# MALLIKARJUN KODAGALI (DEAD) REPRESENTED THROUGH LEGAL REPRESENTATIVES v. THE STATE OF KARNATAKA & ORS

- **Citation:** [2018] 13 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2018-10-12
- **Case number:** Criminal Appeal Nos. 1281-1282 of 2018
- **Bench:** Madan B. Lokur, Deepak Gupta, S. Abdul Nazeer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mallikarjun-kodagali-dead-represented-through-legal-representatives-v-the-state-32464
- **Pages:** 46

## Headnote

Code of Criminal Procedure, 1973:
s. 372 proviso (introduced w.e.f. 31.12.2009) - Right of appeal
against acquittal to the victim of an offence - Requirement of
seeking leave of the High Court - On facts, alleged offence took
place in February 2009 - Order of acquittal passed by the trial
court in October 2013 - Appeal filed under proviso to s. 372 by the
victim - Dismissed by the High Court as not maintainable holding
that the proviso to s. 372 introduced w.e.f. 31.12.2009 but the
incident had occurred well before that date - On appeal, held: (Per
Lokur J) 'Victim' as defined in the Cr.P.C. has a right of appeal in
view of the proviso to s. 372 against an order of acquittal in a case
where the alleged offence took place prior to 31.12.2009 but the
order of acquittal was passed by the trial court after 31.12.2009 -
Victim can file appeal without seeking leave to appeal against the
order of acquittal - Held: (Per Gupta J: Partly dissenting) When the
victim files an appeal against acquittal in the High Court he has to
seek leave to appeal u/s. 378(3) CrPC.
s. 372 proviso - Connotation of - Held: Proviso to s. 372
must be given a meaning that is realistic, liberal, progressive and
beneficial to the victim of an offence.
Criminal law: Rights of victims of crime - Held: Rights of an
accused far outweigh the rights of the victim of an offence in many
respects - There needs to be some balancing of the concerns and
equalising their rights so that the criminal proceedings are fair to
both - Judiciary is obliged to go and has gone beyond merely
awarding compensation and has taken into consideration the larger
picture from the perspective of the victim of an offence - Rights of
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[2018] 13 S.C.R.
victims, and indeed victimology, is an evolving jurisprudence and it
is more than appropriate to move forward in a positive direction,
rather than stand still or worse, take a step backward - Voice given
to victims of crime by Parliament and the judiciary, needs to be
heard, and if not heard, to be raised to a higher decibel.
Allowing the appeals, the Court
HELD: Per Madan B. Lokur, J (for himself & S. Abdul Nazeer,J.):
1.1 The right to file an appeal is a substantive right and it
should not be easily recognized unless specifically conferred by
statute. It has been held that the right to appeal is not a mere
matter of procedure but is a substantive right. [Para 71][34-D]
Garikapati Veeraya v. N. Subbiah Choudhry [1957]
SCR 488 - followed.
1.2 It is significant that several High Courts have taken a
consistent view to the effect that the victim of an offence has a
right of appeal under the proviso to Section 372 Cr.P.C. This
view is in consonance with the plain language of the proviso. But
what is more important is that several High Courts have also
taken the view that the date of the alleged offence has no relevance
to the right of appeal. It has been held that the significant date is
the date of the order of acquittal passed by the trial court. In a
sense, the cause of action arises in favour of the victim of an
offence only when an order of acquittal is passed and if that
happens after 31st December, 2009 the victim has a right to
challenge the acquittal, through an appeal. Indeed, the right not
only extends to challenging the order of acquittal but also
challenging the conviction of the accused for a lesser offence or
imposing inadequate compensation. The language of the proviso
is quite explicit, and nuances that do not exist in the provisos
should not be read. [Para 74][35-B-D]
1.3 The proviso to Section 372 Cr.P.C. must also be given
a meaning that is realistic, liberal, progressive and beneficial to
the victim of an offence. There is a historical reason for this,
beginning with the Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power, adopted by the General
Assembly of the United Nations in the 96th Plenary Session on
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29th November, 1985. The Declaratio

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[2018] 13 S.C.R. 1
 1
MALLIKARJUN KODAGALI (DEAD) REPRESENTED
THROUGH LEGAL REPRESENTATIVES
v.
 THE STATE OF KARNATAKA & ORS.
