Mallikarjun Kodagali

MANU/SC/1165/2018
Equivalent Citation: AIR2018SC5206, (2019)2SCC752
IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1281-82 of 2018 (Arising out of S.L.P. (Crl.) Nos.
7040-7041 of 2014)
Decided On: 12.10.2018
Appellants: Mallikarjun Kodagali (Dead) represented
through Legal Representatives
Vs.
Respondent: State of Karnataka and Ors.
Hon'ble Judges/Coram:
Madan B. Lokur, S. Abdul Nazeer and Deepak Gupta, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Sidharth Luthra, Sr. Adv., S. Udaya
Kumar Sagar, Bina Madhavan, Piyush Dwivedi, Anoopam N. Prasad and
Mehaak Jaggi, Anthony, Advs. for Lawyer S. Knit & Co.
For Respondents/Defendant: A.K. Ganguli, Sr. Adv., Rajani K. Prasad,
N. Annapoorani,
S. Joseph Aristotle, Priya Aristotle, Payal N. Gaikwad, Gaurav Agrawal,
Nishanth Patil, Sneha Ravi Iyer, Rohit Prasad and Shahayar Ali, Advs.
JUDGMENT
Madan B. Lokur, J.
1. Leave granted.
2 . The rights of victims of crime is a subject that has, unfortunately,
only drawn sporadic attention of Parliament, the judiciary and civil
society. Yet, it has made great progress over the years. It is our
evolving and developing jurisprudence that has made this possible. But
we still have a long way to go to bring the rights of victims of crime to
the centre stage and to recognise them as human rights and an
important component of social justice and the Rule of law.
3. The travails and tribulations of victims of crime begin with the
trauma of the crime itself and, unfortunately, continue with the
difficulties they face in something as simple as the registration of a First
Information Report (FIR). The difficulties in registering an FIR have been
noticed by a Constitution Bench of this Court in Lalita Kumari v.
Government of Uttar Pradesh MANU/SC/1166/2013 : (2014) 2 SCC
35-08-2022 (Page 1 of 35) www.manupatra.com Hemant Kumar

1. The ordeal continues, quite frequently, in the investigation that may
not necessarily be unbiased, particularly in respect of crimes against
women and children. Access to justice in terms of affordability, effective
legal aid and advice as well as adequate and equal representation are
also problems that the victim has to contend with and which impact on
society, the Rule of law and justice delivery.
4. What follows in a trial is often secondary victimisation through
repeated appearances in Court in a hostile or a semi-hostile
environment in the courtroom. Till sometime back, secondary
victimisation was in the form of aggressive and intimidating
crossexamination, but a more humane interpretation of the provisions of
the Indian Evidence Act, 1872 has made the trial a little less
uncomfortable for the victim of an offence, particularly the victim of a
sexual crime. In this regard, the judiciary has been proactive in ensuring
that the rights of victims are addressed, but a lot more needs to be
done. Today, the rights of an Accused far outweigh the rights of the
victim of an offence in many respects. There needs to be some
balancing of the concerns and equalising their rights so that the criminal
proceedings are fair to both.1 The Courts have provided solace to the
victim with monetary compensation, but that is not enough. 2 There are
victim compensation schemes in force due to the mandate of Section
357A of the Code of Criminal Procedure, 1973 (the Cr.P.C.) but even
that is not enough, though they are being implemented in several parts
of the country. We are of the view that the judiciary is obliged to go and
has gone beyond merely awarding compensation and has taken into
consideration the larger picture from the perspective of the victim of an
offence, relating to infrastructure in court buildings and has
recommended and implemented some recommendations such as the
construction of child friendly courts and courts that address the concerns
of vulnerable witnesses.3 The Courts have done and are continuing to do
their best for the victims of crime.
5. In Sakshi v. Union of India MANU/SC/0523/2004 : (2004) 5 SCC
518 this Court passed significant directions for holding in camera
proceedings, providing for a screen between the Accused and the victim
and placed restrictions, in a sense, on the cross examination of
witnesses. It is true that these directions have been passed in a case
relating to sexual offences but the trend of this Court has been to show
concern for the rights of victims of an offence and to address them.
6. Parliament also has been proactive in recognising the rights of
victims of an offence. One such recognition is through the provisions of
Chapter XXIA of the Code of Criminal Procedure which deals with plea
bargaining. Parliament has recognised the rights of a victim to

participate in a mutually satisfactory disposition of the case. This is a
great leap forward in the recognition of the right of a victim to
participate in the proceedings of a non-compoundable case. Similarly,
Parliament has amended the Code of Criminal Procedure introducing the
right of appeal to the victim of an offence, in certain circumstances. The
present appeals deal with this right incorporated in the proviso to
Section 372 of the Code of Criminal Procedure.
7. In other words, a considerable amount has been achieved in giving
life to the rights of victims of crime, despite the absence of a cohesive
policy. But, as mentioned above, a lot more still needs to be done.
8. Among the steps that need to be taken to provide meaningful
rights to the victims of an offence, it is necessary to seriously consider
giving a hearing to the victim while awarding the sentence to a convict.
A victim impact statement or a victim impact assessment must be given
due recognition so that an appropriate punishment is awarded to the
convict. In addition, the need for psycho-social support and counselling
to a victim may also become necessary, depending upon the nature of
the offence. It is possible that in a given case the husband of a young
married woman gets killed in a fight or a violent dispute. How is the
young widow expected to look after herself in such circumstances, which
could be even more traumatic if she had a young child? It is true that a
victim impact statement or assessment might result in an appropriate
sentence being awarded to the convict, but that would not necessarily
result in 'justice' to the young widow-perhaps rehabilitation is more
important to her than merely ensuring that the criminal is awarded a life
sentence. There is now a need, therefore, to discuss these issues in the
context of social justice and take them forward in the direction
suggested by some significant Reports that we have had occasion to
look into and the direction given by Parliament and judicial
pronouncements.
9. The rights of victims, and indeed victimology, is an evolving
jurisprudence and it is more than appropriate to move forward in a
positive direction, rather than stand still or worse, take a step backward.
A voice has been given to victims of crime by Parliament and the
judiciary and that voice needs to be heard, and if not already heard, it
needs to be raised to a higher decibel so that it is clearly heard.
10. With this background, we need to consider the questions that arise
before us consequent to the introduction of the proviso to Section 372 of
the Code of Criminal
Procedure with effect from 31st December, 2009. The questions are
somewhat limited: Whether a 'victim' as defined in the Code of Criminal

Procedure has a right of appeal in view of the proviso to Section 372 of
the Code of Criminal Procedure against an order of acquittal in a case
where the alleged offence took place prior to 31 st December, 2009 but
the order of acquittal was passed by the Trial Court after 31 st December,
2009? Our answer to this question is in the affirmative. The next
question is: Whether the 'victim' must apply for leave to appeal against
the order of acquittal? Our answer to this question is in the negative.
Factual narrative
11. The Appellant (Kodagali-now dead but represented by his legal
representatives) was the victim of an attack on the night of 6 th February,
2009. He lodged a First Information Report with the police and after
investigations, necessary proceedings were taken before the District and
Sessions Judge, Bagalkot against the Accused persons under several
Sections of the Indian Penal Code (the IPC).
12. In S.C. No. 49 of 2010 the District and Sessions Judge, Bagalkot
(Karnataka) acquitted the Accused by a judgment and order dated 28 th
October, 2013.
13. Aggrieved thereby, Kodagali preferred an appeal in the High Court
being Criminal Appeal No. 100016 of 2014. The appeal was preferred
under the proviso to Section 372 of the Code of Criminal Procedure but
it was dismissed as not maintainable by a judgment and order dated 10 th
June, 2014. It was held by the High Court that the proviso to Section
372 of the Code of Criminal Procedure came into the statute book with
effect from 31st December, 2009 but the incident had occurred well
before that date. Therefore, the appeal was not maintainable. Reliance
was placed by the High Court on National Commission for Women v.
State of Delhi and Anr. MANU/SC/0831/2010 : (2010) 12 SCC 599.
14. Kodagali then preferred another appeal in the High Court being
Criminal Appeal No. 100119 of 2014. This appeal was filed under the
provisions of Section 378(4) of the
Code of Criminal Procedure By a judgment and order dated 4 th July,
2014 the High Court held that the appeal was not maintainable. The
view taken by the High Court was on a plain reading of Section 378(4)
of the Code of Criminal Procedure, namely, that the appeal was not filed
in a case instituted upon a complaint before a Magistrate.
15. Under these circumstances, Kodagali is before us challenging the
judgment and orders dated 10th June, 2014 and 4th July, 2014. It is his
contention that he has been left with no remedy against the acquittal of
the accused. His submission is that one of the Accused is a Member of
the Legislative Assembly and it is for this reason that the State did not

