Joymalya Bagchi, J. - The questions which arise for determination in these cases are as follows:-

(a) Whether a victim in a complaint case can avail of the right to appeal under proviso to Section 372 Cr.P.C.

(b) If so, what is the form and manner of availing of such remedy

2. In order to answer the aforesaid questions a discussion as to evolution of the right to appeal against an order of acquittal in a criminal case under the Code of Criminal Procedure may be apposite.

Evolution of Right of Appeal against Acquittal

3. The right of appeal against an order of acquittal was expressly barred in the Code of Criminal Procedure as enacted in 1861. Section 407 of the said Code, inter alia, provided as follows:-

"S. 407.- No Appeal in cases of acquittal: There shall be no appeal from a judgment of acquittal passed in any Criminal Court."

The remedy of appeal against acquittal was incorporated for the first time in 1872 in the interest of public safety, peace and order.

4. The 1861 Code was replaced by the 1898 Code which, inter alia, provided for an appeal against acquittal to the High Court which could be preferred by the provincial Government only through Public Prosecutor against an original or appellate order passed by any other court other than High Court. Post Independence, Code of Criminal Procedure (Amendment) Act, 1955, introduced Section 417 Cr.P.C. to the 1898 Code which laid down such right of appeal as follows:-

"S. 417.- Appeal in case of acquittal: (1) Subject to the provisions of sub-section (5), the appeal in 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 acquittal passed by any Court other than a High Court.

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment Constituted under the Delhi Special Police Establishment Act, 1946, the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal.

(3) 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.

(4) No application under sub-section (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal.

(5) If, in any case, the application under sub-section (3) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1)."

5. The aforesaid provision for the first time extended the right to appeal to a complainant also in a complaint case which, however, was subject to grant of special leave by the High Court.

6. The next seminal change in procedural law was the enactment of the Code of Criminal Procedure, 1973 which repealed the 1898 Code. The right to appeal against an order of acquittal in the 1973 Code was provided in Section 378 Cr.P.C. which reads as follows:-

"378. Appeal in case of acquittal.- (1) Save as otherwise provided in sub-section (2) and subject to the provisions of subsections (3) and (5), 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 acquittal passed by any Court other than a High Court.

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3), to the High Court from the order of acquittal.

(3) No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.

(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.

(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.

(6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2)."

7. The provision made the following changes in the pre-existing law. In view of the recommendation made by the Law Commission in its 48th Report, the unrestricted right to appeal conferred on the State was subjected to grant of leave like that of the complainant and subsection (3) of Section 378 was introduced which, inter alia, provided for leave to be granted by the High Court in preferring an appeal by the Central/State Government under sub-section (1) and (2) of the said Section.

8. The other change introduced was the incorporation of a different period of limitation in respect of an application for special leave to appeal by a public servant vis-a-vis a private complainant in a complaint case.

9. Thereafter, by the Code of Criminal Procedure Amendment Act, 2005, Section 378 Cr.P.C. was further amended and the forum of appeal against order of acquittal passed by a Magistrate in cognizable and non-bailable offences was altered to the Court of Sessions. Subsection (3) of Section 378 was also amended so as to necessitate leave to be obtained from the High Court in respect of an appeal to be preferred before the said Court only under sub-section (1) or subsection (2) thereof. Section 378 Cr.P.C. (as amended by the 2005 Amendment Act) is as follows:-

"378. Appeal in case of acquittal. (1)Save as otherwise provided in Sub-Section (2) and subject to the provisions of Sub-Sections (3) and (5),-

(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and nonbailable offence;

(b) 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.";

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may, subject to the provisions of Sub-Section (3), also direct the Public Prosecutor to present an appeal-

(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) 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.

(3) No appeal under Sub-Section (1) or Sub-Section (2) shall be entertained except with the leave of the High Court.

(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.

(5) No application under Sub-Section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.

(6) If, in any case, the application under Sub-Section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under Sub-Section (1) or under Sub-Section (2)"

10. Such amendments to the law were prompted by the recommendations of the Law Commission in its 154th Report which, inter alia, proposed the appeal against an order of acquittal passed by a Magistrate in a cognizable and non-bailable offence may be preferred before the Court of Sessions instead of High Court presumably to bring the appellate remedy closer to the situs of original litigation.

Victim and Right to Appeal

Classically the `victim was an unheard and unseen entity in criminal jurisprudence.

11. In Rattan Singh v. State of Punjab, (1979) 4 SCC 719 [LQ/SC/1979/392] , the Apex Court lamented as follows:-

". . .It is a weakness of our jurisprudence that the victims of the crime, and the distress of the dependants of the prisoner, do not attract the attention of the law. Indeed, victim reparation is still the vanishing point of our criminal law! This is a deficiency in the system which must be rectified by the legislature. We can only draw attention to this matter. Hopefully, the welfare State will bestow better thought and action to traffic justice in the light of the observations we have made. . ."

12. In PSR Sadhanantham v. Arunachalam & Anr. reported in (1980) 3 SCC 141 [LQ/SC/1980/43] , the Constitution Bench recognized the right of a relative of a `victim of crime to file appeal under Article 136 of the Constitution against an order of acquittal. The Apex Court, however, put a rider holding that such right would be exercised in case of the State being found wanting in pursuing the legal remedies in a bona fide manner. It, inter alia, held that such right was available.

". . .in those cases only where it is convinced that the public interest justifies an appeal against the acquittal and that the State has refrained from petitioning from special leave for reasons which do not bear on the public interest but are prompted by private influence, want of bona fide and other extraneous consideration."

13. Since 1980 a movement for acknowledgement and recognition of rights of victims of crime gained ground. This resulted in United Nations adopting the "Basic principles of justice of victim for crime and abuse of power" in its general assembly upheld in 1985. The aforesaid international charter not only defined `victim but also ushered in an era in criminal jurisprudence which acknowledged the `victim as a stakeholder in the justice delivery system. The declaration laid down the following categories of victims rights as the basic principle of fair and equitable justice:-

(i) Access to justice and fair treatment

(ii) Restitution

(iii) Compensation

(iv) Assistance

14. In tune with the declaration made in the aforesaid international charter, a Committee, namely, `Committee on Reforms on Criminal Justice System under the chairmanship of Justice Malimath stressed on the need to provide justice to the victims of crime and enumerated the following essential rights of victims:-

"(i) The victim, and if he is dead, his legal representative shall have the right to be impleaded as a party in every criminal proceeding where the offence is punishable with 7 years imprisonment or more.

(ii) In select cases notified by the appropriate Government, with the permission of the court an approved voluntary organisation shall also have the right to implead in court proceedings.

(iii) The victim has a right to be represented by an advocate of his choice; provided that an advocate shall be provided at the cost of the State if the victim is not in a position to afford a lawyer.

(iv) The victims right to participate in criminal trials.

(v) The victim shall have a right to prefer an appeal against any adverse order passed by the court acquitting the accused, convicting for a lesser offence, imposing inadequate sentence, or granting inadequate compensation. Such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such a court."

15. Pursuant to the aforesaid recommendation, the Law Commission in its 154th Report recognized the right of the `victim to participate in a criminal proceeding and recommended amendments to the Code of Criminal Procedure to incorporate a statutory definition of `victim and proposed statutory recognition of their rights including right to appeal against order of acquittal or conviction for a lesser offence.

16. It may, however, be apposite to note that even prior to such recommendations, recognizing the role of the `victim, the Courts through a process of judicial interpretation had been shifting the stance of criminal law from a State oriented mechanism to a more participatory `victim centric justice delivery system.

17. In Bhagwant Singh v. Commissioner of Police, (1985) 2 SCC 537 [LQ/SC/1985/151] , the Apex Court recognized the right of the informant to be notified and heard in the event a closure report/final report was filed by the investigating agency in conclusion of investigation. The `victim the Court held, also had a right to hearing in such situations although there may not be an independent duty to serve notice upon him.

18. Another authority where the right of a `victim was recognized even prior to legislative amendment in that regard was in M/s. J.K. International v. State Government of NCT of Delhi, (2001) 3 SCC 462 [LQ/SC/2001/538] , wherein it was held that a person aggrieved/complainant had a right to be added as a party and be heard in a proceeding under Section 482 Cr.P.C. where the accused prayed for quashing of a criminal case registered at the behest of such complainant.

19. Further in Puran Shekhar and Anr. v. Rambilas & Anr., (2001) 6 SCC 338 [LQ/SC/2001/1208] , the Apex Court acknowledged the right of a deceaseds father to seek cancellation of bail granted to an accused.

