Bombay High Court
Renu Sharma vs Anand Rahul Singh And Anr on 10 June, 2022
Bench: S.S. Jadhav, Milind N. Jadhav
Appeal.467.12+.18.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 467 OF 2012
Anand Singh
Aged : 31 years, Occu. Service,
R/o. Kalali, Post Harpoi, Tal Hardai,
District Lacknow, U.P.
At present in judicial custody and
undergoing the sentence imposed upon
him at Kolhapur Central Prison, Kolhapur. .. Appellant
Versus
The State of Maharashtra
At the instance of Senior Inspector
of Police, Panvel City Police Station
vide their F.I.R. No.I-489 of 2010. .. Respondent
WITH
CRIMINAL APPEAL NO. 669 OF 2015
Renu Sharma
Age : 42 years, Residing at F-203,
Harimahal CHS, New Panvel,
Taluka Panvel, Dist : Raigad. .. Appellant
(Orig. Complainant)
Versus
1. Anand Rahul Singh
Age : 35 years, Occ : Service,
R/o. Kalali, Post Harpoi,
Tal : Hardai, Dist : Lucknow, U.P.
At present in judicial custody and
undergoing the sentence imposed upon
him at Kolhapur Central Prison, Kolhapur.
2. The State of Maharashtra
At the instance of Senior Inspector
of Police, Panvel City Police Station
vide their F.I.R. No.I-489 of 2010. .. Respondents
WITH
CRIMINAL APPLICATION NO. 1508 OF 2015
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WITH
CRIMINAL APPLICATION NO. 1236 OF 2015
IN
CRIMINAL APPEAL NO. 669 OF 2015
Anand Rahul Singh .. Applicant
Versus
The State of Maharashtra .. Respondent
....................
Ms. Akshata Desai i/by Mr. Nitin Sejpal, Advocate for the Appellant
in Appeal No.467 of 2012
Mr. Mihir Joshi, Appointed Advocate for Appellant in Appeal
No.669 of 2015
Ms. P.P. Shinde, APP for the Respondent - State
...................
CORAM : SMT. SADHANA S. JADHAV &
MILIND N. JADHAV, JJ.
RESERVED ON : MAY 05, 2022.
PRONOUNCED ON : JUNE 10, 2022.
JUDGMENT (PER : MILIND N. JADHAV, J.)
1. Criminal Appeal No.467 of 2022 is filed by the Appellant
to challenge the impugned judgment dated 04.04.2012 passed by the
learned Sessions Judge, Raigad at Alibag in Sessions Case No.8 of
2011 convicting the Appellant for the following offences:
(i) Under section 328 of the Indian Penal Code, 1860
("IPC"), the Appellant was sentenced to rigorous
imprisonment for seven years and to pay a fine of
Rs.5,000/-, in default of payment of fine to suffer
rigorous imprisonment for six months;
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(ii) under section 382 IPC the Appellant was sentenced
to suffer rigorous imprisonment for seven years and
to pay a fine of Rs.5,000/-, in default of payment of
fine to suffer rigorous important for six months;
(iii) punishable under section 417 IPC the Appellant was
sentenced to suffer rigorous imprisonment for six
months and to pay a fine of Rs.500/-, in default of
payment of fine to suffer rigorous imprisonment for
one month;
(iv) punishable under section 448 IPC the Appellant was
sentenced to suffer rigorous imprisonment for six
months and to pay a fine of Rs.500/-, in default of
payment of fine to suffer rigorous imprisonment for
one month;
(v) punishable under section 506 IPC the Appellant was
sentenced to suffer rigorous imprisonment for six
months and to pay a fine of Rs.500/-, in default of
payment of fine to suffer rigorous imprisonment for
one month.
2. Criminal Appeal No.669 of 2015 is filed by the victim /
original complainant for the following relief:-
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"b) That this Hon'ble Court may be pleased to suitably
enhance the sentence of accused passed by Judgment
and Order dated 04/04/2012 passed by the learned
Additional Sessions Judge, Alibag in Sessions Case
No.8 of 2011 and kindly may be given the maximum
punishment to the Respondent No.1 in all the charges
leveled against him."
3. By this common judgment, both the Appeals are disposed
of. For the sake of convenience the parties shall be referred to as
"accused" and "complainant".
4. It is seen that by the impugned judgment accused has
been convicted for offences punishable under Sections 328, 382, 417,
448 and 506 IPC and has been acquitted by the Trial court for
offences committed under sections 504, 509, 647 and 471 IPC.
Though the only relief prayed for in the appeal filed by the
complainant is for seeking enhancement of the sentence awarded to
the accused, the pleadings also impugn the acquittal of the accused for
the offences under sections 504, 509, 647 and 471 IPC. In short, the
question that arises for consideration in the appeal filed by the
complainant before this Court is whether this Court can consider the
plea in view of the provisions of section 372 Cr.P.C.
4.1. Section 372 Cr.P.C. reads thus:-
"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:
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[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.]"
4.2. It is seen that under the provisions of section 377, power
is given to the State Government to prefer an appeal for enhancement
of sentence. However correspondingly no such power is given to the
victim / complainant to file an appeal seeking enhancement of
sentence. Hence the question would be the maintainability of the
appeal filed by the victim / complainant to be decided.
5. Before we advert to the legal submissions, it will be
apposite to refer to such of the relevant facts which are necessary to
adjudicate both the appeals filed by the parties.
