Jagmohan Bhola vs Dilbagh Rai Bhola & Ors.
2011 Latest Caselaw 390 Del

             THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Judgment delivered on: 24.01.2011

+            CRL.A. 793/2010

JAGMOHAN BHOLA                                                 ..... Appellant

                                       versus

DILBAGH RAI BHOLA & ORS.                                      ..... Respondents

Advocates who appeared in this case:

For the Appellant        : Mr B.K. Sharma
For the Respondents      : Mr Pawan Sharma, Standing Counsel with Mr Sanjay Lao, Addl.
                           Standing Counsel for the State.
                           Mr Dinesh Garg for Respondents 1-5.

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE MANMOHAN SINGH

1. Whether Reporters of local papers may be allowed to see the judgment ? Yes

2. To be referred to the Reporter or not ? Yes

3. Whether the judgment should be reported in Digest ? Yes

BADAR DURREZ AHMED, J (ORAL)

1. This is an appeal filed by the brother of Rashmi who died in the

alleged incident. The present appeal has been filed invoking the proviso to

Section 372 of the Code of Criminal Procedure, 1973 (hereinafter referred to

as the "said Code") claiming himself to be a person covered by the definition

of victim under Section 2 (wa) of the said Code.

2. Respondents 1 to 5 were charged with having committed the

offences under Sections 498A/34 IPC and the respondent No.3 was

additionally charged with having committed the offence under Section 304

IPC. The said respondents were acquitted of all charges by virtue of the

impugned judgment and order dated 25.05.2010 passed by the learned

Additional Sessions Judge.

3. At the threshold, the learned counsel appearing for the

respondents 1 to 5 has raised an argument with regard to the maintainability

of the present appeal. His objections are two-fold. The first objection is that

the appellant does not fall within the definition of victim under Section 2(wa)

of the said Code. The second objection is that the present appeal which is

purportedly filed under the proviso to Section 372 of the said Code is not

maintainable unless and until leave of this Court is taken for filing such an

appeal.

4. We have heard the learned counsel for the parties only on the

issue of maintainability. So far as the first objection is concerned, that issue

is no longer open for debate in view of our decision in the case of Kareemul

Hajazi v. State of NCT of Delhi & Ors. in Crl. M.A. No.13541/2010 in Crl.

A. No.940/2010, decided on 07.01.2010 and the present appellant being the

brother of the deceased Rashmi would fall within the definition of victim

under Section 2(wa) of the said Code. This is so because even Rashmi's

parents are no longer alive and her daughter, Sweeti, who is a minor, is living

with her father, Dilbagh Rai Bhola, who was an accused and is the

respondent No.1 and, therefore, cannot be expected to bring any action on her

own.

5. As regards the second objection with regard to the requirement of

the appellant seeking leave of this Court, the learned counsel for the

respondents 1 to 5 submitted that in cases of appeals by convicts against

conviction no leave of the Court is required but in cases where appeals

against acquittals are provided, both in police cases as well as in complaint

cases, leave of the High Court is necessary. Since the present appeal is also

one which is against acquittal, similar logic should apply and, therefore, the

appellant ought to have taken leave of this Court before filing the present

appeal. Since no such leave has been taken, the appeal ought to be

dismissed. The learned counsel for the respondents placed reliance on the

decision of the High Court of Punjab and Haryana in the case of Smt. Ram

Kaur @ Jaswinder Kaur v. Jagbir Singh alias Jabi and others in

Crl.Appeal No.205/2010 decided on 01.04.2010 by a Division Bench of the

said Court. Reliance was also placed on a Division Bench decision of the

Gujarat High Court in the case of Bhikhabhai Motibhai Chavda v. State of

Gujarat & Ors.: 2010 Crl. L.J. 3325.

6. The Punjab and Haryana High Court in the case of Smt. Ram

Kaur (supra) was of the view that Section 372 of the said Code provides that

no appeal shall lie from any judgment or order of a criminal court except as

provided by the Court or by any other law for the time being in force.

Section 378 of the Code dealt with appeals in cases of acquittal. The said

High Court observed that Section 378(3) provided that no appeal to the High

Court under sub-section (1) or sub-section (2) would be entertained except

with the leave of the High Court. It was further pointed out that even against

an order of acquittal passed in a case instituted upon a complaint, the

complainant has been provided with the right to appeal but he could file such

an appeal along with an application for grant of special leave to appeal

against the order of acquittal. The said Court concluded that under the Code,

the appeal against acquittal could have been preferred only with the

permission of the High Court on an application filed for grant of leave to

appeal against the order in appeal and that by the addition of the proviso to

Section 372 of the Code, although a right had been conferred upon the victim

to prefer an appeal against the order of acquittal it would also be subject to

the condition of obtaining leave of the High Court. It was held that the main

provision of Section 372 stipulated that no appeal shall lie from the order of

acquittal except as provided for by the Court or by any other law for the time

being in force. Consequently, the said Court was of the view that by the said

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". It was, therefore, held that even

if the victim had a right to prefer an appeal against the order of acquittal, he

has to seek the leave of the High Court to prefer such an appeal and he cannot

directly file the appeal against the order of acquittal as of right.

Consequently, the said High Court observed that the appeal filed before it

was not maintainable without any application for grant of leave to appeal.

