# Khem Singh (D) Through LRs v. State of Uttaranchal (Now State of Uttarakhand) & Another Etc

- **Citation:** 2025 INSC 1024
- **Court:** Supreme Court of India
- **Decided:** 2025-07-31
- **Bench:** B.V. Nagarathna, K.V. Viswanathan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/khem-singh-d-through-lrs-v-state-of-uttaranchal-now-state-of-uttarakhand-38504
- **Pages:** 40

## Headnote

During pendency of these appeals, son of original appellant
(since deceased) filed an application seeking setting aside of the
abatement and for substitution. Whether the applicant is entitled to
be substituted in place of the original appellant so as to continue
to prosecute these appeals.
Headnotes†
Code of Criminal Procedure, 1973 - Proviso to s.372 - The
applicant contended that having regard to the proviso to s.372
of the CrPC, the substitution applications may be allowed
by condoning the delay in filing the said application - He
further contended that the original appellant was aggrieved
by the acquittal of accused nos.4, 3 and 2 respectively by
the High Court when, in fact, they had been convicted and
sentenced to life imprisonment and fine by the Sessions
Court and hence, the original appellant herein preferred
these appeals:
Held: The expression 'right to prefer an appeal' in the proviso
to s.372 CrPC cannot be limited to mean 'only the filing of an
appeal' - Mere filing of an appeal in the absence of prosecution
of an appeal is of no avail - It does not fulfill the object with
which the proviso has been added to s.372 CrPC - Therefore,
the expression 'the right to prefer an appeal' to also include the
'right to prosecute an appeal' - Any curtailing of the legal right to
prosecute an appeal on the death of an original appellant by his
* Author
[2025] 7 S.C.R.
2109
Khem Singh (D) Through LRs v.
State of Uttaranchal (Now State of Uttarakhand) & Another Etc.
legal heir would make the proviso to s.372 CrPC wholly redundant
and in fact may result in a situation which is contrary to the entire
object with which the Parliament had inserted the proviso to s.372
CrPC - In this context, it is also relevant to note that the Parliament
has been conscious to expand the definition of the word 'victim'
to not only include the victim himself who had suffered the loss
or injury but also to include his legal heir - There is no reason
to curtail the right of a legal heir, who had preferred the original
appeal, to be denied the right to prosecute the appeal - The
argument of the applicant that as heir of the original appellant,
who was an injured victim, he can prosecute these appeals, is
accepted - The applicant, who is seeking substitution, is the legal
heir of the victim who had preferred the appeal before this Court
and is also an injured victim - Therefore, the applicant is being
permitted to be substituted in place of the original appellant as
heir of the original appellant (who was a victim in the incident) -
In other words, even if the applicant was not an injured victim
in the said incident but has sought to prosecute these appeals
as heir of the injured victim (original appellant), he is permitted
to do so - The delay in filing the application for seeking setting
aside of the abatement is condoned - The abatement is set aside.
[Paras 9.3, 11, 12]
Constitution of India - Art.136 - When during pendency of
special leave petition or criminal appeals, the appellant dies,
whether the heir of the appellant must be given an opportunity
to prosecute the appeal:
Held: Art.136 of the Constitution deals with Special leave to appeal
by the Supreme Court - Sub-clause (1) of Art.136 begins with
a non-obstante clause and confers discretion on the Supreme
Court to grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed
or made by any court or tribunal in the territory of India - When
this power u/Art.136 is exercised by the Supreme Court by
granting leave, the special leave petition would get converted
into a criminal appeal - If during the pendency of the special
leave petition or the criminal appeal, the appellant dies, the heir
of the appellant must be given an opportunity to prosecute the
appeal irrespective of whether the heir is a victim of the criminal
offence - More significantly, the appeal heard pursuant to
2110
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Art.136 of the Const

## Text

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[2025] 7 S.C.R. 2108 : 2025 INSC 1024
Khem Singh (D) Through LRs
v.
State of Uttaranchal (Now State of Uttarakhand)
& Another Etc.
(Criminal Appeal No(s). 1330-1332 of 2017)
31 July 2025
[B.V. Nagarathna* and K.V. Viswanathan, JJ.]
Issue for Consideration
During pendency of these appeals, son of original appellant
(since deceased) filed an application seeking setting aside of the
abatement and for substitution. Whether the applicant is entitled to
be substituted in place of the original appellant so as to continue
to prosecute these appeals.
Headnotes†
Code of Criminal Procedure, 1973 - Proviso to s.372 - The
applicant contended that having regard to the proviso to s.372
of the CrPC, the substitution applications may be allowed
by condoning the delay in filing the said application - He
further contended that the original appellant was aggrieved
by the acquittal of accused nos.4, 3 and 2 respectively by
the High Court when, in fact, they had been convicted and
sentenced to life imprisonment and fine by the Sessions
Court and hence, the original appellant herein preferred
these appeals:
Held: The expression 'right to prefer an appeal' in the proviso
to s.372 CrPC cannot be limited to mean 'only the filing of an
appeal' - Mere filing of an appeal in the absence of prosecution
of an appeal is of no avail - It does not fulfill the object with
which the proviso has been added to s.372 CrPC - Therefore,
the expression 'the right to prefer an appeal' to also include the
'right to prosecute an appeal' - Any curtailing of the legal right to
prosecute an appeal on the death of an original appellant by his
* Author
[2025] 7 S.C.R.
