P14P1001.CHP_Corel VENTURA

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 1 THEPUNJAB LAW REPORTERVol. CLXXIII REPORTS (2014-1) PUNJAB AND HARYANA HIGH COURT [FULL BENCH] Before: Mr. Justice Surya Kant, Mr. Justice Paramjeet Singh and Mr. Justice R.P. Nagrath. M/S TATA STEEL LTD. - Petitioner, Versus M/S AMBA TUBE PRODUCTS LTD. and others - Respondents.Criminal Misc. No.A-790-MA of 2010 (O&M) and Criminal Misc. No.A-547-MA-2011 (O&M). (i) Criminal Procedure Code, 1973 (II of 1974) Section 2(d), 378(4) - Com-plainant - Expression \"complainant\" is not defined in the Code though Sec-tion 2(d) defines \"complaint\" to mean \"any allegation made orally or inwriting to a Magistrate, with a view to his taking action under this Code, thatsome person, whether known or unknown, has committed an offence, butdoes not include a police report\" - A person, other than the informant in apolice-case, who makes the allegation orally or in writing to the Magistrate isa `complainant' within the meaning of Section 378(4) of the Code. [Para 78](ii) Criminal Procedure Code, 1973 (II of 1974) Section 357(1)(c) - Personswho are entitled to be compensated by Court for the death of their near anddear ones, could be the spouse, parent or child of such victim but they maynot necessarily be entitled to seek compensation within the scheme formu-lated under Section 357-A unless it is proved that such a claimant was `de-pendent' on the deceased and requires `rehabilitation' - To say it differently,it is nowhere contemplated under the scheme of the Code that the compensa-tion recoverable from an accused or admissible under the Victim Compensa-tion Scheme [Sections 357(1)(c) & 357-A], is payable only to the `legal heirs'of a deceased victim. [Para 60](iii) Interpretation of Statutes - Court shall always presume that whileamending or bringing a new enactment, the Legislature was fully aware ofthe provisions of the existing Statute. [Para 92] (iv) Criminal Procedure Code, 1973 (II of 1974) Section 2(wa), 372, 378(4),378(1) - \"Victim\" - Right of victim - Presentation of appeal against acquittal- Where would the appeal of a `victim' preferred under proviso to Section372 lie when the State also prefers an appeal whether proviso to Section 372

2 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1)Cr.P.C. is prospective or retrospective - What would be the period of termi-nation for a `victim' to prefer an appeal under proviso to Section 372 Cr.P.C.Held, that the Court formulate the following seven questions that arise for our con-sideration:-(A) What is the true import and meaning of the expression `victim' as defined underSection 2(wa) read with proviso to Section 372 Cr.P.C.?(B) Whether `complainant' in a private complaint-case, who is also the `victim' andthe `victim' other than the `complainant' in such cases are entitled to present appealagainst the order of acquittal under proviso to Section 372 or have to seek `specialleave' to appeal from the High Court under Section 378(4) Cr.P.C.?(C) Whether the `rights' of a victim under the amended Cr.P.C. are accessory andauxiliary to those perceived to be the exclusive domain of the `State'? (D) Whether presentation of appeal against acquittal is a `right' or an `obligation' ofthe `State' stemming from the Constitution?(E) Where would the appeal of a `victim' preferred under proviso to Section 372 liewhen the State also prefers appeal against that order of acquittal under Clause (a) ofSection 378(1) Cr.P.C.?(F) Whether proviso to Section 372 Cr.P.C. inserted w.e.f. December 31, 2009 isprospective or retrospective in nature and whether a revision petition pending against anorder of acquittal before the insertion of the said proviso, can be converted into an ap-peal and transferred to the Court of competent jurisdiction?(G) What would be the period of limitation for a `victim' to prefer an appeal underproviso to Section 372 Cr.P.C.? [Para 6]Held, further, that for the reason assigned above, we sum up our conclusions andanswer the questions as formulated in para 6 of this order, in the following terms:-Question -(A)(i) The expression \"victim\" as defined in Section 2(wa) includes all categories ofhis/her legal heirs for the purpose of engaging an advocate under Section 24(8) or toprefer an appeal under proviso to Section 372 of the Code.(ii) However, legal heirs comprising only the wife, husband, parent and child of adeceased victim are entitled to payment of compensation under Section 357(1)(c) of theCode. Similarly, only those dependents of a deceased victim who have suffered loss orinjury as a result of the crime and require rehabilitation, are eligible to seek compensa-tion as per the Scheme formulated under Section 357-A of the Code.Question - (B)(iii) The `complainant' in a complaint-case who is also a `victim' and the `victim'other than a `complainant' in such case, shall have remedy of appeal against acquittalunder Section 378(4) only, except where he/she succeeds in establishing the guilt of anaccused but is aggrieved at the conviction for a lesser offence or imposition of an in-adequate compensation, for which he/she shall be entitled to avail the remedy of appealunder proviso to Section 372 of the Code.(iv) The `victim', who is not the complainant in a private complaint-case, is not enti-tled to prefer appeal against acquittal under proviso to Section 372 and his/her right toappeal, if any, continues to be governed by the unamended provisions read with Section378 (4) of the Code.(v) those `victims' of complaint-cases whose right to appeal have been recognizedunder proviso to Section 372, are not required to seek `leave' or `special leave' to ap-

