T.P. Sharma, J.
1. This reference has been made by the learned single Judge Hon'ble Mr. Justice Sarijay K. Agrawal) under Rule 32(2)(ii) of the High Court of Chhattisgarh Rules, 2007 for placing it before Hon'ble the Chief Justice with a recommendation to place the same before larger Bench. Vide order dated 14-11-2013, Hon'ble the Chief Justice has directed to place the reference before this Bench to answer the following stated question of law:--
"Whether complainant is entitled to prefer an appeal under proviso to Section 372 of Cr.P.C. before the Court of Session against the judgment of acquittal passed by subordinate Criminal Court arising out of criminal complaint filed by complainant, or he is required to prefer an appeal under sub-section (4) of Section 378 of the Cr.P.C. before this Court after obtaining leave-
Scope of appeal against the judgment of acquittal at the instance of the complainant under the proviso to Section 372 of the Code of Criminal Procedure, 1973 (for short 'the Code') was earlier considered by the learned single Judge of this Court (Hon'ble Mr. Justice G. Minhajuddin) in the case of Sunder Das Rohra v. Anil Mishra, Cr. Rev. No. 779/2012 (decided on 15-4-2013), wherein it was held that appeal against acquittal at the instance of the complainant in a complaint trial could be maintained under the proviso to Section 372 of the Code. Disagreeing with the view taken by the learned single Judge (Hon'ble Mr. Justice G. Minhajuddin), the learned single Judge making the reference (Hon'ble Mr. Justice Sanjay K. Agrawal) has made the instant reference.
2. The learned Advocate General and counsel for the parties are heard. Records of both cases in which the matter has been referred perused.
The learned Advocate General while addressing the issue has submitted that remedy of special leave to appeal to the complainant in case the order of acquittal is passed in a case instituted upon the complaint, has been provided under sub-section (4) of Section 378 of the Code. Subsequently, vide Amending Act No. 5 of 2009, proviso to Section 372 of the Code has been added with effect from 31-12-2009 whereby right to appeal against the judgment of acquittal has been provided to the victim of the offence. The word 'victim' has been defined under clause (wa) of Section 2 of the Code. The learned Advocate General further submitted that previously, remedy of appeal against the judgment of acquittal was not available to the victim. Remedy of appeal against the order of acquittal was available to the complainant, the contesting party of the case. Such remedy is still available to the complainant, but remedy of appeal has been provided to the victim of the offence by adding proviso to Section 372 of the Code. Both the provisions are not one and same. Remedy to file appeal under the proviso to Section 372 of the Code is not available to the complainant, inter aha, the complainant, who is also a victim, has only right to avail the remedy of special leave to appeal against the judgment of acquittal under sub-section (4) of Section 378 of the Code and victim of the offence, who has not filed complaint, has no right to file appeal after grant of leave under sub-section (4) of Section 378 of the Code, but he may file appeal under the proviso to Section 372 of the Code.
3. The learned Advocate General placed reliance in the matter of Subhash Chand v. State (Delhi Administration), : (2013) 2 SCC 17 : (AIR 2013 SC 395) in which the Supreme Court has held that complainant, who might be a private person or public servant or State/State authority, has only right to file application under Section 378(4) of the Code for special leave to appeal against the order of acquittal before the High Court, whether offence is bailable or non-bailable, cognizable or non-cognizable, complainant cannot file such appeal in Sessions Court. The learned Advocate General further placed reliance in the matter of M/s. Top Notch Infotronix (I) Pvt. Ltd. v. M/s. Infosoft Systems and Ors., : 2011 All MR (Cri) 2312 in which the High Court of Bombay (Nagpur Bench) has held that appeal against the order of acquittal in case instituted upon complaint under Section 138 of the Negotiable Instruments Act, 1881 would lie to, the High Court. The proviso to Section 372 of the Code read with Section 2(wa) of the Code will not be attracted to case filed on complaint. The learned Advocate General also placed reliance in the matter of Shantaram v. Dipak, : 2012 (2) Mh LJ 398 : (2012 (5) AIR Bom R 24) in which the High Court of Bombay has taken the same view. The learned Advocate General also relied upon the matter of D. Sudhakar v. Panapu Sreenivasulu and others, : 2013 Cri LJ 2764 in which the Division Bench of the Andhra Pradesh High Court has held that special right of appeal has been provided to the victim by amending the proviso to Section 372 of the Code which came into force from 31-12-2009, the victim is entitled to file appeal and prior to amendment victim was not having any right to file appeal, the right was retained with the State. The learned Advocate General also placed reliance in the matter of Bhavuben Dineshbhai Makwana v. State of Gujarat and others, : 2013 Cri LJ 4225 in which the Full Bench of the Gujarat High Court has held that only victim as defined under Section 2(wa) of the Code has right to file appeal under the proviso to Section 372 of the Code.