2109
Khem Singh (D) Through LRs v.
State of Uttaranchal (Now State of Uttarakhand) & Another Etc.
legal heir would make the proviso to s.372 CrPC wholly redundant
and in fact may result in a situation which is contrary to the entire
object with which the Parliament had inserted the proviso to s.372
CrPC - In this context, it is also relevant to note that the Parliament
has been conscious to expand the definition of the word 'victim'
to not only include the victim himself who had suffered the loss
or injury but also to include his legal heir - There is no reason
to curtail the right of a legal heir, who had preferred the original
appeal, to be denied the right to prosecute the appeal - The
argument of the applicant that as heir of the original appellant,
who was an injured victim, he can prosecute these appeals, is
accepted - The applicant, who is seeking substitution, is the legal
heir of the victim who had preferred the appeal before this Court
and is also an injured victim - Therefore, the applicant is being
permitted to be substituted in place of the original appellant as
heir of the original appellant (who was a victim in the incident) -
In other words, even if the applicant was not an injured victim
in the said incident but has sought to prosecute these appeals
as heir of the injured victim (original appellant), he is permitted
to do so - The delay in filing the application for seeking setting
aside of the abatement is condoned - The abatement is set aside.
[Paras 9.3, 11, 12]
Constitution of India - Art.136 - When during pendency of
special leave petition or criminal appeals, the appellant dies,
whether the heir of the appellant must be given an opportunity
to prosecute the appeal:
Held: Art.136 of the Constitution deals with Special leave to appeal
by the Supreme Court - Sub-clause (1) of Art.136 begins with
a non-obstante clause and confers discretion on the Supreme
Court to grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed
or made by any court or tribunal in the territory of India - When
this power u/Art.136 is exercised by the Supreme Court by
granting leave, the special leave petition would get converted
into a criminal appeal - If during the pendency of the special
leave petition or the criminal appeal, the appellant dies, the heir
of the appellant must be given an opportunity to prosecute the
appeal irrespective of whether the heir is a victim of the criminal
offence - More significantly, the appeal heard pursuant to
2110
[2025] 7 S.C.R.
Supreme Court Reports
Art.136 of the Constitution is not an appeal under Chapter XXIX
CrPC - In the circumstances of the present case, the applicant,
being heir of the victim, has the right to continue these appeals
irrespective of the fact that he is an injured victim - In that view of
the matter also, the application for substitution has to be allowed.
[Paras 11.5, 11.6]
Code of Criminal Procedure, 1973 - ss.2(wa); 372, 377, 378,
386, 394 - Discussed. [Para 7]
Words and Phrases - Victim, victimology - Discussed.
[Paras 7.4, 7.5, 7.6.1]
Penal Code, 1860 - ss.148, 452, 302, 307, 149, 326, and 149 -
The private respondents herein who were accused nos.4,
3 and 2 respectively were convicted and sentenced by the
trial Court - Aggrieved, the respondents-accused preferred
criminal appeals before the High Court, which were allowed -
Correctness:
Held: The High Court ought to have considered the evidence on
record in light of the arguments advanced at the bar and thereafter
ascertained whether the Sessions Court was justified in passing
the judgment of conviction and imposing the sentence - The same
being absent in the impugned judgment, for that sole reason, the
judgment is set aside - The matters are remanded to the High
Court. [Paras 9, 12]
Code of Criminal Procedure, 1973 - s.374(2) - Independent
application of mind while hearing appeals:
Held: While hearing the appeals u/s.374(2) of the CrPC, the
High Court is exercising its appellate jurisdiction - There shall
be independent application of mind in deciding the criminal
appeal against conviction - It is the duty of an appellate court to
independently evaluate the evidence presented and determine
whether such evidence is credible - Even if the evidence is
deemed reliable, the High Court must further assess whether the
prosecution has established its case beyond reasonable doubt -
The High Court though being an appellate Court is akin to a Trial
Court, must be convinced beyond all reasonable doubt that the
prosecution's case is substantially true and that the guilt of the
accused has been conclusively proven while considering an appeal
against a conviction. [Para 6]
[2025] 7 S.C.R.
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Khem Singh (D) Through LRs v.
State of Uttaranchal (Now State of Uttarakhand) & Another Etc.