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 3peal from the High Court in the manner contemplated under Section 378(3) & (4) ofthe Code.Questions - (C) & (D)(vi) The right conferred on a `victim' to present appeal under proviso to Section 372is a substantive and independent right which is neither inferior to nor contingent uponthe filing of appeal by the State in that case.Resultantly, the condition of seeking `leave to appeal' or `special leave to appeal' ascontained in Section 378(3) & (4) cannot be imposed for the maintainability of appealby a `victim' under proviso to Section 372 of the Code.Question - (E)(vii) In view of proviso to Section 372 an appeal preferred by a `victim' against theorder of acquittal passed by a Magistrate in respect of a cognizable offence whetherbailable or non-bailable shall lie to the Court of Session, the State's appeal under Sec-tion 378(1)(a) of the Code against that very order shall also be entertained and/or trans-ferred to the same Sessions Court.Question - (F)(viii) The proviso to Section 372 inserted w.e.f. December 31, 2009 is prospectivein application and only those orders which have been passed on or after December 31,2009, irrespective of the date of occurrence or registration of FIR or filing of com-plaint, shall be appealable at the instance of a `victim' under the afore-stated proviso.Consequently, a revision petition preferred against an order of acquittal passed prior toDecember 31, 2009 cannot be converted into an appeal and shall be decided accord-ingly.Question - (G)(ix) Subject to the exception carved out in para-138 of this order, the period of limi-tation for an appeal by a `victim' under proviso to Section 372 of the Code shall be asunder:-(a) In case of acquittal -(i) Where appeal lies 90 days Date of order appealed to the High Court against(ii) Where appeal lies 60 days Date of order appealed to any other Court against(b) Any other sentence or order -(i) to the High Court 60 days The date of sentence or order(ii) to any other court 30 days The date of sentence or order [Para 139](v) Criminal Procedure Code, 1973 (II of 1974) Section 2(wa), 24(8), 372,357-A - \"Victim\" as defined in Section 2(wa) includes all categories of his/herlegal heirs for the purpose of engaging an advocate under Section 24(8) or toprefer an appeal under proviso to Section 372 of the Code - However, legalheirs comprising only the wife, husband, parent and child of a deceased vic-tim are entitled to payment of compensation under Section 357(1)(c) of theCode - Similarly, only those dependents of a deceased victim who have suf-fered loss or injury as a result of the crime and require rehabilitation, are eli-gible to seek compensation as per the Scheme formulated under Section357-A of the Code. [Para 139]

4 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1)(vi) Criminal Procedure Code, 1973 (II of 1974) Section 372, 378(4) - Vic-tim - Complainant - Case - Appeal against acquittal - Complainant in a com-plaint-case who is also a `victim' and the `victim' other than a `complainant'in such case, shall have remedy of appeal against acquittal under Section378(4) only, except where he/she succeeds in establishing the guilt of an ac-cused but is aggrieved at the conviction for a lesser offence or imposition ofan inadequate compensation, for which he/she shall be entitled to avail theremedy of appeal under proviso to Section 372 of the Code - The `victim',who is not the complainant in a private complaint-case, is not entitled to pre-fer appeal against acquittal under proviso to Section 372 and his/her right toappeal, if any, continues to be governed by the unamended provisions readwith Section 378(4) of the Code. [Para 139](vii) Constitution of India, Article 21 - Right to live with human dignitywithout any fear or actual subjection to any kind of unlawful, unsocial andphysical or mental abuse and be a member of the self-regulated civic societytoo is one of the most cherished fundamental right bestowed on every personunder Article 21 of the Constitution - The protection or conferment of cer-tain rights on a victim under the Code therefore cannot be mirrored as a fa-vour shown to him/her by the Legislature. [Para 95](viii) Criminal Procedure Code, 1973 (II of 1974) Section 378(4) - `Victim',who is not the complainant