In a very significant and inescapable development, we saw how the Bombay High Court has fully, firmly and finally held in an extremely learned, laudable, landmark and latest judgment titled Anand Singh vs The State of Maharashtra with connected matters in Criminal Appeal No. 467 of 2012 With Criminal Appeal No. 669 of 2015 has held in no uncertain terms that a victim can seek enhancement of her/his offender’s jail time (sentence) only through a revision application and not by filing an appeal against the trial court’s judgment. It merits mentioning here that the Division Bench of Justice Sadhana S Jadhav and Justice Milind N Jadhav made it clear that the victim can prefer an appeal in view of the proviso under Section 372 of the CrPC only under three circumstances:

1. Against the acquittal of an accused.
2. When the accused is convicted for a lesser offence or
3. Inadequate compensation is awarded to the victim.

In this case, the Bench held that a victim’s revision petition against sentence would be maintainable.

To start with, this brief, brilliant, bold and balanced judgment authored by Justice Milind N Jadhav for a Division Bench of Bombay High Court comprising of himself and Justice Smt Sadhana S Jadhav sets the ball rolling by first and foremost putting forth in para 1 that, Criminal Appeal No.467 of 2022 is filed by the Appellant to challenge the impugned judgment dated 04.04.2012 passed by the learned Sessions Judge, Raigad at Alibag in Sessions Case No.8 of 2011 convicting the Appellant for the following offences:

1. Under section 328 of the Indian Penal Code, 1860 (IPC), the Appellant was sentenced to rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-, in default of payment of fine to suffer rigorous imprisonment for six months;
    
2. under section 382 IPC the Appellant was sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-, in default of payment of fine to suffer rigorous important for six months;
    
3. punishable under section 417 IPC the Appellant was sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs.500/-, in default of payment of fine to suffer rigorous imprisonment for one month;
    
4. punishable under section 448 IPC the Appellant was sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs.500/-, in default of payment of fine to suffer rigorous imprisonment for one month;
    
5. punishable under section 506 IPC the Appellant was sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs.500/-, in default of payment of fine to suffer rigorous imprisonment for one month.

Of course, the Division Bench then discloses in para 2 that, Criminal Appeal No.669 of 2015 is filed by the victim / original complainant for the following relief:
b) That this Hon’ble Court may be pleased to suitably enhance the sentence of accused passed by Judgment and Order dated 04/04/2012 passed by the learned Additional Sessions Judge, Alibag in Sessions Case No.8 of 2011 and kindly may be given the maximum punishment to the Respondent No.1 in all the charges leveled against him.

Needless to say, the Division Bench then mentions in para 3 that, By this common judgment, both the Appeals are disposed of. For the sake of convenience the parties shall be referred to as accused and complainant.

To put things in perspective, the Bench then envisages in para 4 that, It is seen that by the impugned judgment accused has been convicted for offences punishable under Sections 328, 382, 417, 448 and 506 IPC and has been acquitted by the Trial court for offences committed under sections 504, 509, 647 and 471 IPC. Though the only relief prayed for in the appeal filed by the complainant is for seeking enhancement of the sentence awarded to the accused, the pleadings also impugn the acquittal of the accused for the offences under sections 504, 509, 647 and 471 IPC. In short, the question that arises for consideration in the appeal filed by the complainant before this Court is whether this Court can consider the plea in view of the provisions of section 372 Cr.P.C.

It is then stated in para 4.1 that, Section 372 Cr.P.C. reads thus:
372. No appeal to lie unless otherwise provided.— No appeal shall lie from any judgment or order of a criminal Court except as provided for by this Code or by any other law for the time being in force:

[Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting, for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.].

As we see, the Bench then states in para 4.2 that, It is seen that under the provisions of section 377, power is given to the State Government to prefer an appeal for enhancement of sentence. However correspondingly no such power is given to the victim/complainant to file an appeal seeking enhancement of sentence. Hence the question would be the maintainability of the appeal filed by the victim/complainant to be decided.

