ROOPENDRA SINGH Vs. STATE OF TRIPURA & ANR

Tags Rape

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 690 of 2017, Judgment Date: Apr 11, 2017

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. 690 of 2017
(Arising out of SLP (Crl.) No.7014 of 2012)

Roopendra Singh ….Appellant

Versus

State of Tripura & Anr. …. Respondents

WITH

Criminal Appeal Nos. 691-692 of 2017
(Arising out of SLP (Crl.) Nos.8316-8317/2012

J U D G M E N T

Uday Umesh Lalit, J.

Leave granted in both the matters.

I Criminal Appeal @ out of SLP (Crl.) No.7014 of 2012)

2. The appellant was tried in Sessions Trial No.22 (WT/K) 2010 in the
Court of Additional Sessions Judge, Khowai, West Tripura for having
committed offences punishable under Sections 342, 376(2)(b) and 506 IPC and
was acquitted of all the charges leveled against him vide judgment of the
Trial Court dated 28.04.2011. Respondent No.2, i.e. the victim challenged
the acquittal by filing Criminal Appeal No.23 of 2011 in the Gauhati High
Court, Agartala Bench. This appeal was filed under Section 372 of Code of
Criminal Procedure, 1973 (‘Cr.P.C.’ for short). When the appeal was listed
for admission, an objection was taken that unless “leave” was granted under
Section 378(4) of Cr.P.C., the appeal could not be admitted. At this
juncture, a petition under Section 482 of Cr.P.C. was filed by Respondent
No.2 for treating said criminal appeal under Section 372 read with Section
378 Cr.P.C.

3. The matter was contested. The High Court by its judgment and order
dated 06.06.2012 concluded that there was an unfettered right conferred
upon the victim by Section 372 Cr. P.C. and that no leave was required for
the victim to file such appeal. Consequently, the High Court observed that
there was no necessity for converting the appeal to one under Section 372
read with 378 Cr.P.C. The following observations are noteworthy:-
“The proviso to Section 372 has created a right to appeal unfettered of any
leave or sanction and it shall automatically lie to the forum where an
appeal ordinarily lies against the order of conviction of such court if the
said appeal against the judgment and order of acquittal is filed by the
victim as defined in Section 2 (wa) of Cr.P.C.

For the reasons as stated above, this court is of the view that even
though the right to appeal for the victim has been created by the proviso
to Section 372 of Cr.P.C, the said proviso itself is a comprehensive
provision, not fettered by any leave or sanction as required for the
categories of appeals as depicted in Section 378(1), 378(2) and 378(4) of
Cr.P.C. No leave is required for the victim to file an appeal as against
the order of acquittal under the proviso to Section 372 of Cr.P.C.”

4. The correctness of the decision of the High Court is questioned by
the appellant-accused. By order dated 13.08.2014, Mr. Shekhar Naphade,
learned Senior Advocate was requested to assist the Court as Amicus Curiae
and the matter was directed to be listed for final hearing. In the
meantime a decision was rendered by this Court on 06.10.2015 in Satya Pal
Singh v. State of Madhya Pradesh[1]. Paras 14, 15, 17 and 18 of the
decision are as under:-
”14. 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 Cr.P.C. must be read along with its main enactment
i.e. Section 372 itself and together with sub-section (3) of Section 378
Cr.P.C. otherwise the substantive provision of Section 372 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.

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 Cr.P.C. without obtaining the
leave of the High Court as required under sub-section (3) of Section 378
Cr.P.C.?”

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) Cr.P.C., 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 Cr.P.C. 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.

17. Hence, the impugned judgment and order of the High Court is not
sustainable in law and the same is liable to be set aside by this Court and
the case is required to be remanded to the High Court to consider for grant
of leave to file an appeal by the appellant as required under sub-section
(3) of Section 378 Cr.P.C. and thereafter proceed in the matter.

18. For the reasons stated supra, this appeal is allowed by setting aside
the impugned judgment and order of the High Court. The case is remanded to
the High Court to hear the appellant with regard to grant of leave to file
an appeal as the appellant is legal heir of the victim as defined under
Section 2(wa) Cr.P.C. and dispose of the appeal in accordance with law in
the light of observations made in this order as expeditiously as possible.

5. The decision in Satya Pal Singh shows that reliance was placed on a
Full Bench decision of High Court of Delhi in Ram Phal v. State and
others[2], according to which the right to prefer an appeal conferred upon
a victim by virtue of proviso to Section 372 Cr.P.C. is an independent
statutory right and there is no need for the victim to seek leave of the
High Court. Said decision of the Full Bench of the High Court of Delhi was
not found to be legally correct by this Court in Satya Pal Singh.

6. When this matter came up for final hearing, the learned Amicus Curiae
submitted that the decision of this Court in Satya Pal Singh required
reconsideration. It was submitted that proviso to Section 372 Cr.P.C. is an
independent provision conferring a substantive right on the victim to
prefer an appeal against the judgment of acquittal, conviction for lesser
offence or inadequate compensation. It was further submitted that appeals
under Sections 373, 374, 377, 379 and 380 in Chapter XXIX of Cr.P.C.
constitute one category of appeals which can be presented without obtaining
leave of the appellate court while appeals under Section 378 whether by the
State Government, Central Government or by the Complainant against the
order of acquittal constitute another category of appeals which are
circumscribed by the requirement of obtaining leave of the High Court. In
his submission, the appeal under proviso to Section 372 falls in the first
category of appeals and as rightly observed by the High Court of Gauhati in
the present case, no leave of the High Court was required. The learned
Amicus Curiae then traced the legislative history and submitted that in the
1898 Code of Criminal Procedure as originally enacted no right was
conferred on the Complainant to file an appeal against acquittal, which for
the first time was introduced in Section 417 of the 1898 Code in the year
1955. He further submitted that though the Law Commission in its 41st
Report had rejected the suggestion of permitting the victim to file appeals
against order of acquittal, in its 154th Report the Law Commission had
relied on the 1985 Union Nations Declaration of Basic Principles of Justice
for victims of crimes and abuse of power. The Report of the Law Commission
noted that the victims were the worst sufferers in the crime and needed to
be given certain rights and compensation. The learned Amicus Curiae then
stated that these developments led to the constitution of Malimath
Committee which recommended that the victims should have the right to file
appeal against acquittal and that is how the proviso to Section 372 came to
be inserted by Amendment Act of 2008. He laid emphasis on following portion
from the Objects and Reasons which weighed with the Parliament while
inserting the proviso:-

“At present, the victims are the worst sufferers in a crime and they
do not 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.”

He submitted that the Statement of Objects and Reasons clearly
stressed that the administration of Criminal Law has tendency to distort
and therefore the victims are the worst sufferers and as such the
Parliament had given an unrestricted right to the victim to prefer appeal
against acquittal.

7. In his written submissions the learned Amicus Curiae sought to bring
out the anomalies in the decision of this Court in Satya Pal Singh in
following terms:-

“(1) This Hon’ble Court in Satya Pal Singh’s case has missed out the
significance of the word “conviction” used in the proviso to S. 372 Cr.
P.C. Under the code, against a conviction, an appeal does not necessarily
lie to the High Court. Section 374 lays down different foras for preferring
an appeal against conviction.

i If a person is convicted in a trial held by the High Court in its
extraordinary original criminal Jurisdiction, an appeal lies to the Supreme
Court.

ii Any person convicted by the Sessions Judge or the Assistant Sessions
Judge, an appeal lies to the High Court.

iii If a person is convicted by any Court in which the sentence of
Imprisonment for more than 7 years is passed he may appeal to the High
Court.

iv Any person convicted in a trial held in the Court of a Metropolitan
Magistrate or Assistant Sessions Judge or Magistrate of the first class or
second class, his appeal will lie to the Court of Sessions.

v If any person is sentence by the aforesaid Judicial authorities i.e.
Metropolitan Magistrate, Assistant Judge, Sessions Judge and sentenced
under Section 325, an appeal lies to the Court of Sessions.

vi Any person convicted and sentenced by the Magistrate u/S 360 an
appeal lies to the Court of Sessions.

