# (U/s 372 Cr.P.C.) Manoj Kumar Singh v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 6
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-01-13
- **Case number:** Crl. Misc. Leave Application (Defective) No. 67 of 2013
- **Bench:** Amreshwar Pratap Sahi, Om Prakash-Vii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-s-372-cr-p-c-manoj-kumar-singh-v-state-of-u-p-ors-43211
- **Pages:** 12

## Headnote

Cr.P.C. Section-372-Right to appeal against
acquittal-appeal by 'victim' as defined
under Section 2(wa)-whether a guardian or
legal heirs of victim can be allowed to
prefer appeal on behalf of victim?-question
referred to larger Bench.
Held: Para-25
Considering the aforesaid position that
emerges, we find that it is necessary to refer
this question of the maintainability of an
appeal on behalf of a person claiming to be a
"victim" for an authoritative pronouncement
by a Larger Bench as in view of the decisions
aforesaid it will be difficult to agree with the
view expressed by the Division Bench in the
case of Edal Singh (Supra) decided on
10.4.2014.
Consequently,
the
following
questions are referred for being placed
before a Larger Bench to answer the
aforesaid
issue
in
the
light
of
the
observations made herein above namely:

## Text

_Characters 0–38,705 of 40,545. This is a partial read: ask again with offset=38705 for what follows._

6
 INDIAN LAW REPORTS ALLAHABAD SERIES
15 respectively to the writ petition. The
respondent shall be treated on medical leave
for the aforesaid period of absence and shall
be paid salary and medical reimbursement
within a period of two months.
9.
With the above directions, the
appeal stands disposed of. The judgment
and order passed by the writ Court
regarding reconsideration of matter by
appellate authority stands modified to the
above extent. No order as to costs.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.01.2015
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE OM PRAKASH-VII, J.
Crl. Misc. Leave Application (Defective)
No. 67 of 2013
(U/s 372 Cr.P.C.)
Manoj Kumar Singh
...Appellant
Versus
State of U.P. & Ors.
...Opp. Parties.
Counsel for the Appellant:
Sri Satish Chandra Singha
Counsel for the Respondents:
A.G.A., Sri Rajiv Sharma
Cr.P.C. Section-372-Right to appeal against
acquittal-appeal by 'victim' as defined
under Section 2(wa)-whether a guardian or
legal heirs of victim can be allowed to
prefer appeal on behalf of victim?-question
referred to larger Bench.
Held: Para-25
Considering the aforesaid position that
emerges, we find that it is necessary to refer
this question of the maintainability of an
appeal on behalf of a person claiming to be a
"victim" for an authoritative pronouncement
by a Larger Bench as in view of the decisions
aforesaid it will be difficult to agree with the
view expressed by the Division Bench in the
case of Edal Singh (Supra) decided on
10.4.2014.
Consequently,
the
following
questions are referred for being placed
before a Larger Bench to answer the
aforesaid
issue
in
the
light
of
the
observations made herein above namely:
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).
Case Law discussed:
(2001) 3 SCC 462; (1985) 2 SCC 537; (2001) 6
SCC 338; (2010) 6 SCC 1; (2010) 12 SCC 599;
(2014) 4 SCC 252; (2014) 1 P.L.R. 1; Criminal
Appeal (DB) No. 1078 of 2012; D.B. Criminal
Revision Petition No. 411 of 2012; Crl. Misc.
application u/s 372 Cr.P.C. (Leave to Appeal)
No. 172 of 2014.
(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)
1.
Heard Sri Satish Chandra Sinha,
learned counsel for the appellant and Sri
Rajiv Sharma for the State.
2. This appeal has been preferred under
Section 372 Cr. P.C. along with Delay
Condonation Application. At the time of
entertaining the same following order was
passed by the Division Bench on 31.05.2013 :
"This application for grant of leave
to appeal has been filed by Manoj Kumar
1 All]. Manoj Kumar Singh Vs. State of U.P. & Ors.
7
Singh, who is the brother-in-law of the
deceased. The informant father of the
deceased has not preferred any appeal
against acquittal.
The application for condonation of
delay in filing the appeal has been filed
supported by an affidavit.
The question arises that as to whether
the applicant Manoj Kumar Singh has a
right to file an appeal under section 372
Cr.P.C. or not.
Learned counsel appearing on behalf
of the applicant prays for and is granted
three weeks' time to prepare the case.