In hindsight, the Division Bench then reveals in para 8 that, As seen the entire case of the prosecution is based upon the evidence of the complainant - PW-2. The entire sequence of events beginning from the meeting of the complainant with the accused is deposed by PW-2. To round of the completeness of the sequence of events is the incident of the accused booking the Honda City Car in the showroom at Neral and gave an advance booking cheque for the same in the presence of the complainant.

The copy of the cheque (Exhibit ‘21’) has been retrieved. The employee of the said car showroom Rajesh Bharat Chavan as PW-1 has deposed about accepting the cheque from the accused for the entire amount of the car; PW-1 had issued a receipt to the accused as the sales executive as also the sales contract and obtained the signature of the accused on the counter part of the receipt; however on encashment of the cheque by the car dealer, the cheque came to be dishonored and thereafter the accused was not traceable or contactable on his mobile phone.

While continuing in same vein, the Division Bench then observes in para 9 that, The entire sequence of events alongwith the deposition of PW-2 clearly shows that the accused attempted to win the confidence of the complainant during his meeting with the probable intention of deceit which is revealed by his acts of stealing the contents of the purse and subsequently the articles from her cupboard at Panvel.

Further evidence of the complainant - PW-2 reveals that the modus operandi used by the accused to convince her to remove her gold ornaments in hotel Celebration as they did not suit her and look old also proves the intention and motive of the accused; thereafter the demeanor of the accused in taking the complainant to the jeweler for selecting a diamond set and disappearing from there and not meeting the complainant again on that date, clearly establishes the motive of the accused since he vanished from the jeweler's shop on the pretext of buying medicine for his mother.

He had taken alongwith him the debit cards, credit card, pan card and driving license from the purse of the complainant without her knowledge and only disclosed it to her after she established contact with him on the next day. Thereafter the third and most important incident of winning the confidence of the complainant, entering her house and drugging her, and thereafter stealing the entirety of her gold and silver ornaments, passports etc. without her knowledge, keeping her drugged at all times for the next three days until they reached Agra and thereafter leaving her on her own in the auto rickshaw and once again doing the vanishing act alongwith her stolen articles clearly shows the indictment of the accused.

Quite clearly, it is then noted in para 10 that, It is seen that in the present case the Appellant / accused has completed the sentence awarded by the impugned judgment and stand released from prison on 21.07.2016. The Superintendent, Kolhapur Central Prison has furnished a report dated 16.03.2022 to this Court in respect of the above. In view thereof the Criminal Appeal filed by the Appellant being Cr. Appeal No. 467 of 2012 has become infructuous.

No doubt, the Division Bench then specifies in para 11 that, The only Appeal which now remains for consideration is Criminal Appeal No. 669 of 2015 filed by the complainant. The complainant is aggrieved and has filed this Appeal on the following grounds:-

1. That the Appellant/accused has committed a heinous crime by impersonation, sedating the complainant and thereafter stealing her entire jewellery, gold, silver and diamonds as also her important documents like passport, national saving certificates, bank passbook, cheque books, fixed deposit receipts and other documents;
    
2. that the Appellant accused proposed to marry the complainant by misrepresenting and hiding the fact that he was previously married and had two children;
    
3. that he used a false prescription of a medical doctor to buy the sedative medicines;
    
4. that the medical evidence produced on record through PW 9 Dr. Swati Bharat Naik proves that the sedatives bought and administered by the Appellant/accused would not be available without a doctor's prescription and if administered could make a person feel drowsy and unconscious;
    
5. that the Appellant/accused impersonated himself by posing as Anand Singh and Neeraj Gupta at different times and different places; that he obtained forged and fake driving licenses; that he had sexual relationship with other women which is proved on recovery of the video clips from the spy pen camera and digital camera by the I.O. leading to believe that the Appellant/accused is a habitual offender;
    
6. that the offences committed by the Appellant/accused required him to be convicted for a longer sentence than what has been awarded by the learned trial court.