(2) The Proviso to Section 372 not only deals with filing of appeal by the
victim but it also provides for Forum. The Forum of such appeals is same as
in case of appeals against conviction. Section 374 shows that some appeals
against conviction lie before Session Court. Therefore, some appeals of
the victim against acquittal would lie before the Sessions Court. In
respect of such appeals there is no question of obtaining leave. This
creates serious anomaly.

(3) The proviso to S. 372 deals with the rights of the victim to file an
appeal against the following order:
i. against acquittal
ii. against conviction for a lesser offence and
iii. against imposition of inadequate compensation

As far as imposing inadequate compensation is concerned, the Government has
no role to play. Once it is laid down that a right of appeal under the
proviso is controlled by Section 378 (3) Cr. P.C. then such a stipulation
would apply to appeals against all the three orders.”

8. Though the learned Amicus Curie has suggested that these matters be
referred to larger Bench to reconsider the decision of this Court in Satya
Pal Singh, we do not think that such course ought to be adopted in the
present matter. The special leave petition has been pending in this Court
for last 5 years. In any case, in the present matter the victim had
preferred an application to treat the appeal initially filed under Section
372 to be one under Section 372 read with Section 378 Cr.P.C. Though the
High Court observed that no such leave was necessary, the matter now
assumes different complexion in the light of the decision in Satya Pal
Singh. However, since there was already an application on behalf of the
victim to treat the appeal under Section 372 read with Section 378 Cr.P.C.,
in our considered view the leave ought to be granted, which we presently
do. The pending appeal shall now be considered on merits by the High
Court. This appeal, thus, stands disposed of.

II Criminal Appeals arising out of SLP(Crl) Nos.8316-17 of 2012

9. These appeals, at the instance of the original informant question the
orders dated 20.06.2012 and 28.06.2012 passed by the High Court of
Judicature at Bombay, Nagpur Bench, Nagpur. By order dated 20.06.2012
Criminal Application No.399 of 2012 preferred by State of Maharashtra
seeking leave to appeal against the judgment and order dated 04.02.2012
passed by the Extra Joint Ad-hoc Additional Sessions Judge, Kelapur in
Sessions Trial No.6 of 2011 acquitting the accused of the offences
punishable under Section 302, 201 read with Section 34 IPC was rejected by
the High Court. The appeal under Section 372 Cr.P.C. preferred by the
Informant, who also happens to be the widow of the deceased was rejected in
the light of the earlier rejection dated 20.06.2012. It appears that State
of Maharasthra did not challenge the rejection of their application seeking
leave to appeal. This Court issued notice in the aforesaid matter on
12.10.2012 and the matter was thereafter tagged with SLP(Crl) No.7014 of
2012, namely, the earlier matter arising out of the judgment of the Gauhati
High Court.

10. Section 372 Cr.P.C. has conferred upon a victim a substantive and
independent right to maintain an appeal against acquittal. The widow of
the deceased in the present matter comes within the definition of “victim”
as incorporated in Section 2(wa). Merely because leave to appeal was not
granted to the State to prefer an appeal against acquittal, the appeal
preferred by the victim Informant ought not to have been rejected by the
High Court summarily. We, therefore, set aside the order dated 28.06.2012
passed by the High Court rejecting Criminal Appeal preferred by the
appellant and remit the matter to the High Court for fresh consideration.
It will be open to the High Court to consider the matter for grant of leave
to appeal to the appellant in the light of paragraphs 17 and 18 of the
decision of this Court in Satya Pal Singh.

11. These appeals are thus allowed in the aforesaid terms.

12. Before we part, we must express and record our sincere
appreciation for the assistance rendered by the learned Amicus Curiae. The
Court is deeply grateful to him.

………………………J.
(Adarsh Kumar Goel)

………………………J.
(Uday Umesh Lalit)

New Delhi,
April 11, 2017

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[1] 2015 (15) SCC 613
[2] 2015 SCC Online Delhi 9802=2015 221 DLT 1

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