in a private complaint-case, is not entitled to pre-fer appeal against acquittal under proviso to Section 372 and his/her right toappeal, if any, continues to be governed by the unamended provisions readwith Section 378(4) of the Code. [Para 139](ix) Criminal Procedure Code, 1973 (II of 1974) Section 372, 378(3), (4) -Victims of complaint-cases whose right to appeal have been recognized underproviso to Section 372, are not required to seek `leave' or `special leave' toappeal from the High Court in the manner contemplated under Section378(3) & (4) of the Code. [Para 139](x) Criminal Procedure Code, 1973 (II of 1974) Section 372 Proviso,38(1)(a) - In view of proviso to Section 372 an appeal preferred by a `victim'against the order of acquittal passed by a Magistrate in respect of a cogniza-ble offence whether bailable or non-bailable shall lie to the Court of Session,the State's appeal under Section 378(1)(a) of the Code against that very ordershall also be entertained and/or transferred to the same Sessions Court. [Para 139] (xi) Criminal Procedure Code, 1973 (II of 1974) Section 372 Proviso (asinserted) - Proviso to Section 372 inserted w.e.f. December 31, 2009 is pro-spective in application and only those orders which have been passed on orafter December 31, 2009, irrespective of the date of occurrence or registra-tion of FIR or filing of complaint, shall be appealable at the instance of a`victim' under the afore-stated proviso - Consequently, a revision petitionpreferred against an order of acquittal passed prior to December 31, 2009cannot be converted into an appeal and shall be decided accordingly. [Para 139]

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 5(xii) Criminal Procedure Code, 1973 (II of 1974) Section 372 - Appeal byvictim - Period of limitation for an appeal by a `victim' under proviso to Sec-tion 372. Held, that the limitation period of ninety, sixty and thirty days, as the case may be,prescribed above for the maintainability of an appeal by a victim, in our consideredview, ought to be counted from the date such `victim' acquires knowledge of the orderappealable under proviso to Section 372. We say so for the reason that in most of theState cases, the `victim' has no participatory role at the trial stage and the possibility ofhis/her remaining in the dark about the adverse order cannot be lightly brushed aside.The above rule of limitation, therefore, cannot be mechanically enforced even if thevictim had no informed knowledge regarding culmination of the trial proceedings as itmight cause serious prejudice to his/her rights, close to the extent of snatching away theright to appeal earned by the victims after a long drawn. [Para 138] Held, further, that Subject to the exception carved out in para-138 of this order, theperiod of limitation for an appeal by a `victim' under proviso to Section 372 of theCode shall be as under:-(a) In case of acquittal -(i) Where appeal lies 90 days Date of order appealed to the High Court against(ii) Where appeal lies 60 days Date of order appealed to any other Court against(b) Any other sentence or order -(i) to the High Court 60 days The date of sentence or order(ii) to any other court 30 days The date of sentence or order(xiii) Criminal Procedure Code, 1973 (II of 1974) Section 2(wa) - Everyheir who, in law, is entitled to succeed to the estate of a deceased `victim' inone or the other eventuality, shall fall within the ambit of Section 2(wa) of theCode, even if the estate of such deceased `victim' is to devolve upon the legalheirs as per the order of preference prescribed under the personal law ofsuch `victim' - This conclusion of ours is also compatible with the other pro-visions of the Code. Held, that since the expression \"legal heir\" has not been used in Section 2(wa) forthe purpose of non-testamentary succession including entitlement to compensation un-der the Code, it must be safely inferred and construed that both the expressions \"guard-ian\" and \"legal heir\" are relatable to some other rights given to a `victim' under theCode including the one under proviso to Section 24(8) to `engage an advocate' with thepermission of the Court and the other substantive `right to appeal' under proviso to Sec-tion 372 of the Code. [Paras 57 and 63]Cases referred to:-1. 2010(3) R.C.R. (Crl.) 391, Smt. Ram Kaur @ Jaswinder Kaur v. Jagbir Singh @ Jabi.2. (1979)4 S.C.C. 719, Rattan Singh v. State of Punjab.3. (2004)4 S.C.C. 158, Jahira Habibullah H. Sheikh v. State of Gujarat.4. (1980)3 S.C.R. 11, P.S.R. Sadhanantham v. Arunachalam.5. (1985)2 S.C.C. 537, Bhagwant Singh v. Commissioner of Police.6. (2001)3 S.C.C. 462, M/s J.K. International v. State Government of NCT of Delhi.7. (2001)6 S.C.C. 338, Puran Shekhar v. Rambilas.8. (1995)1 S.C.C. 14, Delhi Domestic Working Women's Forum v. Union of India.9. (2003)12 S.C.C. 395, Rama Kant Rai v. Madan Rai.10. (2004)5 S.C.C. 518, Sakshi v. Union of India.11. (2008)8 S.C.C. 434, Mosiruddin Munshi v. Mohammad Siraj.