challenge the acquittal. It is not necessary for us to go into the merits of
the controversy or the allegations made by Kodagali. Suffice it to say,
we are only concerned with the question whether the appeal filed by
Kodagali under the proviso to Section 372 of the Code of Criminal
Procedure was maintainable or not.
Victims of crime and their rights
16. In recent times, four Reports have dealt with the rights of victims
of crime and the remedies available to them. The first Report in this
sequence is the 154th Report of the Law Commission of India of August
1996. While this Report did not specifically deal with the right of a victim
of crime to file an appeal, it did discuss issues of victims of crime,
compensation to be paid to the victim and rehabilitation of the victim
including the establishment of a Victim Assistance Fund.
17. The second important Report is the March 2003 Report of the
Committee on Reforms of Criminal Justice System commonly known as
the Report of the Justice Malimath Committee. In the Chapter on
Adversarial Rights, it is recommended under the sub-heading of Victims
Right to Appeal as follows:
2.21. The victim or his representative who is a party to the trial
should have a right to prefer an appeal against any adverse order
passed by the trial court. In such an appeal he could challenge
the acquittal, or conviction for a lesser offence or inadequacy of
sentence, or in regard to compensation payable to the victim.
The appellate court should have the same powers as the trial
court in regard to assessment of evidence and awarding of
sentence.
18. Thereafter, in the substantive Chapter on Justice to Victims, it is
noted that victims of crime, in many jurisdictions, have the right to
participate in the proceedings and to receive compensation for injury
suffered. It was noted as follows:
6 . 3 Basically two types of rights are recognized in many
jurisdictions particularly in continental countries in respect of
victims of crime. They are, firstly, the victim's right to participate
in criminal proceedings (right to be impleaded, right to know,
right to be heard and right to assist the court in the pursuit of
truth) and secondly, the right to seek and receive compensation
from the criminal court itself for injuries suffered as well as
appropriate interim reliefs in the course of proceedings.
19. Following up on this, and extending the rights of victims of crime, it
was observed in paragraph 6.5 that "The right of the victim should

extend to prefer an appeal against any adverse order passed by the trial
court. The appellate court should have the same powers to hear appeals
against acquittal as it now has to entertain appeal against conviction.
There is no credible and fair reason why appeals against acquittals
should lie only to the High Court."
20. On this basis, the Justice Malimath Committee made the following
recommendation enabling the victim of a crime to prefer an appeal. The
recommendation (made in the Chapter having the same heading) reads
as follows:
The victim shall have a right to prefer an appeal against any
adverse order passed by the court acquitting the accused,
convicting for a lesser offence, imposing inadequate sentence, or
granting inadequate compensation. Such appeal shall lie to the
court to which an appeal ordinarily lies against the order of
conviction of such court.
21. The third Report worth considering is the July 2007 Report of the
Committee on the Draft National Policy on Criminal Justice also known
as the Professor Madhava Menon Committee. While this Committee does
not specifically deal with providing a right of appeal to the victim of a
crime, it does refer to victim orientation to criminal justice and providing
for a balance between the constitutional rights of an Accused person and
a victim of crime. One of the suggestions given by the Committee is to
permit the impleadment of a victim in the trial proceedings. Obliquely
therefore, it follows that if a victim is impleaded as a party to the trial
proceedings, the victim would certainly have a right to file an appeal
against an adverse order, particularly an order of acquittal.
22. The fourth Report that deserves a mention is the 221 st Report of
the Law Commission of India April 2009. In this Report, the
recommendation of the Law Commission of India was to the effect that
as the law stands, an aggrieved person cannot file an appeal against an
order of acquittal. However, a revision petition can be filed. The powers
of a revisional court are limited and the process involved is cumbersome
and it also involves a wastage of money and time. It was, therefore,
recommended by the Law Commission that against an order of acquittal
passed by a Magistrate, a victim should be entitled to file an appeal
before the revisional court. It was also recommended that in complaint
cases also an appeal should be provided in the Sessions Court instead of
the High Court. In all such cases, the aggrieved person or complainant
should have the right to prefer an appeal, though with the leave of the
Appellate Court. The view of the Law Commission was expressed in the
following words:

2.9 All appeals against orders of acquittal passed by
Magistrates were being filed in High Court prior to amendment of
Section 378 by Act 25 of 2005. Now, with effect from
23.06.2006, appeals against orders of acquittal passed by
Magistrates in respect of cognizable and non-bailable offences in
cases filed on police report are being filed in the Sessions Court,
vide Clause (a) of Subsection (1) of the said section. But, appeal
against order of acquittal passed in any case instituted upon
complaint continues to be filed in the High Court, if special leave
is granted by it on an application made to it by the complainant,
vide Sub-section (4) of the said section.
2.10 Section 378 needs change with a view to enable filing of
appeals in complaint cases also in the Sessions Court, of course,
subject to the grant of special leave by it.
2.11 Further, at present, against orders of acquittal passed by
Magistrates (where the offence is cognizable and non-bailable) or
by Sessions Courts, appeal in cases filed on police reports can be
filed only at the instance of the District Magistrate or the State
Government, as the case may be, vide Subsection (1) of Section
378. In such matters, the aggrieved person or the informant
cannot himself file an appeal. However, he can prefer a revision.
If the revisional Court finds that the Accused has been wrongly
acquitted, it cannot convict him in view of Sub-section (3) of
Section 401, but it has to remand the case. It is a cumbersome
process and involves wastage of money and time. This provision
also needs a change and in such matters also, where the District
Magistrate or the State does not direct the Public Prosecutor to
prefer appeal against an order of acquittal, the aggrieved person
or the informant should have the right to prefer appeal, though
with the leave of the Appellate Court. This will also give an
opportunity to the aggrieved person to challenge the findings of
fact recorded by lower court. Also, this will introduce more
transparency and accountability in the lower judiciary, as at
present, the percentage of acquittal is quite high.
23. It is, apparently, on the basis of all these Reports and other
material that Section 372 of the Code of Criminal Procedure was
amended on 30th December, 2009 with effect from 31 st December, 2009.
Section 372 of the Code of Criminal Procedure as it stands today reads
as follows:
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.
Decision in the case of the National Commission for Women
24. In National Commission for Women, the victim, a young lady
aged 21 years committed suicide on or about 14 th April, 2003. She left
behind a note in which she stated that the Accused had physical
relations with her and held out a promise of marriage but later backed
off. He had exploited her and therefore she was committing suicide.
25. The Trial Judge relied on the dying declaration and convicted the
Accused by his judgment and order dated 21 st April, 2008. The Accused
preferred an appeal in the Delhi High Court which acquitted him of an
offence Under Section 306 of the Indian
Penal Code while maintaining his conviction Under Section 376 of the
Indian Penal Code. The sentence was reduced to that already undergone
which was about five years and six months. The judgment and order of
the High Court is dated 9th February, 2009.
26. Feeling aggrieved by the decision of the High Court, the National
Commission for Women preferred a petition for special leave to appeal
admittedly invoking the inherent powers of this Court. In that context
this Court held that in view of Section 372 of the Code of Criminal
Procedure no appeal shall lie from a judgment or order by a criminal
Court except as provided by the Code of Criminal Procedure or by any
other law which authorises an appeal. The proviso to Section 372 of the
Code of Criminal Procedure 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. This Court then observed as follows:
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.
27. It was further held that an appeal being the creation of a statute, it
would not be maintainable under any inherent power. Article 136 of the