4. The learned Advocate General further submitted that in Sunder Das Rohra (supra), Cr. Rev. No. 779/2012, criminal case was instituted on the basis of complaint for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, which ultimately resulted in order of acquittal, the complainant filed appeal before the Sessions Judge under the proviso to Section 372 of the Code, which was dismissed as not maintainable, same was challenged in criminal revision (Cr. Rev. No. 779/2012) before the learned single Judge who has taken the view that the complainant is also a victim therefore remedy to file appeal under the proviso to Section 372 of the Code is available to the complainant, which is contrary to law. In that case, although the complainant was victim, but the complainant had to choose specific procedure for redressing his grievances under statutory compulsion. Ultimately, after the complaint case resulted in acquittal, the remedy for the complainant was to file petition for leave to appeal under Section 378(4) of the Code before the High Court and remedy under the proviso to Section 372 of the Code was not available to the complainant.
Learned counsel Mr. Anumeh Shrivastava and Mrs. Fouzia Mirza have supported the submissions made by the learned Advocate General and have submitted that before amendment, the victim not being complainant was not having any right of appeal against the judgment of acquittal, but the complainant, who may be the victim and has chosen specific procedure for redressal of grievance by filing complaint, has a right to redress the grievance in case of acquittal under Section 378(4) of the Code by filing petition for leave to appeal. Vide Amending Act No. 5/2009, the word 'victim' has been defined under clause (wa) of Section 2 of the Code and right to appeal against the judgment of acquittal has been provided to the victim under the proviso to Section 372 of the Code. Both are different proceedings available to different class of persons. The complainant may be the victim, remedy to file appeal under the proviso to Section 372 of the Code as a victim is not always available to him.
5. Mr. Pramod Kumar Verma, learned Senior Advocate appearing on behalf of the respondent/accused in Cr.M.P. No. 617/2012, and Miss Deepali Pandey, learned counsel for the applicant in Cr. Rev. No. 285/2014, vehemently argued that prior to amendment and addition of the proviso to Section 372 of the Code, remedy to file appeal was not available to victim, only remedy to file leave to appeal under Section 378(4) of the Code was available to the complainant against the judgment of acquittal passed in a complaint case. By adding the proviso to Section 372 of the Code and inserting clause (wa) in Section 2 of the Code defining the word 'victim', right to file appeal against the judgment of acquittal has been provided to the victim. At the time of amendment, the Legislature was having knowledge about the availability of remedy of leave to appeal under Section 378(4) of the Code to the complainant, but the Legislature has not restricted the definition of victim which shows the intention of the Legislature mat victim who may also be complainant has two forums for redressing the grievance i.e. the victim may file appeal under the proviso to Section 372 of the Code against the judgment of acquittal or to file leave to appeal under Section 378(4) of the Code. Therefore, it shall be deemed that Section 378(4) of the Code stands modified to the extent that both the remedies of filing appeal and leave to appeal are available to the complainant who is also victim of the offence. Mr. Pramod Kumar Verma and Miss Deepali Pandey further submitted that it is a recognized rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense which is best harmonized with the object of the statute, and which effectuate the object of the Legislature. Mr. Pramod Kumar Verma and Miss Deepali Pandey also submitted that the Legislature has not given restricted meaning of victim and by adding the proviso to Section 372 of the Code, right of appeal to the complainant who may also be the victim has also not been restricted. Therefore, multiple remedy available to the complainant who may also be the victim cannot be restricted or denied without specific law. Mr. Pramod Kumar Verma and Miss Deepali Pandey placed reliance in the matter of Tata Steel Ltd. v. Atma Tube Products Ltd. and Ors., IV : (2013) CCR 57 (FB) (P and H) in which the Full Bench of the Punjab and Haryana High Court has taken the view that the complainant who is victim has also right to file appeal under the proviso to Section 372 of the Code.
6. Following are the relevant provisions of the Code which read thus,
Clause (wa) of Section 2 of the Code
"victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir;
Section 372 of the Code
"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."
Sub-section (4) of Section 378 of the Code
"(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court."
