AFR

Reserved

Court No. - 21

Criminal Misc. Application Defective

U/S 372 CR.P.C (Leave to Appeal) No. - 67 of 2013

Applicant :- Manoj Kumar Singh

Opposite Party :- State Of U.P. & 3 Others

Counsel for Applicant :- Sri Satish Chandra Sinha

Counsel for Opposite Party :- Government Advocate

Hon'ble V.K. Shukla, J.

Hon'ble Manoj Misra, J.

Hon'ble Ramesh Sinha, J.

“Law should not sit limply, while those who defy it go free and

those who seek its protection lose hope.”

[Jennison V. Baker (1972) 1 All ER 997]

Crime affects not only the individual victim and his family but the

society at large therefore the fundamental purpose and end of political

society is defence against external enemies, and the maintenance of

peaceable and orderly relations within the community. Salmond in his

treatise “Jurisprudence” (Eight Edition Chapter V) while discussing the

nature and essential functions of the State wrote: “A State, then, or political

society, may be conceived of as an association of human beings

established for the attainment of certain ends by certain means. It is the

most important of all the various kinds of society in which men unite, being

indeed the necessary basis and condition of peace, order, and civilisation.

What then is the essential difference between this and other forms of

association? …..The difference is clearly one of function. The State must

be defined by reference to such of its activities and purposes as are

essential and characteristic. .... It is possible, however, to distinguish

among the multitudinous operations of government, two which it is

suggested may be set apart as primary and essential. These two are war

and the administration of justice.....Every society which perform these two

functions is a political society or State, and none is such which does not

perform them. It is the fundamental duty of a State to ensure administration

of justice within its territory. The objectives of criminal justice are

prevention and control of crime; maintenance of public order and peace;

protection of the rights of victims; trial and punishment of those who are in

conflict with law; and reformation of those adjudged guilty of

committing crimes. All these had been recognized as State's

obligations and, therefore, till the amendment brought in the Code of

Criminal Procedure, 1973 (hereinafter referred to as the Code) by

Act No.5 of 2009, the right to file an appeal against an order of

acquittal, except in a case instituted upon a complaint, was the sole

prerogative of the State. By Act No.5 of 2009 a Proviso to section

372 of the Code was added which 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 would lie to

the Court to which an appeal ordinarily lies against the order of

conviction of such Court. To define the word victim, clause (wa) was

inserted in section 2 of the Code.

The case in hand engages our attention to answer the pivotal

question as to who will fall within the definition of victim as

contemplated by Section 2 (wa) of the Code, inserted by the Act No.

5 of 2009.

Before we proceed to address the question referred to us, it

would be useful to give a brief background of the case. This is a

case where on death of a married lady Mamta Singh; her mother-in-

law Smt. Shakuntala, her jeth Ajay Kumar Singh and her husband

Pawan Kumar Singh were put to trial for offences punishable under

Section 304-B/34 IPC with alternative charge of Section 302/34

IPC; and Section 498-A IPC read with Section 3/4 of Dowry

Prohibition Act. The trial court acquitted them vide judgment and

order dated 26.10.2012. It appears that the father (PW-1) and

mother (PW-2) of the deceased turned hostile and did not support

the prosecution version. The prosecution evidence even failed to

substantiate the prosecution case of dowry demand or cruelty or

that the deceased committed suicide as a consequence thereof.

Under the circumstances, neither the parents of the deceased nor

the State preferred appeal against the order of acquittal. However,

the brother-in-law (Jija) of the deceased has come forward to prefer

this appeal against acquittal by claiming himself to be a “victim”.

The Division Bench seized of the matter, while dealing with

the locus of the appellant to maintain the appeal, came across a

judgment dated 10.4.2014 of a coordinate Bench of this Court in the

case of Edal Singh vs. State of U.P. & 3 others in Criminal Misc.

Application U/S 372 Cr.P.C. (Leave to Appeal) No. 172 of 2014; and

judgments of other High Courts i.e. Full Bench Decision of Punjab

& Haryana High Court in ‘M/s. Tata Steel Ltd. Vs. M/s. ,Atma Tube

Products Ltd. And others’ reported in (2014) 1 PLR 1.; and

Division Bench Decision of Patna High Court in Criminal Appeal

(DB) No. 1078 of 2012 ”Parmeshwar Mandal vs. State of Bihar &

others, on the issue as to who could be considered a victim

therefore, in its wisdom, thought it appropriate to formulate and refer

two questions for authoritative pronouncement by a Larger Bench,

vide its order dated 13.1.2015, which are as follows:

1. “Whether the definition of the word “victim” as used in

Section 2 (wa) would mean any person other than a

“guardian” or “legal heir” also for the purpose of

maintaining an appeal under Section 372 Cr.P.C.?

2.Whether the ratio of the decision of the Division

Bench of this Court in the case of Edal Singh Vs. State

(Supra) states the law correctly keeping in view the

conflicting ratios of the Full Bench decision of the Punjab

& Haryana High Court in the case of M/s. Tata Steel Ltd.

(Supra) and that of the Patna High Court in the case of

Parmeshwar Mandal (Supra)?.

While the reference remained pending, a Full Bench of Delhi

High Court had the occasion to consider the issue and pronounce its

judgment on 28.5.2015 in Criminal Appeal No. 1415 of 2012

(Ramphal vs. State). The Apex Court, in the meantime had

occasion to examine and consider the judgment of the Full Bench of

Delhi High Court in Satya Pal Singh vs. State of M.P. & others,

reported in 2015 CrLJ 4929 , though, on the aspect of

“Requirement of Leave to Appeal”. In this backdrop, the reference

in question is before us for adjudication.

Considering the importance of the issue we requested Sri Daya

Shankar Mishra, an eminent counsel of this Court, to assist the

Court, upon which, he has rendered full assistance to the Court. He

submitted before us that there was no occasion for making a

reference as the proviso of Section 372 read with section 2(wa) of

the Code, which has been introduced by Act No.5 of 2009, carries

no ambiguity and, therefore, the scope of the said proviso cannot be

enlarged by judicial dicta though, according to him, the question as

to who is a victim has to be determined on the facts of each case for

ascertaining whether he/she has a right to prefer appeal. He had

submitted that appeal is a creation of statute and what is not

otherwise provided for cannot be indirectly introduced by liberal /

wider interpretation of the word victim and, as such, the reference in

question should be answered in negative by clarifying the legal

position that the word 'victim' as defined in Section 2 (wa) of the

Code of Criminal Procedure would remain confined to a person who

falls within the categories specified therein and, in his or her

absence or disability, as the case may be, it would include his or her

legal heir or guardian and nothing beyond the same.

Sri Manish Singh, Advocate, has supported the reference in

question by submitting that the word 'victim' should not be limited to

a person, who has suffered loss or injury, rather it should include

even those who have faced or suffered any sort of harm including

emotional harm or injury so that the object of the amendment that a

person guilty does not go unpunished is fully served and a wider

base of persons is created who could appeal against an erroneous

judgment of the lower court. He has also suggested that keeping in

mind the object of the amendment, the word victim should not be

confined to specific individuals but needs to be interpreted on the

facts of each case.