Constitution does confer discretionary power on this Court to entertain a
petition at the behest of the State or an affected private individual but to
permit anybody or an organisation pro bono publico to file an appeal
would be a dangerous doctrine and would cause utter confusion in the
criminal justice system. On this basis it was held that the special leave
petition filed by the National Commission for Women was not
maintainable.
28. The thrust of the decision of this Court, which appears to have
been misunderstood by the High Court, is with regard to entertaining a
petition Under Article 136 of the Constitution by a third party. As far as
criminal matters are concerned, this Court undoubtedly held that
permitting a third party to prefer a petition Under Article 136 of the
Constitution would be dangerous and would cause confusion. The
reasoning of this Court was not directed towards the proviso to Section
372 of the Code of Criminal
Procedure It is only in passing that this Court observed that on the facts
of the case, the proviso to Section 372 of the Code of Criminal Procedure
might not be applicable since it came into the statute book after the
incident.
29. The decision of this Court in National Commission for Women is
quite clearly distinguishable and reliance on this decision by the High
Court is inapposite.
Decisions of the Full Bench
30. The interpretation of the proviso to Section 372 of the Code of
Criminal Procedure has been considered in Full Bench decisions rendered
by a few High Courts.
31. Among the first few Full Bench decisions that addressed this issue
was the judgment of the Gujarat High Court in Bhavuben Dineshbhai
Makwana v. State of Gujarat and Ors. MANU/GJ/1137/2012 : -
Criminal Appeal No. 238 of 2012, decided on 23 rd October, 2012. The
questions framed for consideration in this case were:
(i) Whether an appeal filed by the victim, invoking his right
under proviso toSection 372 of Code of Criminal Procedure,
challenging acquittal, or conviction for a lesser offence, or
awarding inadequate compensation, is not maintainable, on the
ground that the State has filed an appeal against the same order
and for the same purpose?
(ii) Whether an appeal filed by the State should not be
entertained, on the ground that the appeal preferred by the

victim invoking his right under proviso to Section 372 of Code of
Criminal Procedure, against the same order, is admitted by the
Court?
(iii) If the victim prefers an appeal before this Court,
challenging the acquittal,invoking his right under proviso to
Section 372 of Code of Criminal Procedure, whether that
Appellant is required to first seek leave of the Court, as is
required in case of appeal being preferred by the State?
32. While discussing these issues, the Full Bench observed that the
Legislature had conferred a substantive statutory right of appeal and
such a right could not be diluted by a judicial pronouncement since the
right of a party to file an appeal is an independent, substantial and
statutory right.
33. Analysing the proviso to Section 372 of the Code of Criminal
Procedure and juxtaposing it with Section 377 of the Code of Criminal
Procedure the Full Bench noted that the victim has no right to prefer an
appeal against "inadequacy of sentence", a right available only to the
State and the State does not have any right to file any appeal against
"inadequacy of compensation", a right available only to a victim. Noting
the availability of different rights, it was held:
In light of different types of right of appeal provided to the victim
and to the State/Prosecution, it will not be proper to hold that the
right of either of them is dependent upon the other. To put it
differently, only victim can file an appeal against an order of
imposing 'inadequate compensation' in addition to his right of
appeal against acquittal and convicting the Accused for a lesser
offence and therefore, to club his right and make it dependent
upon the exercise of right of appeal at the instance of the State
would be not only be unworkable, but would run contrary to the
scheme and lead to absurdity.
34. The Full Bench then concluded that the correct position in law
would be that the right to file an appeal by the victim of an offence is an
independent and statutory right not subservient to the rights of the
State to file an appeal. It was further concluded that each victim has an
independent right of appeal and in a given case, the grievance of
different victims may be completely different. It was held as follows:
In our opinion, the correct law, as emerging from the scheme of
the Code, would be that the right of a victim to prefer an appeal
(on limited grounds enumerated in proviso to Section 372 of the
Code) is a separate and independent statutory right and is not

dependent either upon or is subservient to right of appeal of the
State. In other words, both the victim and the State/prosecution
can file appeals independently without being dependent on the
exercise of the right by the other. Moreover, from the act or
omission for which the Accused has been charged, there may be
more than one victim and the loss suffered by the victims may
vary from one victim to the other victims. Therefore, each of
such victims will have separate right of appeal and in such
appeals, the grievance of each of the Appellant may be different.
For instance, in an act of arson when a joint property of different
persons has been set on fire, the loss suffered by each of the co-
sharers may be different. In such a case, each co-sharer has a
separate right of appeal and such right of one does not depend
even on the filing of such appeal by another victim.
35. The first two questions were accordingly answered by the Gujarat
High Court by holding that the appeals filed by the victim were
maintainable.
36. On the third question, the Full Bench noted that if the victim
restricts the appeal to the grievance to inadequacy of the compensation
or punishment for a lesser offence, it does not become an appeal
against acquittal but the appeal is really directed against "any other
sentence or order not being an order of acquittal" within the meaning of
Article 115(b) of the Limitation Act, 1963 and thus, no question of
taking special leave arises. The Full Bench took the view that for the
purposes of Section 378(4) of the Code of Criminal Procedure a victim
who is not a complainant will not come within the purview of that
Section and would not be required to take recourse to the provision of
special leave as provided therein. It was held:
Therefore, in the case before us, the legislature while conferring
the right of appeal upon the victim, who is not a complainant, not
having imposed any condition of taking leave or special leave, we
cannot infer such condition and impose the same upon the
victim, although, the legislature was quite conscious of existence
of such provision in case of an appeal by a complainant and has
retained that provision without consequential amendment
thereby making its intention clear that the provision of special
leave is not applicable to an appeal preferred by a victim against
acquittal if he is not the complainant.
The third question was then answered in the following words:
If the victim also happens to be the complainant and the appeal
is against acquittal, he is required to take leave as provided in

Section 378 of the Code of Criminal Procedure but if he is not the
complainant, he is not required to apply for or obtain any leave.
For the appeal against inadequacy of compensation or
punishment on a lesser offence, no leave is necessary at the
instance of a victim, whether he is the complainant or not.
3 7 . In our opinion, the Gujarat High Court made an artificial and
unnecessary distinction between a victim as a victim and a victim as a
complainant in respect of filing an appeal against an order of acquittal.
The proviso to Section 372 of the Code of Criminal Procedure does not
introduce or incorporate any such distinction.
38. The next significant decision has been rendered by the Division
Bench of the Calcutta High Court in Mahafuja Banu v. Md. Asadul
Islam & State MANU/WB/0711/2012 : (2013) 1 Cal LT 109. In this
case, the prosecutrix lodged a complaint on 13 th December, 2003 and
the judgment and order of acquittal was delivered by the Trial Court on
22nd December, 2009. An appeal to the High Court was
(presumably) filed only after 31st December, 2009. While considering the
maintainability of the appeal, the High Court referred to the decision of
the Gujarat High Court in Bhavuben Dineshbhai Makwana.
39. Reference was also made to a Division Bench decision of the
Agartala Bench of the Gauhati High Court in Gouranga Debnaih v.
State of Tripura MANU/GH/0581/2011 : 2011 (4) GLT 379. In that
case the alleged offence took place on 14 th November, 2006 and the
judgment of acquittal was delivered on 30 th September, 2010. The High
Court held that the appeal against acquittal filed by the victim was
maintainable. It was held that if the interpretation given to the proviso
to Section 372 of the Code of Criminal Procedure is that the right to
appeal accrued on the date of the incident, then it would unreasonable
and unfair, more so since the proviso to Section 372 of the Code of
Criminal Procedure is given prospective effect.
40. Reference was also made to a decision by a learned Single Judge
decision of the Kerala High Court in T. Balakrishnan Master v. K.M.
Ramachandran Master4. In that case it was held that the proviso to
Section 372 of the Code of Criminal Procedure confers on the victim a
substantive right to prefer an appeal in certain circumstances. The right
is dependent on the judgment rendered by the Court and not in relation
to the incident that gave rise to the prosecution.
41. The Calcutta High Court also considered the question whether there
is finality attached to the judgment of acquittal and whether that finality
could be disturbed on the basis of a right subsequently conferred on the

victim. It was held that the judgment of acquittal had not attained
finality in that the victim had a right to file a revision petition and the
State had the right to file an appeal. All that the proviso to Section 372
of the Code of Criminal Procedure had done was to replace the right of a
revision with the right to appeal.
42. While it is true that there is a qualitative difference between a
revision and an appeal, the Calcutta High Court drew attention to the
221st Report of 30th April, 2009 of the Law Commission. This Report
noted the distinction and observed that the revision process was
cumbersome and involved a wastage of time and money. It was,
therefore, recommended by the Law Commission that the aggrieved
person should have the right to prefer an appeal, though with the leave
of the Appellate Court. This would also give the aggrieved person an
opportunity to challenge the findings of fact recorded by the Trial Court.
43. On the basis of the above decisions and the reasons given, the
Calcutta High Court concluded that there was nothing to suggest that
the victim could exercise the right to appeal under the proviso to Section
372 of the Code of Criminal Procedure only if it existed on the date of
the "cause of action" (the alleged offence or incident) or the date on
which the complaint was lodged.
44. After a short hiatus, this issue again came up for consideration and
this time before the Full Bench of the Punjab and Haryana High Court in
Tata Steel v. Atma Tube Products Ltd. MANU/PH/0175/2013 :
(2014) 173 (1) PLR 1. The decision is much more than elaborate and
only two of the seven questions framed for consideration are relevant
for the present discussion. These two questions are:
(1) Whether the 'rights' of a victim under the amended Code
of Criminal Procedure are accessory and auxiliary to those
perceived to be the exclusive domain of the 'State'?
(2) Whether proviso to Section 372 Code of Criminal
Procedure inserted w.e.f.December 31, 2009 is prospective or
retrospective in nature and whether a revision petition pending
against an order of acquittal before the insertion of the said
proviso, can be converted into an appeal and transferred to the
Court of competent jurisdiction?
45. In answering the first question, the High Court noted that the
scheme of the Code of Criminal Procedure provides, after various
amendments, the right of appeal to the accused; the State; the victim
and the complainant in complaint cases. It was observed that if a victim
also happens to be the complainant in a police case, then that victim is