6. The case of the prosecution is as under:-
(i) that on 03.10.2010, father of the complainant a resident
of Gaziyabad (Uttar Pradesh) published advertisement for search of
bride-groom in the 'Times of India'; Renu Sharma served as an
employee in a multinational company and stayed in a rented premises
at New Panvel, Taluka Panvel, District Raigad;
(ii) that the accused responded to the advent as a potential
bridegroom;
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(iii) that the father of complainant shared her mobile phone
number with the accused to facilitate a meeting of both of them;
(iv) that the accused called the complainant and informed her
that his father served in the air-force at Pune and had died in a plane
crash; that his residence was at Rajani Villa E-63, M.B. Extension
Badarpur, Delhi; that he was a garment exporter and that he had sent
his bio-data via email to her;
(v) that on 07.10.2010, the accused arrived at Mumbai and
met the complainant in Sahara Hotel and gave details of his family
history as residing in Lajpat Nagar, Delhi and spent the entire day
chatting with the complainant; that on the next day, both visited the
Siddhivinyak and Gavdevi temples in Mumbai; thereafter they visited
Shirdi and on 12.10.2010 celebrated the birthday of the accused.
(vi) that on 15.10.2010 the accused called the complainant
informing her about his arrival from Delhi by plane alongwith his
mother and brother's wife and told her to personally come and meet
them in Hotel Celebration, Vashi and insisted that she should wear
gold ornaments to impress them. The complainant acceded to the
request of the accused, put on gold ornaments and went to meet them,
however the accused informed her that they were tired and therefore
sleeping in their room and did not allow the meeting to take place;
that there after the accused asked the complainant to hand over to him
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her gold ornaments as her jewellary was old and he wanted to
purchase a new diamond set for her. The complainant refused to
hand over the gold ornaments, hence to win her confidence the
accused took her to a nearby jewelry shop and advised her to select a
diamond set of her choice. At that time when they were at the jewelry
shop the accused suddenly left the shop on the pretext of buying
medicine for his mother and did not return throughout the day. The
complainant waited for him and called him on his phone but there was
no reply, hence the complainant returned back to her house at Panvel.
However upon her arrival, when the complainant checked her purse
she found that her credit card, debit card, pan card and driving license
were missing. The complainant therefore informed the bank
authorities to cancel her cards so as to stop any possible misuse of her
credit and debit cards. She also informed the accused about the
missing articles from her purse; the accused after some time informed
her on phone that the missing articles were with him and that he shall
send them back to her by courier; that after some time the accused
informed her that he was sending the missing articles to her after
returning a colour xerox of the same; this was followed by an
altercation between the two;
(vii) that thereafter on 23.10.2010 the accused arrived in
Mumbai and attempted to meet the complainant to tender his apology;
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he made several phone calls to the complainant and called her to meet
him in Hotel Shubham; between 23.10.2010 and 27.10.2010 both of
them met each other and also had dinner on one occasion; on
28.10.2010 the accused called the complainant to Hall Mark Honda
City Car Showroom, showed her a number of cars and asked her to
select a car for them to keep after marriage; that immediately on the
next date the accused took the complainant to see several flats in
highrise towers for them to stay in after marriage; that both were tired
and therefore returned back to Panvel and when the accused
expressed his desire to have a cup of tea at her house; the complainant
reluctantly took the accused to her house;
(viii) that at that time the accused convinced the complainant
that since both of them were tired they should consume a tablet i.e.
pain killer to feel better and administered a tablet to her; though
initially the complainant was reluctant to take the tablet, ultimately,
because of the force of the request by the accused she consumed it.
On 30.10.2010 i.e. the following day, the complainant regained
consciousness and saw the accused in her house but she again became
unconscious. The accused woke up the complainant and subsequently
expressed his desire to meet her son, hence the accused took the
complainant to the railway station and boarded the train Punjab Mail
from Mumbai to reach Agra. Throughout the entire journey the
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complainant was sleeping and feeling giddy; they also changed their
train and early in the morning of 01.11.2010, they reached Agra
Cantonment Railway Station; that outside the station the accused
made the complainant sit in an auto rickshaw and left; the
complainant somehow reached the house of Shambunath Gupta her
maternal uncle, and informed him about what happened; thereafter
the complainant attempted to contact and call the accused on his
mother's phone number and in the afternoon on that date the accused
answered her phone and informed her that after she had become
unconscious at Panvel the accused had taken the key of her cupboard
from her purse in order to remove all the gold and silver ornaments,
passports of her and her son, bank papers and national savings
certificates contained in the cupboard; she was also informed by the
accused that he had taken obscene photographs of the complainant
alongwith an obscene video recording and the complainant was
ultimately threatened with abuse, defamation, maligning her image
and dire consequences if she approached the police;
(ix) On 02.11.2010, the complainant proceeded to visit her
parents at Gaziyabad and narrated the entire sequence of events to
them; she also spoke to the accused on phone and both of them had a
verbal altercation; on 03.11.2010, she returned back to Panvel and on
conducting a search of her house found that her gold and silver
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ornaments, national saving certificates, two passports and bank papers
were missing; the value of the missing goods at the time of the
incident was approximately Rs. 11,25,000/-;
(x) On 10.11.2010, the accused once again called the
complainant informing her that he intended to return back to her
articles, photographs and passports that he had taken and told her that
he had booked a Honda City Car and had given a cheque for the same;
on 11.11.2010, the accused once again made a phone call to the
complainant and informed her that she should meet him in Garden
Hotel Panvel (Room No. 116) where he intended to return back her
ornaments; the complainant went to meet him but found his behavior
to be suspicious; the accused became aggressive, arrogant and violent
with the complainant; hence the complainant went into the bathroom
and called her friend one Mr. Sharma to help her; Mr. Sharma
alongwith the police arrived at the hotel and took the accused in
custody; on search of the goods of the accused, one gold chain and
national savings certificate etc. were seized from his possession;
(xi) C.R. No I-489 of 2010 was registered by the complainant
in Panvel City Police Station for offences punishable under Sections
328, 417, 420, 448, 504, 506, 509, 467 and 471 IPC.
(xii) after registration of the crime, seizure panchanama of the
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seized articles was prepared in the presence of panchas; the accused
was produced before the Judicial Magistrate First Class, Panvel;
investigation was carried out and it was revealed that the accused had
pledged the gold and silver ornaments to one goldsmith named
Akhtarali Abdul Rauf Mandal who had melted the gold and silver
ornaments into lagads which were seized; further investigation
revealed that the accused had also impersonated himself as Niraj to a
landlord in Govindpuri, New Delhi; assistance was taken from the
officials of Govindpuri Police Station; statements of witnesses i.e.
Managers of Hotel Garden and Hotel Shubham were recorded; the
Investigating Officer seized a spy pen camera, digital camera, memory
card etc.; the material evidence was downloaded in the presence of
panchas and panchanama was prepared; after completion of
investigation chargesheet was filed in the court of the Judicial
Magistrate First Class, Panvel;
(xiii) since the case was exclusively triable by the Court of
Sessions as the offence alleged was under Section 328 IPC, the
Magistrate Panvel committed the case to the Court of Sessions Judge,
Raigad - Alibag; the charge was framed on 11.04.2011 against the
accused for the offences punishable under Sections 328, 382, 417,
448, 504, 506, 509, 467 and 471 IPC; the contents of charge were
read over to the accused and explained to him in vernacular language;
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the accused pleaded not guilty and claimed to be tried; his defence
being that of total denial and false implication; that according to the
accused the complainant in collusion with her ex-husband Kaushal
Sharma planned to trap and deceive the accused; that the complainant
herself in the first instance contacted the accused, visited him and
meet him at several hotels, spent a lot of time with him to dupe him.
7. To substantiate the case of the prosecution and bring
home the guilt of the accused the prosecution examined in all total 11
witnesses and tendered documentary evidence. The brief gist of the
witnessed examined by the prosecution is as follows:
Sr.No. Name Description of Witness
PW 1 Rajesh Bharat Chavan Employee of Hall Mark Honda City
Car, Showroom at Nerul.
PW 2 Renu Ramshankar Sharma Complainant.
PW 3 Rajkumar Munshiram Landlord who allotted to the
Middha accused representing himself as
Niraj with his family.
PW 4 Akhtarali Abdul Rauf Goldsmith.
Mandal
PW 5 Ronald Ignetious Farnandes Manager of Hotel Garden.
PW 6 Sanjay Chandrakant Kadam Panch witness on seizure of
electronic articles spy pen camera,
digital camera, memory card so
also saw the demonstration in the
laptop, ultimately on C.D.
PW 7 Narendra Vasant Purulekar Panch witness on seizure of the
documents like National Savings
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Certificates etc. in the Hotel
Garden, before the concern
Manager, in room No. 116 from
the person of the accused and bag,
in his custody.
PW 8 Rakeshkumar Pal Panch witness of disclosure
memorandum and discovery
panchanama under Section 27 of
the Indian Evidence Act, as to gold
and silver lagad (melted from gold
and silver ornaments) converted
by PW-4.
PW 9 Dr. Swati Bharat Naik Medical Officer, expert witness
gave an opinion of sedative effect
of the tablets.
PW 10 Rajesh Gangadhar Shetty Manager, Hotel Shubham.
PW 11 Girish Shripat Gode Police Inspector.
8. As seen the entire case of the prosecution is based upon
the evidence of the complainant - PW-2. The entire sequence of events
beginning from the meeting of the complainant with the accused is
deposed by PW-2. To round of the completeness of the sequence of
events is the incident of the accused booking the Honda City Car in the
showroom at Neral and gave an advance booking cheque for the same
in the presence of the complainant. The copy of the cheque (Exhibit
'21') has been retrieved. The employee of the said car showroom
Rajesh Bharat Chavan as PW-1 has deposed about accepting the
cheque from the accused for the entire amount of the car; PW-1 had
issued a receipt to the accused as the sales executive as also the sales
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contract and obtained the signature of the accused on the counter part
of the receipt; however on encashment of the cheque by the car dealer,
the cheque came to be dishonored and thereafter the accused was not
traceable or contactable on his mobile phone.
9. The entire sequence of events alongwith the deposition of
PW-2 clearly shows that the accused attempted to win the confidence
of the complainant during his meeting with the probable intention of
deceit which is revealed by his acts of stealing the contents of the
purse and subsequently the articles from her cupboard at Panvel.
Further evidence of the complainant - PW-2 reveals that the modus
operandi used by the accused to convince her to remove her gold
ornaments in hotel Celebration as they did not suit her and look old
also proves the intention and motive of the accused; thereafter the
demeanor of the accused in taking the complainant to the jeweler for
selecting a diamond set and disappearing from there and not meeting
the complainant again on that date, clearly establishes the motive of
the accused since he vanished from the jeweler's shop on the pretext of
buying medicine for his mother. He had taken alongwith him the
debit cards, credit card, pan card and driving license from the purse of
the complainant without her knowledge and only disclosed it to her
after she established contact with him on the next day. Thereafter the
third and most important incident of winning the confidence of the
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complainant, entering her house and drugging her, and thereafter
stealing the entirety of her gold and silver ornaments, passports etc.
without her knowledge, keeping her drugged at all times for the next
three days until they reached Agra and thereafter leaving her on her
own in the auto rickshaw and once again doing the vanishing act
alongwith her stolen articles clearly shows the indictment of the
accused.