(Criminal Appeal Nos. 1281-1282 of 2018)
OCTOBER 12, 2018
[MADAN B. LOKUR, DEEPAK GUPTA AND
S. ABDUL NAZEER, JJ.]
Code of Criminal Procedure, 1973:
s. 372 proviso (introduced w.e.f. 31.12.2009) - Right of appeal
against acquittal to the victim of an offence - Requirement of
seeking leave of the High Court - On facts, alleged offence took
place in February 2009 - Order of acquittal passed by the trial
court in October 2013 - Appeal filed under proviso to s. 372 by the
victim - Dismissed by the High Court as not maintainable holding
that the proviso to s. 372 introduced w.e.f. 31.12.2009 but the
incident had occurred well before that date - On appeal, held: (Per
Lokur J) 'Victim' as defined in the Cr.P.C. has a right of appeal in
view of the proviso to s. 372 against an order of acquittal in a case
where the alleged offence took place prior to 31.12.2009 but the
order of acquittal was passed by the trial court after 31.12.2009 -
Victim can file appeal without seeking leave to appeal against the
order of acquittal - Held: (Per Gupta J: Partly dissenting) When the
victim files an appeal against acquittal in the High Court he has to
seek leave to appeal u/s. 378(3) CrPC.
s. 372 proviso - Connotation of - Held: Proviso to s. 372
must be given a meaning that is realistic, liberal, progressive and
beneficial to the victim of an offence.
Criminal law: Rights of victims of crime - Held: Rights of an
accused far outweigh the rights of the victim of an offence in many
respects - There needs to be some balancing of the concerns and
equalising their rights so that the criminal proceedings are fair to
both - Judiciary is obliged to go and has gone beyond merely
awarding compensation and has taken into consideration the larger
picture from the perspective of the victim of an offence - Rights of
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[2018] 13 S.C.R.
victims, and indeed victimology, is an evolving jurisprudence and it
is more than appropriate to move forward in a positive direction,
rather than stand still or worse, take a step backward - Voice given
to victims of crime by Parliament and the judiciary, needs to be
heard, and if not heard, to be raised to a higher decibel.
Allowing the appeals, the Court
HELD: Per Madan B. Lokur, J (for himself & S. Abdul Nazeer,J.):
1.1 The right to file an appeal is a substantive right and it
should not be easily recognized unless specifically conferred by
statute. It has been held that the right to appeal is not a mere
matter of procedure but is a substantive right. [Para 71][34-D]
Garikapati Veeraya v. N. Subbiah Choudhry [1957]
SCR 488 - followed.
1.2 It is significant that several High Courts have taken a
consistent view to the effect that the victim of an offence has a
right of appeal under the proviso to Section 372 Cr.P.C. This
view is in consonance with the plain language of the proviso. But
what is more important is that several High Courts have also
taken the view that the date of the alleged offence has no relevance
to the right of appeal. It has been held that the significant date is
the date of the order of acquittal passed by the trial court. In a
sense, the cause of action arises in favour of the victim of an
offence only when an order of acquittal is passed and if that
happens after 31st December, 2009 the victim has a right to
challenge the acquittal, through an appeal. Indeed, the right not
only extends to challenging the order of acquittal but also
challenging the conviction of the accused for a lesser offence or
imposing inadequate compensation. The language of the proviso
is quite explicit, and nuances that do not exist in the provisos
should not be read. [Para 74][35-B-D]
1.3 The proviso to Section 372 Cr.P.C. must also be given
a meaning that is realistic, liberal, progressive and beneficial to
the victim of an offence. There is a historical reason for this,
beginning with the Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power, adopted by the General
Assembly of the United Nations in the 96th Plenary Session on
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29th November, 1985. The Declaration is sometimes referred to
as the Magna Carta of the rights of victims. One of the significant
declarations made was in relation to access to justice for the victim
of an offence through the justice delivery mechanisms, both formal
and informal. 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
instant one. Considered in this light, the proviso to Section 372
Cr.P.C. must be given life, to benefit the victim of an offence.
Under the circumstances, on the basis of the plain language of
the law and also as interpreted by several High Courts and the
resolution of the General Assembly of the United Nations, it is
quite clear that a victim as defined in Section 2(wa) Cr.P.C. would
be entitled to file an appeal before the Court to which an appeal
ordinarily lies against the order of conviction. It must follow that
the appeal filed by the appellant before the High Court was
maintainable and ought to have been considered on its own
merits. [Para 75-77][35-E-F; 36-G-H; 37-A-B]
1.5 The language of the proviso to Section 372 Cr.P.C. is
quite clear, particularly when it is contrasted with the language of
Section 378(4). 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) 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 Cr.P.C. is concerned. [Para 78][37-C-D]
1.6 The judgment and orders passed by the High Court are
set aside and the matters are remitted back to the High Court to
hear and decide the appeal. [Para 79][37-E]
National Commission for Women v. State of Delhi and
anr (2010) 12 SCC 599 : [2010] 10 SCR 905; Satya
Pal Singh v. State of MP & Ors. (2015) 15 SCC 613 -
distinguished.
MALLIKARJUN KODAGALI (DEAD) REP. THR. LRS. v.
THE STATE OF KARNATAKA
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[2018] 13 S.C.R.
