Code of Criminal Procedure, 1973 – s.401 r/w. s.397 – In the Criminal Revision Application No. 194 of 2006 filed by the original de facto complainant before the High Court against the judgment and order of acquittal passed by the trial Court came to be allowed and the appellants herein were held guilty of the offence of murder punishable u/s.302 of IPC – Correctness: Held: s.401 reads the High Court’s powers of revision – s.401(3) lays down that nothing in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction – The bar u/s.401(3) CrPC is categorical and express – For High Court to treat the revision as an appeal, the condition laid down u/s.401(5) CrPC are required to be fulfilled i.e. when the High Court is satisfied that application for revision was made under the erroneous belief that no appeal lies and in the interest of justice, the High Court may treat the application for revision as a petition of appeal – A reasoned, speaking order was required to be passed recording that conditions u/s.401(5) were fulfilled – However, in the instant case no such procedure was adopted – The general provision on appeals is s.372 CrPC which says that no appeal was permissible other than provided for, in law – The Proviso to s.372 CrPC had not yet come into effect as on 19.01.2006 when the revision petition was filed, for it was added only w.e.f. 31.12.2009 – The statutory right of appeal by a victim against such acquittal arose only from the date of the amendment w.e.f. 31.12.2009 – As the said revision was filed by the father of the deceased on 19.01.2006 well before the above amendment, such right was not available at the relevant point of time – Therefore, the very first condition u/s.401(5) itself would not have been possible to be fulfilled, i.e. the right of the victim to appeal did not lie under the Code at the time of filing the revision petition – As regards appeals against acquittals, the relevant provision for appeals, and specifically for appeal to the High Court are detailed out u/s.378 CrPC – Thus, only the State had the statutory right to appeal against the order of acquittal in 2006, and indisputably, the State did not file appeal challenging the said order of acquittal – Thus, the High Court committed an egregious error in reversing the acquittal and passing an order of conviction in exercise of its revisional jurisdiction and that too without affording any opportunity of hearing to the appellants herein. [Paras 33, 35, 36, 37, 38, 46]
Code of Criminal Procedure, 1973 – Proviso to s.372 – A right created in favour of victim:
Held: The significant development that has taken place in this provision is that a ‘proviso’ was added by the Amending Act No.5 of 2009 – The plain reading of the statement of objects and reasons for introducing the proviso to s.372 CrPC makes it clear that it wanted to confer certain rights on the victims – It has been noted therein that the victims are the worst sufferers in a crime, and they don't have much role in the court proceedings – They need to be given certain “rights” and compensation, so that there is no distortion of the criminal justice system – This, by itself, is clear that the object of adding this proviso is to create a right in favour of the victim to prefer an appeal as a matter of right – It not only extends to challenge the order of acquittal, but such appeal can also be filed by the victim if the accused is convicted for a lessor offence or if the inadequate compensation has been imposed – Thus, it is clear as per the golden rule of interpretation, that the ‘proviso’ is a substantive enactment, and is not merely excepting something out of or qualifying what was excepting or goes before – Therefore, by adding the ‘proviso’ in s.372 of CrPC by this amendment, a right has been created in favour of the victim. [Paras 52, 53, 54] Code of Criminal Procedure, 1973 – Proviso to s.372 – Is Proviso to s.372 an exception:
Held: Given the text of s.372 and the scheme of the Act, it is clear that the proviso establishes an independent right, and must be interpreted within that framework – s.372 forbids appeals unless otherwise authorized by the Code, or by another law – The proviso, however, states that the victim shall have the right to appeal under certain circumstances – Given the rule enacted in s.372, it cannot be said that the proviso to that provision carves out an exception to the rule – According to the rule in s.372, appeals must be in accordance with the Code; according to the proviso - which is itself part of the Code - victims have the right to appeal under certain circumstances – The proviso to s.372 dispenses with the requirement of leave in case it is the victim who is appealing – While s.372 enacts that no appeal shall lie except as provided for by the Code, it refers to the various provisions of Chapter 29, including the proviso, each of which prescribe the requirements and procedures for appeals under different circumstances – The proviso, therefore, is not an exception to s.372, but a stand-alone legal provision. [Para 67]
Code of Criminal Procedure, 1973 – Is Proviso to s.372 is retrospective in operation:
Held: In view of the various Supreme Court decisions, it is clear that a statute which affects substantive rights is presumed to be prospective in operation – In view of the aforesaid, the amendment so made in s.372 CrPC by adding a proviso in the year 2009 creating a substantive right of appeal is not retrospective in nature – A statute which creates new rights shall be construed to be prospective in operation unless otherwise provided, either expressly or by necessary implication – In the instant case, it is, therefore, clear that in the year 2006 when the judgement of acquittal was passed, the de facto complainant had no right to challenge the impugned order passed in 2006 by way of filing the appeal – In such circumstances sub section (5) of s.401 CrPC has no application in the present case. [Paras 68-72] Code of Criminal Procedure, 1973 – s.162 – Evidence Act, 1872 – s.145:
Held: The trial courts cannot independently use statements made to the police that have not been proven, nor can it base its questions on such statements if they conflict with the witness's testimony in court – The phrase 'if duly proved' in s.162 of the CrPC indicates that the statements of witnesses recorded by the police cannot be immediately admitted as evidence or examined – They must first be proven through eliciting admissions from the witness during cross-examination and also during the cross-examination of the Investigating Officer – While statements made to the Investigating Officer can be used for contradiction, this can only be done after strict compliance with s.145 of the Evidence Act – This requires drawing attention to the specific parts of the statement intended for contradiction – This is what is required u/s.145 of the Evidence Act but even where a witness is confronted by his previous statement and given an opportunity to explain that part of the statement that is put to him does not constitute substantive evidence – There is a catena of decisions laying down the principle in law that the material elicited as contradiction by use of s.145 of the Indian Evidence Act is not substantive evidence – Even in regard to the statement recorded u/s.164 of the CrPC by authorised Magistrate, it has been held accordingly – Therefore, the fact that the contradictions are proved through the investigating officers though the witnesses have denied having made such statements, does not translate the contradictions into substantive evidence – Unless there is substantive evidence, it cannot be acted upon legally particularly to base a conviction. [Paras 80, 81]
Unlawful detention – Principle established:
Held: The principle is well established that in cases where there can be no dispute of facts, the constitutional courts have the power to award compensation in case a person has been deprived of his life and liberty without following the procedure established by law. [Para 84]
Code of Criminal Procedure, 1973 – Public Prosecutors – Appointment should be on the basis of merit:
Held: The AGPs and APPs in respective High Courts should be appointed solely on the merit of the person – The State Government owes a duty to ascertain the ability of the person; how proficient the person is in law, his overall background, his integrity etc. – Public Prosecutor holds a “Public Office” – The primacy given to him under the Scheme of CrPC has a “special purpose” – Certain professional, official obligations and privileges are attached to his office – His office may also be termed as an office of profit as he remains disqualified to contest the election so long he holds the office though permanency is attached to the office and not to the term of his office – His duties are of public nature – He has an “independent and responsible character” – He holds the public office within the scope of a “quo warranto proceedings” – Prosecutor is not a part of investigating agency but is an “independent statutory authority” – He performs statutory duties and functions – He holds an office of responsibility as he has been enclothed with the power to withdraw the prosecution of a case on the directions of the State Government. [Paras 92, 94]
Code of Criminal Procedure, 1973 – Public Prosecutors – Importance of the office of the Public Prosecutor – discussed.
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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