Case Law Cited
PSR Sadhanantham v. Arunachalam [1980] 2 SCR 873 : (1980)
3 SCC 141; Garikapati Veeraya v. N. Subbiah Choudhry [1957]
1 SCR 488 : AIR 1957 SC 540 - followed.
Mallikarjun Kodagali (dead) represented through Legal
representatives v. State of Karnataka [2018] 13 SCR 1 : (2019)
2 SCC 752 - relied on.
Dr. Vimla v. State (NCT of Delhi) [1963] Supp. 2 SCR 585 : AIR
1963 SC 1572; Esher Singh v. State A.P. [2004] 2 SCR 1180 :
(2004) 11 SCC 585; Birichh Bhuian v. State of Bihar [1963]
Supp. 2 SCR 328 : AIR 1963 SC 1120; Chand Devi Daga v.
Manju K. Humatani [2017] 11 SCR 923 : (2018) 1 SCC 71; M.R.
Ajayan v. State of Kerala, 2024 SCC OnLine SC 3373; National
Commission for Women v. State of Delhi [2010] 10 SCR 905 :
(2010) 12 SCC 599; Amanullah v. State of Bihar [2016] 2 SCR
1027 : (2016) 6 SCC 699; Manik Lal Majumdar v. Gouranga
Chandra Dey [2004] 2 SCR 742 : (2004) 12 SCC 448; State of
Uttar v. Ambarish (2021) 16 SCC 371; Shakuntala Shukla v. State
of Uttar Pradesh [2021] 6 SCR 87 : (2021) 20 SCC 818; State
Bank of India v. Ajay Kumar Sood [2022] 17 SCR 507 : (2023) 7
SCC 282 - referred to.
Books and Periodicals Cited
Black's Law Dictionary; United Nations General Assembly's
Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power (1985); Advanced Law Lexicon by P Ramanatha
Aiyar, 6th Edition, Volume I; 154th Report of the Law Commission
of India of August, 1996; Justice Malimath Committee submitted
its report on 'Reforms of Criminal Justice System'; Report of the
Committee on the Draft National Policy on Criminal Justice; 221st
Report of the Law Commission of India.
List of Acts
Penal Code, 1860; Code of Criminal Procedure, 1973; Constitution
of India.
List of Keywords
Victim; Legal heir of injured victim; Victimology; Proviso to Section
372 CrPC; Appeals from convictions; Abatement of appeals; Power
2112
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of Appellate Court; Appeal in case of acquittal; Injury; Order of
acquittal; Right to prefer appeal; Right to prosecute an appeal;
Substitution of legal heir; Article 136 of Constitution; Legal heir
of deceased.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No(s).
1330-1332 of 2017
From the Judgment and Order dated 12.09.2012 of the High
Court of Uttarakhand at Nainital in CRLA Nos. 254, 258, and 259
of 2004
Appearances for Parties
Advs. for the Appellant:
Ms. Neema, Aruni Poddar, Ekta Muyal, Anit Kumar, Mrs. Shivani
Kumari.
Advs. for the Respondents:
Ratnakar Dash, Mrs. Kawaljit Kochar, Sr. Advs., Manan Verma,
Dr. Ajay Veer Pundir, Ms. Anu Gupta, Ali Jethmalani, Ms. Sanjana
Wason, Anurag Tomar, Rameshwar Prasad Goyal, Bhargava
V. Desai, Anil Makhija, Shivam Sharma, Deepanshu, Utkarsh
Vats.
Judgment / Order of the Supreme Court
Judgment
Nagarathna, J.
Being aggrieved by the common judgment dated 12.09.2012 passed
in Criminal Appeal Nos.254 of 2004, 258 of 2004, 259 of 2004 by
the High Court of Uttarakhand at Nainital, the original appellant
Khem Singh S/o Tarachand preferred these Special Leave Petitions
before this Court. By order dated 06.07.2017, leave was granted by
this Court and consequently, the Special Leave Petitions have been
converted to these Criminal Appeals.
[2025] 7 S.C.R.
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Khem Singh (D) Through LRs v.
State of Uttaranchal (Now State of Uttarakhand) & Another Etc.
Facts in Brief:
2.
For ease of reference, the private respondents herein, namely, i) Anil
@ Neelu; ii) Pramod; and iii) Ashok, who were accused Nos. 4, 3
and 2 respectively in S.T. No.133/1993 in the Court of Addl. District
& Sessions Judge, Haridwar (henceforth "Sessions Court"), are
henceforth referred to as 'respondents-accused'. The other accused
in S.T. No.133/1993, who were acquitted by the Sessions Court, are
referred to as 'other accused'.
2.1 Briefly stated, the facts of the case according to the prosecution
are that there was a long-standing previous enmity between
the respondents-accused and other accused and the original
informant and others. On 08.12.1992, there was some heated
exchange between them. The next day, i.e. on 09.12.1992, at
about 08.00 A.M., informant Tara Chand (P.W.1), his brother
Virendra Singh, and P.W.1's son Khem Singh (P.W.3) were
attacked by the respondents-accused and the other accused
using guns, sharp weapons, and bricks. As a result, Virendra
Singh passed away, and P.W.1 and P.W.3 sustained injuries.
On the arrival of villagers, all the accused managed to escape.
2.2 The specific roles attributed to the respondents-accused are
that: i) Accused No.2, Ashok, fired on Virendra Singh using a
gun; ii) Accused No.3, Pramod, fired on P.W.3 using a gun; and
iii) Accused No.4, Anil @ Neelu, fired on Smt. Mithilesh, wife
of P.W.3. On a complaint given by P.W.1 Tara Chand, Case
Crime No.547/92 dated 09.12.1992 was registered at P.S.
Jwalapur, District Haridwar against all the accused persons.
The respondents-accused were charged under Sections 148,
452, 302, 307, 149, 326, and 149 of the Indian Penal Code,
1860 (hereinafter, "IPC").
2.3 After examining all the material witnesses and after hearing
both the parties, the Sessions Court, vide judgment and order
dated 02.08.2004/04.08.2004 acquitted the other accused on
the ground that the role assigned to them was not fully proved.
However, the Sessions Court found that the case against the
respondents-accused was fully proved beyond all reasonable
doubt. The sentence passed against the respondents-accused
is as follows:
2114
[2025] 7 S.C.R.
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Name
of the
Accused
IPC
Section
found
guilty of
Punishment granted [R.I. -
Rigorous Imprisonment;
S.I. - Simple
Imprisonment]
Punishment
in default of
fine
Ashok
(A2)
S.302
R.I. for life + Rs.1000 fine
One month
S.I. for each
offence
Ss.307/34
Five years R.I. + Rs. 1000
fine
S.452
One month R.I. + Rs.1000
fine
Pramod
(A3) &
Anil @
Neelu
(A4)
Ss.302/34
R.I. for life + Rs.1000 fine
One month
S.I. for each
offence
S.307
Five years R.I. + Rs. 1000
fine
S.452
One month R.I. + Rs.1000
fine
2.4 Being aggrieved by the judgment and order of the Sessions
Court, the respondents-accused preferred Criminal Appeal
Nos.254, 258 and 259 of 2004 before the High Court of
Uttarakhand at Nainital. The High Court, vide common impugned
judgment and order dated 12.09.2012, allowed the criminal
appeals filed by the respondents-accused.
2.5 The second respondent in Criminal Appeal No.1330 of 2017
was appellant/Accused No.4-Anil @ Neelu in Criminal Appeal
No.254 of 2004 before the High Court. The second respondent
in Criminal Appeal No.1331 of 2017 was appellant/accused
No.3-Pramod in Criminal Appeal No.258 of 2004 before the
High Court. The second respondent in Criminal Appeal No.1332
of 2017 was appellant/accused No.2-Kali Ram in Criminal
No.259 of 2004 before the High Court. For ease of reference,
henceforth the second respondent in these appeals, who are
accused Nos.4, 3 and 2 respectively, are referred to as accused
in these appeals. The State's Appeal No.47 of 2008 was also
disposed of by the High Court along with the aforesaid appeals.
INTERLOCUTORY APPLICATION NOS.11322/2025,
11329/2025 & 131604 OF 2025 IN CRIMINAL APPEAL
NOS.1330-1332 OF 2017:
2.6 During the pendency of these appeals, son of original appellantKhem Singh (since deceased) - Raj Kumar filed an application
[2025] 7 S.C.R.
2115
Khem Singh (D) Through LRs v.
State of Uttaranchal (Now State of Uttarakhand) & Another Etc.
seeking setting aside of the abatement and for substitution.
Consequently, IA No.11322/2025 (application for seeking setting
aside of the abatement), IA No.11329/2025 (application seeking
condonation of delay in filing application for setting aside of
abatement), and IA No.131604/2024 (application for substitution)
have been preferred.
Submissions:
3.
Learned counsel for the applicant contended that having regard to
the proviso to Section 372 of the Code of Criminal Procedure, 1973
(for short, "CrPC"), the substitution applications may be allowed
by condoning the delay in filing the said application. He further
contended that the original appellant was aggrieved by the acquittal
of accused Nos.4, 3 and 2 respectively by the High Court when, in
fact, they had been convicted and sentenced to life imprisonment
and fine by the Sessions Court and hence, the original appellant
herein preferred these appeals.
3.1 It was also brought to our notice that these appeals assume
significance due to the fact that the State has not preferred any
appeal as against the judgment and order of acquittal passed by
the High Court by way of the impugned judgment and order. In
the circumstances, in view of the proviso to Section 372 CrPC as
well as the definition of 'Victim' laid down under Section 2(wa) of
CrPC as well as the principles adumbrated by the Constitution
Bench of this Court in PSR Sadhanantham vs. Arunachalam
(1980) 3 SCC 141 ("PSR Sadhanantham"), the substitution
applications may be allowed; the abatement may be set aside;
the delay in filing the applications for seeking setting aside of
the abatement may be condoned and the applicant may be
substituted in place of the original appellant and the appeals
may be heard on merits.