Thus, the Code as amended by Act No. 5 of 2009 has, inter alia, incorporated proviso to Section 372 and clause (wa) in Section 2 of the Code. Proviso to Section 372 of the Code provides right of appeal to the victim and victim has been defined in clause (wa) of Section 2 of the Code. Broadly speaking, Section 372 of the Code as amended would show that though none can file an appeal except as provided but the victim had a right to appeal. That right is also circumscribed under three circumstances i.e. (1) acquittal, (2) conviction for lesser offence and (3) inadequate compensation. The competent Court where the appeal would be filed has also been specified being where the appeal would lie against the order of conviction. The proviso has provided for the right of the victim for the first time in the criminal jurisprudence of the country and specified three cases in which such right is given and the only court where such rights could be exercised. In fact, it would not be a farfetched proposition to take the proviso to Section 372 of the Code as a complete Code. Prior to Amendment, only those victims who were complainant in cases instituted upon a criminal complaint were having the right to challenge the acquittal of accused by way of seeking special leave to appeal from the High Court under sub-section (4) of Section 378 of the Code.
7. The classical principle is that where plain wordings used by the Legislature are clear and do not create any ambiguity or conflict, the Courts are not required to depart from the literal rule of interpretation. The principle finds place in observations of the Supreme Court, dealing with proviso, in the case of C.I.T., Mysore v. The Indo Mercantile Bank Ltd., : AIR 1959 SC 713:--
"10. Lord Macmillan in Madras and Southern Maharatta Railway Co. v. Bezwada Municipality, ( : AIR 1944 PC 71) laid down the sphere of a proviso as follows:
"The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case. Where, as in the present case, the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it by implication what clearly falls within its express terms.
The territory of a proviso therefore is to carve out an exception to the main enactment and exclude something which otherwise would have been within the section. It has to operate in the same field and if the language of the main enactment is clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that that is its necessary effect."
8. Right of Appeal provided to the victim in proviso to Section 372 of the Code and remedy of appeal against acquittal provided to the complainant in Section 378(4) of the Code appear to be inter se overlapping, if not conflicting, when either the complainant is the victim or the victim is not the complainant in case where the complaint had to be filed by some person or authority designate owing to statutory prescription, for in these cases the person aggrieved by the decision of trial court or of the appellate court in appeal against conviction; the victim, may claim to have the right to file appeal, as a victim cum complainant and victim- but not the complainant, under proviso to Section 372 of the Code thereby conveniently bypassing the rigours and scrutiny of Section 378(4) of the Code.
Allowing such a shunt of procedural prescription of Section 378(4) of the Code would de facto render the provision of Section 378(4) of the Code redundant and as such this could never have been the intention of the legislature while enacting proviso to Section 372 of the Code. Nevertheless the strong and sweeping wordings of proviso to Section 372 of the Code can also not be simply brushed aside just to give way to an already existing inconsistent provision in Section 378(4) of the Code. It has to be determined by application of rules of statutory interpretation so as to exactly cull out from the provisions that whether the two provisions are inconsistent in pith and substance, and if there is inconsistency, then how much space one provision, should vacate so as to make the co-existence of inconsistent provisions possible.
9. It will thus call for application of rules of construction to reconcile the grey overlapping area to resolve the conflict. It is settled that while construing inconsistent provisions any construction which tends to reduce any provision of law to futility, and render it otiose and redundant has to be avoided. The inconsistencies have to be reconciled on principle "ut res magis valeat quam pereat" so as to make the entire status effective, operative and functional.
10. Section 378(4) of the Code existed in the statute book from much prior to insertion of proviso to Section 372 of the Code. Proviso to Section 372 of the Code is not only relatively new but is also strongly worded therefore in order to prevent any harm to the scope of application of proviso to Section 372 of the Code, it would be necessary to cull out the purpose of the legislature in enacting the proviso so that the mischief sought to be suppressed and the remedy provided in the statute is advanced.
The test to determine the purpose of the legislation has been reiterated by the Supreme Court in Bengal Immunity Co. v. State of Bihar, : AIR 1955 SC 661 in following words:
It is a sound rule of construction of a statute firmly established in England as far back as 1584 when Heydon's case, 3 Co. Rep. 7a;, 76 EIR. 637, was decided that "....for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:--
1st. What was the common law before the making of the Act, 2nd. What was the mischief and defect for which the common law did not provide, 3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth, and 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico".
In re Mayfair Property Company, L.R. [1898] 2 Ch. 28, 35 Lindley, MR. In 1898 found the rule "as necessary now as it was when Lord Coke reported Heydon's case". In Eastman Photographic Material Company v. Comptroller General of Patents, Designs and Trade Marks, LR, [1898] AC 671, 576 Earl of Halsbury re-affirmed the rule as follows:
"My Lords, it appears to me that to construe the Statute in question, it is not only legitimate but highly convenient to refer both to the former Act and to the ascertained evils to which the former Act had given rise, and to the later Act which provided the remedy' These three being compared I cannot doubt the conclusion".