Sri Akhilesh Singh, learned Government Advocate, has

contended that the definition of victim cannot be enlarged and right

to appeal cannot be created by judicial pronouncement and the

reference in question, in the facts of the case, should be answered

in negative.

Sri Vimlendu Tripathi, learned Additional Government

Advocate-I, has supplemented the arguments raised by Government

Advocate by submitting that right to prefer appeal is a statutory right

having its own limitation, hence liberal/wide interpretation as regards

locus to file appeal is not permissible therefore the person entitled to

prefer an appeal against acquittal will have to fall within the term

victim, as defined i.e. a person who suffered any loss or injury

caused by reason of the act or omission for which the accused

person has been charged and would include his or her guardian or

legal heir. It has been submitted that word injury is not defined in the

Code, therefore by virtue of Section 2 (y) of the Code the definition

of injury as provided by Section 44 of the Indian Penal Code, 1860

would have to be adopted which provides that injury denotes any

harm whatever illegally caused to any person, in body, mind,

reputation or property. It has been submitted that the offences under

the Indian Penal Code are of different types specified in different

Chapters, therefore, the word victim would have to be interpreted

contextually in reference to the nature of the offence; and it would

mean the contextual sufferer of the offence and no one else and, as

such, the reference in question should be answered in negative. He

further added that the words “Guardian” and “Legal Heir” should be

given their natural meaning and they should not be expanded by

judicial interpretation.

In order to answer the reference, the requisite necessary

legislative development as well as the statutory provisions in the

field concerned need to be looked into.

For the first time in the year 1985 in the General Assembly of

United Nations, a declaration was made on basic principles of

Justice for Victims of Crime. After the aforementioned declaration,

necessity to address the rights of victim was felt as it was found that

the victim, the initiator of criminal justice system, was losing

confidence and interest in the process of adjudication inasmuch as

the criminal justice system on the one hand showed all enthusiasm

to protect the interest of accused but, on the other hand, ignored the

victim by treating him as a hapless sufferer of the crime having no

right to challenge the verdict acquitting the accused.

The Punjab & Haryana High Court in paragraphs 24 to 26 of

its judgment in the case of M/s. Tata Steel (supra) proceeded to

consider the legislative development qua the evolution of right to

appeal against judgment of acquittal as follows:

“Evolution of Right to Appeal:

(24). The Code of Criminal Procedure when originally

enacted in the year 1861 did not provide for any right to

appeal against acquittal to anyone including the State. It

was in the Code of Criminal Procedure of 1898 that

Section 417 was inserted enabling the Government to

direct the Public Prosecutor to present an appeal to the

High Court from an original or appellate order of

acquittal passed by any Court other than a High Court.

The Law Commission of India in its 41st Report given in

September, 1969 as also in 48th Report pertaining to

the Criminal Procedure Bill, 1970, however,

recommended to restrict the right of appeal given to the

State Government against an order of acquittal by

introducing the concept of 'leave to appeal' and that all

appeals against acquittal should come to the High Court

though it rejected the right to appeal to "the victim of a

crime or his relatives".

(25). The Code of Criminal Procedure, 1973 came into

being on January 25, 1974 repealing the Code of

Criminal Procedure, 1898. The recommendations made

by the Law Commission of India, referred to above,

largely found favour with the Parliament when it inserted

an embargo in sub-Section (3) to Section 378 against

entertainment of an appeal against acquittal "except

with the leave of the High Court". Sub- section (4) of

Section 378 retained the condition of maintainability of

an appeal at the instance of a complainant against an

order of acquittal passed in a complaint-case only if

special leave to appeal was granted by the High Court.

Save in the manner as permitted by Section 378, no

appeal could lie against an order of acquittal in view of

the express embargo created by Section 372 according

to which "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".

The Code of Criminal Procedure (Amendment) Act,

2005:

(26). Hon'ble Supreme Court in a string of decisions a

few of which are already cited, has recognized time and

again one or the other right of the 'victim' including locus

standi of his/her family members to appeal against

acquittal in the broadest sense. Notwithstanding these

decisions or the chorus of such like rights being heard

in all civic societies, the Legislature in its wisdom did not

deem it necessary to permit a 'victim' to appeal against

the acquittal of his wrong-doer even while carrying out

sweeping amendments in the Code in the year 2005.

The only significant amendment brought into force was

in Section 378 whereby the appeals against acquittal in

certain cases are now maintainable in the Court of

Session without any leave to appeal. The afore-stated

amendment has been brought to guard against arbitrary

exercise of power and to curb reckless 'acquittals'.

Section 377 was also suitably amended enabling an

appeal on the ground of inadequacy of sentence to the

Court of Session, if the sentence is passed by a

Magistrate.”

The Committee on reforms of Criminal Justice System was

constituted by Government of India, Ministry of Home Affairs by its

order dated 24.11.2000 to consider measures for revamping the

Criminal Justice System. In this connection, for providing justice to

victims of crime, Committee made its recommendation as follows:

“i) The victim, and if he is dead, his legal representative

shall have the right to be impleaded as a party in every

criminal proceeding where the offence is punishable

with 7 years imprisonment or more.

ii) In select cases notified by the appropriate

government, with the permission of the court an

approved voluntary organization shall also have the

right to implead in court proceedings.

iii) The victim has a right to be represented by an

advocate of his choice; provided that an advocate shall

be provided at the cost of the State if the victim is not in

a position to afford a lawyer.

iv) The victim's right to participate in criminal trials shall,

inter alia, include:

a) To produce evidence, oral or

documentary, with leave of the Court and/or

to seek directions for production of such

evidence

b) To ask questions to the witnesses or to

suggest to the court questions which may

be put to witnesses

c) To know the status of investigation and

to move the court to issue directions for

further investigation on certain matters or to

a supervisory officer to ensure effective and

proper investigation to assist in the search

for truth.

d) To be heard in respect of the grant or

cancellation of bail

e) To be heard whenever prosecution

seeks to withdraw or offer to withdraw and

not continue the prosecution

f) To advance arguments after the

prosecutor has submitted arguments

g) To participate in negotiations leading to

settlement of compoundable offences.

v) 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.

vi) Legal services to victims in select crimes may be

extended to include psychiatric and medical help,

interim compensation and protection against secondary

victimization.

vii) Victim compensation is a State obligation in all

serious crimes, whether the offender is apprehended or

not, convicted or acquitted. This is to be organized in a

separate legislation by Parliament. The draft bill on the

subject submitted to Government in 1995 by the Indian

Society of Victimology provides a tentative framework

for consideration.

viii) The Victim Compensation law will provide for the

creation of a Victim Compensation Fund to be

administered possibly by the Legal Services Authority.

The law should provide for the scale of compensation in

different offences for the guidance of the Court. It may

specify offences in which compensation may not be

granted and conditions under which it may be awarded

or withdrawn.”

In this long journey it was found that victim's right comprises

of the following ingredients:

a) Access to justice & fair treatment,

b) Restitution,

c) Compensation &

d) Assistance.

