Appeal
1. Since the issues raised in both the captioned appeals are the same and the challenge is also to the self-same judgement and order passed by the High Court, those were taken up for hearing analogously and are being disposed of by this common judgement and order.
2. We may clarify that the Criminal Appeal No. 5560 of 2024 arises from the judgement and order passed by the High Court, reversing the acquittal and holding the appellants herein guilty of the offence of murder. Whereas Criminal Appeal No. 5561 of 2024 arises from the order of sentence, which ultimately came to be passed by the High Court.
3. These appeals arise from the judgement and order passed by the High Court of Punjab and Haryana at Chandigarh dated 27.08.2024 in Criminal Revision Application No. 194 of 2006 by which the criminal revision filed by the original de facto complainant against the judgment and order of acquittal passed by the trial court came to be allowed and the appellants herein were held guilty of the offence of murder punishable under Section 302 of the Indian Penal Code (for short, “the IPC”) and sentenced to undergo rigorous imprisonment for life and fine of Rs. 50,000/- each and further, rigorous imprisonment for 3 months in default of payment of fine.
Facts
Hon’ble High court has converted the acquittal into conviction under the revisional jurisdiction that too on ex-parte
6. We need not delve much into the facts of the present case as our order dated 13.12.2024 gives more than a fair idea as to how these appeals have come up before us. The order reads thus:
“3. The three appellants herein along with three other co-accused were put to trial for the offence of murder punishable under Section 302 read with Section 148 and 149 of the Indian Penal Code, 1860. On conclusion of the trial, the Trial Court held two co-accused guilty of the alleged crime, whereas the other four, including three appellants herein, came to be acquitted.
4. The State did not deem fit to challenge the acquittal of the three appellants herein. One of the convicts went in appeal before the High Court and the father of the deceased in turn invoked the revisional jurisdiction of the High Court under Section 401 read with Section 397 of the Code of Criminal Procedure, 1973 seeking to challenge the acquittal of the three appellants herein. It appears that the appeal filed by one of the convicts against his order of conviction came to be dismissed despite the fact that the convict had already passed away.
5. In the revision application, which was filed by the father of the deceased, the High Court held all the three appellants herein guilty of the alleged offence of murder and sentenced them to undergo life imprisonment. We are informed that they were taken into custody on the very same day the judgment was pronounced by the High Court and now they are serving the sentence as imposed by the High Court.
6. We are not able to understand, on what basis the High Court in exercise of its revisional jurisdiction under Section 401 read with Section 397 of the Code of Criminal Procedure could have converted the finding of acquittal into one of conviction. Sub Section (3) of Section 401 reads thus: “(3) Nothing in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction.”
7. There is one another feature which has disturbed us. According to the learned counsel the High Court proceeded ex-parte without issuing notice to the three appellants herein in the revision petition, who had already been acquitted by the Trial Court.
8. We are also informed that the father of the deceased, who had filed the revision application before the High Court had also passed away much before the judgment of the High Court.
9. Issue notice to the State of Haryana, returnable on 19th December, 2024.
10. In such circumstances referred to above, all the three appellants are ordered to be released on bail. The substantive order of sentence passed by the High Court is suspended till further orders. Accordingly, IA No. 285726/2024 stands disposed of.
11. Registry to call for the records and proceedings of the Sessions Case No. 4 of 1988/2005, disposed of by Additional Sessions Judge, Rewari, from the High Court of Punjab & Haryana at Chandigarh.”
Analysis
Question of law
31. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the High Court committed any error in passing the impugned judgment and order of conviction in exercise of its revisional jurisdiction under Section 401 read with Section 397 of the CrPC.
Section 401 (3) Cr.P.C [section 442 (3) BNSS]
34. Section 401(3) says – “Nothing in this section shall be deemed to authorize a High Court to convert a finding of appeal into one of conviction.”
i. Thus, the bar is categorical and express.
