This article has been written by Shohom Roy, from Symbiosis Law School, Noida. This article explains the reason behind the inability of a victim to seek enhancement of sentence under Section 372 of the Code of Criminal Procedure, 1973.

Introduction

The Indian criminal law framework has been centred around the rights and liabilities of the accused while disregarding the role of the victim in the delivery of justice. Under the Code of Criminal Procedure, 1973, the accused has been granted certain rights and protections like the presumption of innocence, including the standard of ‘proof beyond reasonable doubt’, the right against self-incrimination, the right to legal aid, the right to a free trial, the right to legal defence, etc. The Constitutional safeguards under Article 20, Article 21, and Article 22 of the Indian Constitution have played a major role in protecting the rights of the accused. However, the legislature has failed to address the need to protect the rights and interests of the victim. Efforts to strengthen victim’s rights in India have been concentrating around the concept of ‘Restitution’ or compensation for the losses or damage suffered by the victim.

While Indian criminal law jurisprudence acknowledges that a crime is an offence against society at large, it minimizes the options available to a victim. Valuable insights like the 154th Law Commission of India recommending the implementation of a compulsory justice scheme through victim compensation and the Justice Malimath Committee 2003, advising the enactment of separate legislation to safeguard the rights of the victims has played a major role in evolving victim rights in India. However, despite various amendments, the efforts of the police, prosecutors, judges, and the legislature in protecting victim rights have been inadequate.

Indian perspective of a crime victim

The Code of Criminal Procedure (Amendment) Act, 2008, defined a victim under Section 2(wa) as an individual who has suffered any loss or injury due to the actions or omissions of the accused person. The definition of a victim encompasses a person’s guardian as well as legal heirs. While deliberating on a certain issue, the judiciary follows the literal rule of interpretation concerning the definition of a victim. Hence, under Section 372 of the Code of Criminal Procedure, the right to appeal against acquittal is conferred on the victim only. 

The Indian definition of the victim is narrower as compared to the United Nations approach in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, which states that a victim is a person who individually or collectively suffers a physical or emotional injury, economic loss or substantial violation of fundamental laws due to the acts or omissions of the accused that are in contravention with the criminal law framework of the Member States. The international definition of a victim also includes a person who suffers injury due to another’s criminal abuse of power. The UN declaration passed in 1985, recognizes the four types of rights and entitlements of victims of crime as:

• Access to justice and fair treatment
• A right to compensation
• Restitution
• Personal Assistance and support services

The provisions that are presently effective under the Indian Criminal law seem to be inefficient in providing these rights to the victims. The justice system seems to only assure compensation to the victim at the discretion of the judge with limited access to justice and fair treatment.

Victim’s right to appeal

The right to appeal is one of the basic human rights available to the people living in a civilized society. It flows from the principles of natural justice and substantive rights which construe a right to the substance of being human in contrast with a procedural right. The substantive rights of victims were largely ignored in the Indian judicial system. Originally, the Code of Criminal procedure, 1861 was devoid of any provisions allowing appeals against an order of acquittal. The State was given the right to appeal against the order of acquittal by any lower courts under the original or appellate jurisdiction of the High Court through Section 417 of the Code of Criminal Procedure, 1898. The 41st and 48th Report of the Law Commission of India recommended restricting the government’s right to appeal against an acquittal order by introducing the concept of ‘leave to appeal’. The ‘leave to appeal’ provision conferred discretionary powers on the High Court to allow or refuse an appeal against an acquittal order by a lower court.

The parliament enacted the Code of Criminal Procedure, 1973, and implemented the recommendations of the Law Committee’s reports. The insertion of Section 378(3) restricted the right to appeal against an acquittal order without the permission of the High Court. Section 378(4) allowed the State Government to file an appeal with the consent of the complainant only if the special leave to appeal was granted by the High Court. Section 372 of the Code of Criminal Procedure mandated that no appeals against the decision of a Criminal Court could be maintained without the consent of the High Court. Therefore, the Indian legislature failed to acknowledge the diminished rights and options available to a victim after a criminal proceeding.

The Code of Criminal Procedure (Amendment) Act 2005, introduced various changes in the legislation. However, despite the Supreme Court’s recognition of victim’s rights as well as the evolution of international jurisprudence regarding the rights of the victims of crimes, the legislature failed to introduce provisions permitting the victim to appeal against the acquittal of an accused. The Amendment allowed appeals against acquittals in the Court of Session without any leave to appeal. Section 377 of the CrPC was also amended to allow an appeal on the ground of inadequacy of sentence. All these amendments were intended to check the abuse of power and restrain frivolous acquittals.

The legislature introduced certain amendments in the Code of Criminal Procedure on the recommendations of the Committee on Reforms of the Criminal Justice System (Justice Malimath Committee) through the Code of Criminal Procedure (Amendment) Act, 2008. Some of the salient provisions of the Act that creates room for victim rights in the Indian criminal framework are:

1. Section 2(wa) defines a victim and extends the definition to include the victim’s legal heirs and guardians.
2. Proviso to Section 24(8) allows the victim to appoint a legal practitioner to aid the public prosecutor with the permission of the Court.
3. Proviso to Section 26(a) mandates the offences covered under Section 376(A) to 376(D) of the Indian Penal Code, 1860 would be subjected to trial in a court of law usually presided by a woman judge.
4. Proviso to Section 157(1) provides that the statement of a rape victim be recorded at the place of residence of the victim or a place of her choice, by a woman police officer, in the presence of any parent, guardian or social worker of the area.
5. Section 173(1-A) mandates that investigation must be completed with three months from the date of receipt of information in a case involving child rape.
6. Section 357-A establishes a victim compensation scheme for compensation to the victim or his dependents. 
7. Section 372 allows the victim to appeal against an acquittal order, a conviction for a lesser offence or inadequate compensation given by the court.