Based on said recommendations amendments were made in

the Code showing sensitivity to the rights of a victim, by

incorporating the following provisions:

“i) Section 2(wa) was incorporated in the Code defining

a victim and making it inclusive of his or her guardian or

legal heir;

ii) Proviso to sub section (8) of Section 24(8) of the

Code which provided that the Court may permit the

victim to engage advocate of his choice to assist the

public prosecutor.

iii) Proviso to clause (a) of Section 26 of the Code,

which provided that offenses under section 376 and 376

(A) to 376 (D) of the Indian Penal Code shall be tried as

far as practicable by a court presided over by a woman.

iv) Proviso 2

nd

to sub section (1) of Section 157 of the

Code by which it was provided that the statement of a

rape victim will be recorded at the residence of the

victim or in the place of her choice as far as practicable

by a woman police officer in the presence of her parent

or guardian or near relative or a social worker of the

locality.

v) Sub section (1-A) of Section 173(1-A) of the Code by

which it was provided that in relation to rape of a child

investigation would be completed within three months

from the date of receipt of information.

vi)Section 357-A of the Code so as to provide for the

“Victim compensation scheme” for the purpose of

compensation to the victim or his dependents who

suffered loss or injury as a result of the crime.

vii)Proviso to Section 372 of the Code conferring

right on a victim to file appeal”

Section 372 falls in Chapter XXIX of the Code titled 'Appeals'.

Post amendment, vide Act No.5 of 2009, Section 372 proceeds to

provide: “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. 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.”

Prior to 31.12.2009, that is before the enforcement of

amending Act No.5 of 2009, Section 372 was as follows:

“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 aforesaid amendment is based upon the 154

th

report of

Law Commission.

The statement of object and reasons of Act 5 of 2009

mentioned, is as follows:

“....................... 2. The need has also been felt to

include measures for preventing the growing

tendency of witnesses being induced or threatened

to turn hostile by the accused parties who are

influential, rich and powerful. At present, the victims

are the worst sufferers in a crime and they don’t

have much role in the court proceedings. They need

to be given certain rights and compensation, so that

there is no distortion of the criminal justice

system....................”.

With such statement of object and reasons, the proviso of

Section 372 has been inserted, which reads as follows:

"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."

Prior to insertion of the proviso, appeal against inadequacy of

sentence lay under section 377 of the Code and against acquittal lay

under section 378 of the Code but in neither case the victim had a

right to appeal though in a case instituted upon a complaint, the

complainant had a right to present an appeal under sub section (4)

of section 378 of the Code. Thus, by insertion of the proviso an

exception to the general rule was carved out by providing victim a

right to prefer an appeal against an order of acquittal or of convicting

for a lesser offence or imposing inadequate compensation. The term

“victim” has been defined in section 2 (wa), inserted in the Code by

Act No. 5 of 2009, and the same provides as follows:

“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.

The discussion of the term 'victim' has been subject matter of

interpretation by a Division Bench of this Court in Criminal Misc.

Application U/S 372 Cr.P.C. (Leave to Appeal) No. 172 of 2014, Edal

Singh Vs. State of U.P. & 3 others, which was decided by order

dated 10.4.2014. The operative portion of the said order provides as

follows:

“We also have some doubts where the appellant, who is

not the grand father, but grand uncle of the deceased

Babloo has any locus standi to file this appeal, as the

right of filing the appeal, which has been conferred

under section 372 Cr. P. C. has been given to a victim

who has been defined under section 2(wa) to mean a

person who has suffered any loss or injury caused by

reason of the act or omission for which the accused

persons have been charged and the expression "victim"

includes his or her guardian or legal heir. It cannot be

said that the grand uncle i.e. the brother of the grand

father would be any person, who could be considered to

have suffered any loss or injury. Also the grand uncle

not being a lineal ascendant or descendant would not

be his legitimate legal heir and we doubt that such an

enlarged meaning as has been suggested by the

learned counsel for the appellant has been given to any

person to file an appeal. We, therefore, do not find any

perversity or illegality in the judgement of the Trial Court

calling for interference in the order of acquittal recorded

by the Trial Court. The application for leave to appeal is

rejected and the appeal is, consequently, dismissed.”

The Punjab & Haryana High Court in M/s. Tata Steel Ltd. Vs.

M/s. Atma Tube Products Ltd. & others reported in 2014 (1) PLR

1, has extensively considered the issue to find out as to what is the

true meaning of victim and has drawn its conclusions, as follows:

“138. For the reasons assigned above, we sum up our

conclusions and answer the questions as formulated in

para 6 of this order, in the following terms:-

Question - (A) (i) The expression "victim" as defined in

Section 2(wa) includes all categories of his/her legal

heirs for the purpose of engaging an advocate under

Section 24(8) or to prefer an appeal under proviso to

Section 372 of the Code.

(ii) However, legal heirs comprising only the wife,

husband, parent and child of a deceased victim are

entitled to payment of compensation under Section

357(1)(c) of the Code. Similarly, only those dependents

of a deceased victim who have suffered loss or injury as

a result of the crime and require rehabilitation, are

eligible to seek compensation as per the Scheme

formulated under Section 357-A of the Code.

Question - (B) (iii) The 'complainant' in a complaint-case

who is also a 'victim' and the 'victim' other than a

'complainant' in such case, shall have remedy of appeal

against acquittal under Section 378(4) only, except

where he/she succeeds in establishing the guilt of an

accused but is aggrieved at the conviction for a lesser

offence or imposition of an inadequate compensation,

for which he/she shall be entitled to avail the remedy of

appeal under proviso to Section 372 of the Code.

(iv) The 'victim', who is not the complainant in a private

complaint-case, is not entitled to prefer appeal against

acquittal under proviso to Section 372 and his/her right

to appeal, if any, continues to be governed by the un-

amended provisions read with Section 378 (4) of the

Code.

(v) Those 'victims' of complaint-cases whose right to

appeal have been recognized under proviso to Section

372, are not required to seek 'leave' or 'special leave' to

appeal from the High Court in the manner contemplated

under Section 378(3) & (4) of the Code.

Questions - (C) & (D) (vi) The right conferred on a

'victim' to present appeal under proviso to Section 372

is a substantive and independent right which is neither

inferior to nor contingent upon the filing of appeal by the

State in that case. Resultantly, the condition of seeking

'leave to appeal' or 'special leave to appeal' as

contained in Section 378(3) & (4) cannot be imposed for

the maintainability of appeal by a 'victim' under proviso

to Section 372 of the Code.

Question - (E) (vii) In view of proviso to Section 372 an

appeal preferred by a 'victim' against the order of

acquittal passed by a Magistrate in respect of a

cognizable offence whether bailable or non-bailable

shall lie to the Court of Session, the State's appeal

under Section 378(1)(a) of the Code against that very

order shall also be entertained and/or transferred to the

same Sessions Court.

