Telangana High Court
S.M.Hyder Ali Mirza vs Mustafa Omer Misri Khalid Misri 5 ... on 7 September, 2022
Bench: Shameem Akther, E.V. Venugopal
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL APPEAL No.696 OF 2012
JUDGMENT: (Per Hon'ble Dr. Justice Shameem Akther)
This Criminal Appeal, under Section 372 of the Code of
Criminal Procedure, 1973 (for short, 'Cr.P.C'), is filed by the
appellant/de facto complainant (PW.1), aggrieved by the quantum
of sentence of imprisonment imposed against the respondent
No.1/A.1 for the offence under Section 412 IPC and respondent
Nos.2 to 5/A.2, A.3, A.5 and A.6 for the offence under Section 396
IPC vide judgment, dated 28.06.2012, passed in S.C.No.477 of
2010 by the learned Special Judge for Economic Offences-cum-VIII
Additional Metropolitan Sessions Judge, at Hyderabad.
2. We have heard the submissions of Sri T. Pradyumna Kumar
Reddy, learned Senior Counsel appearing for the appellant/de facto
complainant, Sri Mohd. Muzaffer Ullah Khan, learned counsel for
the respondent Nos.1 to 5/A.1, A.2, A.3, A.5 and A.6, Sri C. Pratap
Reddy, learned Public Prosecutor appearing for the respondent
No.6/State and perused the record.
3. In the course of submissions, it is brought to the notice of
this Court that the decision of the Hon'ble Apex Court rendered in
2 Dr.SA,J & EVV,J
Crl.A.No.696 of 2012
Parvinder Kansal vs. State of NCT of Delhi and another1,
wherein it was held as follows:
"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 CrPC. The proviso is inserted to Section 372 CrPC
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
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."
10. 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 CrPC 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 CrPC but similarly no appeal can be maintained by
victim under Section 372 CrPC 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 National Commission for Women v. State (NCT of
Delhi) [National Commission for Women v. State (NCT of
Delhi), (2010) 12 SCC 599 : (2011) 1 SCC (Cri) 774] has
rightly relied on the same and dismissed the appeal, as not
maintainable.
2020 SCC Online SC 685
3 Dr.SA,J & EVV,J
Crl.A.No.696 of 2012
In the light of the authoritative preposition of law laid down by the
Hon'ble Apex Court in the aforementioned decision, an appeal in
relation to inadequate sentence is required to be preferred in
terms of Section 377 Cr.P.C only by the State. Neither the victim
nor the de facto complainant has power to prefer an appeal
seeking enhancement of sentence. In the instant case, since the
subject appeal is filed by the appellant/de facto complainant
(PW.1) seeking enhancement of sentence of imprisonment
imposed against the respondent Nos.1 to 5/A.1, A.2, A.3, A.5 and
A.6, the same is not maintainable.
4. Accordingly, this Criminal Appeal is dismissed as not
maintainable.
Miscellaneous petitions, if any, pending in this appeal, shall
stand closed.
______________________
Dr. SHAMEEM AKTHER, J
_____________________
E.V.VENUGOPAL, J
Date: 07th September, 2022
scs