Lalita Kumari v. Government of Uttar Pradesh (2014)
2 SCC 1 : [2013] 14 SCR 713; Girish Kumar Suneja v.
Central Board of Investigation (2017) 14 SCC 809; Hari
Singh v. Sukhbir Singh AIR 1988 SC 2127 : [1988] 2
Suppl. SCR 571; Bodhisattwa Gautam v. Subhra
Chakroborty AIR 1996 SC 922 : [1995] 6 Suppl. SCR
731; Ankush Shivaji Gaikwad v. State of Maharashtra
(2013) 6 SCC 770 : [2013] 8 SCR 863; Sampurna
Behura v. Union of India (2018) 4 SCC 433; Sakshi v.
Union of India (2004) 5 SCC 518 : [2004] 2 Suppl.
SCR 723; Bhavuben Dineshbhai Makwana v. State of
Gujarat MANU/GJ/1137/2012; Mahafuja Banu v. Md.
Asadul Islam & State. (2013) 1 Cal LT 109; Gouranga
Debnaih v. State of Tripura 2011 (4) GLT 379; T.
Balakrishnan Master v. K.M. Ramachandran Master
Crl. M.A. No. 7423 of 2011; Tata Steel v. Atma Tube
Products Ltd. (2014) 173 (1) PLR 1; Smt. Ram Kaur @
Jaswinder Kaur v. Jagbir Singh alias Jabi and others
MANU/PH/4500/2010; Guru Prasad Yadav v. State of
Bihar Crl Appeal No. 582 of 2011; Ram Phal v. State &
Ors. 2015 (151) DRJ 562; Parmeshwar Mandal v. State
of Bihar 2014 (1) PLJR 377; Baldev Sharma v. Gopal
& Ors 2017 (3) RLW 2604 (Raj.); Vanaja K.C. v. State
of Kerala & Ors. ILR 2016 (2) Kerala 713;
D. Sudhakar v. Panapu Sreenivasulu @ Evone Water
Sreenivasulu and Ors. MANU/AP/1172/2012; John v.
Shibu Cherian MANU/KE/1839/2011; Bhisam Prasad
Bareth v. Dinesh Mahant & Ors. MANU/CG/0079/2012
- referred to.
Case Law Reference
[2013] 14 SCR 713
referred to
Para 3
(2017) 14 SCC 809
referred to
Para 4
[1988] 2 Suppl. SCR 571
referred to
Para 4
[1995] 6 Suppl. SCR 731
referred to
Para 4
[2013] 8 SCR 863
referred to
Para 4
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(2018) 4 SCC 433
referred to
Para 4
[2004] 2 Suppl. SCR 723
referred to
Para 5
(2013) 1 Cal LT 109
referred to
Para 38
2011 (4) GLT 379
referred to
Para 39
(2014) 173 (1) PLR 1
referred to
Para 44
2015 (151) DRJ 562
referred to
Para 48
2014 (1) PLJR 377
referred to
Para 50
2017 (3) RLW 2604 (Raj.)
referred to
Para 51
ILR 2016 (2) Kerala 713
referred to
Para 58
(2015) 15 SCC 613
distinguished
Para 70
[1957] SCR 488
followed
Para 71
[2010] 10 SCR 905
distinguished
Para 73
Per Deepak Gupta, J. (Partly Dissenting):
1.1 The proviso to Section 372 of the Code of Criminal
Procedure, must be given a meaning that is realistic, liberal,
progressive and beneficial to the victims of the offences. However,
at the same time, one cannot ignore the rights of the accused and
the procedure prescribed by law. It cannot be accepted that a
victim can file an appeal in the High Court without seeking
leave to appeal in terms of Section 378(3) CrPC. [Paras 1, 2]
[37-H; 38-A-B]
1.2 It is accepted that the right to file an appeal to the victim
will arise only on the date when the judgment is passed by the
trial court because then alone the victim has a right to urge that
the acquittal is wrong or that the sentence awarded to the accused
is not commensurate with the offence which the accused may
have committed. Therefore, there is no doubt that the victim has
a right to appeal and to that extent the judgment of the High
Court is liable to be set aside. [Para 4][39-H; 40-A-B]
MALLIKARJUN KODAGALI (DEAD) REP. THR. LRS. v.
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1.3 Prior to the amendment of Section 372 CrPC the victim
had no right to file an appeal. The traditional view has always
been that the State represents the victim of the crime. Criminal
offences have always been treated to be offences against the State
and it is the State alone which investigated and prosecuted such
cases. In case the State machinery does not take action on the
complaint of the victim, the said victim has a right under Section
156 CrPC to approach the court. Under Section 156(3) CrPC,
the magistrate may order an investigation to be done by the police.