not required to take leave Under Section 378 of the Code of Criminal
Procedure to file an appeal against an order of acquittal. To this extent,
the Full Bench of the Punjab and Haryana High Court differed with the
view taken by the Full Bench of the Gujarat High Court in Bhavuben
Dineshbhai Makwana.
46. The reasons for disagreement stem from the fact that the
Legislature was aware of the provisions of the existing statute including
the fetter imposed on the State in filing an appeal against an order of
acquittal. However, that fetter was not placed on the right to appeal
given to a victim under the proviso to Section 372 of the Code of
Criminal Procedure The view of the Full Bench of the Punjab and
Haryana High Court was that if such fetter were to be placed on the
right of the victim, it would amount to rewriting the proviso to Section
372 of the Code of Criminal Procedure and would also defeat the
legislative will. The Punjab and Haryana High Court expressed it's
opinion in the following words:
The Court shall always presume that while amending or bringing
a new enactment, the Legislature was fully aware of the
provisions of the existing Statute. The Parliament had thus full
knowledge of the fetters imposed by it on the presentation of
appeals by the State or a complaint through Section 378(3) & (4)
of the Code, yet it gave the right to appeal to a 'victim' free from
any obstacle under proviso to Section 372 of the Code. The
legislative policy to grant unconditional right to appeal to a
'victim' is thus writ large. It would indeed not only amount to
rewriting the proviso to Section 372 but would also defeat the
legislative will if the restrictions expressly embedded in Section
378(3) & (4) are impliedly planted into proviso to Section 372 of
the Code also. Since leave to appeal Under Section 378(3) is
confined only to such appeals which are presented by the State
or Central Governments Under Sub-section (1) (b) or Sub-section
(2) (b) of Section 378 of the Code, with due regard at our
command, we are unable to agree with the view taken by the
Division Bench of this Court in Smt. Ram Kaur's case (supra) 5
that a 'victim' shall be required to seek leave/special leave to
appeal while exercising his/her right to appeal under proviso to
Section 372 of the Code and overrule the same to that extent. On
the same analogy, we express our inability to agree with the view
taken by the Patna High Court in Guru Prasad Yadav's case
(supra).6

The cumulative effect of the above discussion is that the right(s)
of a 'victim' under the amended Code are substantive and not
mere brutam fulmen hence these are not accessory or auxiliary
to those of the State and are totally incomparable as both the
sets of rights or duties operate in different and their respective
fields. We thus hold that a 'victim' is not obligated to seek 'leave'
or 'special leave' of the High Court for presentation of appeal
under proviso to Section 372 of the Code.
47. With regard to the second question, the High Court concluded that
the right to appeal is a substantive right. Consequently, the inescapable
conclusion would be that the right to appeal given to a victim would be
prospective and enforceable with effect from 31st December, 2009 only.
This would be irrespective of the date of registration of the FIR or the
date of the occurrence. The High Court held as follows:
Since right to appeal is a substantive right and it cannot be
inferred by implication unless the Statute expressly provides so,
the only inescapable conclusion would be to hold that the right to
appeal given to a 'victim' under proviso to Section 372 of the
Code is prospective and has become enforceable w.e.f. December
31, 2009 only. A 'victim' is entitled to prefer appeal in respect of
any type of order referred to in the proviso to Section 372 if such
order has been passed on or after December 31, 2009
irrespective of the date of registration of FIR or the date of
occurrence etc. To be more specific, it is clarified that it is the
date of passing of the order to be appealed from and not any
other fact situation, which shall determine the right to appeal of a
'victim'. As a corollary thereto, it is held that the remedy availed
by a 'victim' including revision petition against acquittal of the
Accused by an order passed before December 31, 2009, cannot
be converted into an appeal under proviso to Section 372 and it
shall have to be dealt with in accordance with the parameters
settled for exercising revisional jurisdiction by a superior Court.
48. The Full Bench of the Delhi High Court also considered this issue in
Ram Phal v. State and Ors. MANU/DE/1687/2015 : 2015 (151) DRJ
562. The question considered by the Delhi High Court was:
Whether the appellate remedy [under the proviso to Section 372 of
the Code of
Criminal Procedure] is available with respect to only such
offences which were committed as on the date when the
appellate right was conferred by law or the appellate right would
be available with respect to the date of the decision or the

appellate remedy is without any reference to the two points of
time i.e. the date when the offence was committed or when the
appellate right was conferred by law, (Act No. 5 of 2009 with
effect from 31.12.2009).
49. While answering the question, the Delhi High Court referred to
Tata Steel decided by the Punjab & Haryana High Court. The Delhi High
Court referred to the conclusion that a victim "is entitled to prefer
appeal in respect of any type of order referred to in the proviso to
Section 372 if such order has been passed on or after December 31,
2009 irrespective of the date of registration of FIR or the date of
occurrence etc.
50. Reference was also made to the Division Bench of the Patna High
Court in Parmeshwar Mandal v. State of Bihar
MANU/BH/0654/2013 : 2014 (1) PLJR 377 and parts of the following
passages were referred to and relied upon. It was said in Parmeshwar
Mandal:
Proviso to Section 372 of the Code is in two parts. First Clause of
the said proviso begins with 'provided that' and ends with
'Inadequate compensation' and creates a right in the victim to
prefer appeal against any order passed by a court either (i)
acquitting the Accused or (ii) convicting for a lesser offence or
(iii) imposing inadequate compensation. Thereafter, by inserting
conjunction 'and', another Clause has been added in the same
sentence by which forum for preferring such appeal has been
identified, which relates to procedural part of law. Thus, the said
proviso contains both substantive part, creating right in the victim
to prefer an appeal, and procedural part, by identifying the forum
for filing such an appeal. It is not in dispute that the substantive
part of law operates prospectively, unless made retrospective,
and the procedural part is presumed to be retrospective within its
defined limits.
xxx xxx xxx xxx
...The Central Government, by Notification No. S.O. 3313(E) :
MANU/HOME/0181/2009 dated 30th December, 2009, appointed
31st day of December 2009, as the date for the Act. 5 of 2009 to
come into force, which was published in Gazette of India, Ext., Pt.
II, Section 3(ii), dated 30-12-2009. Hence, in absence of any
express intention notified by the Legislature to the contrary, it
has to be concluded that the right of victim, to prefer an appeal in
terms of said 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 31 st 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.
51. The Delhi High Court held that in light of the settled law as
explained above, it was in respectful agreement with these decisions.
52. The Full Bench of the Rajasthan High Court in Baldev Sharma v.
Gopal and Ors. MANU/RH/1096/2017 : 2017 (3) RLW 2604 (Raj.)
considered (amongst others) the following two questions:
(i) Whether the proviso to Section 372 as introduced by the
amending Act No. 5 of 2009 which has been brought into effect
on 31.12.2009 can be given effect to in cases where the offence
occurred prior to 31.12.2009 and thereby given the right of
appeal to the victim in the event; (a) whether the court below
has acquitted the Accused or (b) has convicted the Accused for a
lesser offence or (c) has imposed inadequate compensation.
Though the judgment in such cases may have been passed by the
court below after 31.12.2009.
(ii) Whether the appeal by the victim under proviso to Section
372 is also required to be dealt with in the same manner as an
appeal filed by the State Under Section 378 Code of Criminal
Procedure and the provisions of Section 378 are required to be
read into the provisions of Section 372 Code of Criminal
Procedure with regard to appeals filed by the victims.
53. It was held, relying upon the same passages in Tata Steel and
Parmeshwar Mandal that "judgments passed on or after the said date
[31st December, 2009] are the ones in respect whereto, irrespective of
the date of the offence, the victim can avail the right to file an
application seeking leave to appeal."
Division Bench decisions
54. Among the first few decisions rendered by the Division Bench of the
High Court was the judgment and order passed by the Division Bench of
the Gauhati High Court in Gouranga Debnaih. In this case, the alleged
incident took place on 14th November,