6 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1) 12. A.I.R. 1955 (Assam) 116, N.C. Bose v. Prabodh Dutta Gupta. 13. 2011(2) A.D. (Delhi) 252, Chattar Singh v. Subhash. 14. 2011(2) A.D. (Delhi) 210, Kareemul Hajazi v. State of N.C.T. of Delhi. 15. 2007(8) A.D. (Delhi) 478, Smt. Ganny Kaur v. The State (N.C.T.). 16. Crl. Appeal No.13 of 2011, decided on 8.8.2011 (Gau.), Shri Gouranga Debnath v. State of Tripura. 17. 2011(8) R.C.R. (Crl.) 1674 (A.P.), G.Baswaraj v. State of A.P. 18. A.I.R. 1951 S.C. 293, Angurbala Mullick v. Debabrata Mullick. 19. (1979)3 S.C.C. 273, N.Krishnammal v. R. Ekamabaram. 20. (1994)3 S.C.C. 481, Vasant Pratap Pandit v. Anant Trimbak Sabnis (Dr.). 21. A.I.R. 1961 Punjab 288 (D.B.), Gulzara Singh v. Smt. Tej Kaur. 22. 2012(2) R.C.R. (Crl.) 522, Mrs. Era Rani Shubh v. SB Enterprises. 23. Crl. Leave to Appeal No.230 of 2011, decided on 01.05.2012 (Raj.), Ram Avtar Gupta v. Ravinder Kumar. 24. Application under Section 482 Cr.P.C. No.5934 of 2012, decided on 30.03.2012 (M.P.), Ashok Kumar Srivastava v. State of U.P. 25. 2011(3) R.C.R. (Crl.) 607 (M.P.), Dharamveer Singh Tomar v. Ram Raj Singh Tomar. 26. 2012(2) M.H.L.J. 398 (Bom.), Shanta Ram v. Deepak. 27. (2012) Bom.C.R. (Crl.) 632 (Uttrakhand), Balasaheb Rangnath Khade v. State of Ma- harashtra. 28. Special Leave to Appeal in Criminal Appeal No.139 of 2011, decided on 13.12.2011, Bhag- wan Singh v. State of Uttrakhand. 29. (2013)2 S.C.C. 17, Subhash Chand v. State (Delhi) Administration. 30. 2011(6) R.C.R. (Crl.) 1323, Bhikhabhai Motibhai Chavda v. State of Gujarat. 31. Crl. Appeal No.45 of 2012 decided on 24.01.2012, Jusabhai Ayubbai Miyana v. State of Gujarat. 32. Criminal Misc. Application No.4350 of 2011, State of Gujarat v. Chaudhary (Patel) Pabab- hai Devabhai. 33. Criminal Appeals No.238 of 2012 and 608 of 2012 (F.B.), Bhavuben Dinesh Bhai Makwana v. State of Gujarat. 34. Crl. App. No.582 of 2011 (Patna), Guru Prasad Yadav v. State of Bihar. 35. (2008)8 S.C.C. 225, Manish Jalan v. State of Karnataka. 36. (2012)1 S.C.C. 260, R.Vijayan v. Baby. 37. A.I.R. 2012 S.C. 1030, Roy Fernandes v. State of Goa. 38. Crl. Misc.Case No.32 of 2011 decided on 23.03.2011 (All.), Ajay Misra v. Rajiv Gupta. 39. (2004)5 S.C.C. 573, State of Rajasthan v. Sohan Lal. 40. A.I.R. 1958 S.C. 255, Venkataramana Devaru v. State of Mysore. 41. (1986)4 S.C.C. 90:A.I.R. 1961 S.C. 1170, J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. State of UP. 42. A.I.R. 1962 S.C. 1044, Calcutta Gas Co. (Prop.) Ltd. v. State of West Bengal. 43. A.I.R. 1958 S.C. 56, Ramaswamy Nadar v. State of Madras. 44. A.I.R. 1963 S.C. 1207, New India Sugarmills Ltd. v. Commissioner of Sale Tax, Bihar. 45. A.I.R. 1977 S.C. 1569, Busching Schmitz Pvt. Ltd. v. P.T. Menghani. 46. (1960)3 All.E.R. 353 (C.A.), Gladstone v. Bower. 47. A.I.R. 1968 S.C. 1450, Ishwar Singh Bindra v. State of U.P. 48. (1980)1 S.C.C. 158, Municipal Corporation of Delhi v. Tek Chand Bhatia. 49. (1996)7 S.C.C. 37, O.S. Singh v. Union of India. 50. (2001)10 S.C.C. 372, State (Delhi Administration) v. Dharampal. 51. (1969)2 S.C.C. 334, State of Orissa v. Chandrashekhar Singh Bhoi etc. 52. (1990) Suppl. S.C.C. 545, Union of India v. Sukumar Sengupta. 53. A.I.R. 1951 S.C. 128, Keshavan Madhava Menon v. State of Bombay. 54. A.I.R. 1970 S.C. 703, Arjan Singh v. State of Punjab. 55. (1984)3 S.C.C. 281, Ex. Capt. K.C. Arora v. State of Haryana. 56. (1990)4 S.C.C. 21, State of Madhya Pradesh v. Rameshwar Rathod. 57. 2013 S.T.P.L. (Web) 161 S.C., Ramesh Kumar Soni v. State of Madhya Pradesh.

