Criminal Procedure Code, 1973 – Section 2 (wa) – Victim – Definition of – Who will fall within – Held, 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.
HIGH COURT OF JUDICATURE AT ALLAHABAD
Hon’ble V.K. Shukla, J. Hon’ble Manoj Misra, J. Hon’ble Ramesh Sinha, J.
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
“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-inlaw 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: