# Smt. Shireen v. State of U.P. & Ors

- **Citation:** (2022) 7 ILRA 6
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-12
- **Case number:** Application U/S 378 No. 142 of 2017
- **Bench:** Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shireen-v-state-of-u-p-ors-48811
- **Pages:** 5

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 372 - Indian
Penal Code, 1860 - Sections 323, 498-A, 506
- Dowry prohibition Act,1961 - Section 3/4,
Probation of Offenders Act, 1958 - Section 4
- No appeal to lie unless otherwise provided
- An appeal is a creature of a statute and
cannot lie under any inherent power -
Unless same is provided either under Code
of Criminal Procedure or by any other law
for the time being in force no appeal,
seeking enhancement of sentence at the
instance of the victim, is maintainable.
(Para - 7,8)

Appeal preferred by victim - against order of
trial court as well as of first Appellate Court -
instead
of
sentencing
them
to
undergo
imprisonment - trial Court gave benefit of
Section 4 of Probation of Offenders Act -
released on probation - appeal preferred by
state
against
sentencing
-
dismissed
by
appellate Court. (Para -6)

(B) Criminal Law - The Code of criminal
procedure, 1973 - Proviso to Section 372
Cr.P.C.
-
victim's
right
of
appeal
-
restricted to three eventualities - acquittal
of the accused- conviction of the accused
for
lesser
offence-
for
imposing
inadequate compensation. (Para - 8)

HELD:-No appeal can be maintained by victim
under Section 372 CrPC on the ground of
inadequacy of sentence. Appeal preferred by
victim of crime against inadequacy of sentence
not maintainable. (Para - 9 )

Appeal dismissed. (E-7)

List of Cases cited:-

## Text

6 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)07ILR A6
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.07.2022

BEFORE

THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Application U/S 378 No. 142 of 2017

Smt. Shireen ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
P.K. Mishra

Counsel for the Opposite Parties:
Govt. Advocate, Anil Kumar Singh, D.P.
Dutt Tiwari

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 372 - Indian
Penal Code, 1860 - Sections 323, 498-A, 506
- Dowry prohibition Act,1961 - Section 3/4,
Probation of Offenders Act, 1958 - Section 4
- No appeal to lie unless otherwise provided
- An appeal is a creature of a statute and
cannot lie under any inherent power -
Unless same is provided either under Code
of Criminal Procedure or by any other law
for the time being in force no appeal,
seeking enhancement of sentence at the
instance of the victim, is maintainable.
(Para - 7,8)

Appeal preferred by victim - against order of
trial court as well as of first Appellate Court -
instead
of
sentencing
them
to
undergo
imprisonment - trial Court gave benefit of
Section 4 of Probation of Offenders Act -
released on probation - appeal preferred by
state
against
sentencing
-
dismissed
by
appellate Court. (Para -6)

(B) Criminal Law - The Code of criminal
procedure, 1973 - Proviso to Section 372
Cr.P.C.
-
victim's
right
of
appeal
-
restricted to three eventualities - acquittal
of the accused- conviction of the accused
for
lesser
offence-
for
imposing
inadequate compensation. (Para - 8)

HELD:-No appeal can be maintained by victim
under Section 372 CrPC on the ground of
inadequacy of sentence. Appeal preferred by
victim of crime against inadequacy of sentence
not maintainable. (Para - 9 )

Appeal dismissed. (E-7)

List of Cases cited:-

1. N.C.W. Vs St. of Delhi, (2010) 12 SCC 599

2. Parvinder Kansal Vs St. (NCT of Delhi),
(2020) 19 SCC 496

(Delivered by Hon'ble Mohd. Faiz Alam
Khan, J.)

1. No one is present either for the
applicant or for respondents no. 2 to 6 when
this case is taken up for hearing. Learned
A.G.A. is however present for the State.