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 7 58. 2011(6) R.C.R. (Crl.) 133 (Patna), Raghunath Yadav v. State of Bihar. 59. (2007)7 S.C.C. 374, Japani Sahoo v. Chander Shekhar Mohanty. Present: Mr. H.L. Tikku, Senior Advocate with Mr. Sumeet Goel, Mr. Deepak Sabharwal, in CRM-790-MA-2010). Mr. P.S. Ahluwalia and Mr. Arjun Sheoran, in CRM-A-547-MA-2011 (for the Petitioner(s)/Ap-pellant(s) Mr. Pardeep S. Poonia, Additional A.G. Haryana, Mr. Ravi Dutt Sharma, D.A.G. Haryana, Mr.Saurabh Mohunta, D.A.G. Haryana with Mr. Kshitij Sharma, A.A.G. Haryana Mr. Amit Rawal, Addl. A.G. Punjab, Ms. Manjari Nehru Kaul, Addl. A.G. Punjab, Ms. MonicaChhibber Sharma, D.A.G. Punjab, Mr. Deep Singh, A.A.G. Punjab. Mr. Sanjiv Gupta, in CRM-736-MA-2011. JUDGMENT OF THE FULL BENCH Surya Kant, J. - (18th March, 2013) - (1). The length and width of the right to appeal bestowed on the victim of a crimethrough the amendment(s) carried out in the Code of Criminal Procedure, 1973 by ActNo.5 of 2009 w.e.f. December 31, 2009 is still eluded of unanimity amongst differentHigh Courts. A Division Bench of this Court in Smt. Ram Kaur @ Jaswinder Kaur v.Jagbir Singh @ Jabi and others,1 2010(3) R.C.R. (Crl.) 391, also made an attempt todefine the expression \"victim\" within the meaning of Section 2(wa) for the purpose ofhis right to appeal under proviso to Section 372 Cr.P.C.. A learned Single Judge whileconsidering an application seeking leave of this Court to prefer appeal against the orderof acquittal passed in relation to the accusations under Sections 279, 337, 338 and 304-A IPC found an apparent conflict between proviso to Section 372 and Section 378Cr.P.C. and vide his order dated September 5, 2011 passed in CRM-547-MA-2011opined that:- \"..... as proviso to Section 372 of the Code unequivocally provides the remedy of appeal to a victim before a Court to which an appeal shall ordinarily lie against the order of conviction of such a Court while Section 378 of the Code refers to filing of an appeal to the Court of Session from an order of acquittal passed by a Magistrate only in respect of cognizable and non-bailable offences. There would thus be ambiguity in so far as the remedy of appeal provided to a victim in the cases where the offences are bailable and in which cases the aforesaid ambiguity amounts to giving with a left hand only to be taken away by the right hand.\" (2). Since the Division Bench in Smt. Ram Kaur's case (supra) did not address theafore-mentioned issue, the learned Single Judge referred the matter to a larger Bench.Another learned Single Judge came across yet another issue in Crl. Misc. No.790-MAof 2010 (O&M), namely, whether a `victim' under proviso to Section 372 Cr.P.C. in-cludes the `complainant' also and owing to its importance, he too vide order dated May09, 2012 referred the following question to a larger Bench:- \"Whether the word \"victim\" as mentioned in the proviso of Section 372 Cr.P.C. include complainant also for the purpose of availing the remedy of appeal as given to the victim by aforesaid proviso?\" (3). The above question was framed in an application filed by the complainant seek-ing special leave to appeal under Section 378(4) against the order of acquittal passed bythe Magistrate in a case under Section 138 of Negotiable Instruments Act. (4). Both the references made by two different learned Single Judges were consid-ered by two of us on July 18, 2012 and having regard to the newly emerging principlesof criminal jurisprudence, the Division Bench formulated four questions (reformulatedalong with additional questions in para 6) and referred them for determination to alarger Bench.

8 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1) (5). The continued quest for true answers to the questions so rephrased, in an arenawitnessing a note of discordance amongst different High Courts on one question or theother, led to fairly long hearings with remarkable assistance rendered by a team ofbright young lawyers comprising Sarvshri P.S. Ahluwalia, Deepak Sabharwal and ArjunSheoran, with an equally meaningful assistance rendered by a battery of State counselrepresenting the States of Punjab and Haryana, who addressed the issues with totallynon-adversarial approach. (6). During the course of hearing, learned counsel for the parties rightly pointed outthat besides the re-modulation of four questions which found mention in the referenceorder dated July 18, 2012, some issues, ancillary but of paramount importance, also de-serve to be answered by the larger Bench. We, therefore, formulate the following sevenquestions that arise for our consideration:- (A) What is the true import and meaning of the expression `victim' as defined under Section 2(wa) read with proviso to Section 372 Cr.P.C.? (B) Whether `complainant' in a private complaint-case, who is also the `victim' and the `victim' other than the `complainant' in such cases are entitled to present appeal against the order of acquittal under proviso to Section 372 or have to seek `special leave' to appeal from the High Court under Section 378(4) Cr.P.C.? (C) Whether the `rights' of a victim under the amended Cr.P.C. are accessory and auxiliary to those perceived to be the exclusive domain of the `State'? (D) Whether presentation of appeal against acquittal is a `right' or an `obligation' of the `State' stemming from the Constitution? (E) Where would the appeal of a `victim' preferred under proviso to Section 372 lie when the State also prefers appeal against that order of acquittal under Clause (a) of Section 378(1) Cr.P.C.? (F) Whether proviso to Section 372 Cr.P.C. inserted w.e.f. December 31, 2009 is prospective or retrospective in nature and whether a revision petition pending against an order of acquittal before the insertion of the said proviso, can be converted into an appeal and transferred to the Court of competent jurisdiction? (G) What would be the period of limitation for a `victim' to prefer an appeal under proviso to Section 372 Cr.P.C.? Legislative History and Emerging Principles of Criminal Jurisprudence:- International Scenario: (7). The universalist views on criminal justice system emphasize on the norms col-lectively recognized and accepted by all of humanity. The internationally acceptednorms whereunder an individual's criminal act(s) is accountable are universally bindingand applicable across national borders on the