MALLIKARJUN KODAGALI (DEAD) REPRESENTED v. THE STATE OF KARNATAKA & Ors.

Judgment

(Partly Dissenting): Para 4 Para 5 Para 38 Para 39 Para 44 Para 48 Para 50 Para 51 Para 58 Para 70 Para 71 Para 73

1.1 The proviso to Section 372 of the Code of Criminal Procedure, must be given a meaning that is realistic, liberal, progressive and beneficial to the victims of the offences. However, at the same time, one cannot ignore the rights of the accused and the procedure prescribed by law. It cannot be accepted that a victim can file an appeal in the High Court without seeking leave to appeal in terms of Section 378(3) CrPC. [Paras 1, 2] [37-H; 38-A-B]

1.2 It is accepted that the right to file an appeal to the victim will arise only on the date when the judgment is passed by the trial court because then alone the victim has a right to urge that the acquittal is wrong or that the sentence awarded to the accused is not commensurate with the offence which the accused may have committed. Therefore, there is no doubt that the victim has a right to appeal and to that extent the judgment of the High Court is liable to be set aside. [Para 4][39-H; 40-A-B] 5 A B C D E F G H SUPREME COURT REPORTS [2018] 13 S.C.R.

1.3 Prior to the amendment of Section 372 CrPC the victim had no right to file an appeal. The traditional view has always been that the State represents the victim of the crime. Criminal offences have always been treated to be offences against the State and it is the State alone which investigated and prosecuted such cases. In case the State machinery does not take action on the complaint of the victim, the said victim has a right under Section 156 CrPC to approach the court. Under Section 156(3) CrPC, the magistrate may order an investigation to be done by the police. Once the investigation is done, then again the victim has no hand in the investigation except to assist the investigating officer and to bring evidence to the notice of the investigating officer. After investigation, the investigating officer files a final report under Section 173 CrPC. The investigating officer may come to the conclusion that either no offence is made out or may file report showing what offences are made out in which case the court proceeds further. Even in those cases where the investigating agency files a report that no criminal offence is made out, the victim has a right to object to the report and he can argue before the court that a case is made out on the basis of the evidence collected or he can even urge that the police must be directed to carry out further and more investigation. [Para 6][41-D-G]

1.4 Chapter XXIX of the CrPC deals with appeals. Appeals against acquittal are governed by Section 378 of CrPC. An analysis of Section 378 of CrPC clearly shows that the CrPC envisaged and granted a predominant role to the State. It was the State alone which was entitled to file an appeal. The only exception was in complaint cases where the complainant could file an appeal. He also had to seek special leave to appeal in case the appeal lay to the High Court. [Para 7][41-H; 42-D, E]

1.5 Section 372 CrPC which was amended in the year 2008 to give a right to the victim is a negative section which specifically provided, before its amendment, that no appeal would lie from any judgment or order of a criminal Court except as provided for by the CrPC or by any other law in force. The Legislature while giving a victim the right to appeal did not, for reasons best known to it, give this right to file appeal to the victim under Section 378 CrPC or any other specific section. Surprisingly this right to the 6 A B C D E F G H MALLIKARJUN KODAGALI (DEAD) REP. THR. LRS. v. THE STATE OF KARNATAKA victim was given as a proviso to Section 372 CrPC. This proviso is not very happily worded. Be that as it may, the fact is that a victim now has a right to appeal under this proviso. He can file the appeal against the orders stated therein. [Para 8][42-E-G]

1.6 The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. Therefore, the High Court would at the initial stage of deciding whether the leave is to be granted or not go into the merits of the case. Only if arguable points are involved, the High Court normally grants leave to appeal. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court.[Para 9][43-B-D]