Question - (F) (viii) The proviso to Section 372 inserted

w.e.f. December 31, 2009 is prospective in application

and only those orders which have been passed on or

after December 31, 2009, irrespective of the date of

occurrence or registration of FIR or filing of complaint,

shall be appealable at the instance of a 'victim' under

the afore-stated proviso. Consequently, a revision

petition preferred against an order of acquittal passed

prior to December 31, 2009 cannot be converted into an

appeal and shall be decided accordingly.”

A Division Bench of Patna High Court in Criminal Appeal (DB)

No. 1078 of 2012, Parmeshwar Mandal Vs. State of Bihar &

others, after considering the Full Bench judgment of Punjab &

Haryana High Court in M/s. Tata Steel (supra), has held as follows:

“49. In the circumstances, after consideration of the

entire matter, conclusions of this Court are as follows:-

(1) - 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.

(2) - The right of a 'victim' to prefer an appeal in terms

of the said proviso to Section 372 is an unqualified right

and no 'leave to appeal' or 'special leave' is required to

be obtained by him/her for the purpose, as required by

the State or the complainant for maintaining an appeal

in terms of Section 378 of the Code.

(3) - No limitation of time has been provided by the

Legislature for exercise of such a right of appeal by the

'victim' in terms of the said Proviso. Hence, in the fact

and circumstances of each case, the Court has to

determine as to whether the appeal was entertainable,

or not, on the ground of absence of bonafide

explanation for delay by the appellant. The limitation

laid down by the Full Bench of Punjab and Haryana

High Court is a judicial fiat and not based on

interpretation of the provisions of the Code or the

Limitation Act, 1963. Hence the same is applicable only

within the territorial jurisdiction of that High Court and

not beyond.

(4) - However, in view of the legal presumption of

innocence in favour of the accused, the yardsticks laid

down by judicial pronouncements for consideration of

appeals under Section 378 shall be applicable in case

of an appeal under the said proviso to Section 372.

(5) - The expression - long after the present incident -

used under brackets by the Apex Court in paragraph 5

of its judgment in case of National Commission for

Women vs. State of Delhi and another [AIR 2011 SC

(sup.) 392] : [(2010) 12 SCC 599] is only an obiter

dictum of the Court and it does not lay down a law in

terms of Article 141 of the Constitution of India.

(6) - Proviso to section 372 of the Code came into

operation w.e.f. December 31, 2009. Hence, in absence

of any legislative intent to the contrary, in all cases, in

which a judgment and order has been passed by a

criminal court on and after that date, a right accrues to

the 'victim' to prefer appeal in terms of the said Proviso,

irrespective of the date of occurrence and any

subsequent event in the case prior to such judgment

and order.

(7) - If the subject of the crime is dead or incapacitated

to the extent or suffers from such a disability that he/she

cannot take steps to exercise his/her right under the

Proviso to Section 372, any of his/her next of kin, who

can establish before the Court, to its satisfaction, that

the crime had caused 'loss' or 'injury' to him/her also,

besides to the subject of the crime, can maintain an

appeal under the said proviso.

(8) - The 'loss' and 'injury' to an appellant before it (if

he/she is other than the de-facto sufferer) has to be

assessed by the Court in each and every case in the

backdrop of definition of 'injury' provided in section 44 of

the Indian Penal Code, and not beyond it, before

entertaining the appeal, in terms of the proviso to

Section 372 on merits.

(9) - If any person prefers an appeal in terms of the

proviso to Section 372, solely on the basis of his

status as a 'guardian' or a 'legal heir', he/she will

have to establish the legal basis of his/her such

status in reference to the law, as may be applicable

in the matter, with all its limitations and

qualifications, or otherwise also (e.g. judicial

order).

(10) - Once an appeal preferred in terms of the said

proviso to Section 372, against an order is entertained

by an appellate court on merits, to whatever result, no

fresh/second appeal by any party/person can/should be

entertained against the same order.

(11) - No distinction can be made between a case

instituted by a complainant/informant with the police

and by a complainant before the Court directly, and an

absolute right of a victim (a complainant or not) to file

an appeal under Proviso to Section 372 does not get

fettered by any other section of the Code contained in

Chapter XXIX, which includes Section 378.

50. Now coming to the case at hand, in the facts and

circumstances appearing from the records, this Court is

not satisfied that the appellant, who happens to be the

cousin father-in-law of the deceased, has suffered any

'loss' or 'injury' as a result of the crime complained of,

so as to qualify as a 'victim' to maintain this appeal.

51. This appeal is accordingly dismissed as not

maintainable.”

The judgments, quoted above, would go to show that while

analysing the definition of victim various High Courts have taken

note of various sources to find out as to what is the true meaning of

'victim'. In the meantime, after passing of reference order, a Full

Bench of Delhi High Court has also pronounced its judgment on the

above aspect on 28.5.2015 in Criminal Appeal No. 1415 of 2012

(Ramphal Vs. State), and, in respect of different approaches which

could be adopted for interpreting the term victim, the Court observed

as follows:

“Para 13. A survey of these High Court decisions thus

reveals four possible approaches to the question of the

victim’s locus standi to maintain an appeal under the

proviso to Section 372:

(a) A narrow reading of the word “victim” (limiting it to

direct and proximate physical harm), and a narrow

reading of the term “legal heir” (limiting it to lines of

succession under personal law). This is the approach

of the Division Bench of this Court in Chattar Singh

(supra) and of the Andhra Pradesh High Court.

(b) A broad reading of the word “victim” (expanding it to

emotional harm caused by the direct harm to someone

that one is close to), and a narrow reading of the term

“legal heir” (limiting it to lines of succession under

personal law). This is the approach of the Patna High

Court. The Guwahati High Court has also favoured a

broad reading of the word “victim”, while returning no

finding on the meaning of “legal heir”

(c) A narrow reading of the word “victim” and a broad

reading of the term “legal heir”.

(d) A broad reading of the term “victim” and of the term

“legal heir”: This appears to be the view of the Punjab &

Haryana High Court, which favours a broad reading of

“legal heir”, although it does not appear to have

returned a conclusive finding on the reading of the word

“victim”.”

The Full Bench of Delhi High Court, the Division Bench of

Patna High Court and the Full Bench of Punjab & Haryana High

Court are unanimous in their conclusion that the proviso of section

372 is not an exception but confers an independent statutory right of

appeal to a 'victim', hence, no leave to appeal is required as

provided under section 378 of the Code. This particular conclusion,

that has been arrived at, has been specifically overruled by the Apex

Court in the case of Satya Pal Singh vs. State of M.P. & others

reported in 2015 CrLJ 4929 SC by holding that the proviso to

Section 372 of Cr.P.C. must be read along with its main enactment

i.e. Section 372 and together with sub-section (3) of Section 378 of

the Code otherwise the substantive provision of Section 372 of the

Code would be rendered nugatory, as it clearly provides that no

appeal shall lie from any judgment or order of a Criminal Court

except as provided by the Code. Consequently, in view of dictum of

Apex Court in Satya Pal Singh (supra), the legal position stands

clarified that proviso of Section 372 is an exception to its main

provision and cannot be construed as an independent statutory right

in complete detachment with main statutory arrangement. In the

said case the deceased’s father had preferred appeal. The Apex

Court in that context observed as follows:

“9. We have carefully examined the above mentioned

provisions of Cr.P.C. and the Full Bench decision of

Delhi High Court referred to supra upon which strong

reliance is placed by the learned counsel for the

appellant. There is no doubt that the appellant, being

the father of the deceased, has locus standi to prefer an

appeal before the High Court under proviso to Section

372 of Cr.P.C. as he falls within the definition of victim

as defined under Section 2(wa) of Cr.P.C. to question

the correctness of the judgment and order of acquittal

passed by the trial court in favour of respondent nos. 2

to 6 in Sessions Case No. 293/2010.”

