Victim's Right to Prefer Appeal: Tilting Scales in Favour of Victims?

(June, 2021)

Abstract - The Criminal Procedure Code, 1973 was amended in 2009 to confer upon victims the right to prefer appeal. This was done in pursuance of recommendations made by several high-level Committees on reforms in criminal law and in wake of an increasing focus on victimology. While the introduction of this right had become necessary for enabling victims to pursue justice independent of the State’s reluctance, the absence of any requirement of leave for appeal has given rise to a substantial controversy. Whether there was any legislative intent in doing away with this requirement wasn’t clear, but the majority opinion of the Supreme Court in Mallikarjun Kodagalli v. State of Karnataka put to rest all confusion when it directed that the requirement of leave for appeal to be preferred by a victim is not necessary. This paper undertakes comprehensive research on the relevant developments in criminal law that led up to the 2009 Amendment and traces the judicial history of cases concerning questions on the applicability and procedural aspects of this new right. The researcher argues that the Mallikarjun Kodagalli verdict, although liberal in interpretation, ends up tilting the scales of justice in favour of the victim rather than balancing it with the accused.

Introduction - Under the Criminal Procedure Code, 1973, appeals are covered under Chapter XXIX, ranging from section 372 to section 394. Apart from the right of appeal conferred upon the person(s) convicted for an offence, the other parties in a matter who have such a right are the State government and the victim him/her-self. However, it was not until 2009 that the Code was amended to bring victims under the fold of this right by way of a proviso to section 372. Previously, this right stretched only to the convicted persons and the State Government as it is the latter in whose name criminal cases are instituted rather than of the victim in a personal capacity. There were various factors which led to the amendment of the Code to allow for the rights of victim to prefer appeal such as the 154th Law Commission Report and Report of the Justice Malimath Committee, both of which aimed to place the spotlight on the victim in the process. The finer legal points of these reports will be discussed in the subsequent sections. At the outset, it is important to consider another facet of the discussion, i.e., with regards to victimology. It must be re-emphasized that the role of a victim of a crime is not restricted simply to setting balls of the criminal justice system in motion by providing information to the law enforcement. It has been observed that once the State takes over from the victim for investigating and prosecuting the offence in a court of law, the victim is side-lined from the process more often than not.

Moreover, while rights of the accused are provided for explicitly by statutes and even through the Constitution, those pertaining to the victim are very inconspicuous and lacking in practicality. It is not enough to say that justice for the victim lies in the State pursuing the strictest of punishments for the accused. In Rattan Singh v. State of Punjab, Justice Krishna Iyer recognised the problem of neglect faced by victims when he opined that, “It is a weakness of our jurisprudence that the victims of the crime, and the distress of the dependents of the prisoner, do not attract the attention of the law. Indeed, victim reparation is still the vanishing point of our criminal law! This is a deficiency in the system which must be rectified by the Legislature.” These lines raise the very pertinent question – who really is considered to be a victim? Naturally, the answer to this question forms an integral part of the background information required to move on to the broader scheme for this paper, i.e., the rights of a victim to prefer appeal. According to section 2(wa) of the Code, a victim is defined as “any person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged…” The ambit of a victim also includes guardians and legal heirs, as the case may be. Interestingly, the definition of a victim was added to the Code by the same Amendment Act of 2009 which introduced the right to appeal for victims through section 372’s proviso. Thus, before 2009, neither was any right of appeal given to the victim, nor was the term victim defined in the first place.

