Chattar Singh vs Subhash & Others
2011 Latest Caselaw 78 Del

              THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Judgment delivered on: 07.01.2011

+            CRL.A. 443/2010

CHATTAR SINGH                                                  ..... Appellant

                                        versus

SUBHASH & OTHERS                                               ..... Respondents

Advocates who appeared in this case:

For the Appellant : Mr Saurabh Kirpal with Mr B.B. Bhatia, Mr Navjot Kumar and Ms Rashmi Sharma For the Respondents : Mr K.B. Andley, Sr Advocate with Mr Mohd. Shamikh for the Respondent Nos. 1 to 4.

Ms Richa Kapur for the Respondent No.5/State.

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

1. Mr Chattar Singh has filed this appeal under the proviso to

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

‗the Code'), claiming himself to be a ―victim‖. The appeal is directed

against the judgment dated 06.01.2010 delivered by the learned Additional

Sessions Judge, North East, Karkardooma Courts, Delhi whereby the

respondent nos. 1 to 4 who had been charged under sections 120-B, 364 r/w

120-B, 302 r/w 120-B and 201 r/w 120-B IPC, were acquitted.

2. The primary question which arises in this case is with regard to

the maintainability of the appeal. Can Mr Chattar Singh, the father of the

deceased Satish, be regarded as a ―victim‖ for the purposes of the proviso to

section 372 of the Code? Who is a ‗victim' for the purposes of the proviso

to section 372 of the Criminal Procedure Code, 1973?

3. The proviso to section 372 of the Code stipulates that a ―victim‖

shall have a right to prefer an appeal against any order passed by the court

whereby :-

(a) the accused is acquitted; or

(b) the accused is convicted for a lesser offence; or

(c) inadequate compensation is imposed.

The word ―victim‖ is defined in section 2(wa) of the Code as under:-

―2. Definitions.--In this Code, unless the context otherwise requires,--

                xxxxx         xxxxx            xxxxx           xxxxx

                (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;‖

A victim of crime is a person who suffers any loss or injury as a result of the

crime. Although the expression ―any loss or injury‖ is an expansive

expression, it appears that it has been used in the context of the person

whose suffering is the direct and most proximate result of the crime. Let us

take the case of theft. The person whose suffering is the direct and most

proximate result of the crime is the person whose property is stolen. Surely,

that person's wife, children or parents would also suffer some mental pain

and anguish and may even suffer financially but, the real victim is that

person, that is, the owner of the property stolen. In the case of grievous hurt

also, the victim would be the person on whom the hurt was inflicted

although, there would be other family members and friends who may also

indirectly suffered the trauma. The victim of rape is the woman or girl who

has been raped. Although her parents and other family members must have

also suffered to some extent, it is only she who could be regarded as the

victim. Of course, where the person on whom the crime is committed loses

his or her life, his or her ―heirs‖ would fall within the meaning of ―victim‖.

Similar is the case of a minor or a person of unsound mind. It is his or her

guardian who would also be regarded as a ‗victim'. This is clear from the

―means ... and includes‖ definition found in section 2(wa) of the Code.

4. Mr Kirpal, the learned counsel for the appellant, referred to

Black Diamond Beverages v. CTO: (1998) 1 SCC 458 wherein the

definition of ―sale-price‖ in section 2(d) of the West Bengal Sales Tax Act,

1954, which employed a ―means ... and includes‖ definition, was

considered. The Supreme Court observed that the first part of the definition

defined the meaning of the word ―sale price‖ and ought, therefore, be given

its ordinary, popular or natural meaning and that the interpretation thereof

was in no way controlled or affected by the second part which ―includes‖

certain other things in the definition. The Court recognised this as a well-

settled principle of construction. In other words, the ―means‖ part of the

definition was taken as its ordinary and natural meaning and the ―includes‖

part was considered to extend the word to something it would not ordinarily

cover.

5. Another decision referred to by Mr Kirpal was that of P.

Kasilingam v. P.S.G. College of Technology: 1995 Supp (2) SCC 348,

where, at pages 355-356, the Supreme Court observed as under:-

―... It has been urged that in Rule 2(b) the expression ―means and includes‖ has been used which indicates that the definition is inclusive in nature and also covers categories which are not expressly mentioned therein. We are unable to agree. A particular expression is often defined by the Legislature by using the word ‗means' or the word ‗includes'. Sometimes the words ‗means and includes' are used. The use of the word ‗means' indicates that ―definition is a hard-and-fast definition, and no other meaning can be assigned to the expression than is put down in definition‖. (See : Gough v. Gough [(1891) 2 QB 665]; Punjab Land Development and Reclamation Corpn.