In the said case the Apex Court at no point of time has

proceeded to deal with the term 'victim' to find out, and to be

specific, under which expression the father of deceased would fall

though the Apex Court in no uncertain terms observed that father of

deceased falls within the definition of victim and has locus standi to

prefer appeal against acquittal. The fact of the matter is that in the

said case the Apex Court analysed the matter only to find out the

effect of proviso to the section 372 of the Code and discussed

several case-laws relating to the rules of interpretation while

interpreting the true import of a proviso of any main provision and

finally concluded as follows:

“Thus, from a reading of the above said legal position

laid down by this Court in the cases referred to supra, it

is abundantly clear that the proviso to Section 372 of

Cr.P.C. must be read along with its main enactment i.e.,

Section 372 itself and together with sub-Section (3) to

Section 378 of Cr.P.C. otherwise the substantive

provision of Section 372 of Cr.P.C. will be rendered

nugatory, as it clearly states that no appeal shall lie

from any judgment or order of a Criminal Court except

as provided by Cr.P.C.”

The judgment of the Apex Court has settled so far as one

particular aspect of the matter is concerned that is, the proviso of

Section 372 is an exception to its main provision and cannot be

construed as an independent statutory right in complete detachment

with main statutory arrangement. What we find from a reading of the

judgments of various High Courts is that while interpreting the word

'victim' the High Courts have given elaborate meaning to the word

'victim'. In this background as to whether the term 'victim' has rightly

been understood is an issue to be answered by us.

What we find from a reading of the judgments of various High

Courts is that all the judgments deal with definition of 'victim' in

respect of an offence of murder without considering the impact of

the nature of an offence of which one is a victim. There are various

forms of offences provided under Indian Penal Code as well as other

Special Laws. An offence may be against body, mind, property, etc.

In that context injury caused by the offence would vary. Further,

there may be crime against society, which can be termed as a

victim less crime because there is no victim in particular. None of

these judgments consider the above aspect. In this background, we

proceed to consider the case in hand. Before we do that let us

remind ourselves that it is trite law that an appeal is a creature of

statute and there can be no inherent right of appeal unless

expressly provided for by the law itself. Apex Court in the case of

Durga Shankar Mehta Vs. Raghuraj Singh, AIR 1954 SC 520 as

well as in the case of National Commission for Women Vs. State

of Delhi and another reported in 2010 (12) SCC 599, has held as

follows:

“8. Chapter XXIX of the Code of Criminal Procedure deals

with “Appeal”(s). Section 372 specifically provides that no

appeal shall lie from a judgment or order of a Criminal

Court except as provided by the Code or by any other law

which authorizes an appeal. The proviso inserted by

Section 372 (Act 5 of 2009) w.e.f. 31st December,

2009, 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. 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. An appeal would thus be

maintainable only under Section 377 to the High Court as

it is effectively challenging the quantum of sentence.

Section 377 is reproduced below:

.................

.................

10.Section 377 specifically provides that it is the

State Government or the Central Government which can

issue a direction to the Public Prosecutor to present an

appeal before the Court of Session or the High Court on

the ground of inadequacy of the sentence. This Section

does not in any manner authorize an appeal to the

Supreme Court. We are, therefore, unable to comprehend

as to how the Commission was entitled to maintain an

appeal in the Supreme Court against the order of the High

Court.

11.An appeal is a creature of a Statute and

cannot lie under any inherent power. This Court does

undoubtedly grant leave to the appeal under the

discretionary power conferred under Article 136 of the

Constitution of India at the behest of the State or an

affected private individual but to permit anybody or an

organization pro-bono publico to file an appeal would be a

dangerous doctrine and would cause utter confusion in

the criminal justice system. We are, therefore, of the

opinion that the Special Leave Petition itself was not

maintainable.”

Having regard to the legal position, it is clear that a right to

appeal is a statutory right and can be availed by any person only

under the statutory arrangement made by the legislation for that

purpose. The statutory arrangement providing remedy of appeal

under the Code makes it implicit that the remedy of appeal is

restricted to only such person and that too only in such manner as

provided in section 372. Chapter XXIX of the Code, provides for

appeals. The appeal against conviction is an unrestricted right given

to the accused (Section 374), whereas the appeal against acquittal

is a restricted right given initially to the Government and complainant

of the case (Section 378) and now to the victim also under the

proviso of Section 372. The right of an accused to prefer appeal

against conviction has been subject matter of consideration by the

Apex Court in M. H. Hoskot vs. State of Maharashtra reported in

1978 (3) SCC 544, wherein following observation has been made:

“11. One component of fair procedure is natural justice.

Generally speaking and subject to just exceptions, at least

a single right of appeal on facts, where criminal conviction

is fraught with long loss of liberty, is basic to civilized

jurisprudence. It is integral to fair procedure, natural justice

and normative universality save in special cases like the

original tribunal being a high bench sitting on a collegiate

basis. In short, a first appeal from the Sessions Court to

the High Court, as provided in the Cr. P. C., manifests this

value upheld in Art. 21.”

In a criminal appeal against conviction, a duty is cast upon the

appellate forum to reappraise the evidence itself and it cannot

proceed to dispose of the appeal according to the appraisal of

evidence by the trial court alone, particularly when appeal has

already been admitted and placed for final hearing as per the view

of the Apex Court in the case of Rama vs. State reported in 2002

CrLJ 2533 SC. In other words, the Appellate Court has liberty to

take a different view than the trial court and, if two views are

possible, it may lean towards the view, which is in favour of accused

whereas in an appeal against acquittal, if the view taken by the trial

court is a reasonably possible view though not the only view that

could be taken, the judgment of acquittal cannot be reversed by the

Appellate Court. There is a qualitative distinction between acquittal

and conviction and appeal against acquittal is generally not allowed

in the same unrestricted manner as appeal against conviction. The

reason is that when a competent court, manned by trained judicial

officer, holds a person to be innocent, the basic principle of criminal

jurisprudence regarding “presumption of innocence of accused till he

is held guilty by a competent court of law” is further strengthened by

a judicial verdict and the matter should ordinarily end there and, as

such, interference with such verdict requires special reasons. That is

why, the scope of appeal against acquittal is a little-bit narrow in

comparison to the appeal against conviction.

