Law relating to the Right of a Victim of an Offence to File an Appeal

Introduction

An appeal is a continuation of a trial. The word appeal means the right of carrying  a particular case from an inferior to a superior court with a view to ascertain whether the judgment is legally sustainable. An appeal is creature of statute and only exists where expressly given. Hence, it is not a natural or inherent right but a creature of statute. In criminal law, the provision which makes this law is section 372 of the Code of Criminal Procedure 1973(“Cr.PC“), which stipulates that:“No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or any other law for the time being in force.” The right to file an appeal against the judgments of criminal courts were  available initially either to the accused in cases of convictions or to the state in cases of acquittals or in cases of inadequate sentencing.Hence the victims of offences virtually had no right to file an appeal  in case of acquittal of accused.

The situation however changed in the year 2009 when the provisions of CrPC, relating to the right of appeal was amended. In the year, a proviso to Section 372, Cr.PC, was introduced which conferred upon victims, the right of appeal in these terms: “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.

Definition of the term ‘Victim’

When this right was conferred on the victim, it also became expedient to define the term victim which was done by the same amendment. Section 2(wa) of the Cr.PC defined “victim” as:

“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 direct reference to a victim (“Victim“) may be a person who has suffered some loss or injury by any criminal act. He may be a person who has suffered a direct and actual loss. But the problem arises where the other persons have to be considered within the ambit of the definition of victim. Who can these persons be? The above definition says that the expression victim may include his or guardian or legal heir. The personal law of the person generally governs a relation of guardianship or of a legal heir. For instance in case of an offence of murder, there can be several persons who can qualify as legal heirs of the victims. What would be the criteria to decide as to who is or should be considered as a legal heir of a victim for the purpose of the definition of the term victim in Cr.PC.

Issues relating to Victim’s Right to Appeal

As happens generally, whenever some major legislative provision is made or amended, the courts start grappling with the multifarious issues regarding its interpretations. It happened with this amendment also. Delhi High Court’s recent judgment in Ram Phal Vs State[1] gives an answer to this problem. The Hon’ble Court answered two issues related to the interpretation of the term legal heirs and the manner of the operation of this right of appeal to the victims. The two issues before the court were-

(A) Issue Relating to Definition of Victim

Whether the word ‘victim’ in Section 2 (wa) of the Cr.PC would mean only the legal heirs entitled to the property of the victim under the law applicable of inheritance or would embrace any person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged?

(B) Issue relating to time of Accrual of Right to Appeal by Victim

(i) Whether the appellate remedy is available with respect to only such offences, which were committed as on the date when the appellate right was conferred by law (Act No.5 of 2009 with effect from 31.12.2009)?

(ii) Whether the appellate right would be available with respect to the date of the decision or the appellate remedy starts without any reference to the to the points of time i.e. irrespective of the date when the offence was committed or when the appellate right was conferred by law?

(C) Issue relating to Leave to Appeal

Another important issue then arises that whether the victim has an absolute right to file an appeal in High Court or whether to file an appeal in High Court the victim has to obtain a leave to file an appeal as is required to be taken by the State while making an appeal against acquittal under section 378 Cr.P.C.
(D) Issue relating to Limitation

After considering the legislative history and relevant law already existing on these issues the court answered as-

(A) Issue Relating to Definition of Victim

(i) Broader interpretation: “Victim” in Section 2(wa) of the CrPC, by virtue of being defined as “a person who has suffered any loss or injury” must include a person who has suffered “harm caused to the mind”, given that Section 2(y) of the Cr.PC, incorporates the definition of “injury” in Section 44[2] of the IPC into the Code.

(ii) Rule of Proximity: The term Victim would mean a person X and includes person Y in clause in Section 2 (wa) of CrPC cannot be interpreted so as to result in the included meaning Y excluding the actual meaning X of the term being defined; thus “legal heirs” who are included within the definition of the term “victim‟ cannot exclude those who actually fall within the definition of “victim” by virtue of emotional harm suffered, such as the father or siblings of a deceased victim or other categories of persons (based on proximity) noted previously .

(iii) Application of Heydon’s Mischief Rule: The laws of inheritance, which decide once “legal heirs”, are not intended to be solely determinative of the entitlement to exercise the rights of the victim, in the criminal trial/appeal, on his/her death. Application of Heydon’s mischief Rule[3], has given that the object of the 2008 Amendment was to ensure the involvement of the victim, who has a presumably personal interest in the fair and efficient prosecution of the trial/appeal. Resultantly, it is impermissible for an appellate court to shut out an appeal by a “legal heir” based only on her/his not being an immediate heir, or being lower down in hierarchy vis-à-vis entitlement to the crime victim’s estate.