2006 and the judgment and order of acquittal was passed by the Trial
Court on 30th September, 2010. On the question of the maintainability of
the appeal under the proviso to Section 372 of the Code of Criminal
Procedure the Division Bench framed the following question for
consideration: "Whether he [the victim] has any right to prefer an
appeal against the impugned judgment and order of acquittal taking the
benefit of proviso to Section 372 of the Code which has been inserted by
way of amendment giving effect and if so, the present condonation
petition is maintainable?"
55. In answering this question, the Gauhati High Court expressed the
view that has already been adverted to above and need not be repeated
here. This is what the High Court had to say:
Now question is whether an appeal can be preferred for an
incident that happened prior to giving effect of the amendment of
the Code. There is no doubt that if a Court considers that from
the date of incident, the right to appeal accrued, then obviously
that would be unreasonable and unfair, more so, when the
amendment is given prospective effect and that would also go
against the law of limitation as prescribed Under Article 114 of
the Limitation Act. In this case it is not necessary for us to
discuss even that aspect, as right to appeal of the Petitioner
accrued only after the decision in the sessions case by the trial
Court i.e. the date on which the judgment was delivered i.e. on
30.9.2010.
56. In Parmeshwar Mandal an appeal was filed by a victim in the
High Court against a judgment and order of acquittal dated 28 th August,
2012. The Division Bench of the High Court sought assistance on the
maintainability of the appeal. After hearing arguments, the Court noted
the distinction in the language of Section 372 of the Code of Criminal
Procedure and the language of Sections 377 and 378 of the Code of
Criminal Procedure The High Court noted that Section 372 of the Code of
Criminal Procedure was framed in affirmative terms. Moreover, the use
of the word 'shall' in the proviso to Section 372 of the Code of Criminal
Procedure, in contradistinction to the use of the word 'may' in Sections
377 and 378 of the Code of Criminal Procedure gives a clear indication
that the right of a victim to file an appeal was placed on a higher
pedestal than the rights of the State, or even the accused. This is what
the High Court had to say in this regard:
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
Sections 377 or 378, which deal with appeals against inadequate
sentence and acquittal. In contradistinction to wordings of
Sections 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....... Hence, in the opinion of this 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
Sections 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.
57. Thereafter, the High Court gave its reasons and conclusion for
holding that the 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 of Criminal
Procedure irrespective of the date of occurrence, institution of the case,
cognizance or commitment. The Delhi High Court had referred to the
relevant passages of the judgment of the Patna High Court and we have
extracted these passages above and they need not be repeated here.
58. The Division Bench of the Kerala High Court dealt with this issue in
Vanaja K.C. v. State of Kerala and Ors. MANU/KE/0502/2016 : ILR
2016 (2) Kerala 713 In this case the alleged offence or incident took
place on 27th January, 2005 and the judgment of acquittal by the Trial

Court was rendered on 24th February, 2010. The question considered by
the High Court was:
Whether the victim gets a right of appeal under the proviso to
Section 372 Code of Criminal Procedure in a case where the date
of occurrence was before and the judgment was pronounced after
the date of commencement of Act 5 of 2009?
5 9 . The Division Bench relied upon an earlier decision of the High Court
in Balakrishnan Master which referred to the letter and spirit of the
law. The following passage from the decision of the Kerala High Court is
instructive:
The question is whether the right of appeal conferred on the victim by
the
proviso to Section 372 of the Code, has to be determined with
regard to the date of order of acquittal or conviction of the
Accused for a lesser offence or order providing inadequate
compensation, or, with respect to the date of incident giving rise
to the prosecution of the accused. What is conferred by the
Amendment Act 5 of 2009 on the victim is a substantive right to
prefer an appeal in certain circumstances as specified, and that
alone. Act 5 of 2009 has come into effect from 31.12.2009. Such
right is available to a victim where a judgment is rendered by the
court on or after 31.12.2009, provided, any one of the three
circumstances covered by the proviso is involved in the case. The
right is dependent on the judgment rendered by the court and
not in relation to the incident which gave rise to the prosecution
of the accused, whether or not it was at the instance of the
victim...... Where there is no doubt that what is conferred under
the proviso to Section 372 of the Code enabling the victim to
prefer an appeal in the circumstances specified is a substantive
right conferred on him by the Statute its effect cannot be nullified
taking a view that the applicability of the proviso inserted has to
be reckoned with reference to the date of incident in the case
which led to the prosecution of the accused. Any such view would
be against the letter and spirit of the aforesaid proviso and also
the very purpose for which a right of appeal is conferred on the
victim, illustrating and defining the person falling thereunder, and
specifically limiting to what situation such a right could be
exercised.
60. Reference was also made to Parmeshwar Mandal wherein it was
held that the intention of the Legislature was not to vest the right of

appeal in only those victims in whose cases the occurrence was after the
amendment to the Code of Criminal Procedure If that proposition were
to be accepted, then for years to come, the right of the victim to prefer
an appeal in terms of the proviso would remain illusory (given the delay
in disposal of cases).
61. On the basis of these decisions it was held that the appeal filed by
the victim would be maintainable since the judgment of acquittal passed
by the Trial Court was post 31st December, 2009.
62. There are decisions rendered by learned Single Judges of a few
High Courts, but it is not necessary to further burden this judgment with
an analysis of those decisions (we have referred to one of them). Suffice
it to say that the decisions have more or less followed the reasons and
conclusions arrived at in the Full Bench decisions rendered by different
High Courts.
63. Broadly speaking, in the above cases, the view expressed by the
High Courts is that if the judgment of the Trial Court is delivered after
the proviso came into force, that is, after 31 st December, 2009 then,
irrespective of the date of the offence, the victim can avail a right of
appeal. In some of the decisions it has been held that the right of appeal
is not an absolute right conferred on the victim, but it is subject to an
application seeking special leave to appeal.
Dissenting decisions
64. In D. Sudhakar v. Panapu Sreenivasulu @ Evone Water
Sreenivasulu and
Ors. MANU/AP/1172/2012 : decided on 7th December, 2012 the Andhra
Pradesh High Court dismissed an appeal filed by the victim of an offence
against an order of acquittal dated 30th November, 2011 on the ground
that it was not maintainable. The High Court relied upon the observation
made by this Court in National Commission for Women for this
conclusion. Reference was also made, incidentally, to a decision of the
learned Single Judge of the Kerala High Court in John v. Shibu
Cherian MANU/KE/1839/2011 decided on 5 th August, 2011 which also
held to the same effect.
65. A similar view was expressed by the Division Bench of the
Chhattisgarh High Court in Bhisam Prasad Bareth v. Dinesh Mahant
and Ors. MANU/CG/0079/2012 decided on 15th March, 2012 relying
upon the decision of this Court in National Commission for Women.
It may be mentioned here that the appeal filed in the Chhattisgarh High
Court was against an order of acquittal passed on 18 th March, 2009 in
respect of an incident that occurred on 5 th March, 2008 both dates being

well before the insertion of the proviso to Section 372 of the Code of
Criminal Procedure.
66. In the dissenting set of decisions, the view taken by the High
Courts is to the effect that if the incident or the offence occurred prior to
31st December, 2009 the victim cannot file an appeal under the proviso
to Section 372 of the Code of Criminal Procedure regardless of the date
of decision of the Trial Court.
67. An analysis of the decisions rendered by various High Courts
indicates that the overwhelming view is that the date of the judgment
and order passed by the Trial Court is the relevant date for determining
the applicability of the proviso to Section 372 of the Code of Criminal
Procedure and if, as in the present case, the judgment and order is post
31st December, 2009 then the victim can prefer an appeal to the High
Court.
Another view expressed by this Court
68. In Satya Pal Singh v. State of Madhya Pradesh and Ors.
MANU/SC/1119/2015 : (2015) 15 SCC 613 this Court gave what
appears to be a rather expansive interpretation to the proviso to Section
372 of the Code of Criminal Procedure and concluded as follows:
This 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) Code of
Criminal Procedure 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 Code of Criminal Procedure.
69. In this case the offence occurred on or about 19 th July, 2010 and
the decision of the Trial Court was delivered on 13 th June, 2013. On a
plain reading of the cited passage, it does appear that the date of the
alleged offence and the judgment and order of the Trial Court is not
relevant, meaning thereby that even if the offence was committed prior
to 31st December, 2009 and the judgment and order was rendered prior
to 31st December, 2009 the victim could prefer an appeal to the High
Court after obtaining leave. This is not so, and therefore the
misunderstanding of the expansive nature of the view expressed.
70. The two decisions of this Court mentioned above arise in two
different fact situations. In National Commission for Women the
offence and the judgment of the Trial Court were before 31 st December,
2009. In Satya Pal Singh, the offence and the judgment of the Trial

