Seema Rani v. Rashpal Singh & Ors.

Mr. Sunil Sethi, Sr. Advocate with Mr. Ankesh Chandel, Advocate Vs. Rashpal Singh and ors. …Respondent(S) Through: - None CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER 1) The petitioner has filed the instant criminal revision petition against judgment dated 20.01.2023, whereby learned Principal Sessions Judge, Samba has convicted respondent Nos. 1 to 3 for offences under Sections 304(1), 323/ and 34 RPC and at the same time acquitted them of the graver charge of offence under Section 302 RPC. Challenge has also been thrown to order dated 23.01.2023 passed by the learned Principal Sessions Judge, Samba, whereby the aforesaid respondents have been sentenced to lesser punishment of imprisonment for ten years and fine of Rs. 10,000/- for commission of offences under Sections 304(1) and 323 of RPC. 2) The petitioner, who happens to be the daughter-in-law of the deceased, has filed the instant revision petition challenging acquittal of the 2 Crl R No. 09/2023 accused for charge of offence under Section 302 RPC and consequent conviction of the accused for lesser offences. The question that arises for consideration is as to whether in view of the applicability of Code of Criminal Procedure, 1973 to this part of the Country, pursuant to the promulgation of Jammu and Kashmir Reorganization Act, 2019, instant revision petition is maintainable in the face of the provisions contained in proviso to Section 372 of the aforesaid Code. 3) It appears that a Division Bench of this Court in Sanjay Kumar Rai vs. Union Territory of J&K and Anr. (CrLA(D) No. 12/2020, decided on

21.08.2020) has observed that cases/proceedings where date of occurrence/date of institution is prior to the coming into force of the J&K Reorganization Act, 2019, it is the repealed Act(s)/Code(s) that shall be applied. However, the situation in the instant case is somewhat different because with the coming into effect of the Central Criminal Procedure Code, a substantive right to file appeal has accrued in favour of the victim in terms of proviso to Section 372 of the Code of Criminal Procedure, 1973. 4) Admittedly, the impugned judgment has been passed by the learned Principal Sessions Judge, Samba after application of the Central Criminal Procedure Code to the Union Territory of Jammu and Kashmir. The question, whether right to file an appeal would accrue to a victim in a case where an occurrence has taken place at a time when proviso to Section 372 Cr.PC had not been inserted in the Central Cr.PC, came up for discussion before the Supreme Court in the case of Mallikarjun Kodagali (Dead) vs. State of Karnataka and Ors. (Cr. Appeal Nos. 1281-82 of 2018 decided 3 Crl R No. 09/2023 on 12.10.2018). In the said case, the Supreme Court has held that cause of action in favour of the victim to file an appeal against an order of an acquittal etc. arises only when an order of acquittal is passed and if that happens after 31st December, 2009 when the aforesaid proviso was inserted in the Cr.P.C, the victim has a right to challenge the acquittal through an appeal. The Court further observed that the victim has also a right to challenge the conviction of the accused for lesser offence or imposing inadequate compensation. The Supreme Court while holing doing so, gave a historical reason for this by observing as under: “75. In our opinion, the proviso to Section 372 of the Cr.P.C. must also be given a meaning that is realistic, liberal, progressive and beneficial to the victim of an offence. There is a historical reason for this, beginning with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly of the United Nations in the 96th Plenary Session on 29th November, 1985. The Declaration is sometimes referred to as the Magna Carta of the rights of victims. One of the significant declarations made was in relation to access to justice for the victim of an offence through the justice delivery mechanisms, both formal and informal. In the Declaration it was stated as follows: “4. Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.

5. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.

6. The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by: (a) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information; 4 Crl R No. 09/2023 (b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system; (c) Providing proper assistance to victims throughout the legal process; (d) Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation; (e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.

7. Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims.”

76. Putting the Declaration to practice, it is quite obvious that the victim of an offence is entitled to a variety of rights. Access to mechanisms of justice and redress through formal procedures as provided for in national legislation, must include the right to file an appeal against an order of acquittal in a case such as the one that we are presently concerned with. Considered in this light, there is no doubt that the proviso to Section 372 of the Cr.P.C. must be given life, to benefit the victim of an offence.” 5) For the foregoing analysis of law on the subject, it is clear that in order to give life to the right of a victim to file an appeal against order of acquittal or against an order convicting an accused for a lesser sentence, proviso to Section 372 Central Cr.PC has to be made applicable to all cases, in which right to file appeal has accrued in favour of the victims after coming into force of the J&K Reorganization Act, 2019. The observations in Sunil Kumar Rai’s case (supra) would not come in the way of such right of the victim in view of the law laid down by the Supreme Court in Mallikarjun Kodagali’s case (supra). 5 Crl R No. 09/2023 6) For the forgoing reasons, it is held that once the petitioner has a remedy of filing an appeal, the instant revision petition in view of the provisions contained in Section 401(4) of Cr.P.C, is not maintainable. The same is, accordingly, dismissed with a liberty to the petitioner to file an appeal against the impugned judgment of conviction/order of sentence. (SANJAY DHAR) JUDGE Jammu 06.03.2023 Karam Chand/Secy. Whether the order is speaking: Whether the order is reportable: Yes/No Yes/No