premise that crimes committed are notjust against individual victims but also against mankind as a whole. The crime againstan individual thus transcends and is taken as an assault on humanity itself. It is the con-cept of the humanity at large as a victim which has essentially characterized `crimes' onuniversally accepted principles. The acceptability of this principle was the genesis ofCriminal Justice System with State dominance and jurisdiction to investigate and adju-dicate the `crime'. For long, the criminal law had been viewed on a dimensional planewherein the Courts were required to adjudicate between the accused and the State. The`victim' - the de facto sufferer of a crime had no participation in the adjudicatory proc-ess and was made to sit outside the Court as a mute spectator. The ethos of criminaljustice dispensation to prevent and punish `crime' would surreptitiously turn its back onthe `victim' of such crime whose cries went unnoticed for centuries in the long corri-dors of the conventional apparatus. Various international Declarations, domestic legisla-

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 9tions and Courts across the world recognized the `victim' and they voiced together forhis right of representation, compensation and assistance. The UN Declaration of BasicPrinciples of Justice for the Victims of Crime and Abuse of Power, 1985, which wasratified by a substantial number of countries including India, was a landmark in boost-ing the pro-victim movement. The Declaration defined a `victim' as someone who hassuffered harm, physical or mental injury, emotional suffering, economic loss, impair-ment of fundamental rights through acts or omissions that are in violation of criminallaws operative within a State, regardless of whether the perpetrator is identified, appre-hended, prosecuted or convicted and regardless of the familial relationship between theperpetrator and the `victim'. (8). European Union (EU) also took great strides in granting and protecting therights of `victims' through various Covenants including the following:- i. The position of a victim in the framework of Criminal Law and Procedure, Council of Europe Committee of Ministers to Member States, 1985; ii. Strengthening victim's right in the EU communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Reasons, European Union, 2011; iii. Proposal for a Directive of the European Parliament and of the Council establishing \"Minimum Standards on the Rights, Support and Protection of Victims of Crime, European Union, 2011\". (9). The United States of America (USA) had earlier made two enactments on thesubject i.e. (i) The Victims of Crime Act, 1984 under which legal assistance is grantedto the crime-victims; and (ii) The Victims' Rights and Restitution Act of 1990, followedby meaningful amendments, repeal and insertion of new provisions in both the Statutesthrough an Act passed by the House of Representatives as well as the Senate on April22, 2004. (10). In Australia, the Legislature has enacted South Australia Victims of CrimeAct, 2001 while in Canada there are two legislations known as Victims of Crime Act,Prince Edward Island and Victims of Crime Act, British Columbia. Most of these legis-lations have defined the `victim' of a crime liberally and have conferred varied rightson such victims. Indian Perspective: (11). Much before the United Nations stepped into or the other developed nationslegislated for the protection and promotion of victims' rights, the Supreme Court in Rat-tan Singh v. State of Punjab,2 (1979)4 S.C.C .719, lamented against complete desertionof a victim in our criminal jurisprudence observing that \"The victimization of the fam-ily of the convict may well be a reality and is regrettable. It is a weakness of our juris-prudence that the victims of the crime, and the distress of the dependants of the pris-oner, do not attract the attention of the law. Indeed, victim reparation is still the vanish-ing point of our criminal law. This is a deficiency in the system which must be recti-fied by the Legislature. We can only draw attention to this matter. Hopefully, theWelfare State will bestow better thought and action to traffic justice in the light of theobservations we have made\". (12). The Legislature though did not come forward to address the issue but the LawCommission of India, nonetheless, in its 154th Report attributed Chapter-XV on \"Victi-mology\" made radical recommendations on the aspect of compensatory justice througha Victim Compensation Scheme. Thereafter came the report of a Committee on the Re-forms of Criminal Justice System, commonly known as \"Malimath Committee Report,2003\". The Committee was constituted by Government of India with an avowed objectof suggesting ways and means for developing a cohesive system in which all the parts

10 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1)work in coordination to achieve the common goal as the people by and large have lostconfidence in the criminal justice system and the bewildered victim is crying for atten-tion and justice. The Committee recommended the right of the victim or his legal repre-sentative `to be impleaded as a party in every criminal proceeding where the charge ispunishable with seven years imprisonment or more'; the right of voluntary organizationsfor impleadment in court proceedings in select cases; the victim's right to be repre-sented by an advocate of his choice and if he is not in a position to afford, to providean advocate at the State's expenses; victim's right to participate in criminal trial; theright to know the status of investigation and take necessary steps in this regard and tobe heard at crucial stages of the criminal trial including at the time of grant or cancella-tion of bail. The Committee further recommended that \"the victim shall have a right toprefer an appeal against any adverse order...; he should be provided legal services andthat `victim compensation' is a State obligation in all serious crimes, whether the of-fender is apprehended or not, convicted or acquitted\" and for this object a separate leg-islation be enacted. (13). Soon after the Malimath Committee report came the verdict in JahiraHabibullah H. Sheikh and another v. State of Gujarat and others,3 (2004)4 S.C.C. 158,ripping apart the ailing criminal justice system in India and ordering re-trial of BestBakery Case and desirability of further investigation in terms of Section 173(8) Cr.P.C.due to the factors like dishonest and faulty investigation, holding of trial in a perfunc-tory manner, non-production of vital witnesses, prosecuting agency acting unfairly andforcing eye-witnesses to turn hostile, resulting into the acquittal of several accused sus-pected to be involved in the gruesome murder of as many as 14 people as a result ofcommunal frenzy. (14). Before we proceed further, let there be a special reference to those decisionsof the Hon'ble Supreme Court which built up the victim's right brick by brick, revolu-tionalised the conventional criminal justice system and sensitized its stake holders, not-withstanding the fact that statutory initiatives through the desired amendments in theCode of Criminal Procedure, 1973 (in short, `the Code') were still illusory. (15). In P.S.R. Sadhanantham v. Arunachalam and another,4 (1980)3 S.C.R. 11 theConstitution Bench considered the question whether the brother of a victim who hadbeen murdered, possessed the right to petition under Article 136 of the Constitution forspecial leave to appeal against the acquittal of the accused? After noticing that underthe Code, the right of appeal vested in the State is subject to leave to be granted by theHigh Court and a complainant's right to appeal was also subject to his obtaining `spe-cial leave' to appeal from the High Court, it was held that a petition filed by the privateparty other than the complainant should be entertained \"in those cases only where it isconvinced that the public interest justifies an appeal against the acquittal and that theState has refrained from petitioning from special leave for reasons which do not bearon the public interest but are prompted by private influence, want of bona fide andother extraneous considerations\". (16). In Bhagwant Singh v. Commissioner of Police,5 (1985)2 S.C.C. 537, the rightof the complainant to be heard before the acceptance of a cancellation report submittedby the police after investigation of the FIR, was accepted laying down that the inform-ant must be given an opportunity of hearing so that he could make his submissions topersuade the Magistrate to take cognizance of the offence and issue due process. (17). In M/s J.K. International v. State Government of NCT of Delhi,6 (2001)3S.C.C. 462, the Supreme Court recognized the right of the complainant at whose in-stance the police-case was registered, to be heard by the High Court in the proceedingsinitiated by the accused for quashing those proceedings. It held thus:-

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 11 \"9. The scheme envisaged in the Code of Criminal procedure (for short \"the Code\") indicates that a person who is aggrieved by the offence committed, is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police and the charge sheet was laid by them. Even the fact that the court had taken cognizance of the offence is not sufficient to debar him from reaching the court for ventilating his grievance. Even in the sessions court, where the Public Prosecutor is the only authority empowered to conduct the prosecution as per Section 225 of the Code, a private person who is aggrieved by the offence involved in the case is not altogether debarred from participating in the trial...\" (18). In Puran Shekhar and another v. Rambilas and another,7 (2001)6 S.C.C. 338,the locus standi of father of the deceased in a dowry death case, to move the HighCourt and seek cancellation of bail granted by the Sessions Court was upheld as he wasnot a stranger. (19). In Delhi Domestic Working Women's Forum v. Union of India and others,8(1995)1 S.C.C. 14, the Supreme Court in exercise of its PIL jurisdiction directed theNational Commission for Women to evolve a Scheme to protect rape victims throughvarious measures and cast obligation on the Union of India to implement the Schemeso evolved by the Commission. (20). Rama Kant Rai v. Madan Rai and others,9 (2003)12 S.C.C. 395 was a casewhere against an order of acquittal passed by the High Court in a murder case, theright of the private party to file an appeal under Article 136 of the Constitution waseloquently recognized especially to meet the pressing demands of justice. (21). In Sakshi v. Union of India and others,10 (2004)5 S.C.C. 518, mandatoryguidelines for the recording of evidence of victim of offence under Sections 354, 375,367 & 377 IPC were laid down. (22). In Mosiruddin Munshi v. Mohammad Siraj and others,11 (2008)8 S.C.C. 434,the right of the complainant to be heard before an order affecting the criminal proceed-ings initiated at his instance was recognized and it was held that the FIR could not bequashed by the High Court at the instance of the accused without notice to the originalcomplainant. (23). Some of the High Courts also dutifully espoused the cause of `victims' and ex-panded the jurisprudence to create a space for them at one or the other stage of Courthearings. We may usefully quote the following observations made by a Division Benchof Assam High Court in N.C. Bose v. Prabodh Dutta Gupta,12 A.I.R. 1955 (Assam)116:- \"[I]t seems to me that the person vitally interested in the issue of the prosecution or the trial is the person aggrieved who `initiates' the proceedings. He may be both civilly and criminally liable if, on account of any unfairness or partiality, the trial or the proceeding ends in wrongful acquittal or discharge of the accused. The Legislature therefore could not have intended to shut out such a person from coming to the High Court and claiming redress under Section 526 of the Code. The words should be construed to have the widest amplitude so long as the effect of the interpretation is not to open the door to frivolous applications at the instance of intermeddlers or officious persons having no direct interest in the prosecution or trial\". Evolution of Right to Appeal:- (24). Since the issues to be determined by three-Judge Bench, as mentioned in para6, are hedging around the `right to appeal' given to a `victim', we may briefly noticethe evolution of that right under the Indian legal regime. (25). The Code of Criminal Procedure when originally enacted in the year 1861 didnot provide for any right to appeal against acquittal to anyone including the State. It