Section 401(5) Cr.P.C [section 442 (5) BNSS]
35. Section 401(5) says – “Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do so, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.”
i. For the High Court to treat the revision as an appeal, all of the above conditions were required to be fulfilled.
ii. And a reasoned, speaking order was required to be passed recording that they were fulfilled. iii. However, no such procedure was adopted.
Section 372 Cr.P.C [section 413 BNSS]
36. The general provision on appeals is Section 372 Cr PC which says – 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. i. Thus, no appeal was permissible other than provided for, in law.
37. The Proviso to the above had not yet come into effect as on 19.01.2006 when the revision petition was filed, for it was added only w.e.f. 31.12.2009. The Proviso says – [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.]
i. Thus, the statutory right of appeal by a victim against such acquittal arose only from the date of the amendment w.e.f. 31.12.2009. As the said revision was filed by the father of the deceased on 19.01.2006 well before the above amendment, such right was not available at the relevant point of time.
ii. Therefore, the very first condition under Section 401(5) itself would not have been possible to be fulfilled, i.e. the right of the victim to appeal did not lie under the Code at the time of filing the revision petition.
38. As regards appeals against acquittals, the relevant provision for appeals, and specifically for appeal to the High Court, are detailed out below:
a. Section 378. Appeal in case of acquittal – Section 378 (1) says – Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5), –
b. The relevant section pertaining to an appeal to the High Court is Section 378(1)(b) which says – The State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.].
i. Thus, only the State had the statutory right to appeal against the order of acquittal in 2006, and
ii. Indisputably, the State did not file appeal challenging the said order of acquittal.
Hon’ble Supreme Court has cited several precedents explaining the above said propositions [listed below].
44. The decision in Manharibhai Muljibhai (supra) was referred to and relied upon in Bal Manohar Jalan v. Sunil Paswan & Anr. reported in (2014) 9 SCC 640, wherein it was inter alia, held that “The appellant who is an accused person cannot be deprived of hearing on the face of the express provision contained in Section 401(2) of the Code and on this ground, the impugned order of the High Court is liable to be set aside…”.
Article 22(1) Constitution and lawyer’s presence
45. This Court in Nandini Satpathy v. P.L. Dani & Anr. reported in (1978) 2 SCC 424 held that the right to consult an advocate of choice shall not be denied to any person who is arrested. This does not mean that persons who are not under arrest or custody can be denied such right. The spirit and ethos of Article 22(1) is that it is fundamental to the rule of law that the service of a lawyer shall be available for consultation to the accused person under circumstances of near custodial interrogation. Moreover, the right against self-incrimination is best practiced & best promoted by conceding to the accused, the right to consult a legal practitioner of his choice. Lawyers’ presence is a constitutional claim in some circumstances of our country, and in the context of Article 20(3), is an assurance of awareness and observance of the right to silence.
High Court cannot reverse the acquittal into one conviction in revisional jurisdiction
46. Thus, it is as clear as a noonday that the High Court committed an egregious error in reversing the acquittal and passing an order of conviction in exercise of its revisional jurisdiction and that too without affording any opportunity of hearing to the appellants herein.
47. We could have closed this matter at this stage; however, we would like to explain the position of law in so far as the applicability of sub section (5) to Section 401 of the CrPC read with the provision to sub section 372 of the CrPC is concerned.
Is the proviso to section 372 CrPC [section 413 BNSS] retrospective in operation?
Complainant argued that the High Court could have treated the revision application as appeal
48. A very fabulous argument was canvassed on behalf of the State that the proviso to Section 372 of the CrPC is retrospective in operation. Therefore, although the revision was filed in 2006, yet as it came to be decided in 2014, the proviso to Section 372 CrPC was applicable. The High Court could have treated the revision application as an appeal under Section 372 at the instance of the complainant. If the High Court would have treated it as an appeal, then it would have been within its jurisdiction to reverse the acquittal and passed an order of conviction.