Be it noted, the Division Bench then lays bare in para 13 that, It is seen that the complainant in the present appeal is aggrieved on two counts :- (i) that the Appellant/accused has been awarded a lesser sentence than the maximum punishment that could have been awarded under the relevant provisions stated herein above and (ii) equally the complainant is also aggrieved about the trial court acquitting the appellant/accused from the offences punishable under sections 504, 509, 467 and 471 IPC.

Briefly stated, the Division Bench then points out in para 15 that, Order dated 28.08.2020 passed by the Supreme Court in Criminal Appeal No. 555 of 2020 arising out of SLP (Cri) No. 3928 of 2020 in the case of Parvinder Kansal Vs. The State of NCT of Delhi & Anr. (Non-Reportable order) is placed before us. In this case the facts are that Criminal Appeal No. 1284 of 2019 was filed by the Appellant aggrieved by the order dated 27.11.2019 passed by the High Court of Delhi. By the aforesaid order, the High Court has dismissed the Appeal filed by the Appellant seeking enhancement of sentence imposed in Sessions Case No. 742 of 2007 vide order dated 17.08.2019. In this case the second Respondent came to be convicted for the offenses punishable under sections 364A, 302 and 201 IPC and by a subsequent order dated 17.08.2019 he was sentenced for offence under sections 302, 364A and 201 IPC with imprisonment for life in respect of the first two offenses and rigorous imprisonment for seven years in respect of the third offence and in default also subjected to fine.

The complainant therein being the father of the deceased victim filed the Appeal challenging the order of sentence dated 17.08.2019 passed by the trial court and sought enhancement of sentence to death penalty. In the appeal filed before the High Court under section 372 of the Cr.P.C., the complainant pleaded that the sentence of life imprisonment imposed on the accused was inadequate and needed to be enhanced to death penalty.

The High Court of Delhi dismissed the Appeal as not maintainable under the provisions of section 372 of the Cr.P.C. When the matter travelled to the Supreme court it was held that under the provisions of section 372 it was open for the State Government to prefer Appeal for inadequate sentence under section 377 of the Cr.P.C. but there is no provision for appeal available to the victim under section 372 of the Cr.P.C. on the ground of inadequate sentence. Paragraph No. 9 of the aforesaid decision is relevant and reads thus:-

9. Chapter XXIX of the Code of Criminal Procedure, 1973 deals with ‘Appeals’ and Section 372 makes it clear that no appeal to lie unless otherwise provided by the Code or any other law for the time being in force. It is not in dispute that in the instant case appellant has preferred appeal only under Section 372, Cr.P.C. The proviso is inserted to Section 372, Cr.PC by Act 5 of 2009. Section 372 and the proviso which is subsequently inserted read as under:

372. No appeal to lie unless otherwise provided.— No appeal shall lie from any judgment or order of a criminal Court except as provided for by this Code or by any other law for the time being in force: [Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting, for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.].

Notably, the Division Bench then opines in para 20 that, Though we are conscious of the fact that the remedy of Appeal is the creation of statute under the provisions of the Cr.P.C. and as interpreted by the Supreme Court that unless the same is provided no Appeal would lie. However in the same breath though under Article 141 of the Constitution of India we are completely bound by the decision of the Supreme Court, we would like to however place our considered opinion in this respect in the present case. We have perused the report presented to the Parliament of India/Rajya Sabha Secretariat and the Lok Sabha Secretariat, this report is the 128th report prepared by the Parliamentary Standing Committee on home affairs to suggest amendment to the Code of Criminal Procedure and which was tabled before both the houses of the Parliament on 16.08.2007. In the said report Clause VII is relevant and is reproduced herein under:-

7. Victimology:

1. Victim may be permitted to engage an advocate in a case (Clause 3)
2. A comprehensive scheme to be prepared for compensating the victim or his dependents who have suffered loss or injury, as a result of crime and who require rehabilitation (Clause 37).
3. Victim shall have a right to prefer an appeal against any adverse order passed by the court (Clause 38).