Even though the Legislature performed its part by amending the Code to create a procedural right for any victim to file an appeal, the judicial application of this provision was far from being glitch-free as there arose numerous differences across the Courts in the country with regards to the interpretation of the clause and its applicability – whether retrospective or only prospective. The differences were settled by the Supreme Court with authority only in 2018, through Mallikarjun Kodagali v. State of Karnataka. Thus, a long-time of almost ten years before passed the implications of the amendment could be finally settled, something that is reflective of the state of the law-making process in its entirety. Thus, the need of the hour is to ensure that the rights of the accused are well-protected and balanced with the rights being conferred upon the victims. The sheer number of people who languish in our prisons as undertrials with their cases lingering around in the courtrooms for years and years on stretch does not paint a pretty picture about the rights of the accused. The recent cases of environmental activist Disha Ravi, comedian Munawar Farooqui, poet Varavara Rao, lawyer Sudha Bhardwaj and many others are perfect examples of the muscle-power that the State exercises in fighting accused persons. In fact, it is the accused who become victims in cases where the State uses its power to stifle and silence voices.

As a matter of interpretation, it may be argued that the majority Kodagali decision takes the correct path since the lawmakers deliberately chose to include the proviso in section 372, being fully aware of the procedural fetters in 377 and 378. However, from the point of view of aligning the interests of both the victim and the accused in the criminal justice system, the decision clearly chooses to place more importance on the victim’s rights.

Amendment to Section 372, Criminal Procedure Code, 1973 – Initially, section 372 simply laid down that “no appeal could be instituted against any judgement or order of a Criminal Court except as provided by the Code or any other law.” Thus, under the Code, it was only the prerogative of the respective State Government(s) to prefer an appeal in relation to any sentence or acquittal where it may deem fit under section(s) 377 and 378. It was possible for a victim to appeal under the mandate of section 378(4), but only in those cases that had been initiated upon a private complaint and prior leave from the Court was necessary. The fact that the power of appeal lay solely with the Government posed to be a stumbling block in the way of obtaining justice for the victim as the Government time and again abdicated its responsibilities and failed the victims. Hence, the problem before the legislature was how they could ensure that a victim is not dependant entirely on the whims and fancies of the State, but are also provided with an alternative mechanism. As mentioned earlier, two Reports that shifted the spotlight the subject matter of victimology and thus paved the way for a greater discussion surrounding rights of victims were the 154th Law Commission Report and the Justice Malimath Committee Report.

The 154th Report of the Law Commission of India, dating back to August 1996, did not exactly talk about the nuances of providing the victim a right to appeal, but it did raise the issues that plagued the system’s approach towards victims of a crime, such as about the finer points on compensation and rehabilitation schemes, along with the establishment of a Victim Assistance Fund. The Justice Malimath Committee, 2003, explicitly recommended that the victim should be given a right to prefer appeal against any adverse order by the trial order for challenging “the acquittal, conviction for lesser offence, inadequacy of sentence or compensation.” The Report of the Committee on the Draft National Policy on Criminal Justice, 2007 had suggested that the victim should be allowed to get impleaded in the proceedings, thus also permitting them to have the right to appeal. The 221st Report of the Law Commission of India, 2009 also highlighted that the then law only allowed for a victim to file a revision petition which affords the court limited powers as compared to an appeal. Therefore, it was recommended that a victim should be entitled to prefer an appeal against orders of acquittal. Consequent to these reports and recommendations, the Code of Criminal Procedure (Amendment) Act, 2008 was introduced. Among others, this amendment brought about two major changes, first, it provided a definition for victim, and second, it added a proviso to section 372 allowing appeals by victims. The first of these changes has been elaborated upon in the preceding sections. The newly added proviso read that, “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.” 

Limited Scope of Appeal under Section 372 – Therefore, as a plain reading of this clause shows, a victim was to now have the statutory right of preferring an appeal against any order that was passed by a Criminal Court which had the effect of acquitting the accused persons, or even if it convicted them for a lesser offence. Further, an appeal could also be opted for by the victim if they felt that the compensation imposed was inadequate. It must be noted that there is no provision for any appeal by the victim on the grounds of challenging the sentence passed by a Court. This particular appeal can still be filed only by the State Government under section 377. This was the point that came up before the Supreme Court in Parvinder Kansal v. State of NCT of Delhi.