11. Prior to amendment of 2009 the State was at the centre- stage in Indian pro-accused criminal justice system. It appears that the pro- accused criminal justice system caused more harm than good in certain cases. This could have been a death- blow to the Rule of Law if the situation was not remedied. The legislature, therefore, must be taken to have present to its mind the damage and harm that may have been caused to the victim therefore it amended the Code, inter alia, to insert proviso to Section 372 which creates rights in favour of the victims. It is the mischief that is done by the excessive pro- accused bias in the criminal justice system that the right has been given to the victim and remains unparalleled, albeit yet only in appeal.
12. The 154th Law Commission Report on the Code of Criminal Procedure even devoted an entire chapter to 'Victimology' in which the growing emphasis on victim's rights in criminal trials was discussed extensively. The Commission in its report had recommended comprehensive amendments to the Code in various provisions relating to arrest, custody, compounding of offences, victimology etc. The Statement of Objects and Reasons of Act, No. 5 of 2009 in para 2 reflects the concern for victims stating that "at present the victims are the worst sufferers in a crime and they don't have much role in court proceedings. They need to be given certain rights and compensation so that there is no distortion of the criminal justice system".
This makes it apparent and crystal clear that proviso to Section 372 of the Code was legislated with a view to suppress the mischief in inadequate remedying of wrongs, done to the victim, particularly those who do not have much role in the court proceedings.
13. Accordingly, while construing the said proviso regard has to be had so that its purpose is completely fulfilled and the remedy provided by it is advanced without offending the other provisions of the Code particularly relating to appeal in view of the language of Section 372 of the Code which lays down that none can file an appeal except as provided for in that chapter.
14. Section 378(4) of the Code dealing with remedy of appeal in case of acquittal in case instituted upon complaints imposes twin conditions i.e. the appeal has to be filed in the High Court and that the appeal will lie after obtaining special leave.
It is already observed that there can be class of persons, who may be aggrieved by acquittal in cases instituted upon complaints, and who may seek to avoid the rigours of Section 378(4) of the Code by resorting to the newly added proviso to Section 372 of the Code.
15. Permitting such an absolute shunt will render the provision of Section 378(4) of the Code otiose and redundant but at the same time disallowing the remedy available under proviso to Section 372 of the Code to all the victims irrespective of the fact whether they belong to the class for whose benefit the proviso to Section 372 of the Code was legislated would offend the purpose of the legislation.
16. To reconcile the two provisions, class of cases dealt with in both the provisions have to be analyzed and the conflict between the overlapping category will have to be resolved having regard to the predominant object of the statute.
Proviso to Section 372 of the Code is strongly worded general provision dealing with remedy for victims of crimes, apparently without distinguishing a victim who is a complainant and who is not a complainant, aggrieved by any order passed by the Court in criminal cases in following categories of cases:-
1. Where the accused is acquitted,
2. Where the accused is convicted for a lesser offence, and
3. Where inadequate compensation is imposed.
17. Section 378(4) of the Code is a special provision dealing with appeal in case of acquittal of accused in complaint cases. It provides remedy to the complainant only and it is trite to say that complainant has much role in the court proceedings. Plain reading of the provision brings out that the remedy is provided in the provision to the victim:
1. Where the accused is acquitted,
2. Where the acquittal is in complaint cases,
3. Where the victim is complainant and complainant is the appellant.
18. As a corollary, it may be noted that despite the fact that Section 378(4) of the Code specifically deals with complaint cases it is silent, though not prohibitive, on the issue of remedy to the victims in complaint cases in some situations.
Those situations are:
1. Where though the victim is complainant but the accused is not acquitted but is convicted for a lesser offence, or where inadequate compensation is imposed,
2. Where the victim is not the complainant but the case had to be instituted by some designate persons upon complaint due to statutory prescription.
Section 378(4) of the Code being a special provision will have overriding application and effect over the category of cases specifically dealt with by it on premise of "Generalia specialibus non derogant" which literally means "the general does not detract from the specific". It is trite to say that where there are general words in a provision capable of reasonable and sensible application without extending them to subjects specially dealt with by another pre-existing provision, you are to hold that earlier and special provision will stand indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. If a special provision deals with certain matter, then that matter is excluded from the application of general provision.
19. Whether the victim in a complaint case can seek remedy under proviso to Section 372 of the Code in the situations where Section 378(4) of the Code is silent about the remedy to the victim even though the subject-matter of Section 378(4) of the Code is complaint cases, would definitely fall in grey area requiring interpretation.