Ltd. v. Presiding Officer, Labour Court [(1990) 3 SCC 682, 717]). The word ‗includes' when used, enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import but also those things which the clause declares that they shall include. The words ―means and includes‖, on the other hand, indicate ―an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions‖. (See : Dilworth v. Commissioner of Stamps [1899 AC 99, 105-106](Lord Watson); Mahalakshmi Oil Mills v. State of A.P.[(1989) 1 SCC 164, 169].‖

Of course, the definition in Kasilingam (supra) was one where the

expression employed was ―means and includes‖ whereas in section 2(wa) of

the Code the expression is ―means ... and includes‖ which is in the form

―means A and includes B‖.

6. Finally, as regards the meaning to be ascribed to the word

―includes‖, Mr Kirpal referred to the Supreme Court decision in N.D.P.

Namboodripad v. Union of India: (2007) 4 SCC 502. After referring to

Justice G.P. Singh's treatise - Principles of Statutory Interpretation (10th

Edn., 2006) - the Court noticed that where a word defined is declared to

―include‖ such and such, the definition is prima facie extensive, but the

word ―include‖ when used while defining a word or expression, may also be

construed as equivalent to ―mean and include‖ in which event, it will afford

an exhaustive explanation of the meaning which for the purposes of the Act

in question must invariably be attached to the word or expression. The

Supreme Court further observed that it is evident that the word ―includes‖

can be used in interpretation clauses either generally in order to enlarge the

meaning of any word or phrase occurring in the body of a statute, or in the

normal standard sense, to mean ―comprises‖ or ―consists of‖ or ―means and

includes‖ depending on the context.

7. These decisions make it abundantly clear that a definition which

solely uses the word ―means‖ is a ―hard and fast‖ definition. A definition

which uses the word ―includes‖ alone is not an exhaustive one but an

extensive and expansive one. A definition which employs the expression

―means and includes‖ is an exhaustive definition and, a definition which has

the expression ―means ... and includes‖ and which is in the form ―means A

and includes B‖ usually refers to the ordinary and natural meaning but with

an extension of the ―includes‖ portion. In the present case, Section 2(wa)

would refer to a crime victim in the natural and ordinary sense as the person

who directly and most proximately suffered the loss or injury but it would

also include -- (a) his or her heirs in case he or she was dead; or (b) his or

her guardian if he or she was a minor or of unsound mind or under some

other disability.

8. The word ―victim‖ as defined in section 2(wa) of the Code is not

only to be found in the proviso to section 372. It also finds mention in (i)

the proviso to section 24(8); (ii) the second proviso to section 157(1); (iii)

section 164-A; (iv) section 265-B(4)(a); (v) section 265-C; (vi) section 265-

E; (vii) section 357-A; (viii) proviso to section 372; (ix) reference to section

228-A in the First Schedule to the Code. The word ―victim‖ in all these

provisions would have to be given the meaning ascribed to it in section

2(wa), unless, of course the context otherwise requires. In the second

proviso to section 157(1), for example, the reference to ―victim‖ is only to

the rape victim herself (and not to her guardian etc) as the said provision

relates to the recording of her statement at her place of residence. Here, the

context requires that the ―includes‖ part of the definition be discarded. In

section 357-A (1), which relates to the victim compensation scheme, the

expression used is ―the victim or his dependents who have suffered loss or

injury as a result of the crime and who require rehabilitation‖. This

provision also indicates that the word ―victim‖ primarily refers to the person

who suffers direct loss or injury because his ―dependants‖ have been

separately mentioned, though they may also have suffered loss or injury or

be in need of rehabilitation. Another thing which comes to notice is the use

of the word ―or‖ in the expression ―victim or his dependents‖, which

suggests that compensation is either for the victim or for his/her dependents,

in case the victim is no longer alive. This also illustrates the point that

―victim‖ refers to the crime victim in the natural and direct sense and not to

the ―dependents‖ etc. Of course, the expression ―dependent‖ is different

from ―legal heir‖ which appears in the ―includes‖ part of the definition in

section 2(wa), but we need not go into this discussion for the present.

9. In the case at hand, the appellant - Mr Chattar Singh, is the father

of Satish who was murdered and who was the ―victim‖ of the crime in the

natural and ordinary sense. Satish also left behind his widow and children.

They, however, have not come forward for filing any appeal as ―victims‖.

