VICTIM’S RIGHT OF APPEAL AND ITS STATUTORY ANOMALIES

October 22, 2014 - admin

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Published by : Adv.John S.Ralph

When does an appeal lie?

In criminal matters appeal lies only as provided by the Cr.P.C . Chapter XXIX that starts with section 372 says “No appeal lies unless otherwise provided” Appeal is a statutory right. In the era of trials by jury, appeal was a luxury. The post constitutional changes made it a statutory right.

But revision is a discretion. Reading of section 403 Cr.P.C makes it clear by declaring that as a matter of right none of the parties can say that he may be heard either personally or through a pleader.

Maintenance of public tranquility by preventing crimes and punishing the delinquents is the duty of the state being imparted through the criminal justice rendering system. Hence an appeal against acquittal is a prerogative of the state.

Is the State’s Privilege taken away?

By the amendment in Cr.P.C dated 31.12.2009, a proviso has been added to section 372 Cr.P.C wherein the victim is given a right of appeal to the court to which an appeal lies from a conviction. Before the amendment, all appeals against acquittals have to come to High Court under section 378 Cr.P.C

The right to move an appeal against acquittal was reserved to the Sate since it is the sponsor of the prosecution in the trial court. It is presumed that the accused is innocent until the contrary is proved. An acquittal fortifies this presumption and that is why the right to appeal was reserved with the State and not to the victim. But at the same time it does not mean that the victim has no right at all, the remedy lies in revision.

The difference between appeal and revision:

Though the powers of revision are more or less concurrent with that of an appeal, the revisional court has no power to reverse an order of acquittal and to convict the accused. If it feels so, it can only remand the matter to the trial court for a further inquiry or retrial as mentioned in Sec. 386 (a) The power to find him guilty and pass sentence, mentioned in the last limb of the same section, is taken away by the operation of Sec.401(3) Cr.P.C. Needless to say, in such cases the accused will get a fresh chance to defend.

This limitation of the High Court in disturbing an acquittal while entertaining a revision is clearly stated in Section 401(3) Cr.P.C. while dealing with the powers of revision :

“Nothing in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction”

( In India, auterfois convict is a constitutional right under Article 20 (2) But not auterfois acquit. But it is a statutory right coming under Sec.300 Cr.P.C )

In the new amendment the victim can approach the appellate court in appeal. And the appellate court can reverse the finding and convict the accused.

Will the new right operate retrospectively?

The aforesaid right of the victim has created a new right to the victim with a corresponding liability to the accused. Hence it cannot operate retrospectively. An offense committed before 31.12.2009 has to be treated separately from one committed after that. In the former case on the date of offense the victim had no right of appeal and if he comes through the door of revision, the accused will get the chance of a further trial in which he can answer the incriminating things that prompted the revisional court to order a retrial. But at the same time had it been an appeal by the State Government against the acquittal the same court (High Court) could have convicted the accused.

Logically it may not sound correct. But in a rule of law, country like that of India, logic is replaced by rules of the statute and rules of specific exclusions. When the statute says that “there is no right of appeal to the victim and that the revisional court cannot reverse an order of an acquittal and convict ” the logical correctness of the same is beyond discussion and is restricted by statutory guidelines. And this is also for the reason that in order to send a person to prison by curtailing his personal liberty, there should be a clear “procedure prescribed by law” as mentioned in Article 21 of the Constitution of India.

The legitimate expectation of a delinquent and the Protection under Article 21

After the amendment, against the order of an acquittal passed by the trial court, the victim can prefer an appeal either to Sessions court or to the High Court as the case maybe depending upon the forum to which an appeal would have been preferred against conviction. So if the date of offense is before 31.12.2009, it cannot be said that the victim has a right of appeal if the order of acquittal is passed after that date since on the date of commission of the offense, there was no right of appeal for the victim.

One cannot assume that the accused had a threat of getting a conviction, on the strength of a subsequent amendment, on an appeal not preferred by the State and decided by the highest forum of the State that is the High Court. In such cases i.e before 31.12.2009, on the date of offense he had a right of another trial before getting a conviction in case the revision was filed by the victim. This is a matter of right and liability. So it cannot go retrospectively with a prejudicial effect on the accused and his golden presumption of innocence. It will also violate the constitutional protection under Article 21 since there was no procedure established by law for enabling the victim to prefer an appeal against acquittal and bringing a conviction for the accused.

Now the courts are mechanically entertaining appeals from the victims irrespective of the date of commission of offense. This is not correct since it adversely affects the right of the accused and hence cannot operate retrospectively.

The Statutory anomalies

A careful reading of newly added proviso to 372 will show that it is badly drafted. The words occurring therein “and such appeal shall lie to the court to which an appeal “ordinary lies” against the order of conviction against such court” is confusing at times.

As per section 374 Cr.P.C a person convicted by an Assistant Sessions judge for a period of more than seven years has to go in appeal to the High Court. But where the sentence is for a term less than seven years, the appeal goes to the Sessions court. So, as far as a trial before an assistant sessions judge is concerned, there is no court to which an appeal lies “ordinarily”. It depends upon the term of sentence passed on conviction. Hence when the matter ends in acquittal, the forum for appeal cannot be ascertained. The new enactment is silent on the forum to which an appeal lies against an order of acquittal passed by an Assistant Sessions judge. One cannot assume that since it is also a Sessions court, the appeal goes to the High Court. As per Section 10 Cr.P.C, an Assistant Sessions Court is a “Subordinate Court” to Sessions Court. ( Though the word used therein is “judge” it is to be read as a synonym for “court”) And prudence compels an appeal to the Sessions Court since that is the lowest forum to be approached first. The statute must clarify the same.

Two Appeals from the same judgment of acquittal !!

Even after the new amendment, the right of appeal by the state is not deleted from the statute and hence the possibility of two appeals, one by the victim and the other by the state also cannot be ruled out. It is not a matter of ignorance of the pendency of the other appeal. A point not raised by the state can be raised by the victim in the appeal preferred by him and vice versa. It is true that both these appeals can be heard by the High Court. But since the state government’s right of appeal lies to the High Court alone, it can only go there in appeal. But at the same time the victim has to go to the sessions court since an appeal “ordinarily” lies to that court from a conviction as provided in the newly added proviso to section 372. This anomaly cannot be cured.

To which court lies the appeal against conviction ?

If the sessions court reverses the finding of an acquittal and passes an order of conviction the accused will get an opportunity of appeal to the High Court. But if it is the High Court that reverses the finding and passes a conviction, the accused will not have a right to appeal U/S 379 Cr.P.C except in cases where the sentence passed is more than 10 years. There are offenses in the penal code which carries such punishments but is triable by the magistrate court. In such offenses, the forum of appeal against an acquittal assumes importance to the accused. If it is before the Sessions Court, an appeal lies to the High Court. But if it is before the High Court and the sentence is less than 10 years, no appeal lies to the Supreme Court as a matter of right.

Barring these anomalies the right of the victim to file an appeal against conviction is a pacifier to the victim and they need not be at the mercy of the prosecutors who has to recommend an appeal against an acquittal.

Conclusion

  1. The new right of appeal by the victim should arise only with regard to the offenses committed after 31.12.2009. In other cases, the victim’s right should lie in revision.
  2. The statute must clarify the forum of appeal in cases of acquittal passed by the Assistant Sessions Court since it has no court to which an appeal against conviction lies “ordinarily”.
  3. The statute must clarify the procedure to be followed in cases of simultaneous appeals preferred by the victim and the State Government.

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