Quite significantly, the Division Bench then enunciates in para 21 that, As seen the proposal tabled before both the houses of the Parliament was with respect to the victim having a right to prefer an appeal against any adverse order passed by the Court. The vista of this proposal was very wide in as much as enabling the victim to file an Appeal against any adverse order and not pertaining the right of the victim/complainant as being noticed under the proviso to section 372 of the Cr.P.C. We are also equally conscious of the fact that the Supreme Court in the case of Bachan Singh Vs. State of Punjab, (1979) 4 SCC 754 while interpreting the powers of the High Court under section 397 of the Cr.P.C. has in paragraph 11 held as under:-

11. There is another reason for this view. It was permissible for the High Court under Section 397 Cr.P.C. to call for and examine the record of the proceeding before the trial court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed by that inferior court. The High Court's power of revision in the case of any proceeding the record of which has been called for by it or which otherwise comes to its knowledge, has been stated in Section 401 Cr.P.C. to which reference has been made above. That includes the power conferred on a Court of Appeal under Section 386 to enhance or reduce the sentence. So when the record of the case was before the High Court in connection with the two appeals and the revision petition referred to above, there was nothing to prevent the High Court from invoking its powers under Section 397 read with Section 401 Cr.P.C. and to make an order for the enhancement of the sentence.

Quite remarkably, the Division Bench then hastens to add in para 22 that, In addition to the above we have seen that the Bombay High Court Appellate Side Rules 1960 and more specially Rule 2(II)(a) which pertains to Appeal against conviction reads as under:

(a) Appeals against convictions [except in which the sentence of death or imprisonment for life has been passed] appeals against acquittals wherein the offence with which the accused was charged is one punishable on conviction with a sentence of fine only or with a sentence of imprisonment not exceeding ten years] or with such imprisonment and fine, and appeals under section 377 of the Code of Criminal Procedure, revision applications and Court notices for enhancement for offences punishable on conviction with sentence of fine only or with sentence of imprisonment not exceeding [ten years] or with such imprisonment and fine.

Thus, a revision application for enhancement of sentence at the behest of the victim would be maintainable and the same is recognized by the Bombay High Court Appellate Side Rules, 1960.

As a corollary, the Division Bench then points out in para 23 that, From the above, it is seen that undoubtedly a revision application for enhancement of sentence at the instance of the victim/complainant would be maintainable. The Appellant has also in the alternative in her written submissions prayed for converting this appeal into an application under Section 401 of the Cr.P.C.

Most forthrightly, the Division Bench then holds in para 24 that, However in view of the specific observations of the Supreme Court in the case of Parvinder Kansal (supra) and Mallikarjun Kodagali (supra), it is seen that the right to appeal against the sentence will not be available to the Appellant in view of the specific provisions of the statute.

No wonder, the Division Bench then mandates in para 25 that, Hence we are constrained hold that Criminal Appeal No. 669 of 2015 shall stands dismissed with the above observations.

In addition, the Division Bench then holds in para 26 that, In view of dismissal of the above Appeals, pending Interim Application, if any, does not survive and is accordingly disposed of.

Finally, the Division Bench then concludes by directing in para 27 that, Mr. Mihir Joshi, Advocate appointed to espouse the cause of the Appellant in Criminal Appeal No. 669 of 2015 is entitled for professional fees of Rs.15,000/- to be paid by the Legal Aid Services Authority / Committee as per rules.

To sum up: We thus see that the bottom-line of this notable judgment by the Bombay High Court is that the victim may seek enhancement of accused sentence by filing a revision application. It certainly merits no reiteration that all the courts may definitely pay heed to what has been held so distinguishably in this leading case. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi (Retd), A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh