Section 372 CrPC: Right Of Appeal Of Victim Absolute; Special Leave Not Necessary: SC
- The Hon’ble SC, in the case of Joseph Stephen vs Santhanasamy has held that the right of appeal that has been provided to the accused under section 372 of CrPC is an absolute right and no special leave is necessary in this case, as is needed in section 378(4) of CrPC. Additionally, the Court has also held that the HC, in the exercise of revisional jurisdiction under section 401 CrPC, cannot convert an acquittal into conviction.
- In the instant case, the CJM, Tiruchirapalli convicted the accused under sections 147, 148, 324, 326 IPC and passed an order of acquittal under section 307 and 506(ii) of IPC. The accused appealed against this order and was acquitted of all charges by the first appellate Court and the criminal appeals filed by the victim against acquittal under 307 and 506(ii)IPC were also rejected.
- Aggrieved, the victim filed a revisional application under section 307 read with section 401 of CrPC. The HC reversed the decision of the lower Court and upheld the order of conviction passed by the trial Court.
- The Hon’ble SC, in an appeal by the accused, has held that the HC, in the exercise of its power of revision cannot convert an order of acquittal into one of conviction.
- As regards the question as to whether the victim has a right to file a revisional application under 401 CrPC when the right of appeal has been provided under section 372 CrPC, the Hon’ble Court relied upon the judgement of the SC in Mallikarjun Kodagali vs. State of Karnataka (2019)2 SCC and observed that the insertion of the proviso to section 372 CrPC has made it abundantly clear that the victim has a statutory right to prefer an appeal against an order of acquittal. In case an order of acquittal is passed in a case instituted upon a complaint, the complainant (other than the victim) can appeal against the same after obtaining the leave of the HC under section 378(4) of CrPC.
- The Court also held that there is no need to obtain a special leave under 372 CrPC as is required under 378(4) of CrPC, thus holding that the right of appeal granted to the victim is absolute and unqualified.
- Thus, according to the Apex Court, no application of revision would be maintainable in cases in which an appeal can be filed. It can also be noted that the same is provided under section 401(4) of CrPC, which states that when an appeal lies but is not filed, no proceedings by way of revision can be entertained at the instance of the party who could have appealed.
- This is also beneficial for the applicant, the Court observed, as the powers granted to a Court under revision are very limited, whereas the powers granted under an appeal have a very wide ambit.
- Thus, the Apex Court remitted the matter to the HC to treat the application of revision as an application of appeal, a right to which can be drawn from section 401(5) of CrPC and to decide the case on its merits, as the same would be in the interest of justice.
Can Mandamus Be Issued To Provide For Reservation: SC Disagrees
- The Hon’ble SC, in the case of State of Punjab vs. Anshika Goyal has observed that providing a reservation to a class of persons, and the percentage decided from the same is a policy decision, and the HC cannot, under Article 226, issue a writ of mandamus for the same.
- In the instant case, the Punjab and Haryana HC had allowed a writ of mandamus, directing the State to issue a notification providing for a 1% reservation for children/grandchildren of the terrorist affected persons in all private, unaided, non-minority Medical/Dental institutions in Punjab. The Court also, in its order, directed that the reservation shall apply to management quota seats as well. This judgement was challenged by the State of Punjab.
- The issue before the Apex Court was whether a policy decision taken by the State government providing for a percentage of quota for a particular class of persons can be interfered with by the HC by a writ of mandamus directing the State Government to provide for reservation to a particular class of people other than what was prescribed by the government.
- To come to a decision, the Court referred to a plethora of decisions, some of them being Gulshan Prakash and ors. Vs. State of Haryana and ors (2010)1 SCC, Suresh Chandra Gautam vs. State of UP and ors (2016)11 SCC, Mukesh Kumar and anr vs. State of Uttarakhand and ors. (2020)3 SCC, among others.
- Relying upon these decisions, the Apex Court held that no mandamus can be issued by the Court, directing the State to provide for reservation to any class of individuals. The Court also observed that in addition to what has been said above, the Court also does not have the power to issue a writ of mandamus directing the State to collect quantifiable data to justify their action of not providing reservation.
- The Court, thus, held that the HC has committed a grave error in issuing the writ of mandamus and directing the State to provide for a 3% quota to sports persons, instead of a 1% quota provided for by the State. In doing this, the HC had exceeded its jurisdiction.
- Thus, the appeal was allowed and the order of the HC was set aside.
Time Limit For Filing Of WS Under Order VIII Rule 1 Directory: Gujarat HC
- In Rajendrabhai Maganbhai Koli vs Shantaben Maganbhai Koli the Hon’ble Gujarat HC has held that the time limit for the filing of the written statement that is provided under Order VIII Rule 1 is directory and not mandatory. But the Court also held that the same discretion has to be exercised sparingly and not as a matter of routine.
- In the instant case, the petitioner had filed an application praying for setting aside the order of the Additional Civil Judge, Bordeli and the ADJ, Chhotaudepur, which stopped the petitioner from filing a ws after the time provided in order VIII had expired. The petitioner had been duly served with the summons but did not file the ws within time. The ADJ held that the filing of ws beyond 120 days was not permissible.
- The petitioner, in his appeal, relied upon the decision of the Hon’ble SC in Salem Advocate Bar Association, Tamil Nadu vs. Union of India where the Apex Court had held that the period of 120 days for the filing of ws was directory and not mandatory. The plaintiff also contended that since the trial had not commenced, the delayed filing of ws would not jeopardise the rights of the plaintiffs. It was also contended that due to the pandemic and the resultant restrictions, the ws could not be filed within the accorded time.
- The HC, while noting that the word ‘shall’ that has been used in order VIII rule 1 indicates its mandatory nature, however, the context of the provision indicates that the provision is directory and not mandatory. The Court also held that the same has been confirmed by the Apex Court in the Salem Advocate case.
- It was also held that it is a well established principle of law that the objective of the rules of procedure is to advance the cause of justice and not defeat it.
- The Court also harmoniously interpreted Order VIII rules 1 and 10, and held that a combined reading of both these provisions shows that though the Courts have been granted the power under rule 10 to either pronounce judgement or to pass any such order as it thinks fit, there is nothing in the said rule which states that the court cannot extend the time for filing of the ws in the interests of justice.
- However, the Court also held that this discretion of the Court has to be exercised sparingly and in extremely hard cases, and not as a matter of routine.
- Thus, the writ petition was allowed and the plaintiff was also asked to pay the cost of Rs.10,000 in the trial Court.