20. However, in terms of the recommendations of the Law Commission in its 154th Report, Code of Criminal Procedure Amendment Act, 2008 was enacted to amend the 1973 Code by introducing the definition of `victim in the definition clause and, inter alia, incorporating the right of appeal by the `victim against orders of acquittal, conviction for lesser offences or awarding of inadequate compensation. The aforesaid amendments read as follows:-

"2(wa). `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."

......................

"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.]"

Right of Appeal - `Victim vis-a-vis `Complainant

21. The aforesaid amendments to the Code gives statutory expression in domestic law to the rights of `victim as declared in international law and introduces for the first time in our criminal jurisprudence a novel and unique statutory status to a `victim of crime and confers on him a right to appeal against acquittal arising from such status itself. Any judicial interpretation of the aforesaid provisions must, therefore, bear in mind such wholesome legislative intendment and seek to achieve its fullest manifestation within the existing statutory scheme. With such principles in mind, let me seek to address the issues enumerated at the outset.

22. The statutory scheme of the Code (as amended upto date) clears that the `victim as defined in Section 2(wa) [see above] of the Code is an identity which is distinct from `complainant as defined in Section 2(d) of the Code.

Section 2(d) reads as follows:-

"2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;"

23. Criminal law may be set into motion by anyone and it is not imperative that a complainant must be the `victim of crime to institute a complaint case except in rare exceptional cases, e.g. sections 195-199 of the Code. Hence, a `victim may or may not be a complainant in a particular case.

24. The right of appeal at the behest of a complaint against an order of acquittal was already in existence under Sub-sections (4) and (5) of Section 378 Cr.P.C. whereas the right of appeal of the `victim has been subsequently incorporated in the proviso to Section 372 Cr.P.C. by the 2008 Amendment Act. The question is how the newly introduced right of appeal of the `victim is to be interpreted in the light of the pre-existing right of appeal vested in a complainant under Section 378(4) and (5) Cr.P.C. against an order of acquittal.

25. Differing views have been expressed by various High Courts on this issue.

26. A Full Bench of Madras High Court in S. Ganapathy v. N. Senthilvel, 2016(3) R.C.R. (Criminal) 896, answered the aforesaid issue in the following manner:-

31.(1) A victim of the crime, who has prosecuted an accused by way of a private complaint, has a statutory right of appeal within the limits prescribed under Section 372 of Cr.P.C.

(2) A complainant (in a private complaint), who is not a victim, has a remedy and can file an appeal in the event of acquittal of the accused after obtaining leave to appeal under Section 378(4) of Cr.P.C.

(3) In a private complaint, even if the victim is not a complainant, he has a right to appeal under the proviso to Section 372 of Cr.P.C., but he has to seek leave as held by the Supreme Court in Satyapal Singh.

(4) The term "victim" has been correctly interpreted by the Full Bench of the Delhi High Court in Ramphal and we are in agreement with the same.

(5) A victim (as defined under Section 2(wa) of the Cr.P.C does not cease to be a victim merely because he also happens to be a complainant and he can avail all the rights and privileges of a victim also and

(6) The decision of the Single Judge in Selvaraj holding that the term "victim" found in Section 372 excludes a complainant, is not legally correct and in a given case, a complainant, who is also a victim, can avail right granted under Section 372 of Cr.P.C.

27. Similar view was also taken by Andhra Pradesh High Court in G. Baswaraj v. State of Andhra Pradesh reported in 2011 (8) R.C.R. (Criminal) 1674.

28. Rajasthan High Court has held that the appeal by a complainant/victim lay before the Sessions Judge and not the High Court under Section 378(4) Cr.P.C. [Laxmilal Menariya v. Rajendra Kumar, 2012(2) DCR 729 (Raj)].

29. A Full Bench of Gujarat High Court in Bhavuben Dineshbhai Makwana v. State of Gujarat & Ors., 2013 Cri.L.J. 4225 (Guj), held as follows:-

"27.1 If, however, in his appeal by virtue of the power conferred under the proviso to Section 372, the victim either challenges the order of acquittal or the inadequacy of compensation or both or even the conviction on a lesser offence than the one charged, in our view, the procedure should be as follows:

[1]. If the victim also happens to be the complainant, he should follow the provision of sub-section (4) of Section 378 he being clearly covered by such provision for the part of his appeal against the order of acquittal by filing an application for special leave. The period of limitation of maintaining the appeal against the acquittal will be governed by Article 114(b) of the Limitation Act.