List this application along with
appeal in the second week of July, 2013
before the appropriate Bench."
3. One of the questions that was
posed at the time of entertaining the
appeal, as to whether the present applicant
Manoj Kumar Singh did have any right to
prefer the appeal under Section 372 Cr.
P.C. or not.
4. It is admitted on record that the
appellant has described himself as the
brother-in-law
of
the
deceased
i.e.
husband of the sister of the deceased.
5. The acquittal is founded on the
witnesses
having
become
hostile
including the parents of the deceased. In
these circumstances, it is difficult to
accept the appellant as a victim so as to
entitle him to file the present appeal when
his wife, who is the sister of the deceased,
is alive and could have filed an appeal.
6. It would be apt to quote Section 2
(wa) of the Code of Criminal Procedure,
1973 which provision has been inserted
by Act No. 5 of 2009 w.e.f. 31.12.2009.
The same is extracted hereunder :
"(wa) - "victim" means a person who
has suffered any loss or injury caused by
reason of the act or omission for which
the accused person has been charged and
the expression "victim" includes his or her
guardian or legal heir;
7.
Prior to the coming of the said
amendment, the issue as to who would be
entitled to file an Appeal under Section 372
Cr. P.C. can be gathered from the position
that was explained in the case of J. K.
International Vs. State (Govt. of NCT of
Delhi) and others reported in (2001) 3 SCC
462. The Apex Court considered the
provisions of Section 301 and 302 of the
Code of Criminal Procedure and deliberated
on the issue as to when a private person can
be permitted to conduct a prosecution and
then also relied on the decision, Bhagwant
Singh Vs. Commissioner of Police reported
in (1985) 2 SCC 537, to speak in favour of
the informant where the Apex Court gave
its opinion with reference to Section 173 (2)
(i) of the Code. The Apex Court then held
that the doors cannot be closed in such a
situation and the complainant deserves to be
heard.
8. Then comes the next decision in the
case of Puran Vs. Rambilas and another
reported in (2001) 6 SCC 338, where also this
issue was considered, though in a different
context of cancellation of a bail. That was a
case where a third party had moved a bail
cancellation application. It was held that the
power that was vested in the High Court for
cancellation under Section 439 of Code of
Criminal Procedure can be invoked either by
the State or by any aggrieved party.
9. However, problems were being
faced and consequently an amendment
was brought and Section 2 (wa) was
introduced.
8
 INDIAN LAW REPORTS ALLAHABAD SERIES
10. The power of the court and the
filing of appeal where the State was
lagging
behind
also
came
up
for
consideration in the conduct of fair trial in
the case of Sidhartha Vashisht @ Manu
Sharma Vs. State (NCT of Delhi) reported
in (2010) 6 SCC 1. It was after the media
had
reflected
extensively
on
the
credibility of the investigation and the
trial that the matter was taken up by the
Delhi High Court and suo motu directions
were issued for filing of an appeal.
However, the aforesaid, provision does
not appear to have been considered in the
said case.
11.
Then comes the decision in the
case of National Commission for Women
Vs. State of Delhi and another reported in
(2010) 12 SCC 599, where the provisions of
Section 372 of the Code of Criminal
Procedure were considered but it was held
to the contrary that since an appeal is a
creature of statute, and cannot lie under an
inherent power, then in that event to permit
any body or an organization to file an
appeal would be dangerous and would
cause utter confusion in the criminal justice
system. This change was registered in the
aforesaid decision and then the matter was
again referred to in the case of National
Commission for Women Vs. Bhaskar Lal
Sharma and others reported in (2014) 4
SCC 252, where this issue of the locus
standi of National Commission for Women
of being heard was taken up and referred.
12. There are three other decisions
that we have come across of other High
Courts namely that of the Full Bench of
Punjab and Haryana High Court in the
case of M/s. Tata Steel Ltd. Vs. M/s.
Atma Tube Products Ltd. and others
reported in (2014) 1 P.L.R. 1. The second
decision is in the case of Parmeshwar
Mandal Vs. State of Bihar and others
(Criminal Appeal (DB) No. 1078 of 2012)
by a Division Bench of the Patna High
Court dated 26.11.2013 and the third
decision is of the Rajasthan High Court in
the case of Dhanne Singh Vs. State of
Rajasthan (D. B. Criminal Revision Petition
No. 411 of 2012) decided on 2.12.2014.
Here also the word "victim" and the word
"complainant" have been considered.
13. However, in view of the
judgments of the Apex Court in the case
of National Commission for Women
(Supra) it would be appropriate to
consider the applicability of the ratio of
the aforesaid decisions in the present case.
14. At this stage a couple of
definitions of the word "guardian" as used
in Section 2 (6) of the U. P. Children Act,
1951 and the definition of the word
"guardian" under Section 4 (2) of the
Guardians and Wards Act, 1890 has to be
taken into consideration. This is to be read
with the definition of the word "person"
as defined in Section 11 of the Indian
Penal Code. This reference is necessary
inasmuch as Section 2 (y) of the Code of
Criminal Procedure requires that words
and expressions used in the Code and not
defined, but defined in the Indian Penal
Code will have the meaning respectively
assigned to them in that Code.
15. The word "victim" has been
clearly defined in the Criminal Procedure
Code to mean a person who has suffered
any loss or injury caused by reason of the
act or omission for which the accused
person has been charged and it also
includes his or her guardian or legal heir.
16. With the aforesaid definitions
and the judgments at hand it would be
1 All]. Manoj Kumar Singh Vs. State of U.P. & Ors.
9
appropriate to refer to the status of the
present appellant who is the husband of
the sister of the deceased. He does not
appear to be either the informant or the
witness of the crime. There is no fact or
foundation that may indicate any loss
having been suffered by the appellant.
There is no authorisation by any of the
family members of the deceased in favour
of the appellant. The parents of the
deceased Prem Singh and her mother
Madhuri
Singh
had
virtually
not
supported the prosecution story. The trial
court did not find any evidence worth the
name to prosecute the accused, but that is
a different matter altogether which can be
looked into when the appeal is filed by an
aggrieved person or any other person who
may fall within the definition of the word
"victim", as aforesaid. The appellant, in
our opinion, does not fall within the
definition either as a guardian, legal heir
or victim himself, more so when the own
sister of the deceased has not come
forward to file the appeal. In the aforesaid
circumstances, we prima facie do not find
any locus of the appellant to present this
appeal.
17. This, however, does not in any
way prevent any other person who may
fall within such definition to file an
appeal or the State which is under an
obligation to file an appeal particularly in
such matters. It is, therefore, open to the
State to maintain its appeal and a copy of
this order shall be made available to the
learned
Government
Advocate
for
information.
18. We, however, find that the view
that has been expressed by us herein
above may require an authoritative
pronouncement as we have come across
another Division Bench judgment in the
case of Edal Singh Vs. State of U. P. and
others in Criminal Misc. Application u/s
372 Cr. P.C. (Leave to Appeal) No. 172
of 2014 decided on 10.4.2014 where the
learned Division Bench has made the
following observations :-
We also have some doubts where the
appellant, who is not the grand father, but
grand uncle of the deceased Babloo has
any locus standi to file this appeal, as the
right of filing the appeal, which has been
conferred under section 372 Cr. P. C. has
been given to a victim who has been
defined under section 2(wa) to mean a
person who has suffered any loss or injury
caused by reason of the act or omission
for which the accused persons have been
charged and the expression "victim"
includes his or her guardian or legal heir.
It cannot be said that the grand uncle i.e.
the brother of the grand father would be
any person, who could be considered to
have suffered any loss or injury. Also the
grand uncle not being a lineal ascendant
or descendant would not be his legitimate
legal heir and we doubt that such an
enlarged meaning as has been suggested
by the learned counsel for the appellant
has been given to any person to file an
appeal. We, therefore, do not find any
perversity or illegality in the judgment of
the Trial Court calling for interference in
the order of acquittal recorded by the
Trial Court. The application for leave to
appeal is rejected and the appeal is,
consequently, dismissed."
19. The aforesaid Division Bench,
however, does not take notice of the
judgments which have been referred to by
us herein above. In particular we would
refer to the judgment of the Full Bench of
Punjab & Haryana High Court in the case
of M/s. Tata Steel Ltd. (Supra) where the
10
 INDIAN LAW REPORTS ALLAHABAD SERIES
Full Bench went on to answer the
question directly raised in the following
terms in paras no. 64 to 69 :-
"64. It was contended and rightly so
that the meaning of the term "victim" or
that of his/her "legal heir" deserves to be
given widest amplitude to meet with all
kinds of peculiar or unforeseen situations,
two of which are illustratively given
below:-
(a) where a major, unmarried orphan
is
murdered
and
the
accused
person(s)/undertrial(s) was/were acquitted
of the charges and the State does not
prefer an appeal against the acquittal.
(b) where the entire family is
murdered and the accused person(s)/under
trial was/were acquitted of the charges
and the State does not prefer an appeal
against the acquittal.
In both the mis-happenings there
may not be any person known as 'legal
heir' or a 'guardian' to file an appeal
against unwarranted acquittal and it will
be against all canons of justice to say that
the appellate Court in such like situations
would be helpless and the offenders will
go unpunished. Since the Legislature has
finally granted the right to appeal to a
'victim', it is the duty of the Court to
trenchantly affirm such right and provide
appropriate remedy.
65.We say so also for the reason that
the right to 'engage an advocate' or to
'prefer an appeal' under proviso to Section
372 does not ipso facto entitle the
appellant to claim compensation as a
'legal heir' or the next of kin of a deceased
'victim'. That being so, every class or
category of legal heirs of a deceased
'victim' can have locus to invoke the
remedy under proviso to Section 372 of
the Code, without reading into Section
2(wa) that if Class-I legal heir of a 'victim'
opts out of filing any appeal, the other
legal heirs would also suffer from the
same disability.
66.The legislative intentment can be
given its fullest effect by permitting all
legal
heirs,
irrespective
of
their
classification under the personal law to
prefer appeal under proviso to Section
372. Such a purposive interpretation of
the expression "legal heir" within the
meaning of Section 2(wa) does no
violence to nor does it conflict with
Section 357 or 357-A of the Code. Even if
a Class-II legal heir prefers an appeal say
against inadequate compensation, the
appellate
court
in
the
event
of
enhancement of compensation shall be
obligated to disburse the enhanced
amount to those persons only who are
entitled to the same under Sections
357(1)(c) or 357-A of the Code, as the
case may be. We, therefore, hold that the
expression
"legal
heir"
within
the
meaning of Section 2(wa) of the Code
does not exclude other than the Class-I
legal heirs of a deceased 'victim' nor the
right to 'engage an advocate' or prefer an
appeal is restricted to those persons only
to whom compensation is payable under
Sections 357, 357-A of the Code or under
the Fatal Accidents Act, 1855.
67. The above-stated interpretation
saves the Court from legislating and rewriting Section 2(wa) and is otherwise in
conformity
with
the
pro-victim
jurisprudence advanced by the Supreme
Court in PSR Sadhanantham; Ramakanth
Rai; M/s JK International and Puran etc.
cases.
68. The multiplicity of appeals by
more than one legal heir should hardly be
a deterrent to hold otherwise as such like
procedural difficulties can be effectively
streamlined by the Appellate Court
through an appropriate set of rules or
1 All]. Manoj Kumar Singh Vs. State of U.P. & Ors.
11
instructions to its Registry. For example,
if the appeal is preferred by other than a
Class-I legal heir, such person can be
required to disclose particulars of the
Class-I legal heir(s), if any, and hearing of
such an appeal can be deferred till the
appellate court is satisfied that the Class-I
legal heirs have not chosen to prefer
appeal despite informed knowledge of the
order which can be appealed against
under proviso to Section 372 of the Code.
More than one appeal, if preferred by
different legal heirs, can also be not a
cause
of
concern
nor
a
serious
impediment as all such appeals can be
clubbed and decided together by passing
one consolidated order.
69. It thus finally emerges that the
Legislature, before and after amendment
of the Code vide Act No.5 of 2009, has
recognized and conferred one right or the
other on the following categories of
persons:-
(i) a 'victim' as defined in Section
2(wa) which includes his/her 'legal heirs'
can be permitted by the Court under Section
24(8) to engage an Advocate of his/her
choice to assist the prosecution and if he/she
is aggrieved at the acquittal of an accused
(except acquittal in a case instituted on a
complaint), the conviction of the accused
for a lesser offence or the imposition of
inadequate compensation on such accused,
such 'victim' (including his/her legal heirs)
have got a right under proviso to Section
372 to prefer an appeal to the Court to
which an appeal ordinarily lies against the
order of conviction of such Court;
(ii) the legal heirs comprising the
wife, husband, parent and child of a
deceased 'victim' only are entitled to the
payment of compensation under Section
357(1)(c) of the Code;
(iii) in the case of death of a 'victim',
only those of his/her dependants who
have suffered loss or injury as a result of
the crime and who require rehabilitation,
are eligible to seek compensation in terms
of the scheme formulated under Section
357-A of the Code;
(iv) While the persons falling within
the categories at Sr. No.(ii) & (iii) above
shall necessarily include and form part of
the persons falling in category No.(i),
however, vice versa may not always be
true.
(B) Whether 'complainant' in a
private complaint-case, who is also the
'victim' and the 'victim' other than the
'complainant' complainant' in such cases
are entitled to present appeal against the
order of acquittal under proviso to Section
372 or have to seek 'special leave' to
appeal from the High Court under Section
378(4) Cr.P.C.?"
20. The Full Bench in the case of
any private complaint case answered the
issue in para 82 as follows :
"82. The above discussion thus can
be summed up to say that -
(i) the 'complainant' in a complaintcase who is a 'victim' also, shall continue
to avail the remedy of appeal against
acquittal under Section 378(4) only
except
where
he/she
succeeds
in
establishing the guilt of an accused but is
aggrieved at the conviction for a lesser
offence or imposition of an inadequate
compensation, for which he/she shall be
entitled to avail the remedy of appeal
under proviso to Section 372;
(ii) the 'victim', who is not the
complainant in a private complaint-case,
is not entitled to prefer appeal against
acquittal under proviso to Section 372 and
his/her right to appeal, if any, continues to
be
governed
by
the
un-amended
12
 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions read with Section 378 (4) of
the Code;
(iii) the Legislature has given no
separate entity to a 'victim' in the
complaint-case filed by a public servant
under a special Statute and the appeal
against acquittal in such a case can also be
availed by the 'complainant' of that case
under Section 378(4) of the Code only.
(iv) those 'victims' of complaintcases whose right to appeal have been
recognized under proviso to Section 372,
are not required to seek 'leave' or 'special
leave' to appeal from the High Court in
the manner contemplated under Section
378(3) & (4), for the Legislature while
enacting proviso to Section 372 has
prescribed no such fetter nor has it
applied the same language used for
appeals against acquittals while enacting
sub-Section (3) & (4) of Section 378 of
the Code.
21. The other question answered by
the Full Bench in para 93 to 95 is as
follows :
"(D) Whether presentation of appeal
against acquittal is a 'right' or an
'obligation' of the 'State' stemming from
the Constitution?
93 The evolution of right to appeal
against acquittal discussed in extenso in
the earlier part of this order unveils that
the right to appeal against acquittal has
seen roller-coaster like changes ranging
from the 'no right to appeal' [1861] to 'the
unconditional right to appeal' [1898]
followed by a 'conditional right to appeal'
[1973 Code] and again 'unconditional
right to appeal' in some of the cases to be
filed in the Court of Session [2005] in
favour
of
the
State.
While
the
complainant in a case instituted on
complaint got a conditional right to appeal
against acquittal under Section 378(4)
[1973], a 'victim' as defined or explained
by us has also now got unconditional right
to appeal [2009].
94. Right to live with human dignity
without any fear or actual subjection to
any kind of unlawful, unsocial and
physical or mental abuse and be a
member of the self-regulated civic society
too is one of the most cherised
fundamental right bestowed on every
person
under
Article
21
of
the
Constitution.
The
protection
or
conferment of certain rights on a victim
under the Code therefore cannot be
mirrored as a favour shown to him/her by
the Legislature. These are only a
minuscule part of the fundamental rights
of vast magnitude guaranteed under the
Constitution. The State as a custodian of
the power for enforcement of the rule of
law owes a corresponding duty to protect
these Fundamental Rights. The State also
performs the duty of parens patriae
besides making an endeavour to fulfill the
promises contained in Articles 38 or 39-A
of the Constitution. The right to prosecute
a wrong-doer, to bring his guilt home and
to compel such guilty person to undergo
the awarded sentence is an essential part
of the State's enormous duties. The
presentation
of
appeal
against
an
unmerited and reckless acquittal is also an
integral duty of a welfare State, who "has
an overall control over the law and order
and public order of the area under its
jurisdiction", even if such a duty has been
assigned by the Legislature as a 'right' in
the literal sense. State of Rajasthan vs.
Sohan Lal & Ors. (2004) 5 SCC 573,
lends full support to us in this regard
when it holds that "The State does not in
pursuing or conducting a criminal case or
an appeal, espouse any right of its own
but really vindicates the cause of society
1 All]. Manoj Kumar Singh Vs. State of U.P. & Ors.
13
at large, to prevent recurrence as well as
punish
offences
and
offenders
respectively,
in
order
to
preserve
orderliness in society and avert anarchy,
by upholding the rule of law".
95. In an era of enlightened and wellinformed society who justifiably demands
its rights or frowns upon the belied
promises, it will be too farfetched to say that
the 'duty' of the State under Sections 377 or
378 is actually a 'right' exercisable at the
discretion of State Executive. The fact that
the Legislature has chosen to grant
unconditional right to appeal to a 'victim' as
compared to the conditional right given to a
State under Section 378(3) implies towards
the failure of the State machinery in
preserving the fair balance upto the
expectations of the people. The State
therefore no longer enjoys any privileged
status as an 'appellant' and hitherto there
shall be no legal distinction between an
appeal preferred by the 'State' or a 'victim'."
22. There are other questions
answered but we find that there has been
an extensive consideration by the Full
Bench of the Punjab & Haryana High
Court which may require an authoritative
pronouncement even if we take our view
and the view expressed in Edal Singh's
case (Supra) to be correct.
23.
The aforesaid decision of the
Punjab and Haryana High Court has also been
followed by the Rajasthan High Court in the
case of Dhanne Singh Vs. State of Rajashsan
(Supra). However, the Division Bench of the
Patna High Court has not agreed with the
view taken by the Punjab & Haryana High
Court in the case of Parmeshwar Mandal Vs.
State of Bihar (Supra).
24. We have taken all the three
decisions on record and we find that the
Patna High Court has in paragraph 38 to
44 held as under:-
"38. It may be pointed out that the
definition of "victim" contained in the
154th Report of the Law Commission was
too wide and sweeping, which has not
been accepted by the Legislature. Instead
Legislature has chosen to define the
expression "victim" in much narrower
terms by including only the above three
category of persons in the definition who
get a vested right to appeal in terms of the
said proviso to section 372. In the opinion
of this Court, in the first category, any
person, who can establish before the
Court, to its satisfaction, that he has
suffered "loss" or "injury", as a result of
the crime complained of, can qualify as
"victim". Hence, if the subject of the
crime is dead or incapacitated to the
extent or suffers from such a disability
that he/she cannot take steps to exercise
his/her right under the said proviso to
Section 372, any of his/her next of kin,
who can establish before the Court, to its
satisfaction, that the crime had caused
"loss" or "injury" to him/her also, besides
to the subject of the crime, can, in the
opinion of this Court, maintain an appeal
under the said proviso. The expressions
"loss" or "injury", have not been defined
in the Code. Hence, by virtue of Section 2
(y) of the Code, definition of injury given
in Section 44 of the Indian Penal Code
has to be imported to determine the scope
and limitation of the word "injury" in
Section 2 (wa). Section 44 of the Indian
Penal Code defines "injury" denoting 'any
harm whatever illegally caused to any
person in body, mind, reputation or
property'. So far as the word "loss" used
in the said proviso is concerned, its
definition is also not available in the
Code. The nearest definition is available
14
 INDIAN LAW REPORTS ALLAHABAD SERIES
in section 23 of the Indian Penal Code
which defines "wrongful loss". But this
definition is confined to loss of property
only. On the other hand, dictionary
meaning of "loss", and its types, runs into
many pages in the Black's Law Dictionary
and
Oxford
Advanced
Learner‟s
Dictionary. However, as held by the said
Full Bench also, in the opinion of this
Court, the expression "loss" used in the
said proviso to Section 372, has to be
understood as synonymous to the word
"injury" used therein, and in the context
of the definition of "injury" appearing in
the Penal Code only, and not with the aid
of its dictionary meaning. In this context,
the following observations of the Apex
Court in the case of CCE Vs. Fiat India
(P) Ltd. [(2012)9 SCC 332] settles down
the rule of interpretation in clear terms :
"39. It is well settled that whenever
the legislature uses certain terms or
expressions
of
well-known
legal
significance or connotations, the courts
must interpret them as used or understood
in the popular sense if they are not
defined under the Act or the Rules framed
thereunder. "Popular sense" means "that
sense which people conversant with the
subject-matter, with which the statute is
dealing, would attribute to it."