2. Instant appeal has been filed by the
victim under Section 372 Cr.P.C. against the
judgment and order dated 07.03.2013 passed
by the Judicial Magistrate, Ambedkar Nagar
whereby the trial Court has convicted the
private respondents under Sections 323, 498A, 506 I.P.C. and Section 3/4 D.P. Act,
however,
the
accused
persons/private
respondents instead of sentencing to undergo
imprisonment were given the benefit of
Probation of Offenders Act, 1958 and
released on probation and also against the
judgment and order dated 30.09.2016 passed
by the Appellate Court i.e. Additional
Sessions
Judge
(Fast
Track
Court-II),
Ambedkar Nagar, whereby the appeal
preferred by the state against sentence was
dismissed.

3. Perusal of the record would reveal
that the instant appeal has been listed after
7 All. Smt. Shireen Vs. State of U.P. & Ors.
7
a long time as it was on 04.12.2017 this
appeal was last listed and vide order dated
20.11.2017 the delay, which had occurred
in preferring the appeal has been condoned
by a co-ordinate Bench of this Court and
the appeal was directed to be listed for
admission.

4. Section 372 of the Cr.P.C., under
which the instant appeal has been preferred,
is reproduced for ready reference as under:-

"372. No appeal to lie unless
otherwise provided.-- 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:

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."

5. Perusal of this Section would
reveal that the same is starting with a NonObstante Clause declaring that no appeal
shall lie from any judgment or order of a
Criminal Court except as provided by this
Code or by any other law for the time being
in force. Thus, it is clear that the appeal
could only be preferred in accordance with
the scheme provided in the Cr.P.C. or
provided by any other law for the time
being in force. The proviso to Section 372
Cr.P.C. provides a right to the victim of an
offence to prefer an appeal and it says that
the victim (as defined under Section 2w
(wa) of the Cr.P.C. may prefer an appeal
against any judgment or order passed by
the Court acquitting the accused or
convicting for a lesser offence or
imposing
inadequate
compensation.
Thus, the appeal under Section 372 Cr.P.C.
could only be filed on the happening of
three situations namely

(i) When the accused person(s)
have been acquitted;

(ii) When the accused person(s0
have been convicted for a lesser offence;

(iii)
Where
inadequate
compensation has been imposed by the
Court (s).

6. The instant appeal has been
preferred by the victim against the order of
the trial court as well as of the first
Appellate Court and it is evident that
though the accused persons were convicted
by the trial Court for the offence committed
under Sections 323, 498-A, 506 I.P.C. and
Section 3/4 D.P. Act, however, instead of
sentencing them to undergo imprisonment
the trial Court has given them benefit of
Section 4 of Probation of Offenders Act,
1958 and released themon probation and
the appeal preferred by the state against
sentencing has also been dismissed by the
appellate Court.

7. The issue as to whether a victim of
the crime may prefer an appeal under
section 372 Crpc against inadequacy of
sentence awarded to the accused persons is
now no more res integra. Hon'ble Supreme
Court
in
National
Commission
For
Women v. State of Delhi, (2010) 12 SCC
599 has held as under:-

"11. An appeal is a creature of a
statute and cannot lie under any inherent
power. This Court does undoubtedly grant
leave to 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
8 INDIAN LAW REPORTS ALLAHABAD SERIES
to permit anybody or an organisation 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.

12. In Pritam Singh v. State [AIR
1950 SC 169 : (1950) 51 Cri LJ 1270] this
Court while dealing with a criminal matter
(after the grant of leave under Article 136
of the Constitution) considered the scope
and ambit of this article and observed:
(AIR pp. 171-72, para 9)