Once the investigation is done, then again the victim has no hand
in the investigation except to assist the investigating officer and
to bring evidence to the notice of the investigating officer. After
investigation, the investigating officer files a final report under
Section 173 CrPC. The investigating officer may come to the
conclusion that either no offence is made out or may file report
showing what offences are made out in which case the court
proceeds further. Even in those cases where the investigating
agency files a report that no criminal offence is made out, the
victim has a right to object to the report and he can argue before
the court that a case is made out on the basis of the evidence
collected or he can even urge that the police must be directed to
carry out further and more investigation. [Para 6][41-D-G]
1.4 Chapter XXIX of the CrPC deals with appeals. Appeals
against acquittal are governed by Section 378 of CrPC. An analysis
of Section 378 of CrPC clearly shows that the CrPC envisaged
and granted a predominant role to the State. It was the State alone
which was entitled to file an appeal. The only exception was in
complaint cases where the complainant could file an appeal. He
also had to seek special leave to appeal in case the appeal lay to
the High Court. [Para 7][41-H; 42-D, E]
1.5 Section 372 CrPC which was amended in the year 2008
to give a right to the victim is a negative section which specifically
provided, before its amendment, that no appeal would lie from
any judgment or order of a criminal Court except as provided for
by the CrPC or by any other law in force. The Legislature while
giving a victim the right to appeal did not, for reasons best known
to it, give this right to file appeal to the victim under Section 378
CrPC or any other specific section. Surprisingly this right to the
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victim was given as a proviso to Section 372 CrPC. This proviso
is not very happily worded. Be that as it may, the fact is that a
victim now has a right to appeal under this proviso. He can file
the appeal against the orders stated therein. [Para 8][42-E-G]
1.6 The presumption of innocence which is attached to every
accused gets fortified and strengthened when the said accused is
acquitted by the trial court. Probably, for this reason, the law
makers felt that when the appeal is to be filed in the High Court
it should not be filed as a matter of course or as matter of right
but leave of the High Court must be obtained before the appeal
is entertained. Therefore, the High Court would at the initial stage
of deciding whether the leave is to be granted or not go into the
merits of the case. Only if arguable points are involved, the High
Court normally grants leave to appeal. This would not only prevent
the High Court from being flooded with appeals but more
importantly would ensure that innocent persons who have already
faced the tribulation of a long drawn out criminal trial are not
again unnecessarily dragged to the High Court.[Para 9][43-B-D]
1.7 Under Section 378 CrPC an appeal against the order of
acquittal passed by a Magistrate in respect of cognizable and nonbailable offences lies to the Sessions Court and no leave to appeal
is required. From the Court of Magistrate it is only appeals in
respect of offences which are non-cognizable and bailable i.e. less
serious offences which would lie to the High Court. In such cases,
leave to appeal is a pre-requisite. This was done with a view to
ensure that the persons who had faced trial for relatively lesser
offences should not have to bear the expenses of an appeal in the
High Court. The other appeals which lie to the High Court are
appeals from the Court of Sessions. These are serious criminal
matters and relate to much graver offences. The concept of leave
to appeal was probably introduced because these cases are
decided by relatively senior Judges-Sessions Judges. Legislature
felt that in such cases also the appeals against acquittals must be
scrutinized with greater care. [Para 10][43-E-G]
1.8 Even a complainant when he files an appeal against an
order of acquittal in a case instituted upon a complaint is required
to obtain special leave to appeal. It is true that the proviso to
MALLIKARJUN KODAGALI (DEAD) REP. THR. LRS. v.
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Section 372 CrPC does not indicate that a victim while filing an
appeal in the High Court must file a petition for leave to appeal
before his appeal can be entertained. Though the proviso to
Section 372 CrPC does give a right to the victim to file an appeal,
this proviso cannot be read in isolation. It has to be given a
meaning which fulfills the intention of the Legislature. The proviso
to Section 372 CrPC does not lay down the procedure as to how,
in what manner, and within which time the appeal has to be filed.
An appeal, being a creature of the statute, it is also necessary
to prescribe the limitation and procedure for filing the appeal.
[Paras 11, 12][43-H; 44-A-C]
1.9 Adverting to sub-section (4) of Section 378 CrPC, if an
order of acquittal is passed on a case instituted upon a complaint
then the High Court before entertaining an appeal by the
complainant must grant special leave to appeal. The expression
"Special leave to appeal" has no different meaning than the
expression "leave to appeal" and it appears to me that the word
"special" has been added only to distinguish "leave to appeal"
sought by the complainant from the "leave to appeal" sought by
the State. Thus, in a complaint case where the complainant has
set the wheels of the Court in motion even if the complainant
files the appeal he must obtain special leave to appeal. This again
gives rise to an interesting question- Can the victim be placed
on a higher pedestal than the complainant? More often than not,
the victim and the complainant are likely to be one and the same
person. [Para 13][44-C-E]
1.10 In case, the proposition is accepted that the victim
need not seek leave to appeal in case the appeal is to be filed in
the High Court there shall be another anomalous situation.