10. It is seen that in the present case the Appellant / accused
has completed the sentence awarded by the impugned judgment and
stand released from prison on 21.07.2016. The Superintendent,
Kolhapur Central Prison has furnished a report dated 16.03.2022 to
this Court in respect of the above. In view thereof the Criminal Appeal
filed by the Appellant being Cr. Appeal No. 467 of 2012 has become
infructuous.
11. The only Appeal which now remains for consideration is
Criminal Appeal No. 669 of 2015 filed by the complainant. The
complainant is aggrieved and has filed this Appeal on the following
grounds:-
(i) That the Appellant / accused has committed a heinous crime by
impersonation, sedating the complainant and thereafter stealing her
entire jewellary, gold, silver and diamonds as also her important
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documents like passport, national saving certificates, bank passbook,
cheque books, fixed deposit receipts and other documents;
(ii) that the Appellant accused proposed to marry the complainant
by misrepresenting and hiding the fact that he was previously married
and had two children;
(iii) that he used a false prescription of a medical doctor to buy the
sedative medicines;
(iv) that the medical evidence produced on record through PW 9
Dr. Swati Bharat Naik proves that the sedatives bought and
administered by the Appellant / accused would not be available
without a doctor's prescription and if administered could make a
person feel drowsy and unconscious;
(v) that the Appellant / accused impersonated himself by posing as
Anand Singh and Neeraj Gupta at different times and different places;
that he obtained forged and fake driving licenses; that he had sexual
relationship with other women which is proved on recovery of the
video clips from the spy pen camera and digital camera by the I.O.
leading to believe that the Appellant / accused is a habitual offender;
(vi) that the offences committed by the Appellant / accused required
him to be convicted for a longer sentence than what has been awarded
by the learned trial court.
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11. As alluded to herein above, in order to consider the
Appeal filed by the complainant this Court is at the outset faced with
the question of maintainability of the present Appeal in view of the
statutory provisions of section 372 of Cr. P.C. Section 372 Cr.P.C. is
contained in Chapter XXIX dealing with Appeals and reads thus:-
"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.]"
12. In the present case, the sentences awarded to the
Appellant / accused by the impugned judgment and the maximum
sentence the trial court could have awarded under the relevant
provisions are summarized in the following table:-
Sr. Sentence awarded under Sentence awarded by Maximum sentence
No. Section Trial Court
1 328 7 Years 10 Years
2 382 7 Years 10 Years
3 417 6 Months 1 Year
4 448 6 Months 1 Year
5 506 6 Months 2 Years
13. It is seen that the complainant in the present appeal is
aggrieved on two counts :- (i) that the Appellant / accused has been
awarded a lesser sentence than the maximum punishment that could
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have been awarded under the relevant provisions stated herein above
and (ii) equally the complainant is also aggrieved about the trial court
acquitting the appellant / accused from the offences punishable under
sections 504, 509, 467 and 471 IPC.
14. In the present case the complainant has filed Appeal 669
of 2015 on 27.04.2015. By order dated 22.11.2021 this court
appointed Mr. Mihir Joshi as Advocate to espouse the cause of the
accused.
15. Order dated 28.08.2020 passed by the Supreme Court in
Criminal Appeal No. 555 of 2020 arising out of SLP (Cri) No. 3928 of
2020 in the case of Parvinder Kansal Vs. The State of NCT of Delhi &
Anr. (Non-Reportable order) is placed before us. In this case the facts
are that Criminal Appeal No. 1284 of 2019 was filed by the Appellant
aggrieved by the order dated 27.11.2019 passed by the High Court of
Delhi. By the aforesaid order, the High Court has dismissed the
Appeal filed by the Appellant seeking enhancement of sentence
imposed in Sessions Case No. 742 of 2007 vide order dated
17.08.2019. In this case the second Respondent came to be convicted
for the offenses punishable under sections 364A, 302 and 201 IPC and
by a subsequent order dated 17.08.2019 he was sentenced for offence
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under sections 302, 364A and 201 IPC with imprisonment for life in
respect of the first two offenses and rigorous imprisonment for seven
years in respect of the third offence and in default also subjected to
fine. The complainant therein being the father of the deceased victim
filed the Appeal challenging the order of sentence dated 17.08.2019
passed by the trial court and sought enhancement of sentence to death
penalty. In the appeal filed before the High Court under section 372
of the Cr.P.C., the complainant pleaded that the sentence of life
imprisonment imposed on the accused was inadequate and needed to
be enhanced to death penalty. The High Court of Delhi dismissed the
Appeal as not maintainable under the provisions of section 372 of the
Cr.P.C. When the matter travelled to the Supreme court it was held
that under the provisions of section 372 it was open for the State
Government to prefer Appeal for inadequate sentence under section
377 of the Cr.P.C. but there is no provision for appeal available to the
victim under section 372 of the Cr.P.C. on the ground of inadequate
sentence. Paragraph No. 9 of the aforesaid decision is relevant and
reads thus:-
"9. Chapter XXIX of the Code of Criminal Procedure, 1973 deals with
'Appeals' and Section 372 makes it clear that no appeal to lie unless
otherwise provided by the Code or any other law for the time being in
force. It is not in dispute that in the instant case appellant has preferred
appeal only under Section 372, Cr.P.C. The proviso is inserted to Section
372, Cr.PC by Act 5 of 2009. Section 372 and the proviso which is
subsequently inserted read as under:
"372. No appeal to lie unless otherwise provided.-- No
appeal shall lie from any judgment or order of a criminal
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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.]"