20. To sum up, following points emerge from the above discussion:
1. Proviso to Section 372 of the Code apparently does not distinguish between a victim who is a complainant and who is not a complainant.
2. Out of three circumstances circumscribed under the proviso to Section 372 of the Code, viz., (1) acquittal of accused, (2) conviction of accused for lesser offence, and (3) grant of inadequate compensation, only the first circumstance, i.e. acquittal of accused, is dealt with in Section 378(4) of the Code but Section 378(4) does not prohibit or bar the remedy to the victim in other two circumstances.
3. Section 378(4) of the Code is a special provision dealing specifically with appeal by complainant in case of acquittal of accused in complaint cases will have overriding and exclusive application and effect in cases of acquittal of accused in cases instituted upon complaint.
4. Proviso to Section 372 of the Code has been enacted as a shift towards victimology and emphasis on victim's rights in criminal trials to curb for the mischief of the absolute pro- accused criminal justice system.
5. Availability of remedy under proviso to Section 372 of the Code in cases where Section 378(4) of the Code is silent about remedy to the victim will have to be resolved by resorting to interpretation.
Being conscious of the scope and limitation of the jurisdiction we exercise while answering the stated question referred to the larger Bench that we cannot adjudicate upon an issue beyond the question referred that is to say that we cannot venture to interpret and settle the law which would be applicable in cases instituted upon complaint where either the victim is not complainant or where the victim is complainant but accused had not been acquitted because the stated question referred to this Bench is confined only to ten-ability of appeals before the Court of Session against the judgment of acquittal passed by subordinate criminal court arising out of criminal complaint filed by complainant. The Supreme Court in Kerala State Science and Technology Museum v. Rambal Co. and others, : (2006) 6 SCC 258 : (2006 AIR SCW 4008) categorically reiterated the law laid on the subject and held as under:
"8. It is fairly well settled that when reference is made on a specific issue either by a learned single Judge or Division Bench to a larger Bench i.e. Division Bench or Full Bench or Constitution Bench, as the case may be, the larger Bench cannot adjudicate upon an issue which is not the question referred to. (See Kesho Nath Khurana v. Union of India and others", : 1981 Supp SCC 38 : (AIR 1982 SC 1177) Samaresh Chandra Bose v. District Magistrate, Burdwan, : (1972) 2 SCC 476 : (AIR 1972 SC 2481); and K.C.P. Ltd. v. State Trading Corpn. of India, : 1995 Supp (3) SCC 466)".
21. Therefore, we will concentrate on the stated question referred to this Bench about tenability of appeals before the Court of Session against the judgment of acquittal passed by subordinate criminal court arising out of criminal complaint filed by complainant.
22. As discussed earlier, Section 378(4) of the Code is a special provision, dealing specifically with appeal by complainant in case of acquittal of accused in complaint cases, and as such it will have overriding as well as exclusive application and effect in cases of acquittal of accused in cases instituted upon complaint. Section 378(4) of the Code lays down twin criteria for tenability of appeal that it should be filed in the High Court and that the appeal will lie after obtaining special leave. As a corollary it flows that complainant will not be entitled to prefer an appeal under proviso to Section 372 of the Code before the Court of Session against the judgment of acquittal passed by subordinate criminal court arising out of criminal complaint filed by complainant, he will be required to prefer an appeal under Section 378(4) of the Code before the High Court after obtaining leave. Even otherwise, in cases instituted upon complaint, the complainant has much role in the court proceedings and as is apparent from the Statement of Object and Reason of Act No. 5 of 2009 which amended the Code, changes have been brought with a view to give certain rights and compensation to the victims who do not have much role in the court proceedings. Therefore also, the incorporation of proviso to Section 372 of the Code by Act No. 5 of 2009, providing right of appeal to the victim, will not come to the aid those victims who are complainants having much role in the court proceedings.
Thus we hold and answer the stated question as follows:
1. Complainant is not entitled to prefer an appeal under proviso to Section 372 of the Code before the Court of Session against the judgment of acquittal passed by subordinate criminal court arising out of criminal complaint filed by complainant;
2. Complainant is required to prefer an appeal under Section 378(4) of the Code before the High Court after obtaining special leave; and
3. Decision of the learned single Judge (Hon'ble Mr. Justice G. Minhajuddin) in Sunder Das Rohra (supra), Cr. Rev. No. 779/2012 cannot be said to be based on correct law interpretation and application of law. Sunder Das Rohra (supra), Cr. Rev. No. 779/2012, along with all other rulings whose ratio run contrary to the legal opinion expressed by us above, to that extent stands overruled.
23. The reference is answered accordingly. Let the matters be now placed before appropriate Bench for further hearing.