[2]. However, if in a given situation, the victim is not the complainant, the appeal is although against the order of HC-NIC Page 26 of 35 Created On Mon Aug 29 11:54:30 IST 2016 CR.A/238/2012 27/35 ORDER acquittal, he would not be required to follow the procedure of Section 378 as that Section requires filing of leave or special leave, as the case may be, only if the appellant comes within the purview of the relevant sub-sections mentioned therein. A victim, who is not a complainant, will not consequently fall within any of the sub-sections of Section 378. It appears that the legislature was quite conscious of the necessity of the taking leave and special leave as provided in Section 378; nevertheless, it decided not to make any amendment of Section 378 while conferring right of appeal against acquittal to the victims who are not complainant requiring them the necessity of taking special leave from this court. The period of limitation in such a case, although is not covered by any of the Articles of the Limitation Act, should be a reasonable period and in such a situation, in our opinion the period of 90 days as provided in Article 114(a) of the Limitation Act should be the reasonable period as the said period is the longest period of limitation for filing an appeal against the order of acquittal prescribed by the legislature."

30. On the other hand, a Full Bench of Punjab and Haryana High Court took a different view and held that the `victim who is not a complainant in a private complaint case was not entitled to file appeal against an order of acquittal which could only be exercised by the complainant under Section 378(4) Cr.P.C.[M/s. Tata Steel Ltd. v. M/s. Atma Tube Products Ltd., 2013(2) R.C.R. (Criminal) 1005].

31. In Omanajose & Anr. v. State of Kerala & Ors., 14(2) MWN (Cr.) DCC (page-44), the Kerala High Court held that the word `victim would not include the word `complainant as such interpretation would be destructive of the pre-existing scheme under Section 378(4)/(5) Cr.P.C. to prefer appeal against an order of acquittal. Similarly a Single Judge of Madhya Pradesh High Court held that such appeal shall lie before the High Court [Dharamveer Singh Tomar v. Ramraj Singh Tomar, 2011 ACD 487 (MP)].

32. While dealing with the right of a `victim to prefer appeal in a murder case under the proviso to Section 372 Cr.P.C., the Apex Court in Satya Pal Singh v. State of MP & Ors. reported in 2015(10) Scale 444, held that the right of a `victim to prefer appeal is not an independent one and must be read in the light of the procedure laid down in Section 378 Cr.P.C. As sub-section (3) of Section 378 Cr.P.C. mandates leave to be obtained by the State for preferring an appeal against acquittal before the High Court it was held that similar leave is to be obtained by the victim for preferring an appeal against an order of acquittal before High Court. The Apex Court, however, in the said report was not dealing with the right of a `victim to prefer appeal against an order of acquittal in a complaint case and the aforesaid ratio cannot be held to be an authority for the proposition arising in the factual matrix of the present case.

33. Similarly in Ranu Thakur v. Dayashanker & Anr., 2015(2) RCR (Cri) 153, the Apex Court was dealing with an appeal by a `victim in a police case before the High Court and held that leave under sub-section (3) of Section 378 Cr.P.C. was necessary. Such judgment is also not an authority for the issues which are falling for consideration in the instant case.

34. This Court in Nirmal Kumar Batabyal v. The State of West Bengal & Anr., (2016) 2 C Cr LR (Cal) 534), had the occasion of dealing with the ratio in Satya Pal (supra) and held that the ratio in the said report is to be read in the factual matrix of the said case wherein the forum of appeal for the `victim under Section 372 Cr.P.C. and that of the complainant under Section 378 Cr.P.C. were the same, namely, the High Court. The aforesaid ratio may not apply to cases where the appeal of the `victim lay before the Court of Sessions in terms of the proviso to Section 372 Cr.P.C.

35. In National Plywood Industries v. State of West Bengal reported in 2013 (1) C Cr LR (Cal) 871, a single Judge of this Court, inter alia, held that the right of a `victim to prefer appeal in a complaint case is derivable from the proviso to Section 372 Cr.P.C. and not traceable to Section 378 Cr.P.C.

36. However, in Subhash Chand v. State (Delhi Administration), 2013(2) SCC 17, the Apex Court held that the right to prefer an appeal by a complainant whether he is a private complainant or a public servant is traceable to Section 378(4) Cr.P.C. It may be apposite to note that the Apex Court in the said report was dealing with the right of a public servant to file appeal in a complaint case and had no occasion to deal with the right of a `victim to prefer appeal under the proviso to Section 372 Cr.P.C.

37. Subsequently, relying on Subhas Chand (supra) a learned single Judge of this Court in M.K. Praducts v. M/s. Blue Ocean Exports, (2016) 4 ECrN (Cal) 560, held that the right to appeal of a complainant/victim against an order of acquittal has to be availed of before the High Court in terms of Section 378(4) Cr.P.C., whereas another learned single Judge of this Court held in M/s. Eastern India Enterprises v. State of W.B. & Ors., in C.R.A. 579 of 2013 vide order dated 16.12.2016 that the right to appeal of a complainant/victim lay before the Court of Sessions under the proviso to section 372 Cr.P.C.

38. The right to prefer an appeal by the `victim against an order of acquittal is derivable from the proviso to Section 372 Cr.P.C. Such right was inserted for the first time by the Code of Criminal Procedure Amendment Act, 2008. Prior to its introduction, `victim of a crime did not have the right to prefer an appeal in such capacity. Such right was only conferred to the State or to the complainant in a complaint case under Section 378 Cr.P.C. The question is whether one restricts the right of appeal vested in the `victim under the proviso to Section 372 Cr.P.C. to police cases alone in view of the pre-existing right of appeal in the complainant under Section 378 Cr.P.C. To do so, one must hold that `victim is synonymous with `complainant which is impermissible in view of the clear and distinct definitions of the two entities under the Code and the absence of any restriction as to locus standi in institution of criminal proceeding under ordinary law except in rare cases. Hence, such restrictive interpretation would run contrary to the clear and unambiguous words in the proviso and would amount to rewriting the proviso itself. When the words of the statute are clear and unambiguous such words are to be given its fullest expression. That apart, a restrictive interpretation of the right of appeal of the `victim as envisaged in the aforesaid proviso would run contrary to the intention of the legislature. The legislative enlargement of the scope and ambit of right to appeal against acquittal down the ages must be borne in mind while inferring the intention of the legislature in incorporating the proviso to Section 372 Cr.P.C. and vesting a right to appeal to the `victim. In this perspective, it is clear that the purpose of such amendment was to ensure access to justice to victims in the event of an unmerited acquittal passed by a Criminal Court. Such access to justice in the form of appeal is a fundamental right of every `victim of crime and cannot be restricted only to victims in police cases in view of a preexisting right of appeal vesting in the complainant in a complaint case. Neither the clear words of the proviso nor the intention of the legislature in incorporating the aforesaid amendment gives rise to an inference that such right of appeal to a `victim is to be restricted only to police cases and not to complaint cases. Any other interpretation would give rise to an unjust discrimination between a homogenous class, namely, `victim with reference to the nature of the proceeding, that is, a police case and a complaint case, and would result in an arbitrary and unreasonable classification without any rational nexus to the object of the legislature. Even if the right of the `victim to appeal against an order of acquittal in a complaint case is read in the background of the pre-existing right of the complainant to prefer an appeal under sub-section (4) of Section 378 Cr.P.C., it is apposite to note that both the rights may overlap but they cannot be said to be absolutely congruent to one another. If that were so, there would be no distinction between a complainant and `victim in a complaint case. There are innumerable instances where the complainant may not be the `victim of the case whereas there may be other cases where there are more than one `victim in a case one of whom may be the complainant. For example, in a complaint instituted by a Drug Inspector under the Drug and Cosmetics Act for the prosecution of sale of spurious drugs to various consumers, the Inspector who is the complainant may not be a `victim whereas the persons who had purchased of such spurious drugs are the victims of the crime. Similarly, in a case where a private complaint is lodged by an individual for commission of the offence of outraging of modesty of a lady, the latter though not a complainant is a `victim of the crime. Can in these cases, the `victim be denied of his/her right to prefer an appeal against an order of acquittal under the proviso to Section 372 Cr.P.C. since such right is vested only in the complainant under Section 378(4) Cr.P.C. Such illustrations may be numerous where the complainant is not the `victim of the crime or there are more than one `victim other than the complainant. In these cases, the right of the complainant to prefer an appeal against acquittal in a complaint case cannot be a substitute for access to justice vested in the `victim by way of appeal under the proviso to Section 372 Cr.P.C. That apart, the forum to prefer appeal under the proviso to Section 372 Cr.P.C. and that under Section 378(4)/(5) Cr.P.C. are not identical. While the complainant may prefer appeal against acquittal only before the High Court upon obtaining special leave from such Court, the appeal by the `victim may be preferred in the Court before whom the appeal against conviction shall ordinarily lie, that is, the Court of Sessions in magistrate triable cases. Moreover, proviso to Section 372 Cr.P.C. vests a wider right of appeal against conviction for lesser offences or inadequate compensation to the `victim apart from the right of appeal against acquittal only as a Section 378 Cr.P.C. Thus the appeals envisaged under the aforesaid proviso to Section 372 Cr.P.C. and Section 378(4)/(5) Cr.P.C. though falling under the same genus of `Appeals against acquittal belong to different species as they are distinct from one another not only with regard to the status of the appellant but also vis-a-vis the forum as well as the ambit and manner in which such appeals are to be preferred. Hence, the preexisting of a right of appeal of a complainant under Section 378 Cr.P.C. cannot obliterate the right of appeal vested in a `victim under the proviso to Section 372 Cr.P.C. in a complaint case. Hence, I hold that a `victim of crime has a right to prefer appeal against an order of acquittal or conviction for lesser offences or inadequate compensation even in a complaint case under proviso to Section 372 Cr.P.C. notwithstanding the pre-existing right of a complainant to prefer appeal against acquittal under Section 378(4) Cr.P.C.