Supposing there are two victims in a case and one of the victims
files a complaint and sets the wheels of justice moving and the
case is tried as a complaint case. In case the accused is acquitted
and the victim who is the complainant wants to file an appeal in
the High Court, he will have to seek special leave to appeal
whereas the victim who had not even approached the Court at
the initial stage will be entitled to file an appeal without seeking
leave to appeal. This could not have been the intention of the
Legislature. [Para 14][44-F-G]
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1.11 These are changes in criminal jurisprudence and the
expanding rights of the victim, which the victim must have. At
the same time, these rights must be balanced with the rights of
the accused. It is not uncommon for individuals to file false cases.
Therefore, while interpreting the law one cannot shut one's eyes
to the fact that a large number of false cases are filed and appeals
will more likely than not be filed in such cases when the acquittal
of the accused is ordered. [Paras 15, 16][44-H; 45-A-D]
Rajesh Sharma v. State of U.P. 2017 SCC Online SC
821; Dr. Subhash Kashinath Mahajan v. State of
Maharashtra (2018) 6 SCC 454 - referred to.
1.12 One of the bedrocks of the criminal jurisprudence is
that every person is presumed innocent unless found guilty. This
presumption of innocence gets strengthened when the person is
acquitted. Therefore, the legislature felt that before a person who
has been acquitted after a protracted trial is called to face
proceedings in the High Court in an appeal, the High Court should
look into the matter and first decide whether there are sufficient
reasons to grant leave to file appeal or not. This is, in a manner
of speaking a preliminary hearing to decide whether the matter
is worth looking into or not. There is no reason why such scrutiny
should not be done in appeals filed by the victim. The victim
cannot be placed on a higher pedestal than the State or the
complainant. The right of the victim to file an appeal is not taken
away or in any manner weakened only because he has to seek
leave to appeal. If Sections 378(3), 378(4) and 372 CrPC are read
together, it is clear that the victim is also required to apply
for leave to appeal before his appeal can be entertained.
[Paras 17,18][45-D-G]
1.13 Though the victim has rights, one cannot forget that a
victim who may have suffered, may also seek revenge. Therefore,
an obligation has been cast upon the State to prosecute the
accused. In fact, even now a trial under the CrPC has to be
conducted by the Public Prosecutor or Assistant Public
Prosecutor. No private lawyer can be engaged to conduct the
trial under Section 301(2) CrPC. A private person including the
victim, can only instruct a pleader to act on his behalf in court but
the prosecution has to be conducted either by the Public
MALLIKARJUN KODAGALI (DEAD) REP. THR. LRS. v.
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Prosecutor or Assistant Public Prosecutor and the pleader
engaged by the private person can only act as per the directions
of the Public Prosecutor or Assistant Public Prosecutor. The
reason behind this is that the victim may fabricate evidence or
hide true facts whereas the Public Prosecutor or Assistant Public
Prosecutor is expected to be fair to the court, to the accused and
to the victim. [Para 19][45-H; 46-A-C]
1.14 On the one hand are the rights of the victim and on
the other hand, is the well settled principle of criminal
jurisprudence that every man is presumed to be innocent till
proved guilty. Therefore, though the victim may have a right to
file an appeal, this right of filing an appeal vested in the victim,
cannot be larger than the right of filing an appeal which inheres
in the State and the complainant in a complaint case. Therefore,
when the victim files an appeal against acquittal in the High
Court he has to seek leave to appeal under Section 378(3) CrPC.
[Para 20][46-D-E]
Satya Pal Singh v. State of Madhya Pradesh & Ors.
(2015) 15 SCC 613 - referred to.
Case Law Reference
(2015) 15 SCC 613
referred to
Para 5
(2018) 6 SCC 454
referred to
Para 16
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 1281-1282 of 2018.
From the Judgment and Order dated 10.06.2014 of the High Court
of Karnataka, Circuit Bench at Dharwad in Criminal Appeal No 100016
of 2014 and Judgment and Order dated 04.07.2014 in Criminal Appeal
No 100119 of 2014
Sidharth Luthra, Sr. Adv., S. Udaya Kumar Sagar, Ms. Bina
Madhavan, Piyush Dwivedi, Anoopam N. Prasad, Ms. Mehak Jaggi,
Anthony for M/s. Lawyer S Knit & Co, Advs. for the appellants.