(iv) Legislative Mind: The structure of the definition in Section 2 (wa), shows that Parliament’s primary concern was to enable only victims who suffered “injury”, be it physical or emotional (in its most direct and proximate sense, as opposed to those who were merely inconvenienced or whose injury or loss was remote), the participative rights within the criminal trial process, only in absence of whom, the “legal heirs” would be allowed.

(a)  The court also observed that they must be conscious of the fact that by the amendment, a new enabling provision permitting an appeal against an order of acquittal was introduced by  Parliament. This amendment was unparalleled in the annals of penal statutes; the prevailing  thinking had been to allow acquittals to be considered as judicial affirmations of “badges of innocence” which the law decreed by the initial presumption of innocence till proved otherwise.  The anxiety of Parliament to confine the right of appeal to a restricted category of cases is evident   from the subject-object predicate, i.e. the nexus between the “victim” and “injury” is apparent from  the fact that appeals are admitted to only those injured by the crime or offence (“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”), where “injury” is defined by Section 44 of the IPC, as discussed  earlier.

(b)  In this first sense, the class of persons, i.e. Victims being those suffering loss or injury, is  clear enough; only the actual Victim, wherever available, directly affected by the crime or offence  (“act or omission”) attributable to the offender (“accused person”) are conferred the right to appeal. The second part of the definition (the “pull in” if one may use that expression) is the associative part, in that, by way of the expression “includes”, Parliament sought to bring in those persons and individuals who are not per se victims of the crime, but associated with her (or him).  This was necessary because if the victim were no longer alive (because of the crime itself, such as murder, homicide, etc.), and the victim who suffered “harm to the mind”, as a loved one of the   victim simpliciter, was also unavailable to exercise the right to participate in the trial, then such   persons would be considered as suffering “loss” as well as “injury”, and thus would be deemed   victims. It is merely in this associative sense that such persons are entitled to appeal against an  acquittal, and, therefore, the legal heirs cannot possibly exclude victims who have suffered “injury” that is direct and proximate “harm to the mind”.

(v) Overruling Chattar Singh Judgment: While enlarging the scope of the term legal heirs, Court also overruled its previous judgment in Chattar Singh v. Subhash and Ors[4]. In Chattar Singh, the Division Bench of Delhi High Court held that the phrase “loss or injury” in Section 2(wa) is limited to “the person whose suffering is the direct and most proximate result of the crime.” It further reasoned that the phrase “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. According to the Court, the concerned expression “means “x” and includes “y” refers to a situation where the word “means” exhausts the range of potentialities ordinarily accorded to “x”, and the expression “includes” extends it to a set “y”, that would not ordinarily be covered by “x”. In other words, the Division Bench held that the set of people who qualify under Section 2(wa) on account of suffering loss or injuries, and the set of people who qualify as “legal heirs” of the former, constitute two separate, non-overlapping categories. The Division Bench further held that the phrase “legal heirs” was a term of art, and was limited to “a person who is entitled to the property of the victim under the applicable law of inheritance.” Under Hindu law, this meant, for instance, that Class II heirs (in terms of the Hindu Succession Act, 1956) would lack the locus standi to maintain a criminal appeal, since they were excluded from inheriting by Class I heirs. The Court therefore didn’t  agree with the analysis in Chattar Singh that treats the hierarchy of “legal heirs” in personal law as solely determinative of who may qualify as a “victim” simpliciter, in the absence of which, a victim by inclusion.

(B) Issue relating to time of Accrual of Right to Appeal by Victim

(i) Prospective Ruling: The Court answered that right of appeal being a substantive right always acts prospectively. It is trite law that every statute is prospective unless it is expressly or by necessary implication made to have retrospective operation while relying on the judgments of Supreme Court in Thirumalai Chemicals Ltd. v. Union of India[5]Hitendra Vishnu Thakur v. State of Maharashtra[6], , Kailash v. Nanhku and Ors[7]. and H.P. State Electricity Regulatory Commission v. H.P. SEB[8]. It means that the right of victim, to prefer an appeal in terms of the proviso to Section 372, became available to the victim(s) of all cases in which orders were passed by any criminal court acquitting the accused or convicting him for a lesser offence or imposing inadequate compensation, on or after 31st of December, 2009. In other words, date of judgment of a criminal court has to be necessarily treated as the relevant date for applying the test of maintainability of appeal by the victim under three contingencies laid down under the proviso to Section 372 of the Code, irrespective of the date of occurrence, institution of the case, cognizance or commitment. (M/s Tata Steel Ltd. Vs. M/s Atma Tube Products Ltd. & Ors[9], and Parmeshwar Mandal vs The State Of Bihar & Ors.[10]