When Victim is A Complainant:-

39. The next question which arises is how a victim who happens to be the complainant in a complaint case is to exercise his right to appeal against an order of acquittal. Prior to the amendment of the Code by the amending Act of 2008, the right of the `victim to prefer an appeal was not recognized. In complaint cases the appeal against acquittal could be preferred by the complainant alone. However, by the amendment to Section 372, the proviso was introduced and a substantive right to appeal was conferred on the `victim. The said proviso not only conferred right of appeal to the `victim against an order of acquittal but also extended such right of appeal against conviction for lesser offences or grant of inadequate compensation. The proviso also indicated the forum where such appeal is to be preferred, namely, the Court before whom an appeal from an order of conviction shall ordinarily lie. For example, in a case tried before a Judicial Magistrate, such appeal by the `victim under the proviso to Section 372 Cr.P.C. shall lie before the Court of Sessions and not the High Court. Hence, the scope and ambit of appellate powers as envisaged under proviso to Section 372 Cr.P.C. as well as the forum for appeal are distinct from an appeal preferred by a complainant against order of acquittal in a complaint case under Section 378(4)/(5) Cr.P.C. If a `victim who happens to be a complainant in a complaint case which is tried before a Judicial Magistrate is aggrieved by inadequacy of compensation or conviction for a lesser offence, he may prefer appeal in his capacity as a `victim in terms of proviso to Section 372 Cr.P.C. before the Court of Sessions notwithstanding the existence of appellate remedy under Section 378 Cr.P.C. However, in cases of acquittal in a complaint case tried by a Magistrate a question may arise as to whether a complainant/victim would have to take recourse to Section 378(4)/(5) Cr.P.C. and prefer appeal directly before the High Court after seeking special leave or may prefer appeal before the Court of Sessions in terms of proviso to Section 372 Cr.P.C. No doubt, it has been held in Satya Pal (supra) and Ranu Thakur (supra) that the right of the `victim is not an independent one and has to be read harmoniously with the pre-existing right under Section 378 Cr.P.C. It must, however, be borne in mind that the Apex Court in the aforesaid reports were dealing with cases where the appeal of the `victim under proviso to Section 372 Cr.P.C. also lay before the High Court and, therefore, the procedure for preferring such appeal was held to be subject to the leave granted by the said Court under Section 378(3) Cr.P.C. In the present situation, however, the appeal by the `victim in terms of proviso to Section 372 Cr.P.C. lies before the Court of Sessions and not the High Court. Hence, in a Magistrate triable case instituted on a complaint, a `victim who happens to be a complainant is vested with twin remedies, - (a) against an order of acquittal before the Court of Sessions in terms of proviso to Section 372 Cr.P.C. in his capacity as a `victim, or (b) to seek leave of the High Court under Section 378(4) Cr.P.C. and prefer appeal in terms of Sub-section (5) thereof before the said Court in his capacity as a complainant. The aforesaid statutory scheme cannot be understood to mean that the pre-existing right of the complainant under Section 378 Cr.P.C. would render the right of the `victim under the proviso of Section 372 Cr.P.C. otiose, if he happens to be the same individual. Not only would such interpretation render the status of `victim and the rights flowing therefrom subordinated and/or subsumed in the status of the `complainant but would also violate the very ethos of harmonious construction and render the manner as well as forum of preferring appeal by the `victim under Section 372 Cr.P.C. otiose. Right to prefer appeal conferred on a `victim of crime as introduced by the proviso to Section 372 Cr.P.C. is a statutory expression of the fundamental right of access to justice to victims of crime. Hence, such right of the `victim cannot be whittled away in a complaint case only because he happens to be a complainant vested with a pre-existing right under Section 378(4)/(5) Cr.P.C. It must be understood that in a case where the complainant is also a `victim of crime he wears two hats - one as a complainant and the other as a `victim and his remedies against an order of acquittal emanating from the aforesaid identities respectively are distinct from one another as to the forum as well as the manner in which they are to be exercised. He may either in his capacity as a `victim prefer an appeal against acquittal before the Court of Sessions (where the appeal against conviction shall ordinarily lie in a Magistrate triable case) or he may as a complainant approach the High Court and prefer appeal after seeking leave in terms of Section 378(4) Cr.P.C. Existence of twin remedies against a common cause of action vests the freedom of choice on the litigant to elect one in preference to the other and does not foretell an interpretative exercise mandating one remedy to the obliteration of the other. Principle of election of remedies is derived from common law and its origin may be traced to Streatfield v. Streatfield (1 White & Tudor, 416) wherein the doctrine was enunciated as follows:-

