Rights Of Accused Far Outweigh That Of Victim, Need Some Balancing So That Criminal Proceedings Are Fair To Both: SC

It has be said right at the beginning with considerable degree of satisfaction that the Supreme Court which is the top court of our country has in a latest landmark judgment titled Mallikarjun Kodagali (Dead) represented through Legal Representatives versus State of Karnataka and others in Criminal Appeal Nos. 1281-82 of 2018 [Arising out of S.L.P. (Cri.) Nos. 7040-7041 of 2014], the majority judgment delivered by Justice Madan B Lokur and Justice S. Abdul Nazeer on October 12, 2018 had no hesitation to concede right from the start while underscoring the rights of victims of crime that, '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.'

Needless to say, in the majority judgment authored by Justice Madan B Lokur, it is rightly lamented in para 3 that, '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 (2014) 2 SCC 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.'

No doubt, these problems must be addressed by Centre on war footing and cannot be left unaddressed any longer! The one path breaking reform that needs to be ushered in right now is that the registration of FIR must be made most simplest and either the role of policemen in registering FIR must be totally eliminated or it must be made so strict that any policemen found not complying must be dismissed from service so that no policemen ever dares to refuse to lodge an FIR! It is criminals and law breakers who benefit most from this refusal of policemen to register FIR! How can any democratic country allow policemen to become conduits of criminals and law breakers? I would go so far to suggest that the right to registration of FIR must be made a fundamental right and those policemen who are found wanting in registering FIR must be immediately dismissed with no pension and other benefits! The worst thing a victim faces is when after suffering at the hands of criminals and offenders, he/she is further made to suffer more mental trauma when police refuses to lodge FIR on one pretext or the other or puts pressure on victim to register FIR on some less charge with the primary objective of ensuring that offender benefits and victim’s case is made weaker!

As if this is not enough, the victim then faces more difficulties and traumas in court room battles spanning for many years first in lower courts, then in high court and then in top court which only serves to further rub salt to the victim’s wounds! It is rightly noted in para 4 that, '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. [Girish Kumar Suneja v. Central Board of Investigation, (2017) 14 SCC 809]. The Courts have provided solace to the victim with monetary compensation but that is not enough. [Hari Singh v Sukhbir Singh AIR 1988 SC 2127; Bodhisattwa Gautam v Subhra Chakraborty, AIR 1996 SC 922; Ankush Shivaji Gaikwad v State of Maharashtra, (2013) 6 SCC 770]. There 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 [Sampurna Behura v Union of India, (2008) 4 SCC 433]. The Courts have done and are continuing to do their best for the victims of crime.' This is best illustrated in para 5 which points out that, 'In Sakshi v. Union of India (2004) 5 SCC 518 this Court passed significant directions for holding in camera 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.'

While appreciating the role of Parliament in no uncertain terms, it is then observed in para 6 that, '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.' Para 7 goes further to add that, '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.'

While dwelling on providing meaningful rights to the victims of an offence, para 8 then stipulates that, '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. 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 became 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.'

Going forward, it is then held in para 9 that, '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.' Absolutely right!

Now coming to para 10, it then goes on to add that, '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 of the 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

Now let us deal with those paras which give the factual narrative in this landmark case. To begin with, para 11 first and foremost points out that, 'The appellant ( Kodagali – now dead but represented by his legal representatives) was the victim of an attack on the night of 6th February, 2009. He lodged a First Information Report with the police and after investigations, necessary proceedings were taken before the District and Sessions Judge, Bagalkot against the accused persons under several sections of the Indian Penal Code (the IPC). Para 12 then states that, '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.'

To be sure, para 12 then states that, '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. Para 13 then further states that, 'Aggrieved thereby, Kodagali preferred an appeal in the High Court being Criminal Appeal No. 100016 of 2014. The appeal was preferred under the proviso to Section 372 of the Cr.P.C. but it was 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 Women v. State of Delhi and another (2010) 12 SCC 599.'

As things stood, para 14 then reveals that, 'Kodagali then preferred another appeal 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.'

As it turned out, para 15 then brings out that, '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

It would be crucial to note that para 16 observes that, 'In recent times, four Reports have dealt with the rights of victims of crime and the remedies available to them. The first Report in 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.' Para 17 then observes that, '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'.'

Moving forward, para 18 goes on to add that, '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.' Para 19 then further states that, 'Following up on this, and extending the rights of victims of crime, it was observed in paragraph 6.5 that 'The right of the victim should extend to prefer an appeal against any adverse 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 lie only to the High Court.'

Simply put, para 20 observes that, '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.'

Of course, para 20 then stipulates that, '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.'

It must be pointed out here that it is then ostensibly mentioned in para 21 that, '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.'

More importantly, para 22 then points out that, 'The fourth Report that deserves a mention here 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:

'2.9 All appeals against orders of acquittals 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.'