Legislative action

The legislature recognized the flaw in the criminal justice system that allowed influential, rich, and powerful people to threaten or induce witnesses to turn hostile. The victim has a direct nexus with the damage caused to him whereas the society suffers from a remote effect. The need for certain rights and compensation for the victims would ensure the efficacy of the criminal justice system. They also acknowledged the dearth of options available to the victims who are the worst sufferers in a crime. The right to a fair trial is inherent to the fundamental right to live with dignity and honour under Article 21 of the Indian Constitution. Therefore, the Code of Criminal Procedure (Amendment) Act, 2008 cures the victim’s limited right to appeal by allowing an appeal against an acquittal as well conviction for a lesser offence.

The law also allows the victim to appeal against an order on the grounds of inadequate compensation. This legislative action was taken after the infamous Best Bakery case, in which the Supreme Court criticised the public prosecutor for trying to help the accused. The law recognizes that the State might have an ulterior motive in a trial and may be reluctant to prosecute the accused due to political rivalry, corruption of people in power, etc. Therefore, it allows the involvement of third parties such as the victims to appoint their legal counsel who would represent their interests in a trial. This leads to the proper functioning of the legal regime and ensures that a person is not exploited and denied justice.

Judicial opinion

In the recent case of Parvinder Kansal vs State of NCT of Delhi (2020), the accused was found to be guilty of the charges of kidnapping, murder, and destruction of evidence under Section 364A, Section 302, and Section 201 of the Indian Penal Code,1860. The father of the deceased boy sought an enhancement of the sentence imposed on the convict by the Trial Court before the High Court of Delhi. However, the honourable High Court dismissed the contention on the premise that the victim does not have the right to appeal for the enhancement of sentence of life imprisonment to a death penalty under the relevant provisions of the Code of Criminal Procedure.

The Apex Court upheld the High Court’s decision while establishing that under Section 372, the grounds for appeal by the victim are limited to the acquittal of the wrongdoer, a conviction for a lesser offence, or the imposition of inadequate compensation. Therefore, even if a Trial Court penalized the accused by a token sentence or a fine, the victim does not have any legal recourse to file an appeal. The government is empowered under Section 377 to seek enhancement of the sentence. The law subtly differentiates between conviction and sentence. While the former is the judicial process of establishing the guilt of the accused, a sentence is an actual punishment conferred upon the guilty.

This legislative oversight denying the right to seek enhancement of a sentence seems to defeat the entire purpose of promoting victim rights in criminal proceedings. The judges in the aforementioned case have relied on a literal interpretation of the constitutional text to establish that the remedy of appeal is a creation of a statute. Therefore, without an amendment to the existing legislation or the introduction of any new laws by the legislature, the judiciary is bound by the provisions of the effective legislation. A similar stance was taken in the case of the National Commission for Women v. State of Delhi and Anr. (2010), to dismiss the appeal on the grounds of lack of legislative clarity allowing the victim to seek enhancement of the sentence. 

In another case of Mallikarjun Kodagali vs The State of Karnataka (2018), the Supreme Court had stressed the importance of interpreting the rights given to the victim under Section 372 of the Code of Criminal Procedure in a liberal, realistic, progressive manner. The Court also relied on the UN Declaration of 1985 to establish that the victims along with the state have the right to appeal against the acquittal of the accused. This included the right to appeal against the conviction for a lesser offence like reducing the charge of murder to culpable homicide. However, the right to seek an enhancement of the sentence given after conviction of the accused rests with the State only. Various developments have taken place in victimology and criminology as seen from the cases of Rekha Murakha vs. State of West Bengal and Anr (2019) and Ram Phal vs State & Ors (2015), in which the courts have relied on the State of Objectives and Reasons of the Code of Criminal Procedure (Amendment) Act, 2008 to ensure a fair trial and delivery of justice. However, no attempt has been made by neither the judiciary nor the legislature to cure this anomaly of not allowing the victim to seek enhancement of a sentence under Section 372 of the CrPC. 

Conclusion

The absence of victim-oriented legislations and judicial pronouncements has handicapped the development of victim rights in India. Although victims are the actual sufferers of a crime, the government is accorded with more rights and powers in comparison to the victims. Paying heed to the demands of the victims and allowing them to play a major role in the criminal proceedings is the need of the hour.

References

• https://www.livelaw.in/top-stories/appeal-filed-by-victim-seeking-enhancement-of-sentence-not-maintainable-sc-162110
• https://www.livelaw.in/columns/right-of-appeal-under-section-372-cr-pc-1973-vis-vis-period-of-limitation-a-conundrum-161837
• https://www.legalserviceindia.com/legal/article-3859-why-victim-cannot-appeal-against-inadequate-sentence-under-section-372-cpc-.html#:~:text=Section%20372%20of%20the%20Code%20of%20Criminal%20Procedure%2C%201973%20was,offence%20or%20imposing%20inadequate%20compensation.

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