(emphasis supplied)
39. Therefore, this Court is of the
opinion that, it has to be ultimately left to
the prudence of the Court to assess
whether the appellant before it had
actually suffered any 'loss' or 'injury' in
the course of the crime complained of, or
not, so as to be eligible to maintain his
appeal in terms of the said proviso. By not
providing
the
definitions
of
the
expressions in the Code, or qualifying
them in any manner, the Legislature
clearly intended to leave it to the Court, to
arrive at a conclusion independently in
respect of standing of an appellant before
it, in the facts and circumstances of each
case, as and when it may be called upon
to do so.
40.
The
other
two
categories,
included in the definition of 'victim' -
guardian and legal heir - have also been
given the liberty to step into the shoes of a
'victim', by virtue of the language of the
said definition clause, notwithstanding the
fact that they may not have suffered any
'loss' or 'injury' on account of the crime
complained of. Here again the expressions
'guardian'
and
'legal
heir'
are
not
explained in the clause itself nor have
been defined in the Code. As against this,
if we refer to Sections 198, 198(1)(a), 256
and 394 of the Code, it is clear that
wherever the Legislature intended to
clarify the persons eligible to take steps in
a criminal proceeding under the Code, it
did clarify it in clear terms. Hence, this
deliberate omission by the Legislature to
define 'guardian' or 'legal heir' in the
Code, in the opinion of this Court, clearly
depicts its intention to leave an appellant,
preferring an appeal under the said
proviso to Section 372 of the Code, solely
on the basis of his/her status as a
'guardian' or a 'legal heir', to establish the
legal heirs of his status as such, either in
terms of and under the provisions of the
laws governing the field, with all their
limitations
and
qualifications,
or
otherwise also (e.g. a judicial order).
41. In the opinion of this Court, the
wide interpretation given by the Full
Bench to the expression 'legal heir' may
lead to unwarranted results, in as much as,
for example, if all the heirs of a Hindu, as
the per the Hindu Succession Act, 1956,
i.e. class I heirs, class II heirs, agnates and
cognates, get simultaneous right to prefer
an appeal in terms of the proviso to
section 372, it may virtually open gates
1 All]. Manoj Kumar Singh Vs. State of U.P. & Ors.
15
for 'pro bono publico' appeals, denounced
by the Apex Court, and may expose the
accused to perpetual risk of harassment on
account of malafide litigations. This Court
is also of the opinion that, if such liberal
interpretation of the expression 'legal heir'
is allowed to be read in clause 2(wa), the
status of 'legal heir' itself may become a
major and primary issue in a given case,
essentially
to
be
decided
first
on
examination of evidence, documentary as
well as oral. In this context, this Court is
also of the opinion that, if once an appeal
against any of the three kinds of order,
mentioned in the said proviso, preferred
by a person claiming to have suffered loss
or injury or a 'guardian' or a 'legal heir', is
entertained on merits by the appellate
court, to whatever result, no fresh/second
appeal
by
any
other
party/person
can/should be entertained against the
same order.
42. Therefore, this Court, with all
humility, is unable to accept the said
conclusion of the Full Bench and
respectfully agrees with the judgment of
the Delhi High Court [2007(8) (AD)
(Delhi)
478],
and
other
judgments
referred to in the judgment of the Full
Bench, and the with the judgment of the
Andhra Pradesh High Court in the case of
Dr. Sudhakar (supra) on the issue, in
which it has been held that, for the
purposes of determining the locus standi
of the legal heir of a victim to file an
appeal under the said proviso to Section
372, the court has to necessary fall back
upon the line of succession to his property
laid down in his/her personal law. This
Court also endorses the view of Guwahati
High Court Agartalla Bench) in Gaurang
Deo Nath [Cr.Appeal No.13 of 2011 (C)],
that in case of allegations of crime being
committed was on the husband of the
deceased (e.g.- u/s 304B IPC), father of
the lady (or her any close relation) may
also come within the definition of 'victim',
on account of loss or emotional injury
suffered by him, so as to maintain his
appeal under the said proviso to Section
372 of the Code. The two examples, cited
by the Full Bench in paragraph 65, to
justify 'widest amplitude' given to the
expression 'legal heir', are misconceived.
In both the examples the order of
succession, in terms of the personal law,
still remains open and therefore the
apprehension of the right of appeal
granted to the victim under the said
proviso to Section 372 of the Code getting
frustrated, is unfounded.
43.