A. K. Ganguli, Sr. Adv., Ms. Rajani K. Prasad, Ms. N. Annapoorani,
Joseph Aristotle S., Ms. Priya Aristotle, Ms. Payal N. Gaikwad, Gaurav
Agrawal, Nishanth Patil, Ms. Sneha R. Iyer, Rohit Prasad, Shahayar
Ali, Advs. for the respondents.
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The Judgments of the Court were delivered by
MADAN B.LOKUR, J.
1. Leave granted.
2. The rights of victims of crime is a subject that has, unfortunately,
only drawn sporadic attention of Parliament, the judiciary and civil society.
Yet, it has made great progress over the years. It is our evolving and
developing jurisprudence that has made this possible. But we still have a
long way to go to bring the rights of victims of crime to the centre stage
and to recognise them as human rights and an important component of
social justice and the rule of law.
3. The travails and tribulations of victims of crime begin with the
trauma of the crime itself and, unfortunately, continue with the difficulties
they face in something as simple as the registration of a First Information
Report (FIR). The difficulties in registering an FIR have been noticed
by a Constitution Bench of this Court in Lalita Kumari v. Government
of Uttar Pradesh.1 The ordeal continues, quite frequently, in the
investigation that may not necessarily be unbiased, particularly in respect
of crimes against women and children. Access to justice in terms of
affordability, effective legal aid and advice as well as adequate and equal
representation are also problems that the victim has to contend with and
which impact on society, the rule of law and justice delivery.
4. What follows in a trial is often secondary victimisation through
repeated appearances in Court in a hostile or a semi-hostile environment
in the courtroom. Till sometime back, secondary victimisation was in the
form of aggressive and intimidating cross-examination, but a more humane
interpretation of the provisions of the Indian Evidence Act, 1872 has
made the trial a little less uncomfortable for the victim of an offence,
particularly the victim of a sexual crime. In this regard, the judiciary has
been proactive in ensuring that the rights of victims are addressed, but a
lot more needs to be done. Today, the rights of an accused far outweigh
the rights of the victim of an offence in many respects. There needs to
be some balancing of the concerns and equalising their rights so that the
criminal proceedings are fair to both.2 The Courts have provided solace
to the victim with monetary compensation, but that is not enough.3 There
1 (2014) 2 SCC 1
2 Girish Kumar Suneja v. Central Board of Investigation, (2017) 14 SCC 809
3 Hari Singh v. Sukhbir Singh, AIR 1988 SC 2127; Bodhisattwa Gautam v. Subhra
 Chakroborty, AIR 1996 SC 922; Ankush Shivaji Gaikwad v. State of Maharashtra,
 (2013) 6 SCC 770
MALLIKARJUN KODAGALI (DEAD) REP. THR. LRS. v.
THE STATE OF KARNATAKA
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are victim compensation schemes in force due to the mandate of Section
357A of the Code of Criminal Procedure, 1973 (the Cr.P.C.) but even
that is not enough, though they are being implemented in several parts of
the country. We are of the view that the judiciary is obliged to go and has
gone beyond merely awarding compensation and has taken into
consideration the larger picture from the perspective of the victim of an
offence, relating to infrastructure in court buildings and has recommended
and implemented some recommendations such as the construction of
child friendly courts and courts that address the concerns of vulnerable
witnesses.4 The Courts have done and are continuing to do their best for
the victims of crime.
5. In Sakshi v. Union of India5 this Court passed significant
directions for holding incamera proceedings, providing for a screen
between the accused and the victim and placed restrictions, in a sense,
on the cross examination of witnesses. It is true that these directions
have been passed in a case relating to sexual offences but the trend of
this Court has been to show concern for the rights of victims of an
offence and to address them.
6. Parliament also has been proactive in recognising the rights of
victims of an offence. One such recognition is through the provisions of
Chapter XXIA of the Cr.P.C. which deals with plea bargaining.
Parliament has recognised the rights of a victim to participate in a mutually
satisfactory disposition of the case. This is a great leap forward in the
recognition of the right of a victim to participate in the proceedings of a
non-compoundable case. Similarly, Parliament has amended the Cr.P.C.
introducing the right of appeal to the victim of an offence, in certain
circumstances. The present appeals deal with this right incorporated in
the proviso to Section 372 of the Cr.P.C.
7. In other words, a considerable amount has been achieved in
giving life to the rights of victims of crime, despite the absence of a
cohesive policy. But, as mentioned above, a lot more still needs to be
done.
8. Among the steps that need to be taken to provide meaningful
rights to the victims of an offence, it is necessary to seriously consider
giving a hearing to the victim while awarding the sentence to a convict.