3.2 In this regard, learned counsel for the applicant also submitted
that the proviso to Section 372 CrPC which has the expression
'the right to prefer an appeal' would also include 'the right
to prosecute an appeal'. In the circumstances, the right to
prosecute an appeal given to a legal heir of the victim must
also be construed to extend to a case where the legal heir of
the original appellant, who was also an injured victim in the
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instant case must be brought on record. Moreover, the applicant
is also an injured victim. It was contended that the delay in
filing the applications for setting aside of the abatement and
in filing the application for substitution was owing to the long
pendency of these appeals before this Court as well as due
to bona fide reasons. In this regard, learned counsel for the
applicant submitted that the reason as to why the applications
have to be allowed in these cases is also owing to the fact
that the High Court, by the impugned judgment, which is a
cryptic one as is evident by the manner in which the same
has been written, has allowed the appeals filed by the accused
and consequently acquitted them. In the circumstances, the
applications may be allowed and in the place of the original
appellant, who is since deceased, the applicant, his son, who
is also an injured victim may be substituted so as to prosecute
these appeals.
3.3 Per contra, learned senior counsel and learned counsel for the
respondent(s) vehemently objected to the applications being
allowed. In this regard, they drew our attention to Section
394 CrPC and contended that although the said provision
refers to an appeal filed against a conviction, sub-section
(1) of Section 394 CrPC deals with abatement of an appeal
on the death of an accused when the appeal was filed under
Sections 377 or 378 CrPC. The expression, "every other appeal
under this Chapter" in sub-section (2) of Section 394 CrPC
is significant inasmuch as the said sub-section lays down
that apart from an appeal filed under Section 377 or Section
378 CrPC, every other appeal under the Chapter shall finally
abate on the death of the appellant; that the CrPC has not
defined the expression "appellant", and it could be either a
victim or a complainant, who is the appellant, or it could also
be the convict or the accused who is an appellant; that the
proviso expressly deals with a case where the accused or the
convict is the appellant and if he dies during the pendency
of the appeal, the legal heirs of such an accused can be
brought on record to continue the appeal and they can seek
an acquittal if the appeal had been filed under Section 377
or Section 378 CrPC or on any other ground. However, the
said proviso does not extend to a case where an appeal is
[2025] 7 S.C.R.
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Khem Singh (D) Through LRs v.
State of Uttaranchal (Now State of Uttarakhand) & Another Etc.
filed by a victim or a legal heir of a victim under the proviso to
Section 372 CrPC. It was further submitted that the expression
'near relative' in the proviso to sub-section (2) of Section 394
CrPC is of a wider connotation to include a parent, spouse,
lineal descendant, brother or sister, but such an expression
cannot be applied in the case of substitution of an original
victim who had preferred an appeal on his demise during the
pendency of his appeal.
3.4 In the above circumstances, they contended that the applications
may be dismissed. Consequently, the appeal may also be
dismissed as having abated since the original appellant has
died during the pendency of the appeals before this Court.
Points for Consideration:
4.
Having heard learned counsel for the parties, the following points
arise for our consideration:
(a) Whether the applicant is entitled to be substituted in place of the
original appellant so as to continue to prosecute these appeals?
(b) What order?
5.
We have considered the arguments advanced at the bar in light of the
provisions of the CrPC. It is noted that while Sections 377 and 378
CrPC were on the statute book even at the time of the enforcement
of the CrPC, on the basis of the reports of the Law Commission,
an amendment was made to Section 372 CrPC by insertion of
the proviso thereto with effect from 31.12.2009. Consequently, the
definition of 'victim' was also inserted to Section 2(wa) of CrPC
which reads as under:
"2(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;"
5.1 Simultaneously, proviso to Section 372 CrPC was inserted
which reads as under:
"372. No appeal to lie unless otherwise provided.-
No appeal shall lie from any judgment or order of a
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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."
5.2 A conjoint reading of the proviso to Section 372 CrPC in light
of the definition in Section 2(wa) of CrPC, would lead to the
conclusion that the expression 'victim' is not restricted to 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. It also includes a person who is a guardian or legal
heir of a victim as defined above.
5.3 In the instant cases, the legal heir of the injured victim and
himself being an injured victim had preferred these appeals
as he had every right to do so particularly having regard to
amendment made to the CrPC with effect from 31.12.2009
by insertion of the proviso to Section 372 CrPC. However, the
contentious issue in these cases is, whether a legal heir of a
legal heir, who had preferred these appeals, could also continue
to prosecute these appeals as during the pendency of these
appeals the original appellant has died. We are considering
this issue irrespective of the fact that the applicant who seeks
substitution as an appellant in these appeals is himself an
injured victim in the incident and in his own right could have
filed appeals against the acquittal of the accused. However, he
has filed the applications for substitution in place of his father
as a legal heir of an injured victim, the original appellant in
these appeals.
