Breaking: Victim Can File Appeal Against Acquittal Without Seeking Leave To Appeal: SC, Justice Gupta Dissents

In a landmark judgment, the Supreme Court has held that a victim can file an appeal in the High Court against the acquittal without seeking leave to appeal.A three Judge Bench comprising Justice Madan B. Lokur ,Justice S. Abdul Nazeer and Dipak Gupta was considering the following questions;1.Whether a ‘victim’ as defined in the Cr.P.C. has a right of appeal in view of the proviso to Section 372 of the Cr.P.C. against an order of acquittal in a case where the alleged offence took place prior to 31st December, 2009 but the order of acquittal was passed by the Trial Court after 31st December, 2009? 2.Whether the ‘victim’ must apply for leave to appeal against the order of acquittal? The majority answered the first question in the affirmative and second question in the negative.The majority judgment authored by Justice Madan B. Lokur (Justice S. Abdul Nazeer concurring) concluded: “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 Cr.P.C. would be entitled to file an appeal before the Court to which an appeal ordinarily lies against the order of conviction.”On the aspect of necessity of Special Leave to file appeal, the majority said: “The language of the proviso to Section 372 of the Cr.P.C. is quite clear, particularly when it is contrasted with the language of Section 378(4) of the Cr.P.C. 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 Cr.P.C. 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 Cr.P.C. is concerned.”Justice Deepak Gupta wrote separate opinion dissenting with the majority view that there is no need of seeking leave to appeal in terms of Section 378(3) of CrPC. “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.”, the Judge said.BackgroundKodagali, a victim of attack filed, FIR. The Sessions court, after trial, acquitted the accused. He preferred appeal before the High court under the proviso to Section 372 of the Cr.P.C. but it was dismissed as not maintainable on the ground that the proviso to Section 372 of the Cr.P.C. came into the statute book with effect from 31st December, 2009 but the incident had occurred well before that date. He then filed another appeal under the provisions of Section 378(4) of the Cr.P.C. This was also dismissed as not maintainable as the appeal was not filed in a case instituted upon a complaint before a Magistrate. He assailed both these orders before the Apex court.High Court decisions taken note ofThe majority judgment takes note of decisions of various High courts (full bench and division bench) and observed: “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 31st 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.”Victim can file appeal against acquittal order passed after 31 Dec 2009The judgment breaks the ice in the beginning itself when it said: “Whether a ‘victim’ as defined in the Cr.P.C. has a right of appeal in view of the proviso to Section 372 of the Cr.P.C. against an order of acquittal in a case where the alleged offence took place prior to 31st December, 2009 but the order of acquittal was passed by the Trial Court after 31st 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.”It added: “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...

Breaking: Victim Can File Appeal Against Acquittal Without Seeking Leave To Appeal: SC, Justice Gupta Dissents

ASHOK KINI

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