The High Court had dismissed an appeal under section 372 seeking an increase in the sentence given for the offences under section(s) 364A, 302 and 201 of the Indian Penal Code, 1860. In this matter, the appeal had been filed by the father of the victim – the father being considered as a victim himself as per section 2(wa). It was clarified by the Court that under section 372, the scope of appeal by the victim is limited to only three scenarios: one, against acquittal; two, against conviction for lesser offence; and three, against inadequate compensation. The power to appeal for enhancement of sentence rests with the State Government under section 377. Further, in Bhavuben Dineshbhai Makwana v. State of Gujarat, the Gujarat High Court had observed that the right of appeal by the victim had been conferred by the legislature as a statutory right and therefore, it could not be stripped away by any judicial pronouncement. The right of appeal stood as an independent, substantial and statutory right. The same substance was re-iterated in the case of Balakrishnan Master v. Ramachandran Master, which mandated that Section 372’s proviso clause essentially confers a substantive right to prefer an appeal to the victim in certain circumstances and this right was to be considered as being dependent on the judgement from the Court rather than the events of the offence concerned.

Divergent Judicial Positions on Interpretation of Statute – While the new right of appeal conferred upon the victim to appeal against any acquittal or conviction for a lesser offence, it wasn’t made clear as to how this right would proceed in practice. Conflicts and differences of opinion arose between various courts in the country on two primary questions: first, as the amendment came into effect on 31st December, 2009, how would the right be applied; and second, whether there was any requirement of leave for appeal by victim from the Court as is there for the State under section 378(3).

Let us discuss the first question in detail. The bone of contention here was whether the date of commission of the offence has to be taken into consideration or the date of judgement of the trial court. Take for instance, a case where the offence was committed prior to 31st December, 2009, but the judgement that is to be appealed against was delivered after the said date. Now, would the victim have the right to prefer appeal here? In fact, the Mallikarjun Kodagali case which will be discussed in the next section, had a similar set of facts as well. The decision of the Gauhati High Court in Gouranga Debnath v. State of Tripura had held that “if the interpretation given to the proviso to Section 372 is that the right to appeal accrued on the date of the incident, then it would unreasonable and unfair, more so since the proviso to Section 372 is given prospective effect.” As mentioned in the previous section as well, in Balakrishnan Master v. Ramachandran Master, the Kerala High Court had held that the right conferred upon the victim was dependent on the judgement of the court and not on the incident giving rise to cause of action. In Tata Steel v. Atma Tube Products Ltd., the Punjab and Haryana High Court held that the right to appeal given to a victim is prospective and hence, a victim would be entitled to prefer appeal if the order has been passed after 31st December, 2009, irrespective of the date of occurrence.

In the case of Parmeshwar Mandal v. State of Bihar, the Court had a chance to deliberate upon the second question, i.e., on the requirement of leave for appeal by victim. In an interesting analysis, the Court undertook a careful examination of the provisions and came to the conclusion that there was a clear distinction in the language that was used by the lawmakers for drafting section 372 on one hand, and section(s) 377 and 378 on the other. The High Court clarified that while section 372 used the word shall in its proviso, the word may had been used in 377 and 378. From this, the Court deduced that the right of a victim to file an appeal was placed on a higher pedestal than the rights of the accused. Noting another difference between the provisions, the Court stated that “whereas in Section 378, grant of leave has been made a condition precedent for entertaining any appeal against acquittal…there is no such qualification prescribed in the said proviso to Section 372 for a victim to maintain his appeal against an order of acquittal, or against a conviction for a lesser offence or against imposition of inadequate compensation.” This, in the Court’s opinion, referred to a conscious act on part of the legislature to do away with the requirement of leave for appeal under section 372. Had this not been the case, then the proviso would not have been included in section 372, it would have rather been added as a new sub-section in section(s) 377 and 378.