49. It seems one and all are under a serious misconception of law.
Unlike revision appeal is a statutory right
50. Insofar as the statutes regulating appeal are concerned, the law is well settled that the right to file an appeal is a statutory right and it can be circumscribed by the conditions of the statute granting it. As was observed by this Court in Government of Andhra Pradesh & Ors. v. P. Laxmi Devi reported in (2008) 4 SCC 720 and Super Cassettes Industries Ltd. v. State of Uttar Pradesh & Anr. reported in (2009) 10 SCC 531, it is not a natural or inherent right and cannot be assumed to exist, unless provided by a statute.
51. Therefore, the scheme of right of appeal under Chapter XXXIX of the CrPC, which provides the right to file appeals including abatement of appeals, should be understood on the basis of the above golden rules of statutory interpretation.
Appeal by victim is added through Amending Act No.5 of 2009
52. Comparing Section 404 of CrPC 1898 with Section 372 of CrPC, would indicate that the main provision is intact, insofar it provides that no appeal shall lie from any judgment or order of a criminal court, except as provided by this Code or by any other law for the time being in force. The significant development that has taken place in this provision is that a ‘proviso’ was added by the Amending Act No. 5 of 2009, which provides 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 passed by such Court’.
Victim has right to prefer appeal
53. Therefore, by the aforesaid provision a right has been created in favour of the victim, which was not existing earlier in the Code, i.e., that a 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. The plain reading of the statement of objects and reasons for introducing the proviso to Section 372 CrPC makes it clear that it wanted to confer certain rights on the victims. It has been noted therein that the victims are the worst sufferers in a crime, and they don’t have much role in the court proceedings. They need to be given certain “rights” and compensation, so that there is no distortion of the criminal justice system. This, by itself, is clear that the object of adding this proviso is to create a right in favour of the victim to prefer an appeal as a matter of right. It not only extends to challenge the order of acquittal, but such appeal can also be filed by the victim if the accused is convicted for a lessor offence or if the inadequate compensation has been imposed.
54. Thus, it is clear as per the golden rule of interpretation, that the ‘proviso’ is a substantive enactment, and is not merely excepting something out of or qualifying what was excepting or goes before. Therefore, by adding the ‘proviso’ in Section 372 of CrPC by this amendment, a right has been created in favour of the victim.
Is proviso to section 372 an exception?
67. In the present context, given the text of Section 372 and the scheme of the Act, it is clear that the proviso establishes an independent right, and must be interpreted within that framework. Section 372 forbids appeals unless otherwise authorized by the Code, or by another law. The proviso, however, states that the victim shall have the right to appeal under certain circumstances. Given the rule enacted in Section 372, it cannot be said that the proviso to that provision carves out an exception to the rule. According to the rule in Section 372, appeals must be in accordance with the Code; according to the proviso – which is itself part of the Code – victims have the right to appeal under certain circumstances. At various other places in the CrPC, appeal procedures are specified. For instance, Section 378 stipulates the procedure in case of appeals from acquittal, and Section 378(3) specifies that “no appeal under sub-section (1) or sub-section (2) shall be entertained except with leave of the High Court.” The proviso to Section 372 dispenses with the requirement of leave in case it is the victim who is appealing. From the scheme of the Act, therefore, it seems clear that the proviso is better understood to be one of the many provisions governing appeals under Chapter 29 of the CrPC. While Section 372 enacts that no appeal shall lie except as provided for by the Code, it refers to the various provisions of Chapter 29, including the proviso, each of which prescribe the requirements and procedures for appeals under different circumstances. The proviso, therefore, is not an exception to Section 372, but a stand-alone legal provision.
Victim has no right of appeal during the year 2006
72. In view of the aforesaid, it is very much clear that the amendment so made in Section 372 CrPC by adding a proviso in the year 2009 creating a substantive right of appeal is not retrospective in nature. A statute which creates new rights shall be construed to be prospective in operation unless otherwise provided, either expressly or by necessary implication. It is, therefore, clear that in the year 2006 when the judgement of acquittal was passed, the de facto complainant had no right to challenge the impugned order passed in 2006 by way of filing the appeal. In such circumstances sub section (5) of Section 401 CrPC has no application in the present case.
