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“The human element in any system is always prone to error. Why should the courts be any different? They are not.”
– William Landay
There are specific provisions in the judicial system to keep a check on the decisions of the courts in order to obviate the scope of miscarriage of justice. Appellate Provisions are examples of the aforementioned. An appeal is a right available to both, the state and the victim. The Code of Criminal Procedure, 1973 (CrPC) contains elaborate provisions for appeals starting from Section 372 to Section 394. However, in certain cases, a right to appeal has not been provided. In the present article, the author is going to deal with a case in which the presence of a right to appeal has been ambiguous since time immemorial.
An appeal for enhancement of sentence by a private complainant/ victim has always been a question of concern. The age-old question has been answered by the Delhi High Court in its recent judgment of Pravinder Kansal v. The State of NCT of Delhi and Ors. It held that an appeal filed by the complainant against the judgment of the trial court, challenging the inadequacy of sentence awarded to the convict, was not maintainable. The judicial stance before this 2019 judgment had been somewhat vague. There had been some judgments and observations with regard to this issue, but none of them could form a definite precedent. However, before analyzing those decisions, it is imperative to take a look at the relevant CrPC provisions that formed the basis of each judicial decision regarding this question.
The relevant provisions regarding the appellate powers of the state and the victim are as follows:
1. Section 372 CrPC
Prior to the 2009 Amendment, Section 372 of CrPC was a general section and provided that an appeal cannot lie from any judgment or order of a criminal court unless it is provided for in the CrPC or any other law being in force. A proviso was added to this section by the Code of Criminal Procedure (Amendment) Act, 2009, which gives the victim a right to prefer an appeal against an order under three circumstances:
1. When an accused is acquitted;
2. When an accused is committed for a lesser offence;
3. Where an order of inadequate compensation is imposed
These rights of the victim are not dependent upon State’s appeal against the same order. An appeal is a creature of statute and only exists where it has been expressly provided for. Further, Section 372 does not provide a period of limitation. The court must determine as to whether an appeal should be entertained or not on the basis of facts and circumstances of each individual case.
2. Section 377 CrPC
Section 377(1) empowers (i) the State Government and (ii) the Central Government in respect of cases investigated by the Delhi Special Police Establishment or any other Agency under a Central Act, to file appeal, against the sentence on the ground of its inadequacy, through their respective public prosecutors – (a) to the Court of Session, if the sentence is passed by the Magistrate; and (b) to the High Court, if the sentence is passed by any other court.
Appeals by the State under Section 377 must be filed within a period of 60 days.
However, under this section, the accused should be given a reasonable opportunity of showing cause against enhancement and whilst showing cause; he also has the right to challenge the conviction itself and plead for his acquittal or reduction of sentence.
Comparison of the provisions
Section 377, which provides a Right of Appeal to the State/Prosecution, is entirely different from the Right of Appeal conferred upon a victim under the proviso to Section 372 of the CrPC. Section 377 not only provides the State a right to appeal based upon inadequacy of sentence, but also to the accused to plead for his acquittal or for reduction of the sentence as contemplated under Section 377(3) of the Code. As against this, under Section 372, only a victim has an absolute right to file an appeal challenging imposition of inadequate compensation in addition to the Right of Appeal against acquittal and also challenging the conviction based on lesser offence. There is, however, no provision in the entire Code empowering the State to file an appeal against an order imposing inadequate compensation or a victim to file an appeal for enhancement of sentence. Therefore, in the view of the author, it won’t be appropriate to state that these two rights are co-dependent on each other. Now, on the basis of these two provisions; the subsequent judicial rulings took place.
The Hon’ble Supreme Court of India and various High Courts had given their observations and views regarding this right, but there was no single well settled decision that could be relied upon. There were two completely diametrically opposite views regarding the right of the victim to appeal for enhancement of sentence:
The View Against
The first time this question came into consideration was in the year 2010, before the Hon’ble Supreme Court of India in the case National Commission for Women v. State of Delhi and Anr. In this case, the Court strictly construed Section 372 of CrPC and observed that unless provided by the Code or by any other law which authorises an appeal, no appeal shall lie from a judgment or an order of a criminal court. The Court further went on to rule that proviso of Section 372 provides a restricted right to the victim to file an appeal in situations dealing with only acquitting the accused or convicting him for a lesser offence or the imposition of inadequate compensation. It does not envisage a right to appeal on the victim against an inadequate sentence.
The View in Favour
Even after the aforementioned Supreme Court judgment, the High Court of Delhi ruled in favour of this right in two separate decisions. The first time was in the case of Jagmohan Bhola v. Dilbagh Rai Bhola & Ors.when a two-judge bench of the Delhi High Court observed that the victim’s right of appeal under Section 372 is akin to the State’s Right of Appeal for enhancement of sentence under Section 377. The Court further went on to observe that as there is no mandate to take any leave of the High Court under Section 377, even the victim/private complainant doesn’t have any limitation of taking a leave of the High Court before presenting an appeal under Section 372. The second time, a single judge bench of the Delhi High Court, relying on the aforementioned judgment reiterated this right of the victim on the same principle and allowed an appeal for enhancement of sentence by the victim.
Analysis of the recent judgement ‘Parvinder Kansal v. The State of NCT of Delhi and Ors.’
Before dwelling into the case; the author would like to emphasize that any decision or conclusion which is not based on reasons or is arrived at without application of mind cannot be binding and form a precedent. Based on this principle; the Delhi High Court overruled the decisions in the cases of ‘Shikha Beniwal v. State and Ors.’ and ‘Jagmohan Bhola v. Dilbagh Rai Bhola & Ors’ in the year 2019. In this case, the accused was sentenced to a punishment for life imprisonment for committing offences under Sections 302 and 364-A IPC. However, the private complainant, who was the father of the deceased victim, feeling aggrieved by the inadequacy of sentence, filed the instant appeal contending that the sentence awarded to the convict should be increased to the sentence of death penalty. The High Court while rejecting the appeal; reiterated that it is a settled law that an appeal is a creature of a statute and cannot lie under any inherent power. It was noted that the proviso to Section 372 CrPC (no appeal to lie, unless otherwise provided) confers upon the victim, a limited right to prefer an appeal against the order of the Criminal Court in only the following three instances and none other: (a) Acquittal of the accused person; (b) Conviction of the accused person for a lesser offence; and (c) Imposition of inadequate compensation. The bench of Hon’ble Justice Mr. Manmohan and Hon’ble JJ Ms. Sangita Dhingra Sehgal considered several case laws including all the case laws mentioned above while arriving at this conclusion. This judgment loosely relied on and reaffirmed the aforementioned Supreme Court judgment (National Commission for Women v. State of Delhi and Anr).
In the opinion of the author, the Hon’ble High Court of Delhi has taken the right view, settling down this long-lasting issue. A victim does not have an inherent right to appeal against an order of a court imposing inadequate sentence or punishment. The proviso to Section 372 of the CrPC only provides a limited right to the private complainant/victim to file an appeal. 
As the rights available to victims has been much debated in recent times, the ‘Justice Malimath Committee’ on Reforms of Criminal Justice System, in the year 2003 had recommended that a Right to Prefer an Appeal should also be available to the victim. Consequently, amendment of Section 372 of the CrPC was effected on 31.12.2009. If the legislature did not consider and include the victim’s right to appeal for enhancement of sentence, it must have applied some logical mind and reasoning for the same. The rights of the victim u/s 372 and rights of the state u/s 377 are not dependent on each other. To club this right of the victim and make it dependent upon the exercise of the Right of Appeal at the instance of the State would not only be unworkable, but would run divergent to the scheme and lead to absurdity.
Further it can be said without a doubt that if the victim is given a right to appeal for enhancement of sentence, there would be no limit for the same, every victim would file an appeal regarding the same and this would just lead to increase in the number of cases on the already overburdened judicial system of India.
However, it cannot be said that this completely precludes a private party/victim for challenging the adequacy of the sentence. The new Code has expressly given a right to the State to appeal against inadequacy of sentence u/s 377 of the CrPC which was not provided for under the old Code. That however does not exclude revisional jurisdiction of the Hon’ble High Court for enhancement of sentence in appropriate cases. In other words, in the light of the right conferred, the state alone could file an appeal for enhancement of sentence and the private party would not be allowed to file an appeal under Section 377 CrPC. To put it differently, the State could file an appeal alone and not revision. It can therefore be stated that the complainant or the private party is competent to file a revision before the High Court for enhancement of sentence in the case where the State has not filed an appeal for the same. The power of a Sessions Court is the same as that of the High Court while dealing with revisional cases and even a Sessions Judge can entertain a revision application against a sentence and enhance the same in certain cases. The Hon’ble Supreme Court regarding this has held that “in respect of enhancement of sentence in revision, the enhancement can be made only if the Court is satisfied the sentence imposed by the trial Court is unduly lenient or that in passing the order of sentence, the trial court has manifestly failed to consider the relevant facts”.
(This post has been authored by Karan Singh, a final year law student at Amity Law School, Delhi.)
2019 SCC Online Del 11508, MANU/DE/4029/2019 ↑
Bhavuben Dineshbhai Makwana v. State of Gujarat, 2013 CrLJ 4225 (FB) ↑
Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh, (2014) 9 SCC 102 ↑
(2010) 12 SCC 599 ↑
2011 (2) JCC 777 ↑
Shikha Beniwal v. State and ors, 2015 (2) JCC 814 ↑
2019 SCC Online Del 11508, MANU/DE/4029/2019 ↑
(2010) 12 SCC 599 ↑
Ashok Malhotra v. State (Govt. of NCT Delhi) and Another, 2019 (4) JCC 3971 ↑
Bhavuben Dineshbhai Makwana v. State of Gujarat and Ors., 2013 CriLJ 4225 ↑
S. Balasubramaninan v. The State of Tamil Nadu, Crl. Revision Nos.8,9 of 2009 and Crl.O.P.No.8025 of 2008 ↑
Alamgir v. State of Bihar, AIR 1959 SC 436 ↑