There is always much to study in a dissenting opinion; dissents in constitutional law matters are remembered/revered; dissents in criminal law matters produce intense causes of concern. How best can one ensure advancement of justice, if Supreme Court Judges disagree on a crime? There would be a day surely when 5/7/9 or perhaps 13 shall sit to decide importance of Death Penalties. If there are teams formed at decision hour, citizens would meet a Supreme Court not united on its stance on criminals; criminal law matters should be decided without an ‘if’ and ‘but’.

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A. My Lord, Does a victim have a right to appeal, in view of the proviso to Section 372, 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 Trial Court after 31st December, 2009?

Yes.

“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, from the time of the decision of this Court in Garikapati Veeraya v. N. Subbiah Choudhry, 1957 SCR 488 it has been held, the right to appeal is not a mere matter of procedure but is a substantive right.

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. The language of the proviso is quite explicit, and we should not read nuances that do not exist in the proviso. In our opinion, the proviso to Section 372 of Cr.P.C. must also be given a meaning that is realistic, liberal, progressive and beneficial to the victim of an offence.”

– Hon’ble Justice Madan B. Lokur and Hon’ble Justice S. Abdul Nazeer, Mallikarjun Kodagali v. State of Karnataka, [Criminal Appeal Nos. 1281-82 of 2018].

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Yes.

“I fully agree with my Learned Brother, the proviso to Section 372 of The Code of Criminal Procedure, 1973 must be given a meaning that is realistic, liberal, progressive and beneficial to the victims of the offences.”

– Hon’ble Justice Deepak Gupta, Mallikarjun Kodagali v. State of Karnataka, [Criminal Appeal Nos. 1281-82 of 2018].

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B. My Lord, Is it true, before a High Court, a victim must apply for a leave to appeal against the order of an acquittal?

No.

“Our answer to this question is in the negative.”

– Hon’ble Justice Madan B. Lokur and Hon’ble Justice S. Abdul Nazeer, Mallikarjun Kodagali v. The State of Karnataka, [Criminal Appeal Nos. 1281-82 of 2018].

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Yes.

“This proviso is not very happily worded.

The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by Trial Court. Probably, for this reason, the law makers felt, when the appeal is to be filed it should not be filed as a matter of course or as matter of right but leave of High Court must be obtained before the appeal is entertained. Only if arguable points are involved, High Court normally grants leave to appeal. This would not only prevent High Court from being flooded with appeals but more importantly would ensure, innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to High Court.

It is true, the proviso to Section 372 does not indicate, a victim while filing an appeal in High Court must file a petition for leave to appeal before his appeal can be entertained. I am of the considered view, though, the proviso to Section 372 of Cr.P.C. 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 Legislature. The proviso to Section 372 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.

In case, I accept the proposition, the victim need not seek leave to appeal in case the appeal is to be filed in High Court, there shall be an 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 High Court, he will have to a seek special leave to appeal whereas the victim who had not even approached 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 Legislature. 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 State.

According to the records of National Crime Record Bureau, the conviction rate in the country in 2016 was only 21.25% and 78.75% cases ended in discharge or acquittal. One cannot lose sight of the fact that out of these 78.75% cases in which acquittal was recorded, there may be many cases which are totally false. It may be, many people are set free because of poor investigation and on account of indifferent prosecution. At the same time, it is not uncommon for individuals to file false cases. Therefore, while interpreting the law one cannot shut one’s eyes to the fact, 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. 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. Though the victim has rights, one cannot forget, a victim who may have suffered may also seek revenge.

Therefore, I am of the view, when the victim files an appeal against acquittal in High Court he has to seek leave to appeal under Section 378(3).”

– Hon’ble Justice Deepak Gupta, Mallikarjun Kodagali v. The State of Karnataka, [Criminal Appeal Nos. 1281-82 of 2018].

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Hidayatullah, J. had once observed, a proviso is generally added to an enactment to qualify or create an exception to what is in the enactment, and the proviso is not interpreted as stating a general rule.

Hon’ble Justice Deepak Gupta’s partial dissent is well worded and important. There must be further adjudication on the issue to avoid prolonged arguments before Court, killing the time intended to be saved.