Other aspects erred by the High Court
73.There is yet one another shocking aspect of the matter, we need to take cognizance of.
Hon’ble High court relied section 161 Cr.P.C instead of oral testimony
74. It appears that the High Court relied upon the police statement of PW-7 recorded under Section 161 of the CrPC instead of his oral testimony before the trial court.
Section 162 Cr.P.C cannot be used for any purpose except for contradiction u/s 145 IEA
76. Whereas Section 162 of the CrPC expressly provides that the statements recorded under Section 161 of the CrPC shall not be used for any purpose save as provided in Section 162, and the Proviso to Section 162 clearly says that, any part of the statement, if duly proved, may be used by the accused, to contradict such witness in the manner provide in Section 145 of the Evidence Act. And when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but only for the purpose of explaining any matter referred to in the cross-examination.
Role of Public Prosecutors in hostile witness
Public Prosecutors should conduct details cross-examinations to reveal the truth
78. Thus, this Court took a serious notice of lack of thorough cross-examination by Public Prosecutors in criminal appeals, specifically with hostile witnesses. The prosecutors often only confront them with their police statement, aiming to highlight contradictions but not fully explore the witness’s testimony. The Court emphasized that the purpose of cross-examination is to challenge the accuracy and credibility of the witness’s statement, uncover hidden facts, and establish if the witness is lying. Public Prosecutors should conduct detailed cross examinations to reveal the truth and establish the witness’s first hand knowledge of the incident described in their police statement.
79. In the decision referred to above the Court noted that after the witness was declared hostile, all that the Public Prosecutor had done was to put few suggestions to her for the purposes of cross-examination. Even proper contradictions were not brought on record.
80. This Court explained that the trial courts cannot independently use statements made to the police that have not been proven, nor can it base its questions on such statements if they conflict with the witness’s testimony in court. The phrase ‘if duly proved’ in Section 162 of the CrPC indicates that the statements of witnesses recorded by the police cannot be immediately admitted as evidence or examined. They must first be proven through eliciting admissions from the witness during cross-examination and also during the cross-examination of the Investigating Officer. While statements made to the Investigating Officer can be used for contradiction, this can only be done after strict compliance with Section 145 of the Evidence Act. This requires drawing attention to the specific parts of the statement intended for contradiction. This is what is required under Section 145 of the Evidence Act but even where a witness is confronted by his previous statement and given an opportunity to explain that part of the statement that is put to him does not constitute substantive evidence.
Material elicited as contradiction from s.161 crpc and s.164 crpc statements by use of section 145 of the IEA is not substantive evidence
81. There is a catena of decisions laying down the principle in law that the material elicited as contradiction by use of Section 145 of the Indian Evidence Act is not substantive evidence. Even in regard to the statement recorded under Section 164 of the CrPC by authorised Magistrate, it has been held accordingly. Therefore, the fact that the contradictions are proved through the investigating officers though the witnesses have denied having made such statements, does not translate the contradictions into substantive evidence. Unless there is substantive evidence, it cannot be acted upon legally particularly to base a conviction.
Unlawful detention of the appellants for a period of three months
84. The principle as aforesaid is now well established that in cases where there can be no dispute of facts, the constitutional courts have the power to award compensation in case a person has been deprived of his life and liberty without following the procedure established by law.
87. From the above, it is quite vivid that emphasis has been laid on mental agony when a person is confined within the four walls of the police station or lock up.
91. The Public Prosecutor instead of assisting the learned Judges in the right direction by pointing out the correct position of law went to the extent of praying before the Court that the appellants herein deserved capital punishment. It is a different thing that the High Court rejected the prayer of the Public Prosecutor.
93. Time and again this Court has observed in so many of its decisions that such appointments be it in the High Court or in the district judiciary should be only taking into consideration the merit of the candidate and no other consideration should weigh in such appointments.
96. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts of the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court to the investigation agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial, the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the court or defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the Court, if it comes to his knowledge.
98. Judges are human beings and at times they do commit mistakes. The sheer pressure of work at times may lead to such errors. At the same time, the defence counsel as well as the Public Prosecutor owes a duty to correct the Court if the Court is falling in some error and for all this, we hold the State Government responsible. It is the State Government who appointed the concerned Public Prosecutor. The State Government should be asked to pay compensation to the three appellants herein.
99. For all the foregoing reasons, the appeals succeed and are hereby allowed. The impugned judgment and order passed by the High Court is hereby set aside. The State Government shall pay Rs. 5,00,000/- each to the three appellants towards compensation within a period of four weeks from today failing which we shall take appropriate action against the responsible officer.
100. The bail bonds furnished by the appellants herein stand discharged.
101. Registry shall notify this matter once again before this Bench after four weeks to report compliance of payment of compensation as awarded.
Judgments cited/relied
- Bindeshwari Prasad Singh v. State of Bihar – (2002) 6 SCC 650
- Joseph Stephen & Ors. v. Santhanasamy & Ors. – (2022) 13 SCC 115
- Ganesha v. Sharanappa & Anr. – (2014) 1 SCC 87
- Santhakumari & Ors. v. State of Tamil Nadu & Ors. – (2023) 15 SCC 440
- Anees v. State Government of NCT – 2024 SCC OnLine SC 757
- Kiran Bedi v. Committee of Inquiry & Anr. – (1989) 1 SCC 494
- Nilabati Behera v. State of Orissa & Ors. – (1993) 2 SCC 746
- Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka & Ors. – (2019) 2 SCC 752
- Hitendra Vishnu Thakur & Ors. v. State of Maharashtra & Ors. – (1994) 4 SCC 602
- D. Stephens v. Nosibolla – AIR 1951 SC 196
- K. Chinnaswamy Reddy v. State of A.P. – AIR 1962 SC 1788
- Akalu Ahir v. Ramdeo Ram – (1973) 2 SCC 583
- Pakalapati Narayana Gajapathi Raju v. Bonapalli Peda Appadu – (1975) 4 SCC 477
- Mahendra Pratap Singh v. Sarju Singh – AIR 1968 SC 707
- Manharibhai Muljibhai Kakadia & Anr. v. Shaileshbhai Mohanbhai Patel & Ors. – (2012) 10 SCC 517
- Bal Manohar Jalan v. Sunil Paswan – (2014) 9 SCC 640
- Government of Andhra Pradesh & Ors. v. P. Laxmi Devi – (2008) 4 SCC 720
- Super Cassettes Industries Ltd. v. State of Uttar Pradesh & Anr. – (2009) 10 SCC 531
- A.N. Sehgal & Ors. v. Raje Ram Sheoran & Ors. – AIR 1991 SC 1406
- S. Sundaram Pillai & Ors. v. V.R. Pattabiraman & Ors. – AIR 1985 SC 582
- State of Bombay & Anr. v. United Motors (India) Limited & Ors. – (1953) 1 SCC 514
- State of Kerala & Anr. v. B. Six Holiday Resorts Private Ltd. & Ors. – (2010) 5 SCC 186
- Sudhir G. Angur & Ors. v. M. Sanjeev & Ors. – (2006) 1 SCC 141
- Ramesh Kumar Soni v. State of Madhya Pradesh – (2013) 14 SCC 696
- D.F. Marion v. Davis – 55 ALR 171; 217 Ala 176 (1927)
- Vishwanath Agrawal v. Sarla Vishwanath Agrawal – (2012) 7 SCC 288
- Anees v. State Government of NCT – 2024 SCC OnLine SC 757
- D.K. Basu v. State of West Bengal – (1997) 1 SCC 416
Party
Mahabir & Ors – State of Haryana – Criminal Appeal Nos. 5560 – 5561 of 2024 – 2025 INSC 120 – January 29, 2025.