Truth be told, para 23 then says that, '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: '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.'

Our conclusions

In a nutshell, after mentioning many notable decisions and also dissenting judgments of different High Courts, the majority judgment of Justice Madan B Lokur and Justice S. Abdul Nazeer then finally and most importantly came to mentioning their own conclusions. To begin with, in para 71, it was held that, 'It was submitted by learned counsel for the accused that the right to file an appeal is a substantive right and it should not be easily recognized unless specifically conferred by statute. We agree. There is no doubt that from the time of the Constitution Bench decision of this Court in Garikapati Veeraya v. N. Subbiah Choudhry 1957 SCR 488 it has been held that the right to appeal is not a mere matter of procedure but is a substantive right. We are bound by this decision as well as other decisions following this view. The question is whether this substantive statutory right has been conferred on the victim in a case such as the present.'

Not stopping here, it is then held in para 72 that, 'It was also submitted by learned counsel for the accused that in the present fact situation, if we were to hold that Kodagali was entitled to file an appeal against the acquittal of the accused, then we would be giving retrospective effect to the proviso to Section 372 of the Cr.P.C. It was submitted that if Parliament intended to confer a statutory right of appeal on a victim with retrospective effect, it would have specifically said so. Since the proviso to Section 372 of the Cr.P.C. was not specifically given retrospective effect, it must operate prospectively and the crucial date in a case such as the present would be the date of the alleged offence.'

Rebutting what has been stated above, para 73 then states that, 'To counteract this, it was submitted by learned counsel for Kodagali that the view expressed by this Court in National Commission for Women was only an obiter and is not binding upon this Court. It is not necessary for us to go into this aspect of the matter since we are of the view that the decision rendered in National Commission for Women has been misunderstood and misinterpreted and is clearly distinguishable on facts. Even otherwise, the decision has been rendered by a Bench of the two learned judges and while the view expressed therein certainly has great persuasive value but it would not be binding on a Bench of three Judges. Besides the obiter dicta of this Court would not bind us.'

It cannot be lost on us what para 74 of the majority judgment enunciates. It is clearly and convincingly held that, 'What is significant is 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 of the 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, and we have referred to those decisions above, 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 31stDecember, 2009 the victim has a right to challenge the acquittal, through an appeal. Indeed, the right not only extends to challenging the conviction of the accused for a lesser offence or imposing inadequate compensation. The language of the proviso is quite explicit, and we should not read nuances that do not exist in the proviso.'

Most importantly, it has to be borne in mind what para 75 of this majority judgment envisages. While referring to the Declaration adopted by the General Assembly of the United Nations, it envisages that, 'In our opinion, the proviso to Section 372 of the 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 96thPlenary Session on 29th November, 1985. The Declaration is sometimes referred to as the Magna Carta or the rights of victims. One of the significant declarations made was in relation to access of justice for the victim of an offence through the justice delivery mechanisms, both formal and informal. In the Declaration it was stated as follows:

'4. Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.

5. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.

6. The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:

(a) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information;

(b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system;

(c) Providing proper assistance to victims throughout the legal process;

(d) Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;

(e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.

7. Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims'.'

Truly speaking, para 76 then goes forward to espouse victim’s rights thus declaring that, '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 proceedings 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 of the Cr.P.C. must be given life, to benefit the victim of an offence.'

To put things in perspective, para 77 then minces no words in holding unambiguously that, '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) of the 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 from this that the appeal filed by Kodagali before the High Court was maintainable and ought to have been considered on its own merits.' Para 78 then further adds that, 'As far as the question of the grant of special leave is concerned, once again, we need not be overwhelmed by submissions made at the Bar. The language of the proviso to Section 372 of the Cr.P.C. is quite clear, particularly when it is contrasted with the language of Section 378(4) of the Cr.P.C. 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) of the Cr.P.C. 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 of the Cr.P.C. is concerned.'

Final order

Now coming to final order, it is illustrated in para 79 of the majority judgment. It held that, 'For the reasons mentioned above, the appeals are allowed and 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 filed by Kodagali against the judgment and order of acquittal dated 28th October, 2013 passed by the District and Sessions Judge, Bagalkot (Karnataka) in S.C. No. 49 of 2010.'

Last but not the least, Justice Deepak Gupta in his separate judgment observed that the pain which the victim of a criminal offence suffers should be understood by the courts and keeping in view the emerging trends in law, the rights of the victim should not be trampled. Justice Deepak also sought to send across a loud and unequivocal message that, 'Victims must be treated with sensitivity, compassion and respect. They also must be permitted to access justice because it is sometimes found that the investigating and prosecuting agencies do not follow up cases with the zeal which is required.' All that needs to be done now is to ensure that victims rights are not trampled upon and it ought not to be forgotten that the rights of accused far outweigh that of the victim and this needs some balancing so that the criminal proceedings are fair to both as very rightly underscored in this landmark and laudable judgment!