5.4 We have considered the arguments advanced at the bar in
light of the amendment made to Section 372 CrPC and also
the insertion of the expression 'Victim' by way of a definition
clause to Section 2 of the Act extracted above and generally in
light of Article 14 of the Constitution including the right to equal
opportunity before law and right to access to justice.
[2025] 7 S.C.R.
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Khem Singh (D) Through LRs v.
State of Uttaranchal (Now State of Uttarakhand) & Another Etc.
6.
In Mallikarjun Kodagali (dead) represented through Legal
representatives vs. State of Karnataka, (2019) 2 SCC 752
("Mallikarjun Kodagali"), there is a reference to four reports that
have dealt with the rights of victims of crime and the remedies
available to them. The same may be briefly discussed as under:
i.
The first report is the 154th Report of the Law Commission of
India of August, 1996. The said Report touched upon, inter
alia, compensation to be paid to the victim of crime, their
rehabilitation, etc.
ii.
In March 2003, Justice Malimath Committee submitted its report
on 'Reforms of Criminal Justice System'. Paragraph 2.21 in
the Chapter on Adversarial Rights under the sub-heading of
'Victims Right to Appeal', states as under:
"2.21. The victim or his representative who is a party
to the trial should have a right to prefer an appeal
against any adverse order passed by the trial court.
In such an appeal he could challenge the acquittal,
or conviction for a lesser offence or inadequacy of
sentence, or in regard to compensation payable to
the victim. The appellate court should have the same
powers as the trial court in regard to assessment of
evidence and awarding of sentence."
There is also discussion on other rights of victims under the
Chapter titled, 'Justice to Victims'. In paragraph 6.(14)(v), Justice
Malimath Committee made the following recommendations:
"6. (14)(v) The victim shall have a right to prefer an
appeal against any adverse order passed by the
court acquitting the accused, convicting for a lesser
offence, imposing inadequate sentence, or granting
inadequate compensation. Such appeal shall lie to
the court to which an appeal ordinarily lies against
the order of conviction of such court."
iii.
In July 2007, a Report of the Committee on the Draft National
Policy on Criminal Justice was submitted which is also
known as 'Professor Madhava Menon Committee Report'.
Observations with regard to providing victim-oriented criminal
justice and a balance between the constitutional rights of an
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accused and victim of crime have been discussed. One of the
suggestions made is that the victim must be impleaded in the
trial proceedings so that such a party would have a right to
file an appeal against an adverse order, particularly an order
of acquittal.
iv.
In the 221st Report of the Law Commission of India submitted
in April, 2009, it has been noted that as the law then stood,
an aggrieved person could not file an appeal against an order
of acquittal. However, a revision petition could be filed. Noting
that the powers of a revisional court are limited and the process
involved is cumbersome, a recommendation was made by the
Law Commission that as against an order of acquittal passed
by a Magistrate, a victim should be entitled to file an appeal
before the revisional court. Similarly, in complaint cases, the
appeal should be provided to the Sessions Court instead of
the High Court. However, it was suggested that the aggrieved
person or complainant should have the right to prefer an appeal
with the leave of the appellate court.
v.
It was further recommended that Section 378 CrPC requires an
amendment with a view to enable filing of appeals in complaint
cases also in the Sessions Court, of course, subject to the grant
of special leave by it. Limited scope of powers of a revisional
court under Section 401 CrPC was taken note of and it was
suggested that there is a need to amend the CrPC.
6.1 Taking note of the aforesaid reports, an amendment was brought
to Section 372 CrPC with effect from 31.12.2009 by adding a
proviso thereto.
6.2 The decisions of the Full Benches of the High Courts in the
matter of interpretation of the proviso to Section 372 CrPC are
highlighted by this Court in the case of Mallikarjun Kodagali.
There are also Division Bench decisions of the High Courts
taking different views.
Mallikarjun Kodagali:
6.3 This Court in Mallikarjun Kodagali, speaking through Lokur,
J. for himself and Nazeer, J. referred to the Declaration of the
Basic Principles of Justice for Victims of Crime and Abuse of
Power adopted by the General Assembly of the United Nations
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Khem Singh (D) Through LRs v.
State of Uttaranchal (Now State of Uttarakhand) & Another Etc.
in the 96th Plenary Session on 29.11.1985. It was observed in
paragraphs 74, 75 & 76 as under:
"74. Putting the Declaration to practice, it is quite
obvious that the victim of an offence is entitled to
a variety of rights. Access to mechanisms of justice
and redress through formal procedures as provided
for in national legislation, must include the right to
file an appeal against an order of acquittal in a case
such as the one that we are presently concerned
with. Considered in this light, there is no doubt that
the proviso to Section 372 CrPC must be given life,
to benefit the victim of an offence.