(C) Issue relating to Leave to Appeal

(i) Leave to Appeal: The Court observed that what is significant to notice is that this right to appeal, which is clearly in affirmative terms, has been given to the victim by inserting the said proviso in Section 372 itself, which is the opening section of the Chapter, and not by any insertion in section 377 or 378, which deal with appeals against inadequate sentence and acquittal. In contradistinction to wordings of Section 377 and 378, which are apparently enabling provisions, and only give a liberty to the District Magistrate, State Government, the Central Government, and the complainant, to prefer an appeal by use of the word “may”, a victim, under the said proviso to Section 372 has been given a right to prefer appeal by use of the expression “shall have a right to appeal”. It is also significant to notice that, whereas in Section 378, grant of leave has been made a condition precedent for entertaining any appeal against acquittal preferred under sub-sections (1) and (2), and grant of special leave for entertaining an appeal by a complainant preferred under sub-section (4), there is no such qualification prescribed in the said proviso to Section 372 for a victim to maintain his appeal against an order of acquittal, or against a conviction for a lesser offence or against imposition of inadequate compensation.

(a) View of Mumbai High Court: The Division Bench of Bombay High Court in  Mr. Balasaheb Rangnath Khade vs The State Of Maharashtra & Ors[11] has considered this question that whether a “victim” can file an appeal against the order of acquittal passed by the Trial Court without filing an application for leave to file appeal in this Court?” But since the Bench of two Judges have expressed difference of opinion on the issue involved in this case and as there are conflicting views, in view of provisions of Section 392 of the Criminal Procedure Code and Rule 6 of Chapter-I of the High Court (Appellate Side) Rules, the matter was placed before the Hon’ble Chief Justice so that the matter should be placed before another learned Single Judge or larger Bench or before the Full Bench since the important question of law needs to be decided.

(b) View of The Patna High Court: The Patna High Court in its judgment in Parmeshwar Mandal vs The State Of Bihar & Ors[12] has however ruled that there is no requirement in law for the victim to obtain a leave to appeal from High Court before preferring such appeal.

(c) Supreme Court’s View: The Supreme Court of India in Satya Pal Singh vs State Of M.P. And Ors.[13] held that a victim is required to obtain a leave of appeal from High Court before preferring such appeal. The Court is of the view that the right of questioning 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) of Cr.PC under proviso to Section 372, but only after obtaining the leave of the High Court as required under sub-Section (3) to Section 378 of Cr.PC.

(D) Issue relating to Limitation

(i) Limitation Issue: Another issue is regarding limitation. It was held in Parmeshwar Mandal (Supra), that, Legislature has provided no limitation for an appeal by a victim under the said proviso to Section 372, nor has made any insertions for the purpose in the Limitation Act. Hence, in the opinion of the Court, the Legislature, by a conscious act, has put the right of a victim to prefer an appeal under the Code, in terms of the said proviso to Section 372, at a much higher pedestal than the right of a prosecuting agency or a complainant to present an appeal. Any otherwise intention of the Legislature is ruled out from the fact that, had it been so, it would have inserted a new sub-section in Section 377 or 378, putting his right, with limitations and qualifications, at par with that of the prosecuting agency or the complainant, instead of inserting this right of victim in the opening section of the chapter itself. Besides giving “a right to prefer appeal to the victim” the said proviso also lays down that “such an appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court”. This features the appeal preferred by the victim against the order of acquittal at par with the appeal preferred by a convict against his conviction.

(a) View of Delhi High Court: The Delhi High Court in Kareemul  Hajazi Versus State of  NCT Of Delhi & Ors Crl.A 940/2010 observed that with the introduction of the proviso to Section 372, a victim has also been given the right of appeal in respect of an order of acquittal, a conviction for a lesser offence and for inadequacy of compensation. However, while specific periods of limitation have been prescribed for the earlier three kinds of appeals either in the Code itself 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. Therefore, as is well established, a reasonable period would have to be inferred from the statutory provisions. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors. In the absence of any period of limitation it is settled that every authority is to exercise the power within a reasonable period. What would be reasonable period would depend upon the facts of each case. In this case computed that the reasonable period of limitation for filing of an appeal by a victim ought to be regarded as 60 days from the date of order appealed from.