A reading of the proviso makes it clear that so far as victim's right of appeal
is concerned, same is restricted to three eventualities, namely, acquittal of
the accused; conviction of the accused for lesser offence; or for imposing
inadequate compensation. While the victim is given opportunity to prefer
appeal in the event of imposing inadequate compensation, but at the same
time there is no provision for appeal by the victim for questioning the order
of sentence as inadequate, whereas Section 377, Cr.P.C gives the power to
the State Government to prefer appeal for enhancement of sentence. While
it is open for the State Government to prefer appeal for inadequate
sentence under Section 377, Cr.P.C but similarly no appeal can be
maintained by victim under Section 372, Cr.P.C on the ground of
inadequate sentence. It is fairly well settled that the remedy of appeal is
creature of the Statute. Unless same is provided either under Code of
Criminal Procedure or by any other law for the time being in force no
appeal, seeking enhancement of sentence at the instance of the victim, is
maintainable. Further we are of the view that the High Court while
referring to the judgment of this Court in the case of National Commission
for Women v. State of Delhi & Anr. (2010) 12 SCC 599 has rightly relied
on the same and dismissed the appeal, as not maintainable.
16. In the present case it seen that Criminal Appeal 669 of
2015 has been filed by the complainant / victim for seeking
enhancement of the sentence under the provisions of the proviso to
section 372 of the Cr.P.C.
17. We have heard Mr. Joshi, learned Advocate appointed for
the Appellant in Criminal Appeal No. 669 of 2015 and also the
learned APP appearing for the State. Submissions made by the
learned counsel are on pleaded lines.
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18. Mr. Joshi in support of the Appellant's case in Criminal
Appeal No. 661 of 2015 has made the following submissions:-
(i) that though the reliefs sought by the Appellant in the
present Appeal only seek enhancement of the sentence awarded to the
accused however the grounds stated in the Memorandum of Appeal
clearly impugn the acquittal of the accused and the Appellant is within
her right to approach this Court for seeking enhancement of the
sentence awarded by the learned trial court;
(ii) that in light of the observation of the Supreme Court in
the matter of Mallikarjun Kodagali v. State of Karnataka reported in
(2019) 2 SCC 752, it is clear that the proviso to section 372 is in the
nature of a social welfare legislation as the same seeks to empower a
victim of the crime to challenge an adverse order of the trial court;
that in light of the aforesaid it is important that the proviso to Section
372 Cr.P.C. be given a meaning that is realistic, liberal, progressive
and beneficial to the victim of an offence; that it would be pertinent to
note that the Hon'ble Supreme Court in Eera v. State (NCT of Delhi),
(2017) 15 SCC 133, has laid the marker for how social welfare
legislations and provisions are to be interpreted in para 64 of the said
judgment which reads thus:-
"64. ... While interpreting a social welfare or beneficent legislation one
has to be guided by the "colour", "content" and the "context of statutes" and
if it involves human rights, the conceptions of Procrustean justice and
Lilliputian hollowness approach should be abandoned. The Judge has to
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release himself from the chains of strict linguistic interpretation and pave
the path that serves the soul of the legislative intention and in that event,
he becomes a real creative constructionist Judge."
(iii) that the Supreme Court in the mater of Mallikarjun
Kodagali (supra) had an opportunity to relook at the proviso to section
372; that in the said matter after recognizing the plight of the victims
of crime, the Hon'ble Supreme Court also recognized the need to
provide meaningful rights to the victims of an offence and the need to
consider giving a hearing to the victim while awarding the sentence to
a convict; that a victim impact statement or a victim impact
assessment must be given due recognition so that an appropriate
punishment is awarded to the convict; that the Supreme Court also
recognized that the proviso to Section 372 Cr.P.C. must be given a
meaning that is realistic, liberal, progressive and beneficial to the
victim of an offence. It is in light of these findings that the Hon'ble
Supreme Court in Mallikarjun Kodagali (supra) held as under:-
"d. That the decision of the Supreme Court was not directed towards
the proviso to Section 372 Cr.P.C. It is only in passing that it was observed
that on the facts of the case, the proviso to Section 372 Cr.P.C. might not be
applicable since it came into the statute book after the incident;
e. It recognized the need to interpret the proviso to Section 372
Cr.P.C. so that it is given a meaning that is realistic, liberal, progressive and
beneficial to the victim of an offence;
f. Overturned the decision Satya Pal Singh v. State of M.P. (Supra) to
the extent that it required obtaining the leave of the High Court as required
under sub-section (3) of Section 378 Cr.P.C.