7. The decision of the Gujarat High Court in the case of Bhikhabhai

Motibhai Chavd (supra) also considered the issue with regard to the right of

appeal by a victim. The Court specifically dealt with the question as to

whether the victim has an absolute right to prefer an appeal or whether such

right to prefer an appeal would be available to the victim only in case the

State has not preferred any appeal against the order of acquittal or against

conviction for a lesser offence or against imposition of inadequate

compensation. This fact situation, of course, does not arise in the present

case inasmuch as the State has not preferred any appeal. However, the

observations and discussions of the Gujarat High Court need to be

considered. The said Court was of the view that it is only if the State was not

pursuing the matter with a proper spirit that the victim may validly raise a

grievance and thereafter, may file an appeal. The said Court was of the view

that a victim cannot claim to place his case on a higher pedestal than that of

the State whose basic duty was to ensure that the offenders were booked.

The Court of the view that upon a purposive interpretation of the proviso to

Section 372 of the Code, it would appear that the essential purpose for

bringing about the amendment was to see that if the State did not prefer an

appeal against the order of acquittal, the victim should not be left in a helpless

position. The Gujarat High Court took the view that the right of appeal

should be equally made available to the victim but only if the State had not

preferred an appeal.

8. We may straightaway and with all humility point out that we are

not in agreement with the aforesaid views of the Punjab and Haryana High

Court and the Gujarat High Court. It is apparent that various provisions

have been provided for appeals under the said Code. Prior to the introduction

of the proviso to Section 372, a victim did not have a right of appeal. At that

point of time, the appeals could be filed either by the convict against an order

of conviction under Section 374 or by the State for enhancement of sentence

under Section 377 or by the State or the complainant, as the case may be,

against acquittals under Section 378 of the Code. We may point out that in so

far as the appeal by a convict under Section 374 is concerned, there is no

requirement for seeking leave to appeal. Similar is the case with the State's

appeal for enhancement of sentence under Section 377 of the Code. Prior to

the introduction of hte proviso to Section 372, it was only section 378 which

dealt with appeals against acquittals. In police cases, the State had the right

to file appeals against acquittals under Section 378(1) and (2) but such right

was subject to the provisions of Section 378(3) which required that leave of

the High Court be taken before an appeal is preferred. We may note that this

requirement of taking leave of the High Court was not there in the Criminal

Procedure Code of 1989 but had been specifically introduced in the present

Code. If a case had been instituted upon a complaint, the complainant could

also file an appeal by virtue of the provisions of Section 378(4) but, he would

have to seek special leave from the High Court to file such an appeal.

9. All these provisions were existing when the proviso to Section

372 was introduced with effect from 31.12.2009. It is apparent that in some

appeals i.e., in the case of convicts' appeals against conviction and the State's

appeals seeking enhancement of sentence, no leave to appeal was necessary

whereas in other appeals i.e., appeals by the State against acquittals and

appeals by the complainant against acquittals, leave and special leave from

the High Court was necessary. The legislature was aware of this position.

We cannot assume that the legislature was ignorant of the fact that in some

appeals leave was necessary while in others it was not. Keeping this in mind,

upon a plain reading of the proviso to Section 372, we cannot discern any

limitation in respect of the requirement to take leave of the High Court before

an appeal is presented by a victim. The proviso to Section 372 is a special

provision and it deals with three different situations, namely, appeals against

acquittal, conviction for a lesser offence and inadequacy of compensation.

The proviso to Section 372 is not limited to appeals against acquittals. All

the appeals, whether they are against acquittal or conviction for a lesser

offence or inadequate compensation, have been placed on the same footing.

So, while a parallel is sought to be drawn by the learned counsel for the

respondents between an appeal under the proviso to Section 372 with an

appeal against acquittal under Section 378, it cannot be forgotten that the

appeal under the proviso to Section 372 is not limited to appeals against

acquittals but also concerns itself with appeals against conviction for lesser

offence which is akin to the State's appeals for enhancement of sentence

under Section 377 which, in turn, does not require any leave of the High

Court to be taken. Similarly, there is no requirement under the statute for

leave to be taken in respect of an appeal in respect of inadequate

compensation. All these three circumstances have been placed on the same

footing under the proviso to Section 372 and, therefore, no limitation with

regard to the requirement of taking leave or special leave of the High Court

before an appeal is presented to it by a victim can be read into the proviso to

Section 372.

10. This being the position, the present appeal would be clearly

maintainable, inasmuch as there is no requirement for first obtaining leave of

this Court. We, however, agree with the submission made by the learned

counsel for the respondents 1 to 5 that the victim's appeal agaomst acquittal

under the proviso to Section 372 does not stand on the same footing as that of

a convict's appeal against conviction. The victim must demonstrate prima

facie that there is some serious error in the judgment of the trial court which

the High Court must look into and for this purpose, admit the appeal for an in-

depth examination. All that we are saying is that while in the case of an

appeal by a convict, admission is more or less a formality and a matter of

course, in the case of an appeal by a victim against an order of acquittal

something more has to be shown before the appeal is admitted. The issue of

maintainability stands decided accordingly.

11. The counsel for the parties request for time to advance arguments

on admission of the appeal. Renotify on 28.02.2011.

BADAR DURREZ AHMED, J

MANMOHAN SINGH, J JANUARY 24, 2011 jk