"9. On a careful examination of
Article 136 along with the preceding
article, it seems clear that the wide
discretionary power with which this Court
is invested under it is to be exercised
sparingly and in exceptional cases only,
and as far as possible a more or less
uniform standard should be adopted in
granting special leave in the wide range of
matters which can come up before it under
this article. By virtue of this article, we can
grant special leave in civil cases, in
criminal cases, in income tax cases, in
cases which come up before different kinds
of tribunals and in a variety of other cases.
The only uniform standard which in our
opinion
can
be
laid
down
in
the
circumstances is that Court should grant
special leave to appeal only in those cases
where special circumstances are shown to
exist. ... It is sufficient for our purpose to
say that though we are not bound to follow
them too rigidly since the reasons,
constitutional and administrative, which
sometimes weighed with the Privy Council,
need not weigh with us, yet some of those
principles are useful as furnishing in many
cases a sound basis for invoking the
discretion of this Court in granting special
leave. Generally speaking, this Court will
not grant special leave, unless it is shown
that exceptional and special circumstances
exist, that substantial and grave injustice
has been done and that the case in question
presents features of sufficient gravity to
warrant a review of the decision appealed
against."

13. In P.S.R. Sadhanantham v.
Arunachalam [(1980) 3 SCC 141 : 1980
SCC (Cri) 649] this Court was dealing with
the locus standi of a private person, in this
case the victim's brother, who was neither a
complainant nor a first informant in the
criminal case but had filed a petition under
Article 136 of the Constitution of India.
This Court observed that the strictest
vigilance was required to be maintained to
prevent the abuse of the process of court,
more particularly, in criminal matters, and
ordinarily a private party other than the
complainant, should not be permitted to file
an appeal under Article 136, though the
broad scope of the article postulated an
exception in suitable cases. It was spelt out
as under: (SCC p. 145, para 7)

"7. Specificity being essential to
legality, let us see if the broad spectrum
spread out of Article 136 fills the bill from
the point of view of ''procedure established
by law'. In express terms, Article 136 does
not confer a right of appeal on a party as
such but it confers a wide discretionary
power on the Supreme Court to interfere in
suitable cases. The discretionary dimension
is considerable but that relates to the
power of the court. The question is whether
it spells by implication, a fair procedure as
contemplated by Article 21. In our view, it
does. Article 136 is a special jurisdiction. It
is residuary power; it is extraordinary in its
amplitude, its limit, when it chases
injustice, is the sky itself. This Court
functionally fulfils itself by reaching out to
injustice wherever it is and this power is
largely derived in the common run of cases
from Article 136. Is it merely a power in the
7 All. Smt. Shireen Vs. State of U.P. & Ors.
9
court to be exercised in any manner it
fancies? Is there no procedural limitation
in the manner of exercise and the occasion
for exercise? Is there no duty to act fairly
while hearing a case under Article 136,
either in the matter of grant of leave or,
after such grant, in the final disposal of the
appeal? We have hardly any doubt that
there is a procedure necessarily implicit in
the power vested in the summit court. It
must be remembered that Article 136
confers jurisdiction on the highest court.
The Founding Fathers unarguably intended
in the very terms of Article 136 that it shall
be exercised by the highest judges of the
land with scrupulous adherence to judicial
principles well established by precedents in
our jurisprudence. Judicial discretion is
canalised
authority,
not
arbitrary
eccentricity."

14. The Court then examined the
implications of completely shutting out a
private party from filing a petition under
Article 136 on the locus standi and
observed thus: (Arunachalam case [(1980)
3 SCC 141 : 1980 SCC (Cri) 649] , SCC p.
147, para 14)

"14. Having said this, we must
emphasise that we are living in times when
many
societal
pollutants
create
new
problems of unredressed grievance when
the State becomes the sole repository for
initiation of criminal action. Sometimes,
pachydermic indifference of bureaucratic
officials, at other times politicisation of
higher functionaries may result in refusal to
take a case to this Court under Article 136
even though the justice of the lis may well
justify it. While ''the criminal law should
not be used as a weapon in personal
vendettas between private individuals', as
Lord Shawcross once wrote, in the absence
of an independent prosecution authority
easily accessible to every citizen, a wider
connotation of the expression ''standing' is
necessary for Article 136 to further its
mission."