75. Under the circumstances, on the basis of the
plain language of the law and also as interpreted by
several High Courts and in addition the resolution
of the General Assembly of the United Nations, it is
quite clear to us that a victim as defined in Section
2(wa) CrPC would be entitled to file an appeal before
the Court to which an appeal ordinarily lies against
the order of conviction. ...
76. ... The language of the proviso to Section 372
CrPC is quite clear, particularly when it is contrasted
with the language of Section 378(4) CrPC. The text
of this provision is quite clear and it is confined to an
order of acquittal passed in a case instituted upon a
complaint. The word "complaint" has been defined in
Section 2(d) CrPC and refers to any allegation made
orally or in writing to a Magistrate. This has nothing
to do with the lodging or the registration of an FIR,
and therefore it is not at all necessary to consider
the effect of a victim being the complainant as far
as the proviso to Section 372 CrPC is concerned."
6.4 Consequently, the appeals in the said case were allowed
and the judgment and order of the High Court was set aside
and the matter was remanded to the High Court to hear and
decide the appeal against the judgment and order of acquittal
once again.
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Analysis of the Relevant Provisions of CrPC:
7.
Section 2 CrPC is the definition clause under which relevant definitions
are extracted as under:
"2. Definitions.-In this Code, unless the context
otherwise requires,-
xxx
(d) "complaint" means any allegation made orally or
in writing to a Magistrate, with a view to his taking
action under this Code, that some person, whether
known or unknown, has committed an offence, but
does not include a police report.
Explanation.-A report made by a police officer
in a case which discloses, after investigation, the
commission of a non-cognizable offence shall be
deemed to be a complaint; and the police officer by
whom such report is made shall be deemed to be
the complainant;
xxx
(n) "offence" means any act or omission made
punishable by any law for the time being in force and
includes any act in respect of which a complaint may
be made under section 20 of the Cattle Trespass Act,
1871 (1 of 1871);
xxx
24. Public Prosecutors.-
xxx
(8) The Central Government or the State Government
may appoint, for the purposes of any case or class
of cases, a person who has been in practice as an
advocate for not less than ten years as a Special
Public Prosecutor:
Provided that the Court may permit the victim to
engage an advocate of his choice to assist the
prosecution under this sub-section.
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Khem Singh (D) Through LRs v.
State of Uttaranchal (Now State of Uttarakhand) & Another Etc.
CHAPTER XXIX
APPEALS
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 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.
xxx
377. Appeal by the State Government against
sentence.-(1) Save as otherwise provided in
sub-section (2), the State Government may, in any
case of conviction on a trial held by any Court other
than a High Court, direct the Public Prosecutor to
present an appeal against the sentence on the ground
of its inadequacy-
(a) to the Court of Session, if the sentence is passed
by the Magistrate; and
(b) to the High Court, if the sentence is passed by
any other Court.
(2) If such conviction is in a case in which the
offence has been investigated by the Delhi Special
Police Establishment, constituted under the Delhi
Special Police Establishment Act, 1946 (25 of
1946), or by any other agency empowered to make
investigation into an offence under any Central Act
other than this Code, the Central Government may
also direct the Public Prosecutor to present an
appeal against the sentence on the ground of its
inadequacy-
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(a) to the Court of Session, if the sentence is passed
by the Magistrate; and
(b) to the High Court, if the sentence is passed by
any other Court.
(3) When an appeal has been filed against the
sentence on the ground of its inadequacy, the Court
of Session or, as the case may be, the High Court
shall not enhance the sentence except after giving
to the accused a reasonable opportunity of showing
cause against such enhancement and while showing
cause, the accused may plead for his acquittal or for
the reduction of the sentence.
(4) When an appeal has been filed against a sentence
passed under section 376, section 376A, section
376AB, section 376B, section 376C, section 376D,
section 376DA, section 376DB or section 376E of the
Indian Penal Code (45 of 1860), the appeal shall be
disposed of within a period of six months from the
date of filing of such appeal.
378. Appeal in case of acquittal.-(1) Save as
otherwise provided in sub-section (2), and subject to
the provisions of sub-sections (3) and (5),-
(a) the District Magistrate may, in any case, direct
the Public Prosecutor to present an appeal
to the Court of Session from an order of
acquittal passed by a Magistrate in respect of
a cognizable and non-bailable offence;
(b) the State Government may, in any case, direct
the Public Prosecutor to present an appeal to the
High Court from an original or appellate order
of acquittal passed by any Court other than a
High Court not being an order under clause (a)
or an order of acquittal passed by the Court of
Session in revision.
(2) If such an order of acquittal is passed in any case
in which the offence has been investigated by the
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Khem Singh (D) Through LRs v.
State of Uttaranchal (Now State of Uttarakhand) & Another Etc.