(iv) that the Supreme Court in the matter of Satya Pal Singh
Vs. State of M.P. reported in (2015) 15 SCC 613 once again examined
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the proviso of Section 372, albeit from a different angle as the issue
before the Hon'ble Supreme Court was an appeal preferred against
acquittal and by a legal heir of the victim. In the said case the Hon'ble
Supreme Court held that the correctness of the judgment and order of
acquittal by preferring an appeal to the High Court is conferred upon
the victim including the legal heir and others, as defined under Section
2(wa) Cr.P.C., under the proviso to Section 372, but only after
obtaining the leave of the High Court as required under sub-section
(3) of Section 378 Cr.P.C.;
(v) that soon after Section 372 was amended to include the
aforesaid proviso, the Supreme Court in National Commission for
Women vs. State of Delhi & Ors., (2010) 12 SCC 599 while dealing
with an appeal filed by National Commission for Women against an
order of the Delhi High Court whereby the accused was acquitted
under Section 306 of IPC, while maintaining his conviction under
Section 376 of IPC had reduced the accused's sentence to time served:
It is pertinent to note that the Appellant therein had approached the
Supreme Court under Article 136, and the crux of the decision in the
said case is on the maintainability of a Special Leave Petition under
Article 136 by a third party. Though it would be opportune to note
that while deciding the said issue the Hon'ble Supreme Court in
paragraph no. 8 of the said judgment observes as follows:
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"8. Chapter XXIX of the Code of Criminal Procedure deals with
"Appeal(s)" . Section 372 specifically provides that no appeal shall lie from
a judgment or order of a criminal court except as provided by the Code or
by any other law which authorises an appeal. The proviso inserted by
Section 372 (Act 5 of 2009) with effect from 31.12.2009, gives a limited
right to the victim to file an appeal in the High Court against any order of a
criminal court acquitting the accused or convicting him for a lesser offence
or the imposition of inadequate compensation. The proviso may not thus be
applicable as it came in the year 2009 (long after the present incident) and,
in any case, would confer a right only on a victim and also does not
envisage an appeal against an inadequate sentence. An appeal would thus
be maintainable only under Section 377 to the High Court as it is
effectively challenging the quantum of sentence."
(vi) that the Code of Criminal Procedure (Amendment) Bill, 2006
The code of Criminal Procedure (Amendment) Bill, 2006 was
introduced in the Rajya Sabha on 23.08.2006. Clause 38 of the said
bill read as follows:-
"38. In Section 372 of the principal Act, the following proviso shall be
inserted, namely:-
"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."
It is pertinent to note that the said clause deviates from
the recommendation of the Report of the Justice Malimath Committee
to the extent that appeal from an order imposing inadequate sentence
is omitted from the said clause. But, interestingly, the notes on clause
of the said bill states the following:
"Clause 38 amends section 372 of the Code relating to appeals from
judgment or order of a Criminal Court. It gives to the victim the right to
prefer an appeal against any adverse order passed by the trial court.
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(vii) that thus, the Supreme Court without adverting to the
purpose, object, and context of the proviso to Section 372 and adopted
a strictly literal rule of interpretation to come to the conclusion that
until and unless the statute expressly provides for it no appeal against
an order of inadequate sentence would lie;
(viii) that the Supreme Court in the matter of Eera v. State
(NCT of Delhi) (supra) having painstakingly traced the history of
interpretation of statute in Anglo-Saxon Jurisprudence concluded that
the office of all the judges is always to make such construction as shall
suppress the mischief, and advance the remedy, and to suppress subtle
inventions and evasions for continuance of the mischief, and pro
provato commodo, and to add force and life to the cure and remedy,
according to the true intent of the makers of the Act, pro bono publico,
as was so succinctly laid down in Heydon case. Paragraph no. 127 of
Eera v. State (NCT of Delhi) (Supra) reads as follows:
"127. It is thus clear on a reading of English, US, Australian and our own
Supreme Court judgments that the "Lakshaman Rekha" has in fact been
extended to move away from the strictly literal rule of interpretation back
to the rule of the old English case of Heydon, where the Court must have
recourse to the purpose, object, text and context of a particular provision
before arriving at a judicial result. In fact, the wheel has turned full circle.
It started out by the rule as stated in 1584 in Heydon case, which was then
waylaid by the literal interpretation rule laid down by the Privy Council and
the House of Lords in the mid-1800s, and has come back to restate the rule
somewhat in terms of what was most felicitously put over 400 years ago in
Heydon case."
(ix) that in the light of the aforesaid, any interpretation of the
proviso to section 372 of Cr.P.C. should necessitate the consideration
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of the following:
g. What was the law before the making of the Act (amending
act in the present case)?
h. What was the mischief and defeat for which the
unamended act did not provide?
i. What remedy was sought to be provided by the
Parliament cure the said mischief?
j. And whether an interpretation of the law effectively curbs
the mischief or not?
(x) that in the context of the proviso to section 372 of Cr.P.C.