Court were after 31st December, 2009. None of these situations arise in
the present appeals in which the offence was said to have been
committed before 31st December, 2009 while the judgment of the Trial
Court was delivered after
31st December, 2009. We are concerned in these appeals only with the
maintainability of an appeal by the victim under the proviso to Section
372 of the Code of Criminal Procedure where the alleged offence was
committed before 31st December, 2009 and the judgment and order has
been delivered by the Trial Court post 31 st December, 2009. Therefore,
none of the two decisions of this Court are of any real assistance to us.
Our conclusions
71. It was submitted by learned Counsel for the Accused that the right
to file an appeal is a substantive right and it should not be easily
recognized unless specifically conferred by statute. We agree. There is
no doubt that from the time of the Constitution Bench decision of this
Court in Garikapati Veeraya v. N. Subbiah Choudhry
MANU/SC/0008/1957 : 1957 SCR 488 it has been held that the right to
appeal is not a mere matter of procedure but is a substantive right. We
are bound by this decision as well as other decisions following this view.
The question is whether this substantive statutory right has been
conferred on the victim in a case such as the present.
72. It was also submitted by learned Counsel for the Accused that in
the present fact situation, if we were to hold that Kodagali was entitled
to file an appeal against the acquittal of the accused, then we would be
giving retrospective effect to the proviso to Section 372 of the Code of
Criminal Procedure It was submitted that if Parliament intended to
confer a statutory right of appeal on a victim with retrospective effect, it
would have specifically said so. Since the proviso to Section 372 of the
Code of Criminal Procedure was not specifically given retrospective
effect, it must operate prospectively and the crucial date in a case such
as the present would be the date of the alleged offence.
73. To counteract this, it was submitted by learned Counsel for
Kodagali that the view expressed by this Court in National
Commission for Women was only an obiter and is not binding upon
this Court. It is not necessary for us to go into this aspect of the matter
since we are of the view that the decision rendered in National
Commission for Women has been misunderstood and misinterpreted
and is clearly distinguishable on facts. Even otherwise, the decision has
been rendered by a Bench of the two learned judges and while the view
expressed therein certainly has great persuasive value but it would not

be binding on a Bench of three Judges. Besides, the obiter dicta of this
Court would not bind us.
74. What is significant is that several High Courts have taken a
consistent view to the effect that the victim of an offence has a right of
appeal under the proviso to Section 372 of the Code of Criminal
Procedure This view is in consonance with the plain language of the
proviso. But what is more important is that several High Courts have
also taken the view that the date of the alleged offence has no relevance
to the right of appeal. It has been held, and we have referred to those
decisions above, that the significant date is the date of the order of
acquittal passed by the Trial Court. In a sense, the cause of action arises
in favour of the victim of an offence only when an order of acquittal is
passed and if that happens after 31 st December, 2009 the victim has a
right to challenge the acquittal, through an appeal. Indeed, the right not
only extends to challenging the order of acquittal but also challenging
the conviction of the Accused for a lesser offence or imposing
inadequate compensation. The language of the proviso is quite explicit,
and we should not read nuances that do not exist in the proviso.
75. In our opinion, the proviso to Section 372 of the Code of Criminal
Procedure must also be given a meaning that is realistic, liberal,
progressive and beneficial to the victim of an offence. There is a
historical reason for this, beginning with the Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power, adopted by
the
General Assembly of the United Nations in the 96 th Plenary Session on
29th November, 1985. The Declaration is sometimes referred to as the
Magna Carta of the rights of victims. One of the significant declarations
made was in relation to access to justice for the victim of an offence
through the justice delivery mechanisms, both formal and informal. In
the Declaration it was stated as follows:
4 . Victims should be treated with compassion and respect for
their dignity. They are entitled to access to the mechanisms of
justice and to prompt redress, as provided for by national
legislation, for the harm that they have suffered.
5 . Judicial and administrative mechanisms should be established
and strengthened where necessary to enable victims to obtain
redress through formal or informal procedures that are
expeditious, fair, inexpensive and accessible. Victims should be
informed of their rights in seeking redress through such
mechanisms.

6 The responsiveness of judicial and administrative processes to
the needs of victims should be facilitated by:
(a) Informing victims of their role and the scope, timing
and progressof the proceedings and of the disposition
of their cases, especially where serious crimes are
involved and where they have requested such
information;
(b) Allowing the views and concerns of victims to be
presented and considered at appropriate stages of the
proceedings where their personal interests are affected,
without prejudice to the Accused and consistent with
the relevant national criminal justice system;
(c)Providing proper assistance to victims throughout the
legal process;
(d) Taking measures to minimize inconvenience to victims,
protect theirprivacy, when necessary, and ensure their
safety, as well as that of their families and witnesses on
their behalf, from intimidation and retaliation;
(e) Avoiding unnecessary delay in the disposition of cases
and the execution of orders or decrees granting awards
to victims.
7 . Informal mechanisms for the resolution of disputes, including
mediation, arbitration and customary justice or indigenous
practices, should be utilized where appropriate to facilitate
conciliation and redress for victims.
76. Putting the Declaration to practice, it is quite obvious that the
victim of an offence is entitled to a variety of rights. Access to
mechanisms of justice and redress through formal procedures as
provided for in national legislation, must include the right to file an
appeal against an order of acquittal in a case such as the one that we
are presently concerned with. Considered in this light, there is no doubt
that the proviso to Section 372 of the Code of Criminal Procedure must
be given life, to benefit the victim of an offence.
77. Under the circumstances, on the basis of the plain language of the
law and also as interpreted by several High Courts and in addition the
resolution of the General Assembly of the United Nations, it is quite clear
to us that a victim as defined in Section 2(wa) of the Code of Criminal
Procedure would be entitled to file an appeal before the Court to which
an appeal ordinarily lies against the order of conviction. It must follow

from this that the appeal filed by Kodagali before the High Court was
maintainable and ought to have been considered on its own merits.
78. As far as the question of the grant of special leave is concerned,
once again, we need not be overwhelmed by submissions made at the
Bar. The language of the proviso to Section 372 of the Code of Criminal
Procedure is quite clear, particularly when it is contrasted with the
language of Section 378(4) of the Code of Criminal Procedure The text
of this provision is quite clear and it is confined to an order of acquittal
passed in a case instituted upon a complaint. The word 'complaint' has
been defined in Section 2(d) of the Code of Criminal Procedure and
refers to any allegation made orally or in writing to a Magistrate. This
has nothing to do with the lodging or the registration of an FIR, and
therefore it is not at all necessary to consider the effect of a victim being
the complainant as far as the proviso to Section 372 of the Code of
Criminal Procedure is concerned.
Final order
79.For the reasons mentioned above, the appeals are allowed and the
judgment and orders passed by the High Court are set aside and the
matters are remitted back to the High Court to hear and decide the
appeal filed by Kodagali against the judgment and order of acquittal
dated 28th October, 2013 passed by the District and Sessions Judge,
Bagalkot (Karnataka) in S.C. No. 49 of 2010.
Deepak Gupta, J.
80.I have had the privilege of going through the detailed and erudite
judgment of my brother Justice Lokur. I am in complete agreement
with my learned brother that the pain which the victim of a criminal
offence suffers should be understood by the courts and keeping in
view the emerging trends in law, the rights of the victim should not
be trampled. Victims must be treated with sensitivity, compassion
and respect. They also must be permitted to access justice because
it is sometimes found that the investigating and prosecuting agencies
do not follow up cases with the zeal which is required. Therefore, I
fully agree with my learned brother that the proviso to Section 372
of Code of Criminal Procedure, 1973 (for short 'CrPC') must be given
a meaning that is realistic, liberal, progressive and beneficial to the
victims of the offences.
81.However, at the same time, one cannot ignore the rights of the
Accused and the procedure prescribed by law. I am unable to agree
with my learned brother that a victim can file an appeal in the High