15. A reading of the aforesaid
excerpts from the two judgments would
reveal that while an appeal by a private
individual can be entertained but it should
be done sparingly and after due vigilance
and particularly in a case where the
remedy has been shut out for the victims
due to mala fides on the part of the State
functionaries or due to inability of the
victims to approach the Court. In the
present matter, we find that neither the
State which is the complainant nor the
heirs of the deceased have chosen to file a
petition in the High Court. As this
responsibility has been taken up by the
Commission at its own volition this is
clearly not permissible in the light of the
aforesaid judgments."

8. In Parvinder Kansal v. State (NCT
of Delhi), (2020) 19 SCC 496 Hon'ble
Supreme Court has also held as under:-

"8. Chapter XXIX of the Code of
Criminal Procedure, 1973 deals with
"Appeals" and Section 372 makes it clear
that no appeal to lie unless otherwise
provided by the Code or any other law for
the time being in force. It is not in dispute
that in the instant case appellant has
preferred appeal only under Section 372
CrPC. The proviso is inserted to Section
372 CrPC by Act 5 of 2009. Section 372
and the proviso which is subsequently
inserted read as under:

"372. No appeal to lie unless
otherwise provided.-- 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:

Provided that the victim shall
have a right to prefer an appeal against
10 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

A reading of the proviso makes it
clear that so far as victim's right of appeal
is concerned, same is restricted to three
eventualities, namely, acquittal of the
accused; conviction of the accused for
lesser offence; or for imposing inadequate
compensation. While the victim is given
opportunity to prefer appeal in the event of
imposing inadequate compensation, but at
the same time there is no provision for
appeal by the victim for questioning the
order of sentence as inadequate, whereas
Section 377 CrPC gives the power to the
State Government to prefer appeal for
enhancement of sentence. While it is open
for the State Government to prefer appeal
for inadequate sentence under Section 377
CrPC but similarly no appeal can be
maintained by victim under Section 372
CrPC on the ground of inadequate
sentence. It is fairly well-settled that the
remedy of appeal is creature of the statute.
Unless same is provided either under Code
of Criminal Procedure or by any other law
for the time being in force no appeal,
seeking enhancement of sentence at the
instance of the victim, is maintainable.
Further we are of the view that the High
Court while referring to the judgment of
this Court in National Commission for
Women v. State (NCT of Delhi) [National
Commission for Women v. State (NCT of
Delhi), (2010) 12 SCC 599 : (2011) 1 SCC
(Cri) 774] has rightly relied on the same
and
dismissed
the
appeal,
as
not
maintainable."

9. Above placed case laws makes
it clear that no appeal can be maintained by
the victim under Section 372 CrPC on the
ground of inadequacy of sentence. Thus the
appeal preferred by the victim of the crime
against inadequacy of sentence is not
maintainable and is dismissed as such.
----------
(2022)07ILR A10
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.05.2022

BEFORE

THE HON'BLE GAUTAM CHOWDHARY, J.

Application U/S 482 No. 2386 of 2022

Golu @ Vijay Kumar Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Petitioners:
Sri Shiv Bahadur Singh

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal Code, 1860- Sections 323 & 504 -
SC/ST,
Act-Section
3(1)(r),
3(1)(s)-
quashing of cognizance and summoning
order-dispute with regard to irrigation of
the field arose between the informant and
the
servant
of
the
applicant-parties
entered into compromise without any
compulsion with the passage of time-In
the instant case, proceedings u/s 323, 504
are compoundable but the proceedings
under SC/ST Act are not compoundableArticle 142 of the Constitution can be
invoked
for
quashing
of
criminal
proceedings
arising
out
of
'noncompoundable offences'-the compromise
between the parties be accepted-The very
nature of the power must lead the Court
to set limits for itself within which to
exercise those powers and ordinarily it
cannot disregard a statutory provision
governing a subject, except perhaps to
balance
the
equities
between
the