In this respect, the position of law explained by the Apex Court

in Chandrappa v. State of Karnataka, reported in 2007 (4) SCC

415, may be usefully quoted:

“42. From the above decisions, in our considered view,

the following general principles regarding powers of the

appellate court while dealing with an appeal against an

order of acquittal emerge:

(1) An appellate court has full power to review,

reappreciate and reconsider the evidence upon which the

order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no

limitation, restriction or condition on exercise of such

power and an appellate court on the evidence before it

may reach its own conclusion, both on questions of fact

and of law.

(3) Various expressions, such as, ‘substantial and

compelling reasons’, ‘good and sufficient grounds’, ‘very

strong circumstances’, ‘distorted conclusions’, ‘glaring

mistakes’, etc. are not intended to curtail extensive

powers of an appellate court in an appeal against

acquittal. Such phraseologies are more in the nature of

‘flourishes of language’ to emphasise the reluctance of an

appellate court to interfere with acquittal than to curtail the

power of the court to review the evidence and to come to

its own conclusion.

(4) An appellate court, however, must bear in mind that in

case of acquittal, there is double presumption in favour of

the accused. Firstly, the presumption of innocence is

available to him under the fundamental principle of

criminal jurisprudence that every person shall be

presumed to be innocent unless he is proved guilty by a

competent court of law. Secondly, the accused having

secured his acquittal, the presumption of his innocence is

further reinforced, reaffirmed and strengthened by the trial

court.

(5) If two reasonable conclusions are possible on the

basis of the evidence on record, the appellate court

should not disturb the finding of acquittal recorded by the

trial court.”

In view of such context and in the light of Satya Pal Singh’s

case (supra) decided by Apex Court, it is clear that the proviso of

Section 372 is an exception to the general provision i.e., No appeal

shall lie............... and as such, the definition of the word 'victim' is

required to be construed in a manner that it sub-serve the purpose

of the main enactment and, in any case, does not defeat the same.

The question of interpretation of any term given and defined in

the statute has been dealt with by Apex Court in several judgments.

In Jagir Singh: Goel Roadways vs. State of Bihar reported in

1976 (2) SCC 942: AIR 1976 (SC) 997, Apex Court has laid down

the requirement to look at the context, in which the word is being

used.

Apex Court in the case of United Bank of India, Calcutta Vs.

Abhijit Tea Company Ltd. and others, AIR 2000 SC 2957, has

quoted with approval following text:

"Legislation has an aim, it seeks to obviate some

mischief, to supply an inadequacy, to effect a change of

policy, to formulate a plan of government. That aim, that

policy is not drawn, like nitrogen, out of the air; it is

evidenced in the language of the statute, as read in the

light of other external manifestations of purpose.”

In 2003 (2) All ER 113, Lord Bingham in R. Vs. Secretary for

State for Health mentioned as follows;

“Every statute other than a pure consolidating statute is,

after all, enacted to make some change, or address

some problem, or remove some blemish, or effect some

improvement in the national life. The court's task, within

the permissible bounds of interpretation, is to give effect

to Parliament's purpose. So the controversial provisions

should be read in the context of the statute as a whole,

and the statute as a whole should be read in the

historical context of the situation which led to its

enactment.”

As per the statutory arrangement under the Code, the 'victim'

has been conferred right to prefer Appeal against acquittal with the

leave of the court.

At this stage, it would be apposite to notice that for setting the

Criminal Justice system into motion the concept of locus standi is

foreign to Criminal Jurisprudence unless contra-indicated by a

statutory provision. In this context, a Constitutional Bench of the

apex court in A.R. Antulay v. Ramdas Sriniwas Nayak and Anr.

reported in 1984 (2) SCC 500 (Constitutional Bench), has held as

follows:

“While Section 190 of the Code of Criminal Procedure

permits anyone to approach the Magistrate with a

complaint, it does not prescribe any qualification the

complainant is required to fulfill to be eligible to file a

complaint. But where an eligibility criterion for a

complainant is contemplated specific provisions have

been made such as to be found in Sections 195 to 199

CrPC. These specific provisions clearly indicate

that in the absence of any such statutory provision,

a locus standi of a complainant is a concept foreign

to criminal jurisprudence. In other words, the

principle that anyone can set or put the criminal law

in motion remains intact unless contra-indicated by

a statutory provision. This general principle of nearly

universal application is founded on a policy that an

offence i.e. an act or omission made punishable by any

law for the time being in force … is not merely an

offence committed in relation to the person who suffers

harm but is also an offence against society. The society

for its orderly and peaceful development is interested in

the punishment of the offender. Therefore, prosecution

for serious offences is undertaken in the name of the

State representing the people which would exclude any

element of private vendetta or vengeance. If such is the

public policy underlying penal statutes, who brings an

act or omission made punishable by law to the notice of

the authority competent to deal with it, is immaterial and

irrelevant unless the statute indicates to the contrary.

Punishment of the offender in the interest of the society

being one of the objects behind penal statutes enacted

for larger good of the society, right to initiate

proceedings cannot be whittled down, circumscribed or

fettered by putting it into a straitjacket formula of locus

standi unknown to criminal jurisprudence, save and

except specific statutory exception. To hold that such an

exception exists that a private complaint for offences of

corruption committed by public servant is not

maintainable, the court would require an unambiguous

statutory provision and a tangled web of argument for

drawing a far-fetched implication, cannot be a substitute

for an express statutory provision.”

These principles have been reiterated in Subramanian

Swamy Vs. Manmohan Singh, (2012) 3 SCC 64 , in following

words:

"The right of private citizen to file a complaint against a

corrupt public servant must be equated with his right to

access the court in order to set the criminal law in

motion against a corrupt public official. The right of

access, a constitutional right should not be burdened

with unreasonable fetters. When a private citizen

approaches a court of law against a corrupt public

servant who is highly placed, what is at stake is not only

a vindiction of personal grievance of that citizen but also

the question of bringing orderliness in society and

maintaining equal balance in the Rule of law."

In the case of Subramanian Swamy Vs. Raju, (2013) 10

SCC 465, the petitioner, in a public interest litigation had sought an

authoritative pronouncement on the true purport and effect of

different provisions of the JJ Act so as to take a juvenile out of the

purview of the said Act. The High Court had declined to answer the

question raised on the ground that the petitioner had an alternative

remedy under the JJ Act against the order as may have been

passed by the Board. In SLP filed before the Apex Court, an

objection was raised as regards its maintainability on the ground

that it suffers from the vice of absence of locus on the part of the

petitioner. While considering this objection the Apex Court has

observed thus:

" The administration of criminal justice in India can be

divided into two broad stages at which the machinery

operates. The first is the investigation of an alleged

offence leading to prosecution and the second is the

actual prosecution of the offender in a court of law. The

jurisprudence that has evolved over the decades as

assigned the primary role and responsibility at both

stages to the State though we must hasten to add that

in certain exceptional situations there is a recognition of

limited right in a victim or his family members to take

part in the process, particularly, at the stage of the trial

The law, however, frowns upon and prohibits any

abdication by the State of its role in the matter at each

of the stages and, in fact, does not recognize the right

of a third party/stranger to participate or even to come

to the aid of the State at any of the stages."