4Sampurna Behura v. Union of India, (2018) 4 SCC 433
5 (2004) 5 SCC 518
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A victim impact statement or a victim impact assessment must be given
due recognition so that an appropriate punishment is awarded to the
convict. In addition, the need for psycho-social support and counselling
to a victim may also become necessary, depending upon the nature of
the offence. It is possible that in a given case the husband of a young
married woman gets killed in a fight or a violent dispute. How is the
young widow expected to look after herself in such circumstances, which
could be even more traumatic if she had a young child? It is true that a
victim impact statement or assessment might result in an appropriate
sentence being awarded to the convict, but that would not necessarily
result in 'justice' to the young widow - perhaps rehabilitation is more
important to her than merely ensuring that the criminal is awarded a life
sentence. There is now a need, therefore, to discuss these issues in the
context of social justice and take them forward in the direction suggested
by some significant Reports that we have had occasion to look into and
the direction given by Parliament and judicial pronouncements.
9. The rights of victims, and indeed victimology, is an evolving
jurisprudence and it is more than appropriate to move forward in a positive
direction, rather than stand still or worse, take a step backward. A voice
has been given to victims of crime by Parliament and the judiciary and
that voice needs to be heard, and if not already heard, it needs to be
raised to a higher decibel so that it is clearly heard.
10. With this background, we need to consider the questions that
arise before us consequent to the introduction of the proviso to Section
372 of the Cr.P.C. with effect from 31st December, 2009. The questions
are somewhat limited: Whether a 'victim' as defined in the Cr.P.C. has
a right of appeal in view ofthe proviso to Section 372 of the Cr.P.C.
against an order of acquittal in a case where the alleged offence took
place prior to 31st December, 2009 but the order of acquittal was passed
by the Trial Court after 31st December, 2009? Our answer to this question
is in the affirmative. The next question is: Whether the 'victim' must
apply for leave to appeal against the order of acquittal? Our answer to
this question is in the negative.
Factual narrative
11. The appellant (Kodagali - now dead but represented by his
legal representatives) was the victim of an attack on the night of 6th
MALLIKARJUN KODAGALI (DEAD) REP. THR. LRS. v.
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February, 2009. He lodged a First Information Report with the police
and after investigations, necessary proceedingswere taken before the
District and Sessions Judge, Bagalkot against the accused persons under
several sections of the Indian Penal Code (the IPC).
12. In S.C.No.49 of 2010 the District and Sessions Judge, Bagalkot
(Karnataka) acquitted the accused by a judgment and order dated 28th
October, 2013.
13. Aggrieved thereby, Kodagali preferred an appeal in the High
Courtbeing Criminal Appeal No. 100016 of 2014. The appeal was
preferred under the proviso to Section 372 of the Cr.P.C. but itwas
dismissed as not maintainable by a judgment and order dated 10th June,
2014. It was held by the High Court that the proviso to Section 372 of
the Cr.P.C. came into the statute book with effect from 31st December,
2009 but the incident had occurred well before that date. Therefore, the
appeal was not maintainable. Reliance was placed by the High Court
on National Commission for Womenv.State of Delhi and another6
14. Kodagali then preferred anotherappeal in the High Court being
Criminal Appeal No. 100119 of 2014. This appeal was filed under the
provisions of Section 378(4) of the Cr.P.C. By a judgment and order
dated 4th July, 2014 the High Court held that the appeal was not
maintainable. The view taken by the High Court was on a plain reading
of Section 378(4) of the Cr.P.C., namely, that the appeal was not filed in
a case instituted upon a complaint before a Magistrate.
15. Under these circumstances, Kodagali is before us challenging
the judgment and orders dated 10th June, 2014 and 4th July, 2014. It is
his contention that he has been left with no remedy against the acquittal
of the accused. His submission is that one of the accused is a Member
of the Legislative Assembly and it is for this reason that the State did not
challenge the acquittal. It is not necessary for us to go into the merits of
the controversy or the allegations made by Kodagali. Suffice it to say,
we are only concerned with the question whether the appeal filed by
Kodagali under the proviso to Section 372 of the Cr.P.C. was maintainable
or not.
Victims of crime and their rights
16. In recent times, four Reports have dealt with the rights of
victims of crime and the remedies available to them. The first Report in
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this sequence is the 154th Report of the Law Commission of India of
August 1996. While this Report did not specifically deal with the right of
a victim of crime to file an appeal, it did discuss issues of victims of
crime, compensation to be paid to the victim and rehabilitation of the
victim including the establishment of a Victim Assistance Fund.
17. The second important Report is the March 2003 Report of the
Committee on Reforms of Criminal Justice System commonly known as
the Report of the Justice Malimath Committee. In the Chapter on
Adversarial Rights, it is recommended under the sub-heading of Victims
Right to Appeal as follows:
"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."