Court without seeking leave to appeal in terms of Section 378(3) of
Code of Criminal Procedure.
82.Sections 372 and 378 of Code of Criminal Procedure 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.]
xxx xxx xxx
378. Appeal in case of acquittal.-(1) Save as otherwise provided
in Subsection (2), and subject to the provisions of Sub-sections (3)
and (5),-
1. the District Magistrate may, in any case, direct the
Public Prosecutor to present an appeal to the Court of
Session from an order of acquittal passed by a Magistrate
in respect of a cognizable and non-bailable offence;
2. the State Government may, in any case, direct the
Public Prosecutor to present an appeal to the High Court
from an original or appellate order of an acquittal passed
by any Court other than a High Court not being an order
under Clause (a) or an order of acquittal passed by the
Court of Session in revision.
(2) If such an order of acquittal is passed in any case in which the
offence has been investigated by the Delhi Special Police
Establishment constituted under the Delhi Special Police
Establishment Act, 1946 (25 of 1946) or by any other agency
empowered to make investigation into an offence under any
Central Act other than this Code, the Central Government may,
subject to the provisions of Sub-section (3), also direct the Public
Prosecutor to present an appeal-
2 . to the Court of Session, from an order of acquittal passed by a
Magistrate in respect of a cognizable and non-bailable offence;

3. to the High Court from an original or appellate order of
an acquittal passed by any Court other than a High Court
not being an order under Clause (a) or an order of
acquittal passed by the Court of Session in revision.
(3) No appeal to the High Court Under Sub-section (1) or Sub-
section (2) shallbe entertained except with the leave of the High
Court.
(4) If such an order of acquittal is passed in any case
instituted upon complaintand the High Court, on an application
made to it by the complainant in this behalf, grants special leave
to appeal from the order of acquittal, the complainant may
present such an appeal to the High Court.
(5) No application Under Sub-section (4) for the grant of
special leave to appeal from an order of acquittal shall be
entertained by the High Court after the expiry of six months,
where the complainant is a public servant, and sixty days in
every other case, computed from the date of that order of
acquittal.
(6) If, in any case, the application Under Sub-section (4) for
the grant of special leave to appeal from an order of acquittal is
refused, no appeal from that order of acquittal shall lie Under
Sub-section (1) or Under Sub-section (2).
The proviso to Section 372 was added by way of amendment inserted by
Act 5 of 2009 with effect from 31.12.2009.
83.As far as the present case is concerned, the offence took place on
06.02.2009 i.e. prior to 31.12.2009 and the order of acquittal was
passed by the trial court on 28.10.2013. I am in agreement with my
learned brother that the right to file an appeal to the victim will arise
only on the date when the judgment is passed by the trial court
because then alone the victim has a right to urge that the acquittal is
wrong or that the sentence awarded to the Accused is not
commensurate with the offence which the Accused may have
committed. Therefore, I have no doubt that the victim has a right to
appeal and to that extent the judgment of the High Court is liable to
be set aside.
84.My only difference of opinion is with regard to the conclusion drawn
in the judgment of my learned brother that the victim, even in
appeal filed in the High Court, is not required to seek leave of the
High Court. In my considered view, this matter is, in fact, no longer
res integra. This Court has specifically dealt with this issue in Satya

Pal Singh v. State of M.P. and Ors. MANU/SC/1119/2015 : (2015)
15 SCC 613, wherein it held as follows:
10. The Full Bench of the High Court of Delhi in Ram Phal v.
State, MANU/DE/1687/2015, after examining the relevant
provisions Under Section 2(wa) and the proviso to Section 372
Code of Criminal Procedure, in the light of their legislative history
has held that the right to prefer an appeal conferred upon the
victim or relatives of the victim by virtue of the proviso to Section
372 is an independent statutory right. Therefore, it has held that
there is no need for the victim in terms of definition Under Section
2(wa) Code of Criminal Procedure to seek the leave of the High
Court as required Under Sub-section (3) of Section 378 Code of
Criminal Procedure to prefer an appeal under the proviso to
Section 372 Code of Criminal Procedure. The said view of the High
Court is not legally correct for the reason that the substantive
provision of Section 372 Code of Criminal Procedure clearly
provides that no appeal shall lie from any judgment and order of
a criminal court except as provided for by Code of Criminal
Procedure. Further, Sub-section (3) of Section 378 Code of
Criminal Procedure provides that for preferring an appeal to the
High Court against an order of acquittal it is necessary to obtain
its leave.
xxx xxx xxx
xxx xxx xxx
15. Thus, to conclude on the legal issue:
whether the Appellant herein, being the father of the
deceased, has statutory right to prefer an appeal to the
High Court against the order of acquittal under the proviso
to Section 372 Code of Criminal Procedure without
obtaining the leave of the High Court as required Under
Sub-section (3) of Section 378 Code of Criminal
Procedure?
this 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) Code of
Criminal Procedure, under the proviso to Section 372, but only
after obtaining the leave of the High Court as required Under
Subsection (3) of Section 378 Code of Criminal Procedure. The
High Court of M.P. has failed to deal with this important legal

aspect of the matter while passing the impugned judgment and
order.
85.The only issue with which I am dealing is whether a victim while
filing an appeal Under Section 372 of Code of Criminal Procedure in
the High Court against the acquittal of an Accused is required to
obtain leave of the court Under Section 378(3) Code of Criminal
Procedure. Prior to the amendment of Section 372 of Code of
Criminal Procedure the victim had no right to file an appeal. The
traditional view has always been that the State represents the victim
of the crime. Criminal offences have always been treated to be
offences against the State and it is the State alone which
investigated and prosecuted such cases. In case the State machinery
does not take action on the complaint of the victim, the said victim
has a right Under Section 156 of Code of Criminal Procedure to
approach the court. Under Section 156(3) Code of Criminal
Procedure, the magistrate may order an investigation to be done by
the police. Once the investigation is done, then again the victim has
no hand in the investigation except to assist the investigating officer
and to bring evidence to the notice of the investigating officer. After
investigation, the investigating officer files a final report Under
Section 173 Code of Criminal Procedure. The investigating officer
may come to the conclusion that either no offence is made out or
may file report showing what offences are made out in which case
the court proceeds further. Even in those cases where the
investigating agency files a report that no criminal offence is made
out, the victim has a right to object to the report and he can argue
before the court that a case is made out on the basis of the evidence
collected or he can even urge that the police must be directed to
carry out further and more investigation.
86.Chapter XXIX of the Code of Criminal Procedure deals with appeals.
Appeals against acquittal are governed by Section 378 of Code of
Criminal Procedure. As per Subsection (1) of this Section only a
District Magistrate or the State as the case may be is entitled to
direct the Public Prosecutor to file an appeal. Sub-section (2) deals
with cases investigated under the Delhi Special Police Establishment
Act, 1946 and in these cases the Central Government may also
direct the Public Prosecutor to file an appeal. I am concerned mainly
with Sub-section (3) of Section 378 of Code of Criminal Procedure,
which provides that no appeal to the High Court either Under Sub-
section (1) or Sub-section (2) shall be entertained except with the
leave of the High Court. Sub-section (4) deals with appeals filed by
the complainant in case the order of acquittal is passed in a case

instituted upon a complaint. In such cases if the appeal has to be
filed in the High Court it cannot be entertained unless the High Court
grants special leave to appeal from the order of acquittal. Sub-
section (5) provides the limitation for filing the petition for grant of
special leave to appeal in terms of Subsection (4). Sub-section (6)
lays down that in case the application for special leave to appeal filed
by a complainant Under Sub-section (4) is refused then no appeal
from that order of acquittal shall lie Under Sub-section (1) or Under
Sub-section (2). An analysis of Section 378 of Code of Criminal
Procedure clearly shows that the Code of Criminal Procedure
envisaged and granted a predominant role to the State. It was the
State alone which was entitled to file an appeal. The only exception
was in complaint cases where the complainant could file an appeal.
He also had to seek special leave to appeal in case the appeal lay to
the High Court.
87.Interestingly, Section 372 of Code of Criminal Procedure which was
amended in the year 2008 to give a right to the victim is a negative
Section which specifically provided, before its amendment, that no
appeal would lie from any judgment or order of a criminal Court
except as provided for by the Code of Criminal Procedure or by any
other law in force. The Legislature while giving a victim the right to
appeal did not, for reasons best known to it, give this right to file
appeal to the victim Under Section 378 of Code of Criminal
Procedure or any other specific section. Surprisingly this right to the
victim was given as a proviso to Section 372 of Code of Criminal
Procedure. This proviso is not very happily worded. Be that as it
may, the fact is that a victim now has a right to appeal under this
proviso. He can file the appeal against the following orders:
(i) any order passed by a Court acquitting the accused;
(ii) any order passed by a Court where the Accused is convicted of
a lesseroffence but the victim feels that he should have been
convicted for a higher offence. Obviously the appeal lies against
the acquittal of the Accused for a higher offence;
(iii) an appeal lies where the victim is not satisfied by the quantum
of compensation awarded.
88.Dealing with the issue, as to whether a victim should seek leave to
appeal, one must first understand the concept behind introducing the
concept of leave to appeal, especially when the appeals are filed in
the High Courts. The presumption of innocence which is attached to
every Accused gets fortified and strengthened when the said Accused
is acquitted by the trial Court. Probably, for this reason, the law