Delhi Special Police Establishment constituted under
the Delhi Special Police Establishment Act, 1946
(25 of 1946), or by any other agency empowered to
make investigation into an offence under any Central
Act other than this Code, the Central Government
may, subject to the provisions of sub-section (3), also
direct the Public Prosecutor to present an appeal-
(a) to the Court of Session, from an order of
acquittal passed by a Magistrate in respect of
a cognizable and non-bailable offence;
(b) to the High Court from an original or appellate
order of an acquittal passed by any Court other
than a High Court not being an order under
clause (a) or an order of acquittal passed by
the Court of Session in revision.
(3) No appeal to the High Court under sub-section (1)
or sub-section (2) shall be entertained except with
the leave of the High Court.
(4) If such an order of acquittal is passed in any
case instituted upon complaint and the High Court,
on an application made to it by the complainant in
this behalf, grants special leave to appeal from the
order of acquittal, the complainant may present such
an appeal to the High Court.
(5) No application under sub-section (4) for the grant
of special leave to appeal from an order of acquittal
shall be entertained by the High Court after the expiry
of six months, where the complainant is a public
servant, and sixty days in every other case, computed
from the date of that order of acquittal.
(6) If, in any case, the application under sub-section (4)
for the grant of special leave to appeal from an order
of acquittal is refused, no appeal from that order
of acquittal shall lie under sub-section (1) or under
sub-section (2).
xxx
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386. Powers of the Appellate Court.-After perusing
such record and hearing the appellant or his pleader,
if he appears, and the Public Prosecutor if he appears,
and in case of an appeal under section 377 or section
378, the accused, if he appears, the Appellate Court
may, if it considers that there is no sufficient ground
for interfering, dismiss the appeal, or may-
(a) in an appeal from an order or acquittal, reverse
such order and direct that further inquiry
be made, or that the accused be re-tried or
committed for trial, as the case may be, or find
him guilty and pass sentence on him according
to law;
(b) in an appeal from a conviction-
(i)
reverse the finding and sentence and
acquit or discharge the accused, or order
him to be re-tried by a Court of competent
jurisdiction subordinate to such Appellate
Court or committed for trial, or
(ii)
alter the finding, maintaining the sentence,
or
(iii) with or without altering the finding, alter
the nature or the extent, or the nature and
extent, of the sentence, but not so as to
enhance the same-
(c)
in an appeal for enhancement of sentence-
(i)
reverse the finding and sentence and acquit
or discharge the accused or order him to
be re-tried by a Court competent to try the
offence, or
(ii)
alter the finding maintaining the sentence,
or
(iii) with or without altering the finding, alter
the nature or the extent, or, the nature and
extent, of the sentence, so as to enhance
or reduce the same;
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(d) in an appeal from any other order, alter or
reverse such order;
(e) make any amendment or any consequential
or incidental order that may be just or proper:
Provided that the sentence shall not be enhanced
unless the accused has had an opportunity of
showing cause against such enhancement:
Provided further that the Appellate Court shall
not inflict greater punishment for the offence
which in its opinion the accused has committed,
than might have been inflicted for that offence
by the Court passing the order or sentence
under appeal.
394. Abatement of appeals. (1) Every appeal under
Section 377 or Section 378 shall finally abate on the
death of the accused.
(2) Every other appeal under this Chapter (except
an appeal from a sentence of fine) shall finally abate
on the death of the appellant:
Provided that where the appeal is against a conviction
and sentence of death or of imprisonment, and the
appellant dies during the pendency of the appeal,
any of his near relatives may, within thirty days of
the death of the appellant, apply to the Appellate
Court for leave to continue the appeal; and if leave
is granted, the appeal shall not abate.
Explanation.- In this section, "near relative" means a
parent, spouse, lineal descendant, brother or sister."
7.1 Chapter XXIX of the CrPC deals with appeals. The said Chapter
delineates the statutory framework governing appeals. Section
372 CrPC unequivocally declares that no appeal shall lie from
any judgment or order of a criminal court except as provided
for by the CrPC itself or by any other law for the time being
in force. In fact, Section 372 CrPC speaks of an embargo on
the filing of an appeal from any judgment or order of a criminal
court except as provided for by the CrPC or by any other law
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for the time being in force. Section 372 CrPC is couched in a
negative language and it states that no appeal shall lie from
any judgment or order of a criminal court except as provided
for by the CrPC or by any other law for the time being in force.
Section 372 CrPC is a preface to the chapter on appeals
which in substance states that an appeal can be filed only in
accordance with what has been stated in the provisions to follow
Section 372 CrPC. The proviso to Section 372 was introduced
by the Code of Criminal Procedure (Amendment) Act, 2008
(Act 5 of 2009), which came into effect from 31.12.2009. By
virtue of this amendment, a limited right of appeal has been
conferred upon the victim of an offence. On a reading of the
proviso to Section 372 CrPC, it is apparent that a victim shall
have a right to prefer an appeal against: (i) any order passed
by the court acquitting the accused; or (ii) convicting for a
lesser offence; or (iii) imposing inadequate compensation.
Such appeal shall lie to the court to which an appeal ordinarily
lies against the order of conviction of such court.