1.7 Under Section 378 CrPC an appeal against the order of acquittal passed by a Magistrate in respect of cognizable and non- bailable offences lies to the Sessions Court and no leave to appeal is required. From the Court of Magistrate it is only appeals in respect of offences which are non-cognizable and bailable i.e. less serious offences which would lie to the High Court. In such cases, leave to appeal is a pre-requisite. This was done with a view to ensure that the persons who had faced trial for relatively lesser offences should not have to bear the expenses of an appeal in the High Court. The other appeals which lie to the High Court are appeals from the Court of Sessions. These are serious criminal matters and relate to much graver offences. The concept of leave to appeal was probably introduced because these cases are decided by relatively senior Judges-Sessions Judges. Legislature felt that in such cases also the appeals against acquittals must be scrutinized with greater care. [Para 10][43-E-G]

1.8 Even a complainant when he files an appeal against an order of acquittal in a case instituted upon a complaint is required to obtain special leave to appeal. It is true that the proviso to 7 A B C D E F G H SUPREME COURT REPORTS [2018] 13 S.C.R. Section 372 CrPC does not indicate that a victim while filing an appeal in the High Court must file a petition for leave to appeal before his appeal can be entertained. Though the proviso to Section 372 CrPC 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 the Legislature. The proviso to Section 372 CrPC 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. [Paras 11, 12][43-H; 44-A-C]

1.9 Adverting to sub-section (4) of Section 378 CrPC, if an order of acquittal is passed on a case instituted upon a complaint then the High Court before entertaining an appeal by the complainant must grant special leave to appeal. The expression “Special leave to appeal” has no different meaning than the expression “leave to appeal” and it appears to me that the word “special” has been added only to distinguish “leave to appeal” sought by the complainant from the “leave to appeal” sought by the State. Thus, in a complaint case where the complainant has set the wheels of the Court in motion even if the complainant files the appeal he must obtain special leave to appeal. This again gives rise to an interesting question- Can the victim be placed on a higher pedestal than the complainant? More often than not, the victim and the complainant are likely to be one and the same person. [Para 13][44-C-E]

1.10 In case, the proposition is accepted that the victim need not seek leave to appeal in case the appeal is to be filed in the High Court there shall be another 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 the High Court, he will have to seek special leave to appeal whereas the victim who had not even approached the 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 the Legislature. [Para 14][44-F-G] 8 A B C D E F G H MALLIKARJUN KODAGALI (DEAD) REP. THR. LRS. v. THE STATE OF KARNATAKA

1.11 These are changes in criminal jurisprudence and the expanding rights of the victim, which the victim must have. At the same time, these rights must be balanced with the rights of the accused. It is not uncommon for individuals to file false cases. Therefore, while interpreting the law one cannot shut one’s eyes to the fact that 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. [Paras 15, 16][44-H; 45-A-D] Rajesh Sharma v. State of U.P. 2017 SCC Online SC 821; Dr. Subhash Kashinath Mahajan v. State of Maharashtra (2018) 6 SCC 454 – referred to.

1.12 One of the bedrocks of the criminal jurisprudence is that every person is presumed innocent unless found guilty. This presumption of innocence gets strengthened when the person is acquitted. Therefore, the legislature felt that before a person who has been acquitted after a protracted trial is called to face proceedings in the High Court in an appeal, the High Court should look into the matter and first decide whether there are sufficient reasons to grant leave to file appeal or not. This is, in a manner of speaking a preliminary hearing to decide whether the matter is worth looking into or not. There is no reason why such scrutiny should not be done in appeals filed by the victim. The victim cannot be placed on a higher pedestal than the State or the complainant. 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. If Sections 378(3), 378(4) and 372 CrPC are read together, it is clear that the victim is also required to apply for leave to appeal before his appeal can be entertained. [Paras 17,18][45-D-G]

