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Under Section 372 CrPC has held that the victim has no right to prefer an appeal against ‘inadequacy

Pravinder Kansal vs The State Of Nct Of Delhi & Anr., CRL.A.1284/2019 & CRL.M.A. 40100/2019 – 27 November 2019

The case was brought to the High Court of Delhi under appeal before the bench consisting of Honourable Justice Manmohan and Honourable Justice Sangita Dhingra Sehgal.

The present appeal has been filed under Section 372 Code of Criminal Procedure on behalf of the complainant challenging the order on sentence dated 17th August, 2019 passed by ASJ/Special Judge (NDPS), North District, Rohini Courts, Delhi in Sessions Case No. 58259/2016 arising out of FIR No.742/2007 registered with Police Station Prashant Vihar. The Trial Court had convicted the accused (respondent No. 2) in the said case under Sections 302/364A/201 IPC and sentenced him to imprisonment for life under Sections 302 and 364A IPC and imprisonment for seven years under Section 201 IPC.

APPELLANTS CONTENTIONS

The counsel for the appellant contended that the sentence awarded to the convict is inadequate and needed to be enhanced to the death penalty. It was pointed out to the learned counsel for the appellant that the present appeal was not maintainable as the same has been filed under Section 372 Cr.P.C. and the said provision did not contemplate an appeal by the victim/complainant against inadequate sentence.

It was further stated that there needed to be a balance between the rights of an accused and that of the victim so that the proceedings are fair to both of them. It was further contended that since the victim has a right to appeal against an order when the convict has been convicted for a lesser offence, the victim should be deemed to have a right to file an appeal against an order when the convict has been awarded a lesser sentence. The counsel relied upon the judgment of this Court in Jagmohan Bhola vs Dilbagh Rai Bhola and Ors. Crl. A. No. 793 of 2010, which was followed in a subsequent judgment by this Court in Shikha Beniwal vs State and Anr. Cr. A. No. 1320 of 2012

RESPONDENTS CONTENTION

It was submitted by the respondent that the appeal was not maintainable and in support of his submission, he relied upon the judgments in Raj Singh vs State of Punjab and Ors. [2014 SCC OnLine P&H 16699, Virender Bidhuri vs the State (NCT of Delhi) and Anr. 2014 SCC OnLine Del 6863 and Baldev Sharma vs Gopal and Anr. 2017 SCC OnLine Raj 3005.  Keeping in view the contrary opinions rendered by the learned Single Judges of this Court with regard to the maintainability of an appeal preferred by a victim challenging the Trial Court order awarding inadequate sentence, it is necessary to consider the law on this issue. It is settled law that an appeal is a creature of a statute and cannot lie under any inherent power. The language of Section 372 Cr.P.C. is explicit and it states in categorical terms that no appeal shall lie until and unless specifically provided for. However, while passing the Code of Criminal Procedure (Amendment) Act 2008, Parliament in the proviso to Section 372 Cr.P.C. did not confer a right on the victim to prefer an appeal against an order imposing inadequate sentence. The omission to permit a victim to file an appeal against an order imposing inadequate sentence is indicative of the legislative intent. Consequently, the submission of the learned counsel for the appellant that the aforesaid right should be read into the statute by way of judicial interpretation is untenable in law.

OBSERVATION MADE BY THE COURT

After hearing the contentions of both the parties, the Honourable Court made the following observations. The term “inadequacy of sentence” has a special connotation and a distinct statutory demarcation if the provisions of Section 375(d) and Section 377 of the Code are compared. Scheme of Section 377, which provides for the right of Appeal to the State/Prosecution, is entirely different from the right of Appeal conferred upon a victim under the Proviso to Section 372 of the Code. Under the scheme of Section 377 not only the State/Prosecution can file an appeal based upon the inadequacy of sentence, but even the Accused can plead for his acquittal or for reduction of the sentence as contemplated under Section 377(3) of the Code. As against this, in the scheme of Proviso to Section 372 of the Code is compared, only a victim has an absolute right to file an Appeal challenging imposition of inadequate compensation in addition to the right of appeal against acquittal and also challenging the conviction based on a lesser offence. There is, however, no provision in the entire Code empowering the State Prosecution to file an appeal against an order imposing inadequate Compensation.

JUDGMENT DELIVERED

Thereby, this Honourable Court delivers the judgment as under,

“In light of different types of right of Appeal provided to the victim and to the State/Prosecution, it will not be proper to hold that the right of either of them is dependent upon the other. To put it differently, only victim can file an appeal against an order of imposing „inadequate Compensation‟ in addition to his right of appeal against acquittal and convicting the Accused of a lesser offence and therefore, to club his right and make it dependant upon the exercise of right of Appeal at the instance of the State would not only be unworkable but would run contrary to the scheme and lead to absurdity.” In view of the aforesaid mandate of law and for the reasons as explained above, this Court is of the view that the present appeal is not maintainable. Accordingly, the present appeal and pending application are dismissed.”

Tanvi Srivatsan

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