The Tata Steel case cited above also examined the issue of requirement of leave for appeal in detail. Upon careful consideration, the Court held, “while amending or bringing a new enactment, the legislature was fully aware of the provisions of the existing statute. Parliament had thus full knowledge of the fetters imposed by it on the presentation of appeals by the State or a complaint through Sections 378(3) & (4) of the Code, yet it gave the right to appeal to a victim free from any obstacle under proviso to Section 372 of the Code. The legislative policy to grant unconditional right to appeal to a victim is thus writ large. It would indeed not only amount to re-writing the proviso to Section 372 but would also defeat the legislative will if the restrictions expressly embedded in Sections 378(3) & (4) are impliedly planted into the proviso to Section 372 of the Code also.” The Delhi High Court in Ram Phal v. State had examined the relevant provisions of a victim’s right to appeal, holding that the right was an independent statutory right and therefore, there was no need for obtaining leave of the High Court by the victim for proceeding with the appeal. In Satya Pal Singh v. State of M.P., however, the Supreme Court concluded on the question of leave by stating that the right of appeal has bene conferred upon the victim by way of the proviso to section 372 but it cannot be exercised without obtaining leave of the High Court, as is mandated by section 378(3).

The Court based its decision on the reasoning that in order to interpret the proviso to section 372 correctly, it has to be read along with the main portion of section 372 itself and also with section 378(3). If any other interpretation is followed, then “the substantive provision of section 372 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 CrPC.” The Supreme Court also countered and held as incorrect the decision of the Delhi High Court in Ram Phal on the basis that it did not take into account the substantive part of section 372 which clearly stipulates that no appeal can lie from any order of a criminal court except as provided by the provisions of the Code. In pursuance of the other provisions, it must be interpreted that the appeal must be filed in accordance with the procedure set out in 378(3), i.e., by obtaining leave. In making such an interpretation, the Court relied upon the rules of interpretation of statutes, as highlighted in the decision of Dwarka Prasad v. Dwarka Das Saraf, that “a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. Words are dependent on the principal enacting words to which they are tacked as a proviso. They cannot be read as divorced from their context.”

Mallikarjun Kodagali Verdict – The differences finally came to be settled in the landmark case of Mallikarjun Kodagali v. State of Karnataka. The judgement in this case also begins with a detailed discussion on the dichotomy between the rights of accused and rights of victims. It was noted that the travails and tribulations of the victim begin from the trauma and horror of the crime itself. Coupled with the fact that the victim has to then face difficulties in the very first step of registering an FIR, as dealt with by the Supreme Court in the case of Lalita Kumari v. Government of Uttar Pradesh, it creates a very hostile environment for the victim. The point of secondary victimisation through aggressive and intimidating cross-examination was also raised. By appreciating the evolving jurisprudence of victimology, the Court set a backdrop for itself to consider the matter at hand. The entire judgement thereafter follows this very backdrop and adopts an approach that keeps the best interests of the victim in mind.

In this case, the Karnataka High Court had dismissed an appeal on the ground that the offence had been committed prior to the amendment coming into effect, i.e., December 31st, 2009, even though the judgement of acquittal was delivered by the concerned trial court in the year 2013. The Court, after thoroughly discussing previous judgements, held that the date which is to be considered in this regard is the date on which the order of acquittal has been passed by the trial court. This is because the question of appeal by the victim only arises once the trial court had delivered its judgement acquitting the accused or convicting them for a lesser offence. Therefore, if the order of acquittal is delivered after 31st December, 2009, then the right to appeal is available to the victim.