the law prior to the amendment did not allow victims of a crime any
say in the criminal justice system; that by way of the proviso the
victims of a crime were sought to be given a right to prefer an Appeal
against any order passed by the Court, the mischief sought to be cured
is set out in the objects and reasons of the amendment bill i.e., at
present, the victims are the worst sufferers in a crime and they don't
have much role in the court proceedings; that they need to be given
certain rights and compensation, so that there is no distortion of the
criminal justice system; that the intent of the legislature in introducing
the proviso can be deciphered from the notes on clauses of the bill and
the report of the Standing Committee, wherein the intent of the
legislature to grant the victims the right to prefer an appeal against
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any adverse order passed by the court is abundantly clear;
(xi) that it is submitted that if the intent of the legislature as
borne out by the notes on clauses of the bill and the report of the
Standing Committee was to grant the victims the right to prefer an
appeal against any adverse order passed by the court and owing the
nature of the statute itself, it would be incumbent upon this Hon'ble
Court to take that intent of the legislature to its logical conclusion and
to interpret the proviso to provide the remedy of appeal to a victim
even against an order of inadequate sentence, as the said order is part
of the mischief that is sought to curbed by the proviso;
(xii) that if this Hon'ble Court comes to the conclusion that in
the present case strict linguistic interpretation needs to be departed
from, then the scope of this Hon'ble Court to interpret the proviso to
section 372 would include a victim's right to appeal from an order of
inadequate sentence would be governed by the following authorities of
the Hon'ble Supreme Court:
(a) In CIT V/s B.N. Bhattacharjee, (1979) 4 SCC 121, the
Hon'ble Supreme Court read into section 245-M(7) of the
Income Tax Act the right of the Department to file an appeal de
novo on receipt of notice of the revival of the assessee's appeal,
while holding thus the Hon'ble Supreme Court states the
following:
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"47. We are mindful that a strictly grammatical construction is departed
from in this process and a mildly legislative flavour is imparted by this
interpretation. The judicial process does not stand helpless with folded
hands but engineers its way to discern meaning when a new construction
with a view to rationalisation is needed. Lord Denning, in his recent book
"The Discipline of Law" p. 12 made a seminal observation on "Ironing out
the creases" by quoting a passage from Seaford Court Estates Ltd. v. Asher
(1949) 2 K.B. 481:
Whenever a statute comes up for consideration it must be remembered that
it is not within human powers to foresee the manifold sets of facts which
may arise, and, even if it were, it is not possible to provide for them in
terms free from all ambiguity. The English language is not an instrument of
mathematical precision. Our literature would be much the poorer if it were.
This is where the draftsmen of Acts of Parliament have often been unfairly
criticised. A judge, believing himself to be fettered by the supposed rule
that he must look to the language and nothing else, laments that the
draftsmen have not provided for this or that, or have been guilty of some or
other ambiguity. It would certainly save the judges trouble if Acts of
Parliament were drafted with divine prescience and perfect clarity. In the
absence of it, when a defect appears a judge cannot simply fold his hands
and blame the draftsman. He must set to work on the constructive task of
finding the intention of Parliament, and he must do this not only from the
language of the statute, but also from a consideration of the social
conditions which give rise to it, and of the mischief which it was passed to
remedy, and then he must supplement the written word so as to give 'force
and life' to the intention of the legislature. That was clearly laid down by
the resolution of the judges in Heydon's case, and it is the safest guide
today. Good practical advice on the subject was given about the same time
by Plowden.... Put into homely metaphor it is this A judge should ask
himself the question: If the makers of the Act bad themselves come across
this ruck in the texture of it, how would they have straightened it out? He
must then do as they would have done. A judge must not alter the material
of which it is woven, but he can and should iron out the creases."
***
58. The soul of estoppel is equity, not facility for inequity. Nor is
estoppel against statute permissible because public policy animating a
statutory provision may then become the casualty."
l. In V.C. Rangadurai v. D. Gopalan, (1979) 1 SCC 308 while dealing
with the interpretation of section 35(3) of the Advocates Act, 1961, the
Supreme Court recognised that purposive interpretation of a statute may
take on a colour of legislation, but such an act when necessary was within
the Court's purview:
"8. Speaking frankly, section 35(3) has a mechanistic texture, a set of
punitive pigeon holes, but we may note that words grow in content with
time and circumstance, that phrases are flexible in semantics, that the
printed text is a set of vessels into which the court may pour appropriate
judicial meaning. That statute is sick which is allergic to change in sense
which the times demand and the text does not countermand. That court is
superficial which stops with the cognitive and declines the creative function
of construction. So, we take the view that "quarrying" more meaning is
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permissible out of section 35(3) and the appeal provisions, in the brooding
background of social justice sanctified by Article 38, and of free legal aid
enshrined by Article 39-A of the Constitution.
***
11. ...Judicial "Legisputation" to borrow a telling phrase of J. Cohen, is
not legislation but application of a given legislation to new or unforeseen
needs and situations broadly falling within the statutory provision. In that
sense, "interpretation is inescapably a kind of legislation". This is not
legislation stricto sensu but application, and is within the court's province."
(b) that while reading into the proviso the victim's right to
appeal from an order of inadequate sentence, this Court should
hold that such a right is subsumed under one of the other heads
under which a victim's right to appeal is recognized, namely :
m. Order acquitting the accused;
n. Order convicting for a lesser offence;
o. Order imposing inadequate compensation.
(c) that in the case of Parvinder Kansal (supra) it was
contended that in view of proviso to section 372 Cr.P.C. which
gives right to prefer appeal to the victim, when the accused is
convicted for lesser offence, there is no reason to restrict the
scope of appeal only for a lesser offence but not for lesser
sentence; that the said interpretation was repelled by the
Hon'ble Supreme Court by holding that the remedy of appeal
being a creatures of the Statute. Unless same is provided either
under Code of Criminal Procedure or by any other law for the
time being in force, no appeal would lie. Even if for a moment,
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the strictly literal rule of interpretation as adopted by their
lordships in Parvinder Kansal (supra) is departed from, it would
be difficult to read the right to appeal against an inadequate
sentence into the right to appeal for a lesser offence as the said
adverse orders qua the victim find their genesis different aspects
and stages of a criminal trial. While an order of lesser offence
necessarily implies that the trial court has come to the
conclusion that all the elements or ingredients of the charged
offence are not made out and hence the accused could not be
held guilty of the same, but ingredients of a lesser offence are
made out; an adverse order of inadequate sentence would be
passed only after the accused has been held guilty of the
charged offence and would be passed at the stage of section
235(2) and 248(2) of Cr.P.C.
19. Learned APP appearing on behalf of the State has made
the following submissions: -
(i) Whether under the provisions of Section 372 of Cr.P.C. it
would be open for the victim to seek enhancement of the punishment
imposed by the Trial court?