"Election is the obligation imposed upon a party to choose between two inconsistent, or alternative, rights or claims, in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both. Every case of election, therefore, presupposes a plurality of gifts or rights, with an intention, expressed or implied, of the party who has a right to control one or both that one should be a substitute for the other. The party who is to take has a choice, but he cannot enjoy the benefit of both."

[Strouds Judicial Dictionary of Words and Phrases (Seventh Edition), Vol.-1 (A-E) Pg-821]

40. In P. Ramanatha Aiyars The Law Lexicon (The Encyclopaedic Law Dictionary), 1997 Edition, the principle has been articulated as follows:-

". . .An election of remedies is defined as the choosing between two or more different and co-existing modes of procedure and relief allowed by law on the same state of facts."

41. In Transcore v. Union of India, (2008)1 SCC 125 [LQ/SC/1969/474] (Para-64), the Apex Court held that the principle of election of remedy applies when there are:- (a) existence of two or more remedies; (b) there are inconsistencies between such remedies and (c) choice has to be made of one of them.

42. In the present scenario, the twin remedies available to a victim/complainant against an order of acquittal under proviso to Section 372 Cr.P.C. (as a `victim) and under Section 378(4)/(5) Cr.P.C. (as a complainant) are inconsistent with each other as to the forum as well as the manner in which they may be availed of. More so, availing of one such remedy would naturally extinguish the other. Hence, the aforesaid principle of election of remedies applies with full force to the instant factual matrix and gives an option to the litigant to elect between the aforesaid remedies available to him. Vesting of such discretion, in fact, invigorates the concept of access to justice to the victim/complainant leaving the option open as to access to justice leaving the option open to such litigant to choose his appellate remedy before the forum and in manner which most convenient to him in the circumstances of a particular case. To read the amended law restrictively by giving precedence to the pre-existing right of the complainant under Section 378 Cr.P.C. would, in fact, negate flexibility of choice introduced in the statute by way of the said amendment and whittle down the access to justice to a `victim/complainant to avail of the appellate forum created under the aforesaid proviso to Section 372 Cr.P.C. The law makers certainly did not intend such a differential treatment to a `victim of crime who is also a complainant vis-a-vis victims in other cases. Similar view has been expressed by the Full Bench of Madras High Court in S. Ganapathy (supra) and by the Andhra Pradesh High Court in G. Baswaraj (supra).

43. The concept of election of remedies is not alien to the scheme of the Code. For example, when a crime is committed against an individual it is open to him to inform the commission of such crime to the officer-in-charge of a police station resulting in registration of F.I.R. and institution of a police case, alternatively, he may file a private complaint under Section 200 Cr.P.C. and prosecute the offender in a complaint case. However, if he avails both the remedies, the cases shall stand amalgamated in terms of Section 210 Cr.P.C. Similarly, in the complaint case when an order of acquittal is passed, the complainant who is also a `victim, may assail such order of acquittal either under the proviso to Section 392 Cr.P.C. as a `complainant or under Section 378(4)/(5) Cr.P.C. but may not be permitted to avail both the remedies simultaneously.