The
second
question
was
discussed by the Full Bench from
paragraphs 71 to 82 and it was summed
up in paragraph 83 and answered in
paragraph 139, as reproduced above. The
Full Bench has tried to distinguish
between a case investigated by the police
on a complaint/information received and
report submitted and a case of complaint
filed by a complainant in the court
directly and proceeded with under chapter
XV of the Code, and has held that a
complainant in a complaint case and a
victim other than the complainant in the
complaint case has the only remedy by
way of an appeal under Section 378(4) of
the Code against an order of acquittal,
except in cases where guilt is established
but conviction is for lesser offence or with
imposition of inadequate compensation,
in which case only he/she will have a
right to appeal under proviso to Section
372 of the Code.
44. With all reverence to the Full
Bench, this Court is unable to agree with
this proposition of law also. If that would
have been the intention of the Legislature,
instead of giving unfettered right to the
victim to file appeal in the opening
16
 INDIAN LAW REPORTS ALLAHABAD SERIES
section of the Chapter itself, it could have
added one more sub-section in Section
378 itself. It has to be presumed that when
unfettered right of appeal was being
conferred upon the victim in the opening
section
of
the
Chapter
itself,
the
Legislature
was
conscious
of
the
restricted right of appeal granted to the
State and the complainant under Section
378 of the Code. The recommendations in
the Malimath Committee Report, which
has been adopted and implemented in the
form of amendment in various provisions
of the Code of Criminal Procedure by Act
5 of 2009, would show that, by the
amendment, victim was intended to be
placed at much higher pedestal in criminal
justice delivery system than the State
(prosecuting agency) or the complainant.
Therefore, instead of adding one more
sub-section in Section 378, providing for
a right of appeal to a victim also, at par
with the complainant of a complaint case,
or with State in a police case, he/she has
been conferred upon the right in the
opening section of the Chapter itself
without any qualifications. Clearly by
introducing
this
amendment,
the
Legislature has recognized the victim in
his/her independent capacity in the
criminal justice delivery system than the
State or informant or complainant. If the
interpretation of the Full Bench is
accepted, it will result into the victim
getting a right to file an appeal only for a
lesser wrong done to him/her by a
criminal court, i.e. for convicting the
accused for lesser offence or for awarding
lesser compensation, but will not be able
to file an appeal, without a special leave,
for greater wrong done to him/her by
acquitting
the
accused
altogether.
Therefore, this Court is of the opinion that
no
distinction
can/should
be
made
between
a
case
instituted
by
a
complainant/informant with the police
and by a complainant before the Court
directly, for the purposes of determining
the scope and ambit of right of a victim to
file an appeal under the said proviso to
Section 372. Consequently, this Court is
of the opinion that, any person, covered
under the definition of 'victim' as
contained in clause (wa) of Section 2 of
the Code, and thus getting a right to file
an appeal in terms of the said proviso to
Section 372, cannot be held, in any way,
handicapped in exercise of his/her said
right by the provisions of Section 378 of
the Code specially in the background of
disadvantageous status of victim in the
present criminal justice delivery system in
the country. This view of the Court, on
this issue, stand buttressed also by the
findings of the Full Bench in respect of
question (C) holding that the victim is not
obligated to seek 'leave' or 'special leave'
of the High Court for presentation of
appeal under the said proviso to Section
372 of the Code and also by the learned
Single Judge of Allahabad High Court in
the case Ashok Kumar Srivastava (supra)
and by a Division Bench of Delhi High
Court in its judgment dated 24.01.2011 in
the case of Jagmohan Bhola Vs. Dilbagh
Rai Bhola & Ors."
25. Considering the aforesaid
position that emerges, we find that it is
necessary to refer this question of the
maintainability of an appeal on behalf of a
person claiming to be a "victim" for an
authoritative pronouncement by a Larger
Bench as in view of the decisions
aforesaid it will be difficult to agree with
the view expressed by the Division Bench
in the case of Edal Singh (Supra) decided
on
10.4.2014.
Consequently,
the
following questions are referred for being
placed before a Larger Bench to answer
1 All]. Mohd. Irfan Vs. State of U.P. & Ors.
17
the aforesaid issue in the light of the
observations made herein above namely :
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).
26. Let the papers be placed before
Hon'ble the Chief Justice for referring the
aforesaid questions to be answered
accordingly.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.12.2014
BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE MRS. VIJAY LAKSHMI, J.
Special Appeal No. 1015 of 2014
Mohd. Irfan
...Appellant
Versus
State of U.P.