(ii) that as a fundamental proposition of law, whether the
"right of appeal" is purely and simply "a statutory right" and is not at
all a common law right, natural right or a constitutional right; that if
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such right is provided by a statute, then it may or may not be made
conditional;
(iii) that the unamended Section 372 of the Cr.P.C. did not
provide any right to file an appeal to the victim and it was only under
Section 378(4) of the Cr.P.C. that the complainant had the right to file
the appeal with the leave of the Hon'ble High Court;
(iv) that though in the year 2003, the Malimath Committee
submitted its report on reforms of the Criminal Justice System, 2003
wherein it was recommended that the victim should have certain
rights, the parliament in its wisdom carried out an amendment to the
relevant provisions of the Cr.P.C. and added a proviso to Section 372
conferring right to the victim to file an appeal only in three situations
namely in the case of an order acquitting the accused, order convicting
for a lesser offence and order imposing inadequate compensation.
20. Though we are conscious of the fact that the remedy of
Appeal is the creation of statute under the provisions of the Cr.P.C.
and as interpreted by the Supreme Court that unless the same is
provided no Appeal would lie. However in the same breath though
under Article 141 of the Constitution of India we are completely
bound by the decision of the Supreme Court, we would like to
however place our considered opinion in this respect in the present
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case. We have perused the report presented to the Parliament of India
/ Rajya Sabha Secretariat and the Lok Sabha Secretariat, this report is
the 128th report prepared by the Parliamentary Standing Committee
on home affairs to suggest amendment to the Code of Criminal
Procedure and which was tabled before both the houses of the
Parliament on 16.08.2007. In the said report Clause VII is relevant
and is reproduced herein under:-
"7. VICTIMOLOGY :
(i) Victim may be permitted to engage an advocate in a case
(Clause 3)
(ii) A comprehensive scheme to be prepared for compensating
the victim or his dependents who have suffered loss or
injury, as a result of crime and who require rehabilitation
(Clause 37).
(iii) Victim shall have a right to prefer an appeal against any
adverse order passed by the court (Clause 38)."
21. As seen the proposal tabelled before both the houses of
the Parliament was with respect to the victim having a right to prefer
an appeal against any adverse order passed by the Court. The vista of
this proposal was very wide in as much as enabling the victim to file
an Appeal against any adverse order and not pertaining the right of
the victim / complainant as being noticed under the proviso to section
372 of the Cr.P.C. We are also equally conscious of the fact that the
Supreme Court in the case of Bachan Singh Vs. State of Punjab, (1979)
4 SCC 754 while interpreting the powers of the High Court under
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section 397 of the Cr.P.C. has in paragraph 11 held as under:-
"11. There is another reason for this view. It was permissible for the High
Court under Section 397 Cr.P.C. to call for and examine the record of the
proceeding before the trial court for the purpose of satisfying itself as to the
correctness, legality or "propriety" of any finding, "sentence" or order,
recorded or passed by that inferior court. The High Court's power of
revision in the case of any proceeding the record of which has been called
for by it or which otherwise comes to its knowledge, has been stated in
Section 401 Cr.P.C. to which reference has been made above. That includes
the power conferred on a Court of Appeal under Section 386 to enhance or
reduce the sentence. So when the record of the case was before the High
Court in connection with the two appeals and the revision petition referred
to above, there was nothing to prevent the High Court from invoking its
powers under Section 397 read with Section 401 Cr.P.C. and to make an
order for the enhancement of the sentence."
22. In addition to the above we have seen that the Bombay
High Court Appellate Side Rules 1960 and more specially Rule 2(II)(a)
which pertains to Appeal against conviction reads as under:-
"(a) Appeals against convictions [except in which the sentence of death
or imprisonment for life has been passed] appeals against acquittals
wherein the offence with which the accused was charged is one punishable
on conviction with a sentence of fine only or with a sentence of
imprisonment not exceeding ten years] or with such imprisonment and
fine, and appeals under section 377 of the Code of Criminal Procedure,
revision applications and Court notices for enhancement for offences
punishable on conviction with sentence of fine only or with sentence of
imprisonment not exceeding [ten years] or with such imprisonment and
fine."
Thus, a revision application for enhancement of sentence at the behest of
the victim would be maintainable and the same is recognized by the
Bombay High Court Appellate Side Rules, 1960."
23. From the above, it is seen that undoubtedly a revision
application for enhancement of sentence at the instance of the victim /
complainant would be maintainable. The Appellant has also in the
alternative in her written submissions prayed for converting this
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appeal into an application under Section 401 of the Cr.P.C.
24. However in view of the specific observations of the
Supreme Court in the case of Parvinder Kansal (supra) and
Mallikarjun Kodagali (supra), it is seen that the right to appeal against
the sentence will not be available to the Appellant in view of the
specific provisions of the statute.
25. Hence we are constrained hold that Criminal Appeal No.
669 of 2015 shall stands dismissed with the above observations.
26. In view of dismissal of the above Appeals, pending Interim
Application, if any, does not survive and is accordingly disposed of.
27. Mr. Mihir Joshi, Advocate appointed to espouse the cause
of the Appellant in Criminal Appeal No. 669 of 2015 is entitled for
professional fees of Rs.15,000/- to be paid by the Legal Aid Services
Authority / Committee as per rules.
[ MILIND N. JADHAV, J. ] [ SMT. SADHANA S. JADHAV, J. ]
Digitally signed by
AJAY AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date: 2022.06.11
15:59:21 +0530
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