On merits the SLP was held to be maintainable as the

adjudication that the Petitioner was seeking had implications beyond

the case /proceedings. It was held that the interpretations of the

provisions of Juvenile Justice Act would have effect on all juveniles,

who may come in conflict with law- both in the immediate and near

future.

Having examined various authorities, the inevitable conclusion

is that remedy of appeal is a statutory remedy and powers of

Appellate Court under Code of Criminal Procedure is an ordinary

appellate power, which is regulated by the provisions meant for

appeal against acquittal/conviction under Chapter XXIX (Section

372 to 394) of the Code.

Now, we proceed to deal with the word 'victim' as used in

Section 2 (wa) for the purpose of maintenance of appeal under

Section 372 of the Code.

The definition given in section 2(wa) say “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.

No doubt, the definition clause (Section 2. Definitions) starts

with “In this code, unless the context otherwise requires,-”. The

contexts in which the word “victim” has been used in the Code are

as follows:

•the right to engage an advocate to assist the

prosecution with permission of court (Section 24);

•the right to prefer Appeal against acquittal (Proviso of

Section 372);

•the statutory arrangement to compensate “victim or his

dependents” through victims compensation scheme

(Section 357-A, 357-B, 357-C);

•the manner in which statement of a “victim” in relation to

an offence of rape is to be recorded during investigation

that is by giving facility of recording of statement at

residence or at a place of her choice by a woman police

officer in presence of parents or guardian, etc (Section

157).

If we examine the Code as it existed since prior to the

amendment brought by Act No. 5 of 2009, we may see that Section

357 (3) though does not use the word victim but it uses almost

similar language as used in section 2(wa) for the purpose of

Compensation to a victim in the eventuality of non-imposition of fine

upon accused person while convicting and sentencing him. The

language is as follows:

“Section 357:

(1)...........

(2)...........

(3)When a Court imposes a sentence, of which fine

does not form a part, the Court may, when passing

judgment order the accused person to pay, by way of

compensation such amount as may be specified in the

order to the person who has suffered any loss or

injury by reason of the act for which the accused

person has been so ‘sentenced’.”

It may be seen that all the judgments which we have noticed

discuss the definition of “victim” as “Means X and includes Y” and

while interpreting the phrase “Means X”, the term “any loss or injury”

has been discussed elaborately and for this purpose, the provisions

of section 2 (y) of the Code along with sections 23 (wrongful loss)

and 44 (injury) of the Indian Penal Code have been taken into

consideration. Like-wise for the phrase “Includes Y”, the meaning of

term “legal heir” has been analyzed taking aid of the law dealing

with principles of inheritance and succession which are used to

determine civil rights.

The Apex Court in the case of Punjab Land Development &

Reclamation Corporation Ltd. Vs. Presiding Officer, 1990 (3)

SCC 682, has mentioned that when a statute says that a word or

phrase shall “mean” - not merely that it shall 'include' certain things

or acts - "the definition is a hard and fast definition, and no other

meaning can be assigned to the expression than is put down in

definition." A definition is an explicit statement of full connotation of

term. Apex Court in the case of Black Diamond Beverages Vs.

CTO, 1998 (1) SCC 458, in context of use of words “means” and

“includes” has discussed in detail about the synthesis of phrase

“Means X and includes Y” as has been used in various enactments

and has held that the 1

st

part of the phrase “Means X” usually refers

to the ordinary and natural meaning but with an extension of the 2

nd

part i. e., “Includes Y”. The first part of the definition should be given

its ordinary, popular or natural meaning and second part which

“includes” certain others will not prevent the main provision from

receiving its meaning.

What is “Loss or Injury” under Section 2 (wa):

If we take up all the said terminology one by one, we may see

that the terms “loss or injury”, have been used as synonyms to each

other. Neither the term “Injury” nor “Loss” has been defined in the

Code. Section 2 (y) of the Code provides that: -

“words and expressions used herein and not defined but

defined in the Indian Penal Code have the meanings

respectively assigned to them in that code.(emphasis)”

Section 44 of of the Indian Penal Code postulates as follows:

“Section 44: The word “Injury” denotes any harm whatever

illegally caused to any person, in body, mind, reputation or

property.”

Now, if the meaning of term “injury” is to be examined, it may

be seen that there are four types of harm, which may be illegally

caused to any person as per the definition. That is harm in respect

of (a) body, (b) mind, (c) reputation and (d) property. Though an

offence may inflict upon a person a combination of one or more

types of harm specified above.

The term “injury” has been used at different places in IPC in

respect of an offence and has to be contextually understood. The

injury caused becomes one of the necessary ingredients to

constitute a specified offence. If that is so, the injury relevant for the

purpose of a particular offence could either be a harm, whatever

illegally caused to any person, in body or mind or reputation or

property or a combination of one or more types of harm and it has

to be one of the facts in issue before the trial court to be determined

for holding the accused guilty. Such fact in issue would be a relevant

ingredient to prove the guilt of accused. Hence, such fact in issue is

the test to find out the actual victim of the crime that is the direct

sufferer of the injury / harm caused to him by reason of the act or

omission for which the accused person has been charged

{section 2(wa)}.

Any emotional harm or injury, howsoever grave it may be,

caused to any person not being the direct sufferer especially when

such emotional harm or injury is neither ingredient of the offence nor

is the fact in issue in the trial of the accused, cannot grant status of

“victim” to such other person not being the direct sufferer.

In nutshell, it can be concluded that victim means the actual

sufferer of offence (receiver of harm caused by the alleged offence)

and no person other than actual receiver of harm can be treated as

victim of offence, so as to provide him/ her a right to prefer appeal

under the proviso of section 372. In absence of the direct sufferer or

in a case where the direct sufferer suffers a disability his or her legal

heir or guardian would qualify as a victim.

Who is “Legal heir” of actual Victim under Section 2 (wa):

So far as this expression “legal heir” is concerned, the Apex

Court in Satya Pal Singh’s case has held that father of the

deceased has locus standi to prefer an appeal before the High Court

under proviso to Section 372 of Cr.P.C. as he falls within the

definition of victim as defined under Section 2(wa) of Cr.P.C.

Although the Apex Court has not elaborately discussed in the

aforesaid judgment as to whether father would qualify as a victim

because he himself had suffered loss or injury/ or as Legal Heir or

Guardian of such person i.e. the deceased. But nonetheless father

of the deceased has been held by the Apex Court a victim, within

the meaning of section 2(wa) of the Code.

At this stage, it would be appropriate to consider the reasoning

and conclusions drawn by the Full Benches of Delhi High Court and

Punjab & Haryana High Court. Both the judgments observe that the

expression “legal heir” is required to be read in a sense different

from what it is for the purpose of civil rights, wherein the degree of

legal heirs have been categorized as class-I, Class-II and so on.

