determining the period

of limitation for an appeal preferable by a victim under proviso to Section 372 of the Code. A

Division Bench of Patna High Court in RaghunathYadav vs. State of Bihar26 has viewed that

since the period of limitation for filing an appeal against the acquittal under Section 378 is

ninety days and no period of limitation has been provided for filing an appeal under Section

372 by a 'victim', the same period of limitation as provided underArticle 114 of

the Limitation Act will be applicable for filing an appeal under Section 372 of the Code also.

The Full Bench of Gujarat High Court in Bhavuben Dineshbhai Makwana's case27 too, with

reference to Article 114(a) of the Limitation Act, has held that the period of ninety days

212015 WLC (Raj.) UC 640

22 Supra note 9

232015 Cr.L.J. 2784

24S.B. CRIMINAL REVISION PETITION No.278/2015 4 August, 2016

25 Supra Note 9

26 2011 (6) RCR (Crl.) 133,

27Supra note 16

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should be the reasonable period for a 'victim' to file an appeal as the said period is the longest

period of limitation for filing an appeal against an order of acquittal prescribed by the
Legislature. The Delhi High Court in Kareemul Hajazi' v State of NCT of Delhi and Ors28

case , however, thought differently and after referring to certain precedents laying down that

'in the absence of prescription of the limitation period, the statutory authority must exercise

its jurisdiction within a reasonable period', it decided to bring the 'victim' at par with the

'accused' for the purpose of period of limitation to prefer appeal and held that since an

accused is required to prefer appeal to the High Court within sixty days as prescribed

under Section 374 of the Code read with Article 115(b)(i) of the Limitation Act, the period of

limitation for the appeal of a 'victim' shall also be the same i.e. sixty days.

In of M/s. Tata Steel Ltdv M/s. Atma Tube Products Ltd. &Ors29 the period of

limitation for an appeal by a 'victim' under proviso to Section 372 of the Code shall be as

under:-

(a) In case of acquittal -

(i) Where appeal lies 90 days Date of order appealed against

to the High Court

(ii) Where appeal lies 60 days Date of order appealed against

to any other court

(b) Any other sentence or order -

(i) to the High Court 60 days The date of

Sentence or order

(ii) to any other court 30 days The date of

Sentence or order

The issue of non –availability of action under section 390 of the Code for appeals

preferred under the proviso to section 372 was also adverted to in Balasaheb Case.30 Justice

282011(1)JCC 500
29 Supra note 9

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Dalvi opined that the newly added section 437 A31would fill the procedural lacuna so created

by the proviso to section 372 of the code. In order to ensure that the person who is acquitted

does not abscond or his presence is properly secured section 437 A confers an obligation on

the court passing the order of acquittal to direct the person to execute a bond with sureties

which would continue for a period of six months. Therefore, if a victim prefers appeal the

appellate court can, thereafter, impose fresh conditions on the acquitted accused.

In the case of Smt. PraneetaPrakashNavage and Sunil LaxmanGhode v. The state of

Maharashtra &ors., Nitin Bhikaji Nikam32,the division bench of Bombay High Court found

that the power to issue a warrant is vested in the High Court under section 390 only when an

appeal is presented under section 378.As per the law laid down in Balasaheb case the appeal

preferred by the victim will not be governed by section 378 of the Code and thus the power

under section 390 can not be invoked by the High Court in an appeal under the proviso to

section 372.33The bench has also observerd that the power so conferred by section 437A of

the code can only be exercised before passing an order of acquittal either in trial or in the

appeal. Therefore, the high court after admitting the appeal under the proviso to section 372

of the Code can not take recourse to section 437A and direct the respondent accused to

execute the bail bond.34

Consequently the Bench has read the source of such power to order arrest and

detention of the accused in section 482 of the code and stated that

“In case of an appeal against acquittal governed by the proviso to section 372 of the
code, the power to order arrest and detention of the accused in prison pending the final

disposal of the appeal or directing his enlargement on bail, will have to read as power

ancillary to and necessary for effective exercise of power of appeal under the proviso to

section 372 of the code. But for the existence of such ancillary power, the right conferred by

the legislature to the victim to prefer an appeal against acquittal will become ineffective and

30 Supra note 13

31 437 A.Bail to require accused to appear before next Appellate Court –(1) Before conclusion of the
trial and

before disposal of the appeal, the court trying the offence or the Appeallate Court, as the case may be,
shall

require the accused to execute bail bonds with sureties, to appear before the higher court as and when
the

court issue such notice in respect of any appeal or petition filed against the judgement of the respective
court

and such bail bond shall be in force for six months.

(2) If such accused fails to appear, the bond stand forfeited and the procedure under section 446 shall
apply.

32 Criminal Appeal No. 1129 of 2012(decided on 01.08.2012)

33 Id at para 5

34 Id at para 16

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redundant….Thus, in absence of applicability of section 390, the exercise of the said power

will be under section 482 of the code.”35

VII. 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 41st Law

Commission Report. Even then, such a right was exclusively granted to the State. After the

recommendation of 154th Law Commission Report and Malimath Committee Repor 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.

The amended and un amended provisions of the Code pose a serious threat to the wellknown rule of
harmonious interpretation and lead to some of those unconciliatory

eventualities which have been enlisted as the 'questions' that arise for the determination of

various high court. The country is riddled with varied decisions from High Courts regarding

the matter, and no clear and established law is yet in sight.

The Law Commission of India in its 221st Report given in April, 2009 recommended

amendments in Sections 378, 397 and 401 of the Code to provide that (i) in complaint cases

also the appeal against an order of acquittal passed by a Magistrate should lie to the Sessions

Court subject to the grant of special leave by it; (ii) wherever the District Magistrate or the

State do not prefer an appeal against an order of acquittal, the aggrieved person or the

informant should have the right to appeal with the leave of the appellate Court; (iii) there

should be only one revision forum of the Sessions Court against the orders passed by the

Magistrates instead of two alternative forums; and (iv) the Legislature should specifically

categories revisable orders instead of leaving the matter to the discretion of the Courts. The

suggested amendments, however, are still awaited.

REFERENCES
35Idat para 11

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Reddy, P.V. (2006), “Role of Victims”, Student Bar Review, Vol.18(1), NLSI, Bangalore,

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Rajan ,V.N. (1995), Victimology in India, New Delhi, A.P.H Publishing Corporation, p-63.

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