makers felt that when the appeal is to be filed in the High Court it
should not be filed as a matter of course or as matter of right but
leave of the High Court must be obtained before the appeal is
entertained. Therefore, the High Court would at the initial stage of
deciding whether the leave is to be granted or not go into the merits
of the case. Only if arguable points are involved, the High Court
normally grants leave to appeal. This would not only prevent the
High Court from being flooded with appeals but more importantly
would ensure that innocent persons who have already faced the
tribulation of a long drawn out criminal trial are not again
unnecessarily dragged to the High Court.
89.At this stage, it would also be pertinent to mention that Under
Section 378 of Code of Criminal Procedure an appeal against the
order of acquittal passed by a Magistrate in respect of cognizable and
non-bailable offences lies to the Sessions Court and no leave to
appeal is required. From the Court of Magistrate it is only appeals in
respect of offences which are non-cognizable and bailable i.e. less
serious offences which would lie to the High Court. In such cases,
leave to appeal is a pre-requisite. This was done with a view to
ensure that the persons who had faced trial for relatively lesser
offences should not have to bear the expenses of an appeal in the
High Court. The other appeals which lie to the High Court are
appeals from the Court of Sessions. These are serious criminal
matters and relate to much graver offences. Here the concept of
leave to appeal was probably introduced because these cases are
decided by relatively senior Judges
i.e. Sessions Judges. The Legislature felt that in such cases also the
appeals against acquittals must be scrutinized with greater care.
90.As pointed out above, even a complainant when he files an appeal
against an order of acquittal in a case instituted upon a complaint is
required to obtain special leave to appeal. It is true that the proviso
to Section 372 of Code of Criminal Procedure does not indicate that a
victim while filing an appeal in the High Court must file a petition for
leave to appeal before his appeal can be entertained.
91.I am of the considered view that though the proviso to Section 372
of Code of Criminal Procedure does give a right to the victim to file
an appeal, this proviso cannot be read in isolation. It has to be given
a meaning which fulfills the intention of the Legislature. The proviso
to Section 372 of Code of Criminal Procedure does not lay down the
procedure as to how, in what manner, and within which time the
appeal has to be filed. An appeal, being a creature of the statute, it

is also necessary to prescribe the limitation and procedure for filing
the appeal.
92.Adverting to Sub-section (4) of Section 378 of Code of Criminal
Procedure, if an order of acquittal is passed on a case instituted upon
a complaint then the High Court before entertaining an appeal by the
complainant must grant special leave to appeal. The expression
"Special leave to appeal" has no different meaning than the
expression "leave to appeal" and it appears to me that the word
"special" has been added only to distinguish "leave to appeal" sought
by the complainant from the "leave to appeal" sought by the State.
Thus, in a complaint case where the complainant has set the wheels
of the Court in motion even if the complainant files the appeal he
must obtain special leave to appeal. This again gives rise to an
interesting question-Can the victim be placed on a higher pedestal
than the complainant? More often than not, the victim and the
complainant are likely to be one and the same person.
93.In case, I accept the proposition that the victim need not seek leave
to appeal in case the appeal is to be filed in the High Court there
shall be another anomalous situation. Supposing there are two
victims in a case and one of the victims files a complaint and sets the
wheels of justice moving and the case is tried as a complaint case. In
case the Accused is acquitted and the victim who is the complainant
wants to file an appeal in the High Court, he will have to seek special
leave to appeal whereas the victim who had not even approached
the Court at the initial stage will be entitled to file an appeal without
seeking leave to appeal. This could not have been the intention of
the Legislature.
94.I am fully conscious of the changes in criminal jurisprudence referred
to by my learned brother and the expanding rights of the victim,
which the victim must have. At the same time, these rights must be
balanced with the rights of the accused. According to the records of
National Crime Record Bureau, the conviction rate in the country in
2016 was only 21.25% and 78.75% cases ended in discharge or
acquittal. One cannot lose sight of the fact that out of these 78.75%
cases in which acquittal was recorded, there may be many cases
which are totally false.
95.It may be that many people are set free because of poor
investigation and on account of indifferent prosecution. At the same
time, it is not uncommon for individuals to file false cases. In fact,
this Court has noted the misuse of Section 498A of Indian
Penal Code, 1860 in the case of Rajesh Sharma v. State of U.P.

MANU/SC/0909/2017 and of Scheduled Caste and Scheduled Tribe
(Prevention of
Atrocities) Act, 1989 in the case of Dr. Subhash Kashinath Mahajan
v. State of Maharashtra MANU/SC/0275/2018 : (2018) 6 SCC 454.
Therefore, while interpreting the law one cannot shut one's eyes to the
fact that a large number of false cases are filed and appeals will more
likely than not be filed in such cases when the acquittal of the Accused is
ordered.
96.One also cannot be oblivious to the fact that one of the bedrocks of
our criminal jurisprudence is that every person is presumed innocent
unless found guilty. This presumption of innocence gets
strengthened when the person is acquitted. Therefore, the legislature
felt that before a person who has been acquitted after a protracted
trial is called to face proceedings in the High Court in an appeal, the
High Court should look into the matter and first decide whether there
are sufficient reasons to grant leave to file appeal or not. This is, in a
manner of speaking a preliminary hearing to decide whether the
matter is worth looking into or not. I see no reason why such
scrutiny should not be done in appeals filed by the victim. The victim
cannot be placed on a higher pedestal than the State or the
complainant.
97.The right of the victim to file an appeal is not taken away or in any
manner weakened only because he has to seek leave to appeal. If
Sections 378(3), 378(4) and 372 of Code of Criminal Procedure are
read together, it is clear that the victim is also required to apply for
leave to appeal before his appeal can be entertained.
98.Though the victim has rights, one cannot forget that a victim who
may have suffered, may also seek revenge. Therefore, an obligation
has been cast upon the State to prosecute the accused. In fact, even
now a trial under the Code of Criminal Procedure has to be
conducted by the Public Prosecutor or Assistant Public Prosecutor. No
private lawyer can be engaged to conduct the trial Under Section
301(2) of Code of Criminal Procedure. A private person including the
victim, can only instruct a pleader to act on his behalf in court but
the prosecution has to be conducted either by the Public Prosecutor
or Assistant Public Prosecutor and the pleader engaged by the
private person can only act as per the directions of the Public
Prosecutor or Assistant Public Prosecutor. The reason behind this is
that the victim may fabricate evidence or hide true facts whereas the
Public Prosecutor or Assistant Public Prosecutor is expected to be fair
to the court, to the Accused and to the victim.

99.On the one hand are the rights of the victim and on the other hand,
is the well settled principle of criminal jurisprudence that every man
is presumed to be innocent till proved guilty. Therefore, though the
victim may have a right to file an appeal, this right of filing an appeal
vested in the victim, cannot be larger than the right of filing an
appeal which inheres in the State and the complainant in a complaint
case. Therefore, I am of the view that when the victim files an
appeal against acquittal in the High Court he has to seek leave to
appeal Under Section 378(3) Code of Criminal Procedure.
1
Girish Kumar Suneja v. Central Board of Investigation,
MANU/SC/0829/2017 : (2017)
14 SCC 809
2
Hari Singh v. Sukhbir Singh MANU/SC/0183/1988 : AIR 1988 SC 2127;
Bodhisattwa Gautam v. Subhra Chakroborty MANU/SC/0245/1996 : AIR
1996 SC 922; Ankush
Shivaji Gaikwad v. State of Maharashtra, MANU/SC/0461/2013 : (2013)
6 SCC 770 3Sampurna Behura v. Union of India, MANU/SC/0104/2018 :
(2018) 4 SCC 433
4
Crl.M.A. No. 7423 of 2011, decided on 22 nd September,
2011-MANU/KE/1620/2011.
5
Smt. Ram Kaur @ Jaswinder Kaur v. Jagbir Singh alias Jabi and Ors.
MANU/PH/4500/2010 decided on 1st April, 2010
6
Guru Prasad Yadav v. State of Bihar, Criminal Appeal No.
582 of 2011 © Manupatra Information
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MANU/SC/1165/2018

Equivalent Citation: AIR2018SC5206, (2019)2SCC752

IN THE SUPREME COURT OF INDIA

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