Guest Post: The Contours of a Victim's Right to Appeal

(I am happy to present a Guest Post by Prashasthi Bhat and Arshdeep Singh, both fourth year students in the B.A. LL.B. (Hons.) program at National Law University, Delhi)

The statutory framework of the Indian criminal process did not always cater well to victims of crime. Originally, the Criminal Procedure Code 1973 [Cr.P.C.] provided that victims (i) could ask for initiation of police investigations [Section 156(3), Cr.P.C]; (ii) could file appeals in cases instituted on private complaints if they were the complainants, if leave to do so was granted by the court [Section 378(4), Cr.P.C.]; (iii) could challenge orders through revision petitions or by invoking the inherent powers of High Courts [Sections 397, 482, Cr.P.C.]. This narrow perspective changed dramatically with amendments in 2008 that inserted a slew of victims rights. One of these - the right of victims to file appeals - is the subject of this post. We discuss the recent decision by a Three Justices’ Bench of the Supreme Court in Mallikarjun Kodagali v. State of Karnataka [(2018) SCC OnLine SC 1914, ‘Mallikarjun’] and argue that the majority opinion fails to strike the correct balance between interests of victims and defendants in the criminal process.

The New Victims' Right to Appeal

As mentioned above, before 2008 victims could pursue appeals only in complaint cases, and where they were the complainants. But as the 2008 amendments gave a much broader definition for victim [Section 2(wa), Cr.P.C.], this original right became quite limited. How did the law cater to the victims who were not complainants? A new proviso was inserted in Section 372, Cr.P.C. to confer upon a victim the right to prefer an appeal against acquittal, conviction for a lesser offence and/or awarding inadequate compensation. 

However, it was unclear whether the victim’s right to appeal was dependent on the date of judgment of the trial court or the date of commission of the alleged offence. In other words, should the alleged offence have taken place after 31.12.2009 (the date when the amendment came into effect), or should the judgment of the trial court have been passed after 31.12.2009? Another uncertainty was whether the requirement of obtaining leave to appeal from the High Court - imposed on the State for all appeals against acquittals under Section 378(3), Cr.P.C. and also on complainants as mentioned above - was dispensed with for victims. The question had in fact been already addressed by a Two Justices’ Bench of the Supreme Court in Satya Pal Singh v. State of Madhya Pradesh & Ors [(2015) 15 SCC 613, ‘Satya Pal’] where the Court held that a victim would require prior leave from the High Court for an appeal against acquittal, but uncertainty had crept in owing to differing interpretations by High Courts. These two issues were at the heart of Mallikarjun, which we turn to next. 

The Ruling in Mallikarjun

In Mallikarjun, the High Court of Karnataka had dismissed the appellant’s appeal as not maintainable because the date of commission of the alleged offence was prior to 31.12.2009 (the acquittal was dated 28.10.2013). The majority judgment authored by Lokur J., on behalf of himself and Nazeer J. sought to confer "realistic, liberal, progressive" interpretation to Section 372 and fruitfully recognise the victim's right to appeal. In doing so, the majority opinion laid down two important points. First, that the relevant date for determining the maintainability of appeal was the date of the trial court judgment as opposed to any other date such as the date of commission of the offence or the date of registration of the FIR. Second, that there is no procedural fetter placed on the victim’s right under the proviso to Section 372, Cr.P.C., thus marking a shift from the Court’s earlier position in Satya Pal to hold that victims did not need to seek prior leave of the High Court before filing an appeal. 

Gupta J., agreed with the first conclusion, but filed a dissent on the second issue of victims requiring prior leave to appeal. He held that an appeal against acquittal by the victim would require leave from the High Court. This was because the presumption of innocence of an accused is further strengthened by an order of acquittal, and requiring prior leave to appeal adequately respected this principle by allowing High Courts to prima facie satisfy themselves that only if arguable points are involved should the presumption of innocence be disturbed. In this, he relied on Supreme Court precedent, and also plain logic: there was a reason why every other kind of appeal against acquittal had required prior leave. Gupta, J. thus supported a combined reading of Sections 378(3), 378(4) and 372, Cr.P.C. which for him unambiguously warranted for a similar requirement to apply in cases of victims filing appeals against acquittals.

The Balancing Act

We argue that, on the issue of requiring prior leave to appeal, the majority opinion in Mallikarjun is based on an incorrect and incoherent reading of the decision in Satya Pal and is contrary to the settled principles of criminal law jurisprudence. The Court in Satya Pal had held that the full bench decision of the Delhi High Court in Ram Phal v. State [(2015) SCC OnLine Del 9802] was incorrect in holding that there was no need to seek leave of the High Court when preferring an appeal under the proviso to Section 372, Cr.P.C. Rather than solely focus on the proviso, the Court turned to the clear text of Section 372 that no appeal could be filed “except as provided for by this Code”. This meant that the procedure under Section 378, Cr.P.C. - the provision governing appeals against acquittals - would also have to be followed when victims filed such appeals. The majority suggests that it is differentiating and not overruling Satya Pal, but it is unclear how this has been done.

Further, what the majority opinion overlooks and the dissenting opinion addresses, is that offences are considered to be harms against the State, and it is still the State that nominally represents crime victims. Therefore, the procedure to appeal against an acquittal should not be different for the State and the victim. As articulated in the dissenting opinion, the concept of leave to appeal ensures that the High Courts can filter appeals to safeguard to presumption of innocence by ensuring that persons acquitted at trial are not dragged to face rigours of an appeal as a matter of course. By taking away this requirement for all appeals against acquittals where preferred by victims of crime, the majority opinion disturbs the delicate balance. 

Conclusion

The Court in Mallikarjun correctly settled the conflicting positions of various High Courts as to the relevant date for the victim’s right to appeal to accrue. However, in deciding the issue of requiring leave to appeal, we argue that the Court did not reach the correct outcome. Although there is a need for more participation by victims in the criminal process, the majority opinion is incorrect to the extent that prior leave to appeal is not required for appeals against acquittals filed by victims under the proviso to Section 372, Cr.P.C. The dissenting opinion offers a more holistic appreciation of the problem, and offers what we think was the correct solution to the problem of maintaining that delicate balance between the interests of a victim and the accused in the criminal process.