The Court attempted to provide a “realistic, liberal, progressive and beneficial” interpretation to the proviso of section 372. For such an interpretation, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power was relied upon. This Declaration made several points on the importance of ensuring expeditious and fair access to the justice system for the victims. The Declaration explains that this can be achieved by adopting practices which allow the views and concerns of the victims to be presented during the trial and providing them proper assistance. It was opined by the Court that in order to bring the provisions of the Declaration into practice, the variety of rights of the victim must be recognised, which involves the right to file an appeal. In the same vein of thought, the Court went further to interpret section 372 and its proviso in a manner that is most beneficial to the victim. Upon the issue of requirement of leave for appeal by the victim, the majority opinion of the Court noted that there is no such requirement mandated under the proviso to section 372. Thus, leave would not be required from the High Court to file such an appeal. This was a departure from the ruling given by the Court previously in the Satya Pal Singh case that has been elaborated upon in the previous section.

The dissenting opinion in the case, however, adopted an opposite approach on the issue of requirement of leave. The crux of this approach was that since the Court has chosen to acquit the accused, the rule of presumption of innocence of the accused is only strengthened further and if no leave is required for an appeal, then it would become a tool for harassing the accused, thus trampling upon their rights. If there is a requirement of leave from the High Court, then it would be possible for the Court to examine if there is actually any substance in going for an appeal in the first place. The dissent explained why the requirement of leave for all sorts of appeals existed in the first place, which was so that the High Court could decide at the initial stage whether or not to go into the merits of the case so that the “persons who have already faced the tribulation of a long-drawn-out criminal trial are not again unnecessarily dragged to the High Court.” Thus, the matter is actually one of the rights of the accused being pitted against the rights of the victim as the accused person also has the right to be presumed innocent until proven guilty. It is also a well-settled principle that the burden of proving the guilt of an accused lies upon the State. Therefore, it is for these reasons that the dissenting opinion thought it fit that leave be required necessarily for an appeal by the victim.

Explaining the procedural aspect, the dissent laid out that the proviso to section 372 cannot be considered in isolation as it does not prescribe the manner and other technicalities that govern an appeal by the victim. For understanding this, we have to turn to the section 378(4), that provides for an appeal by the complainant in cases of private complaint. Even in this scenario, the complainant must take the High Court’s leave before appealing against the order which has acquitted the accused. The complainant and victim are mostly one and the same person and hence, the requirements for them to file an appeal must also be the same.

Rights of Victim v. Rights of Accused: Tilting Scales in Favour of Victim? – The majority judgement in the Kodagali verdict seems to take upon a balancing act of the rights of the victim and that of the accused. However, in the researcher’s opinion, it ends up tilting the scales in favour of the victim by rendering several rights of the accused infructuous to say the least. As explained in the dissenting opinion, an appeal that is preferred against an acquittal order is a challenge to the principle of presumption of innocence granted to the accused and such a challenge must not be allowed to be made so freely as will amount to torment of the accused. If the High Court is allowed to filter out cases that deserve an appeal on merits of the matter, then it would be sufficient to prevent the misuse of the victim’s right to appeal.

It must be understood that the lawmakers had initially given the right of appeal only to the State for the very reason that it would be a more responsible litigator than the victim, thus ensuring a balance in the scales of justice. The heightened focus on victimology, however, is pushing the rights of the accused down the drain, albeit in an earnest attempt to balance the scales. It is pertinent to note that while victims are often ignored in the entire criminal justice process, it is the rights of the accused which are trampled upon more as the accused is the one who is left fighting the power of the entire State machinery. The criminal justice model in India has been devised in a manner where the accused is pitted in an extremely unfair battle against the State in terms of the available power and resources.

Conclusion - Therefore, while the introduction of the right to appeal by victims was definitely a step in the right direction in terms of the spotlight on victimology, the legislature created more controversies than it put to rest by including this right in section 372, rather than in section 378 which deals with the same subject matter in an ancillary nature. The addition of the proviso in 372 led to a long-lasting conflict of judicial opinion on the nature of its applicability and the requirement of leave for filing such an appeal. While the first has been firmly resolved by the Kodagali case, doubts still persist with regards to the second. The Kodagli verdict unfairly tilts the balance of rights in favour of the victims, while the decision in the Satya Pal matter was more holistic and balanced in its approach.