Limitation

44. With regard to limitation I find that proviso to Section 372 Cr.P.C. is silent and does not prescribe any specific period of limitation for preferring appeal by the `victim. In Chobhan Mallick v. The State of West Bengal, (2013)3 C Cr LR (Cal) 428, a Division Bench of this Court while dealing with police cases held that the limitation for preferring appeal by the `victim shall be sixty days from the date of receiving intimation of the order of acquittal through the District Magistrate. The said authority, however, does not specifically deal with appeal by victims in complaint cases. It may be noted that the complainant (apart from a public servant) in a complaint case is required to take special leave to appeal within sixty days from the date of order of acquittal. I am of the opinion, when period of limitation is not expressly prescribed by the statute as to a specific remedy, it ought to be understood that the statutory remedy has to be exercised within a reasonable time without any undue delay or procrastination. What is such reasonable time, may, however, be inferred from the intention in the statute itself particularly with reference to periods of limitation prescribed for availing of similar or collateral remedies. In view of such analysis and in the light of the ratio in Chobhan Mallick (supra), I am of the opinion the period of limitation for a `victim for prefer appeal in a complaint case under the proviso to Section 372 Cr.P.C. shall be construed to be sixty days from the date of the order of acquittal. It is a trite law that unlike a police case the carriage of the proceeding in a complaint case is with the complainant and in most cases the `victim is the `complainant himself or alternatively the `victim is one of the witnesses of the complainant who has the carriage of the proceeding. Hence, in a complaint case I am of the opinion that no duty is cast on the District Magistrate to communicate the order of acquittal to the `victim of crime and the period of limitation shall run from the date of the order of acquittal itself instead of the date of the communication of such order of acquittal by the District Magistrate to the `victim in a police case as held in Chobhan Mallick (supra).

Conclusion

45. For the aforesaid reasons, I hold as follows:-

(i) A `victim in complaint case (who is not a complainant) is entitled to prefer appeal against an order of acquittal or conviction for a lesser offence or inadequate compensation in terms of proviso to Section 372 Cr.P.C. notwithstanding existence of pre-existing of appellate remedy in favour of the complainant under Section 378(4)/(5) Cr.P.C. The forum for preferring such appeal by the victim would be determined in terms of aforesaid proviso itself and no special leave under Section 378(4) Cr.P.C. is required if such appeal is required to be filed before the Court of Sessions in terms of the proviso to Section 372 Cr.P.C.

(ii) Where the complainant is also the `victim of crime, he is entitled to prefer appeal as a `victim in terms of proviso to Section 372 Cr.P.C. against conviction for lesser offence or inadequate compensation in addition to the appellate remedy under Section 378(4)/(5) Cr.P.C. In such cases, the complainant/victim is entitled to elect his remedy against the order of acquittal and file appeal either in his capacity as a `victim before the appropriate forum in terms of proviso to Section 372 Cr.P.C. or may seek leave and prefer an appeal before the High Court under Section 378(4)/(5) Cr.P.C. as a complainant. However, if he avails of one of the aforesaid remedies he shall be precluded from taking recourse to the other remedy in accordance with law.

(iii) In a case where a `victim (who is not the complainant) has preferred an appeal against acquittal in terms of proviso to Section 372 Cr.P.C. before the Court of Sessions while the complainant has sought his appellate remedy before the High Court in terms of Section 378(4)/(5) Cr.P.C., it shall be open to the High Court in exercise of its power under Section 407 Cr.P.C. to transfer the other appellate proceeding to itself and hear both the appeals analogously.

(iv) Period of limitation to prefer appeal by a `victim in a complaint case in terms of proviso to Section 372 Cr.P.C. shall be sixty days from the date of the impugned order.

46. The aforesaid view runs counter to the ratio of a coordinate Bench of this Court in M/s. M.K. Products (supra). Hence, I refer the following questions for decision by a larger Bench:-

(a) Whether a victim in a complaint case can avail of the right to appeal under proviso to Section 372 Cr.P.C.

(b) If so, what is the form and manner of availing of such remedy

47. Place these matters before the Honble theing Chief Justice.