Both the decisions accord liberal interpretation to the term “Victim”

by observing that the victim would have an unqualified right of

appeal. However, the Apex Court in Satya Pal Singh’s Case

(supra) took the view that the victim's right to file an appeal would

be subject to the other provisions of the Code and as such the

appeal would be subject to the grant of leave.

Accordingly, a fresh look at the expression “legal heir”, as it

occurs in section 2 (wa), in the context of the proviso to section 372,

is necessary. At this stage, it would be useful to examine various

definitions of the expression “legal heir”, which are as follows:

Merriam-Webster's Dictionary

One who inherits or is entitled to inherit property.

One who inherits or is entitled to succeed to the possession of

property after the death of its owner.

Cambridge Dictionary

A person who will legally receive money, property, or a title

from another person, especially an older member of the same

family, when that other person dies.

Oxford Dictionary

A person legally entitled to the property or rank of another on

that person’s death.

Macmillan Dictionary

Someone who will receive money, property, or a title when

another person dies.

Collins Dictionary

The person legally succeeding to all property of a deceased

person, irrespective of whether such person died testate or

intestate, and upon whom devolves as well as the rights the

duties and liabilities attached to the estate.

In all the above definitions, the common thread is that the

person, who is entitled to receive property of any person when such

person dies, is termed as “Heir”. The use of the word “Legal” as a

prefix to the word “Heir” denotes that the status of such person as

“heir” must be recognized by law. It is only then he can be termed as

“Legal Heir”.

Succession and Inheritance can be of two kinds –

Testamentary or intestate. Testamentary means where succession is

as per the Will of the deceased and intestate succession is where the

deceased dies without making a Will.

The law on intestate succession for different communities in

India is governed by different succession laws applicable for that

particular community. Broadly speaking, succession is either under

the Hindu Succession Act or the Indian Succession Act or the Muslim

Shariat laws.

With the exception of Muslims, the Indian Succession Act,

1925 has a common set of rules for persons of all religions. Even the

Muslims are governed by certain provisions of the Indian Succession

Act, 1925 in respect of testamentary disposition, if the will relates to

immovable property situated within the State of West Bengal and

within the jurisdiction of the Madras and Bombay High Courts.

In Civil law pertaining to Hindu Community, according to the law

of Succession, the legal heir of class-I category though, in terms of

preference, would oust the legal heir of class-II category, but class-II

legal heirs are nevertheless legal heirs. This preferential right have

been recognized under civil law by way of statutory arrangements.

But in the Code of Criminal Procedure no such statutory

arrangement is available to provide for classes of legal heirs or for a

preferential order amongst them. Hence in the context of Code of

Criminal Procedure, the expression legal heir cannot be construed

to create categories of heirs, unless it requires determination of civil

rights of the persons claiming to be legal heir of deceased. Such

position is across various communities.

We are therefore of the view that the expression “Legal Heir”

has to be understood in its ordinary or natural sense. That is if any

person is able to establish his status as “heir” recognized by law, he

can be termed as “Legal Heir” and the preferences / restrictions /

categories provided under any statute / personal law governing

succession/ inheritance will have no consequence. This interpretation

of expression “Legal Heir” would not be a result of liberal construction

but would be a consequence of ordinary or natural meaning of the

expression “Legal Heir”.

Who is Guardian of Actual Victim under Section 2 (wa):

So far as the expression “Guardian” is concerned, a plain

meaning commonly known to us may be seen as follows:

“A guardian is one appointed by the wisdom and

policy of law to take care of a person and his/her affairs,

who by reason of his/her imbecility and want of

understanding is incapable of acting for his own interest”

(Wharton’s Law Lexicon, 1976 reprinted).

“Someone who takes care of another person or of

another person's property.” (Merriam-Webster

Dictionary)

“One who looks after, protects, or defends.” (Collins

English Dictionary)

“A person who has the legal right and responsibility

of taking care of someone who cannot take care of

himself or herself, such as a child whose parents have

died.” (Cambridge Dictionary)

“A person who is legally responsible for the care of

someone who is unable to manage their own affairs,

especially a child whose parents have died.” (Oxford

Dictionary)

All these meanings give clear suggestion that the word

“Guardian” includes a Judicial Guardian (appointed by law), a legal

Guardian, a Natural Guardian.

Note for the expression “Guardian” and “Legal heir”:

The locus standi of a person claiming right to prefer appeal

against acquittal as a “Guardian” or “Legal heir” of “victim” would

depend upon the facts of a case. The Court would have to assess

such claim on the facts of each case; and such person would have

to disclose his particulars, relationship with the victim and the basis

for such claim. On the basis of such disclosure and the established

principles of law, on case to case basis, the claim of being a

“Guardian” or “Legal heir” of the victim ought to be decided by the

court at the time of considering grant of leave to appeal.

There is another aspect which needs to be considered which is

that claims of being “Guardian” or “Legal heir” of the victim may

lead to multiplicity of Appeals against same judgment. In this regard,

it may be considered that after admission of earliest Appeal against

acquittal preferred by any “Guardian” or “Legal heir” of the victim, a

subsequent appeal may either be disposed of by permitting the

subsequent appellant to have a right to intervene in the earlier

admitted appeal or by directing the subsequent appeal to be

connected with the earlier admitted appeal.

From the discussions that have been made above, it is clear

that the proviso of Section 372 is an exception to the general law

and same confers on a victim a right to appeal against acquittal,

which is subject to the grant of leave by the Court. The first part of

the definition of 'victim' as given under Section 2 (wa) (i.e. “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), is required to be construed in its literal sense

and no liberal interpretation is required, Accordingly, only such

person would be treated as ‘victim’, who is the subject-matter of trial

being direct sufferer of crime in terms of loss or injury caused to his

own body, mind, reputation and property and such loss or injury is

one of the ingredient of the offence for which the accused person

has been charged and, therefore, any other person cannot be

accepted as victim within the first part of Section 2 (wa) for the

purposes of maintaining appeal. The second part that is “includes

his or her guardian and Legal Heir” would come into play when the

actual sufferer is absent or suffers disability.

In other words, victim means the actual sufferer of offence

(receiver of harm caused by the alleged offence) and no person

other than actual receiver of harm can be treated as victim of

offence, so as to provide him /her right to prefer appeal under the

proviso of section 372, though, in his or her absence or disability, his

“legal heir” or “guardian” would qualify as victim and have a right to

appeal. A person who claims himself to be 'guardian' or 'legal heir' of

actual victim (direct sufferer), would be able to maintain appeal

provided he establishes his claim as such before the court in his

application by disclosing his particulars; relationship with the direct

sufferer; and the grounds on which such claim of being “legal heir”

or “guardian” is based. In the light of the discussion made above,

the ratio of Division Bench of this Court in the case of Edal Singh

(supra) is in tune with the definition of 'victim' as provided under

Section 2 (wa) of the Code of Criminal Procedure. The reference is

answered accordingly.

Let the order as well as the record be placed before appropriate

Bench dealing with the “Leave to Appeal” application.

(Ramesh Sinha, J.) (Manoj Misra, J.) (V.K. Shukla, J.)

Order Date :- 11.11.2016

Shekhar