The question which now arises is - whether the appellant can be regarded as

a ―victim‖ within the meaning of section 2(wa) of the Code. In the view we

have taken, he can only be regarded as a ―victim‖ if he is covered by the

―includes‖ part of the definition by falling within the expression ―legal

heir‖.

10. The word ―heirs‖ as used in a will was considered by the

Supreme Court in Angurbala Mullick v. Debabrata Mullick: 1951 SCR

1125. The Supreme Court was of the view that the word ―heirs‖ cannot

normally be limited to issue only and that it must mean ―all persons who are

entitled to the property of another under the law of inheritance‖. Again in a

similar context, the Supreme Court in N. Krishnammal v. R. Ekambaram:

(1979) 3 SCC 273, held that it was well settled that legal terms such as

―heirs‖, used in a Will must be construed in the legal sense, unless a

contrary intention is clearly expressed by the testator and, consequently, as

pointed out in Angurbala Mullick v. Debabrata Mullick (supra) it must

mean ―all persons who are entitled to the property of another under the law

of inheritance‖. The same view was also taken in Bay Berry Apartments

(P) Ltd. v. Shobha: (2006) 13 SCC 737. These decisions relate to the

expression ―heirs‖ as appearing in a Will. The Supreme Court has

interpreted the word ―heirs‖ in the legal sense unless a contrary intention of

the testator is discernible. In the case of section 2(wa), since the word ―heir‖

is preceded by the word ―legal‖, it must be construed in the legal sense as

that is the clear intention of the legislature. The expression ―legal heir‖ in

relation to a victim, therefore, clearly refers to a person who is entitled to

the property of the victim under the applicable law of inheritance.

11. Undoubtedly, the law of inheritance applicable to the victim

Satish is the Hindu Succession Act, 1956 (hereinafter referred to as ‗the

HSA'). Section 8 of the HSA sets out the general rules of succession in the

case of a male Hindu dying intestate. It stipulates that the property would

devolve, firstly, upon the heirs specified in Class I of the Schedule;

secondly, if there is no heir of Class I, then upon the heirs specified in Class

II of the Schedule; thirdly, if there is no heir of any of the two classes, then

upon the agnates of the deceased; and lastly, if there is no agnate, then upon

the cognates of the deceased. Section 9 of the HSA provides the order of

succession among heirs in the Schedule. Those in Class I take

simultaneously and to the exclusion of all other heirs; those in the first entry

in Class II are preferred to those in the second entry and so on, in

succession. Section 12 prescribes the order of succession among agnates

and cognates but that does not concern us in the facts of the present case

inasmuch as it is an admitted position that the ―victim‖ (Satish) left behind

his widow and children (Class I heirs) and his father (Chattar Singh - the

appellant) who is a Class II heir.

12. In view of the provisions of sections 8 and 9 of the HSA, the

appellant being a Class II heir would not inherit anything from his deceased

son Satish in the presence of Satish's Widow and children who, being Class

I heirs, inherit to the exclusion of Class II heirs and agnates and cognates.

Thus, strictly speaking, the appellant is not entitled to the property of the

victim under the applicable law of inheritance i.e., the HSA. Consequently,

again strictly speaking, the appellant would not fall within the expression

―legal heir‖ in relation to his deceased son - Satish.

13. At this juncture, Mr Kirpal contended that the expression ―legal

heir‖ has reference to all heirs specified in the HSA be they Class I heirs or

Class II heirs or agnates or cognates. He submitted that the appellant being

the father of the deceased victim and a Class II heir could surely file an

appeal in respect of the murder of his said son. This, very emotive

argument, appears to be reasonable and also appeals to our sensibilities but,

our job as judges is to interpret the statute and, in doing so, to find out the

intention of the legislature. The use of the expression ―legal heir‖ as

distinct from ―heir‖ is deliberate. And, therefore, the expression ―legal heir‖

would have to be given its meaning in law of referring to a person who is

entitled to the property of the victim under the applicable law of inheritance.

We have seen that the appellant is not such a person. As such, he cannot be

regarded as a ―legal heir‖ of the victim and, consequently, he does not come

even within the ―includes‖ part of the definition of ―victim‖ in section 2(wa)

of the Code.

14. The result of this discussion is that the present appeal is not

maintainable inasmuch as it not an appeal by a ―victim‖ as contemplated in

section 372 of the Code because the appellant does not qualify as a ―victim‖

as defined in section 2(wa) of the Code. The appeal is dismissed as such.

All pending applications also stand disposed of.

BADAR DURREZ AHMED, J

MANMOHAN SINGH, J JANUARY 07, 2011 HJ