18. Thereafter, in the substantive Chapter on Justice to Victims, it
is noted that victims of crime, in many jurisdictions, have the right to
participate in the proceedings and to receive compensation for injury
suffered. It was noted as follows:
"6.3 Basically two types of rights are recognized in many
jurisdictions particularly in continental countries in respect of victims
of crime. They are, firstly, the victim's right to participate in criminal
proceedings (right to be impleaded, right to know, right to be heard
and right to assist the court in the pursuit of truth) and secondly,
the right to seek and receive compensation from the criminal court
itself for injuries suffered as well as appropriate interim reliefs in
the course of proceedings."
19. Following up on this, and extending the rights of victims of
crime, it was observed in paragraph 6.5 that "The right of the victimshould
extend to prefer an appeal against anyadverse order passed by the trial
court. The appellate court should have the same powers to hear appeals
against acquittal as it now has to entertain appeal against conviction.There
is no credible and fair reason why appeals against acquittals should lieonly
to the High Court."
MALLIKARJUN KODAGALI (DEAD) REP. THR. LRS. v.
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20. On this basis, the Justice Malimath Committee made the
following recommendation enabling the victim of a crime to prefer an
appeal. The recommendation (made in the Chapter having the same
heading) reads as follows:
"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."
21. The third Report worth considering is the July 2007 Report of
the Committee on the Draft National Policy on Criminal Justice also
known as the Professor Madhava Menon Committee. While this
Committee does not specifically deal with providing a right of appeal to
the victim of a crime, it does refer to victim orientation to criminal justice
and providing for a balance between the constitutional rights of an accused
person and a victim of crime. One of the suggestions given by the
Committee is to permit the impleadment of a victim in the trial proceedings.
Obliquely therefore, it follows that if a victim is impleaded as a party to
the trial proceedings, the victim would certainly have a right to file an
appeal against an adverse order, particularly an order of acquittal.
22. The fourth Report that deserves a mention is the 221st Report
of the Law Commission of India April 2009. In this Report, the
recommendation of the Law Commission of India was to the effect that
as the law stands, an aggrieved person cannot file an appeal against an
order of acquittal. However, a revision petition can be filed. The powers
of a revisional court are limited and the process involved is cumbersome
and it also involves a wastage of money and time. It was, therefore,
recommended by the Law Commission that against an order of acquittal
passed by a Magistrate, a victim should be entitled to file an appeal
before the revisional court. It was also recommended that in complaint
cases also an appeal should be provided in the Sessions Court instead of
the High Court. In all such cases, the aggrieved person or complainant
should have the right to prefer an appeal, though with the leave of the
Appellate Court. The view of the Law Commission was expressed in
the following words:
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"2.9 All appeals against orders of acquittal passed by Magistrates
were being filed in High Court prior to amendment of section 378
by Act 25 of 2005. Now, with effect from 23.06.2006, appeals
against orders of acquittal passed by Magistrates in respect of
cognizable and non-bailable offences in cases filed on police report
are being filed in the Sessions Court, vide clause (a) of sub-section
(1) of the said section. But, appeal against order of acquittal passed
in any case instituted upon complaint continues to be filed in the
High Court, if special leave is granted by it on an application made
to it by the complainant, vide sub-section (4) of the said section.
2.10 Section 378 needs change 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.
2.11 Further, at present, against orders of acquittal passed by
Magistrates (where the offence is cognizable and non-bailable)
or by Sessions Courts, appeal in cases filed on police reports can
be filed only at the instance of the District Magistrate or the State
Government, as the case may be, vide sub-section (1) of section
378. In such matters, the aggrieved person or the informant cannot
himself file an appeal. However, he can prefer a revision. If the
revisional Court finds that the accused has been wrongly acquitted,
it cannot convict him in view of sub-section (3) of section 401, but
it has to remand the case. It is a cumbersome process and involves
wastage of money and time. This provision also needs a change
and in such matters also, where the District Magistrate or the
State does not direct the Public Prosecutor to prefer appeal against
an order of acquittal, the aggrieved person or the informant should
have the right to prefer appeal, though with the leave of the
Appellate Court. This will also give an opportunity to the aggrieved
person to challenge the findings of fact recorded by lower court.
Also, this will introduce more transparency and accountability in
the lower judiciary, as at present, the percentage of acquittal is
quite high."
23. It is, apparently, on the basis of all these Reports and other
material that Section 372 of the Cr.P.C. was amended on 30th December,
2009 with effect from 31st December, 2009.Section 372 of the Cr.P.C.
as it stands today reads as follows:
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"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."
Decision in the case of the National Commission for Women
24. In National Commission for Women, the victim, a young
lady aged 21 years committed suicide on or about 14th April, 2003. She
left behind a note in which she stated that the accused had physical
relations with her and held out a promise of marriage but later backed
off. He had exploited her and therefore she was committing suicide.
25. The Trial Judge relied on the dying declaration and convicted
the accused by his judgment and order dated 21st April, 2008.