1.13 Though the victim has rights, one cannot forget that a victim who may have suffered, may also seek revenge. Therefore, an obligation has been cast upon the State to prosecute the accused. In fact, even now a trial under the CrPC has to be conducted by the Public Prosecutor or Assistant Public Prosecutor. No private lawyer can be engaged to conduct the trial under Section 301(2) CrPC. A private person including the victim, can only instruct a pleader to act on his behalf in court but the prosecution has to be conducted either by the Public 9 A B C D E F G H SUPREME COURT REPORTS [2018] 13 S.C.R. Prosecutor or Assistant Public Prosecutor and the pleader engaged by the private person can only act as per the directions of the Public Prosecutor or Assistant Public Prosecutor. The reason behind this is that the victim may fabricate evidence or hide true facts whereas the Public Prosecutor or Assistant Public Prosecutor is expected to be fair to the court, to the accused and to the victim. [Para 19][45-H; 46-A-C]

1.14 On the one hand are the rights of the victim and on the other hand, is the well settled principle of criminal jurisprudence that every man is presumed to be innocent till proved guilty. Therefore, 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 the State and the complainant in a complaint case. Therefore, when the victim files an appeal against acquittal in the High Court he has to seek leave to appeal under Section 378(3) CrPC. [Para 20][46-D-E] Satya Pal Singh v. State of Madhya Pradesh & Ors. (2015) 15 SCC 613 – referred to. Case Law Reference (2015) 15 SCC 613 (2018) 6 SCC 454 referred to referred to Para 5 Para 16 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 1281-1282 of 2018. From the Judgment and Order dated 10.06.2014 of the High Court of Karnataka, Circuit Bench at Dharwad in Criminal Appeal No 100016 of 2014 and Judgment and Order dated 04.07.2014 in Criminal Appeal No 100119 of 2014 Sidharth Luthra, Sr. Adv., S. Udaya Kumar Sagar, Ms. Bina Madhavan, Piyush Dwivedi, Anoopam N. Prasad, Ms. Mehak Jaggi, Anthony for M/s. Lawyer S Knit & Co, Advs. for the appellants. A. K. Ganguli, Sr. Adv., Ms. Rajani K. Prasad, Ms. N. Annapoorani, Joseph Aristotle S., Ms. Priya Aristotle, Ms. Payal N. Gaikwad, Gaurav Agrawal, Nishanth Patil, Ms. Sneha R. Iyer, Rohit Prasad, Shahayar Ali, Advs. for the respondents. 10 A B C D E F G H MALLIKARJUN KODAGALI (DEAD) REP. THR. LRS. v. THE STATE OF KARNATAKA The Judgments of the Court were delivered by MADAN B.LOKUR, J. 1. Leave granted. 2. The rights of victims of crime is a subject that has, unfortunately, only drawn sporadic attention of Parliament, the judiciary and civil society. Yet, it has made great progress over the years. It is our evolving and developing jurisprudence that has made this possible. But we still have a long way to go to bring the rights of victims of crime to the centre stage and to recognise them as human rights and an important component of social justice and the rule of law.

#3. The travails and tribulations of victims of crime begin with the trauma of the crime itself and, unfortunately, continue with the difficulties they face in something as simple as the registration of a First Information Report (FIR). The difficulties in registering an FIR have been noticed by a Constitution Bench of this Court in Lalita Kumari v. Government of Uttar Pradesh.1 The ordeal continues, quite frequently, in the investigation that may not necessarily be unbiased, particularly in respect of crimes against women and children. Access to justice in terms of affordability, effective legal aid and advice as well as adequate and equal representation are also problems that the victim has to contend with and which impact on society, the rule of law and justice delivery.

#4. What follows in a trial is often secondary victimisation through repeated appearances in Court in a hostile or a semi-hostile environment in the courtroom. Till sometime back, secondary victimisation was in the form of aggressive and intimidating cross-examination, but a more humane interpretation of the provisions of the Indian Evidence Act, 1872 has made the trial a little less uncomfortable for the victim of an offence, particularly the victim of a sexual crime. In this regard, the judiciary has been proactive in ensuring that the rights of victims are addressed, but a lot more needs to be done. Today, the rights of an accused far outweigh the rights of the victim of an offence in many respects. There needs to be some balancing of the concerns and equalising their rights so that the criminal proceedings are fair to both.2 The Courts have provided solace to the victim with monetary compensation, but that is not enough.3 There