MALLIKARJUN KODAGALI (DEAD) REPRESENTED THROUGH LEGAL REPRESENTATIVES versus THE STATE OF KARNATAKA & ORS.

Citation: [2018] 13 S.C.R. 1 · Decided: 12-10-2018 · Supreme Court of India · Bench: MADAN B. LOKUR · Disposal: Leave Granted & Allowed

Cited by 12 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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[2018] 13  S.C.R. 1
        1
MALLIKARJUN KODAGALI (DEAD) REPRESENTED
THROUGH LEGAL REPRESENTATIVES
v.
         THE STATE OF KARNATAKA & ORS.
(Criminal Appeal Nos. 1281-1282 of 2018)
OCTOBER 12, 2018
[MADAN B. LOKUR, DEEPAK GUPTA AND
S. ABDUL NAZEER, JJ.]
Code of Criminal Procedure, 1973:
s. 372 proviso (introduced w.e.f. 31.12.2009) – Right of appeal
against acquittal to the victim of an offence – Requirement of
seeking leave of the High Court – On facts, alleged offence took
place in February 2009 – Order of acquittal passed by the trial
court in October 2013 – Appeal filed under proviso to s. 372 by the
victim – Dismissed by the High Court as not maintainable holding
that the proviso to s. 372 introduced w.e.f. 31.12.2009 but the
incident had occurred well before that date – On appeal, held: (Per
Lokur J) ‘Victim’ as defined in the Cr.P.C. has a right of appeal in
view of the proviso to s. 372 against an order of acquittal in a case
where the alleged offence took place prior to 31.12.2009 but the
order of acquittal was passed by the trial court after 31.12.2009 –
Victim can file appeal without seeking leave to appeal against the
order of acquittal – Held: (Per Gupta J: Partly dissenting) When the
victim files an appeal against acquittal in the High Court he has to
seek leave to appeal u/s. 378(3) CrPC.
s. 372 proviso – Connotation of – Held: Proviso to s. 372
must be given a meaning that is realistic, liberal, progressive and
beneficial to the victim of an offence.
Criminal law: Rights of victims of crime – Held: 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 – Judiciary is obliged to go and has gone beyond merely
awarding compensation and has taken into consideration the larger
picture from the perspective of the victim of an offence – Rights of
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SUPREME COURT REPORTS
[2018] 13  S.C.R.
victims, and indeed victimology, is an evolving jurisprudence and it
is more than appropriate to move forward in a positive direction,
rather than stand still or worse, take a step backward – Voice given
to victims of crime by Parliament and the judiciary, needs to be
heard, and if not heard, to be raised to a higher decibel.
Allowing the appeals, the Court
HELD: Per Madan B. Lokur, J (for himself & S. Abdul Nazeer,J.):
1.1 The right to file an appeal is a substantive right and it
should not be easily recognized unless specifically conferred by
statute. It has been held that the right to appeal is not a mere
matter of procedure but is a substantive right. [Para 71][34-D]
Garikapati Veeraya v. N. Subbiah Choudhry [1957]
SCR 488 – followed.
1.2 It is significant that several High Courts have taken a
consistent view to the effect that the victim of an offence has a
right of appeal under the proviso to Section 372 Cr.P.C. This
view is in consonance with the plain language of the proviso. But
what is more important is that several High Courts have also
taken the view that the date of the alleged offence has no relevance
to the right of appeal. It has been held that the significant date is
the date of the order of acquittal passed by the trial court. In a
sense, the cause of action arises in favour of the victim of an
offence only when an order of acquittal is passed and if that
happens after 31st December, 2009 the victim has a right to
challenge the acquittal, through an appeal. Indeed, the right not
only extends to challenging the order of acquittal but also
challenging the conviction of the accused for a lesser offence or
imposing inadequate compensation. The language of the proviso
is quite explicit, and nuances that do not exist in the provisos
should not be read. [Para 74][35-B-D]
1.3 The proviso to Section 372 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
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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 fo

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