(b) View of Punjab & Haryana High Court: This was however contrary to an earlier judgment of a Full Bench  of Punjab and Haryana High Court dated 18th March, 2013 in M/s Tata Steel Ltd. Vs. M/s Atma Tube Products Ltd. & Ors, [2013(1) ILR 719 (P & H)], where the period of limitation for an appeal by a victim under proviso to Section 372 of the Code was held to be as (a) In case of acquittal – (i) where appeal lies to the High Court , 90 days from the date of order appealed against (ii) Where appeal lies to any other Court, 60 days from date of order appealed against (b) Any other sentence or order – (i) to the High Court- 60 days from the date of sentence or order (ii) to any other Court, 30 days from the date of sentence or order.


Conclusion

Therefore the law relating to the rights of victim to file an appeal against an adverse judgment of criminal court can thus be summarized as-

(a) By virtue of the Proviso, as inserted in section 372 of the Code of Criminal Procedure, 1973 by the Criminal Procedure Code (Amendment) Act, 2008 (Act 5 of 2009), a “victim” has been put at a higher pedestal, than a prosecuting agency or a complainant, in the matter of preferring an appeal against any order of a criminal court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. This proviso gives an unqualified “right” to a “victim” to prefer an appeal in its terms, as against the enabling sections 377 and 378, which only give liberty to a District Magistrate, the State Government, the Central Government and the complainant, as the case may be, to prefer an appeal against an order of sentence on the ground of its inadequacy or against an order of acquittal Parmeshwar Mandal (Supra)

(b) A victim or his guardian or his legal heir can file an appeal against an adverse order of a criminal 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. There has to be a relationship between the injury and the person who suffered it, i.e. the “victim”. Consequently, the injury (to the victim who suffers it) has to be proximate; it cannot be remote. At the same time, given the nature of what is “injury” (under Section 44, IPC) the enquiry of proximity would be fact dependent. Courts would assess such issues, based on established principles, and balancing the facts on a case-to-case basis. Where the victim is unable (by reason of trauma, shock or other disability) to make a choice of preferring an appeal, those who are in a position to do so on her or his behalf (and who might also have suffered some proximate harm) – such as relatives, foster children, guardians, fiancé or live-in partners etc., can maintain an appeal under the proviso to Section 372. (Ramphal)(Supra).

(c) The victim cannot file an appeal just for the purpose of enhancing the punishment given to the convict, as the statutory right is available only against conviction, or conviction for a lesser offence or imposing inadequate compensation.

(d) The victim, as defined under Section 2 (wa) of Cr.PC., can file an appeal under proviso to Section 372 Cr.PC., but only after obtaining the leave of the High Court as required under sub-Section (3) to Section 378 of Cr.PC. (Satya Pal Singh) (Supra)

(e) Although no limitation period for filing an appeal for the victim is provided in Cr.P.C, but the appeal has to be filed within a reasonable period. What is a reasonable period shall be the subject matter of each and every case depending upon its facts and circumstances. Any undue delay in filing appeal has to be explained by the victim to the satisfaction of the court (Parmeshwar Mandal, Kareemul Hajazi) (Supra). However as discussed above in view of a Full Bench judgment of Punjab and Haryana High Court dated 18th March, 2013 in M/s Tata Steel Ltd. the period of limitation for an appeal by a victim under proviso to Section 372 of the Code was held to be as: (a) In case of acquittal-(i) where appeal lies to the High Court , 90 days from the date of order appealed against (ii) Where appeal lies to any other Court, 60 days from date of order appealed against (b) Any other sentence or order- (i) to the High Court- 60 days from the date of sentence or order (ii) to any other Court, 30 days from the date of sentence or order.

[1] (Crl.A.1415/2012)

[2] “Injury”-The word “injury” denotes any harm whatever ille­gally caused to any person, in body, mind, reputation or proper­ty.

[3] Heydon’s Rule: The rule was first set out in Heydon’s Case [1584]76 ER 6373 CO REP 7a where the court ruled that there were four points to be taken into consideration when interpreting a statute. For the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered:

1st.  What was the common law before the making of the Act?

2nd. What was the mischief and defect for which the common law did not provide.

3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. And,

4th. The true reason of the remedy; & The core principle of the last of is. ‘and then 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 privato 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 public.

[4] 176 (2011) DLT 356

[5] (2011) 6 SCC 739

[6] AIR 1994 SC 2623

[7] (2005) 4 SCC 480

[8] (2014) 5 SCC 219

[9] [2013(1) ILR 719 (P & H)]

[10] Dated 26 November, 2013 (Criminal Appeal (DB) No.1078 of 2012)

[11] (Criminal Appeal 991/992 of 2011)

[12] Dated 26 November, 2013 ( Criminal Appeal (DB) No.1078 of 2012)

[13] Dated 6 October, 2015  (Criminal Appeal NO. 1315  of 2015)

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