12 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1)was in the Code of Criminal Procedure of 1898 that Section 417 was inserted enablingthe Government to direct the Public Prosecutor to present an appeal to the High Courtfrom an original or appellate order of acquittal passed by any Court other than a HighCourt. The Law Commission of India in its 41st Report given in September, 1969 asalso in 48th Report pertaining to the Criminal Procedure Bill, 1970, however, recom-mended to restrict the right of appeal given to the State Government against an order ofacquittal by introducing the concept of `leave to appeal' and that all appeals against ac-quittal should come to the High Court though it rejected the right to appeal to \"the vic-tim of a crime or his relatives\". (26). The Code of Criminal Procedure, 1973 came into being on January 25, 1974repealing the Code of Criminal Procedure, 1898. The recommendations made by theLaw Commission of India, referred to above, largely found favour with the Parliamentwhen it inserted an embargo in sub-Section (3) to Section 378 against entertainment ofan appeal against acquittal \"except with the leave of the High Court\". Subsection (4) ofSection 378 retained the condition of maintainability of an appeal at the instance of acomplainant against an order of acquittal passed in a complaint-case only if specialleave to appeal was granted by the High Court. Save in the manner as permitted bySection 378, no appeal could lie against an order of acquittal in view of the expressembargo created by Section 372 according to which \"no appeal shall lie from any judg-ment or order of a Criminal Court except as provided for by this Code or by any otherlaw for the time being in force\". The Code of Criminal Procedure (Amendment) Act, 2005:- (27). Hon'ble Supreme Court in a string of decisions a few of which are alreadycited, has recognized time and again one or the other right of the `victim' including lo-cus standi of his/her family members to appeal against acquittal in the broadest sense.Notwithstanding these decisions or the chorus of such like rights being heard in allcivic societies, the Legislature in its wisdom did not deem it necessary to permit a `vic-tim' to appeal against the acquittal of his wrong-doer even while carrying out sweepingamendments in the Code in the year 2005. The only significant amendment broughtinto force was in Section 378 whereby the appeals against acquittal in certain cases arenow maintainable in the Court of Session without any leave to appeal. The afore-statedamendment has been brought to guard against arbitrary exercise of power and to curbreckless `acquittals'. Section 377 was also suitably amended enabling an appeal on theground of inadequacy of sentence to the Court of Session, if the sentence is passed by aMagistrate. (28). It is important here to dissect Section 378 of the Code as amended in 2005which reads as under:- \"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 non-bailable 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

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 13 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 to the High Court 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 subsection (2).\" The Code of Criminal Procedure (Amendment) Act, 2008:- (29). The 2008 Amendment Act came into force with a lot of fanfare to recognisenot all but only a few including the `right to appeal' of a victim and made the follow-ing amendments or insertions in the Code. It has added a new Section 2(wa) which de-fines \"victim\" to mean:- \"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\" (30). The Amendment Act has also inserted a proviso in Section 24(8) enabling theCourt to permit a `victim' to engage an advocate of his/her choice to assist the Prosecu-tion. One more proviso has been added in Section 157(1) to say that \"in relation to anoffence of rape, the recording of statement of the victim shall be conducted at the resi-dence of the victim or in the place of her choice and so far as practicable by a womanpolice officer in the presence of her parents or guardian or near relatives or socialworker of the locality\". (31). The concept of `Victim Compensation Scheme' has also been brought on theStatute Book by the same Amendment Act through a newly-added Section 357A whichinter alia provides that \"every State Government in co-ordination with the Central Gov-ernment shall prepare a scheme for providing funds for the purpose of compensation tothe victim or his dependents who have suffered loss or injury as a result of the crimeand who, require rehabilitation\". (32). Sub-Section (3) of Section 357-A further provides that \"If the trial Court, atthe conclusion of the trial, is satisfied, that the compensation awarded under section357 is not adequate for such rehabilitation, or where the cases end in acquittal or dis-charge and the victim has to be rehabilitated, it may make recommendation for com-pensation\". Similarly, its sub-Section (4) enables that \"Where the offender is not tracedor identified, but the victim is identified, and where no trial takes place, the victim orhis dependents may make an application to the State or the District Legal ServicesAuthority for award of compensation\".

14 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1) (33). The profound and most cherished `right to appeal' conferred upon and/orearned by the innumerable victims after a protracted struggle and which is free from allshackles, is by way of the proviso added to Section 372 where under a `victim' can pre-fer an appeal against (i) an order acquitting the accused; (ii) convicting the accused of alesser offence; and (iii) imposing inadequate compensation. The appeal of the `victim'lies in the Court to which an appeal ordinarily lies against the order of conviction ofsuch Court. The amended Section 372 of the Code reads as follows:-\"372. No appeal to lie, unless otherwise provided.-No appeal shall lie from any judgment or order of a Criminal Court except as provided forby this Code or 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 bythe Court acquitting the accused or convicting for a lesser offence or imposing inadequatecompensation, and such appeal shall lie to the Court to which an appeal ordinarily lies againstthe order of conviction of such Court.\" (Emphasis applied) (34). It is instructive and significant to notice at this stage that no amendment hasbeen brought in Section 378 of the Code under the 2008 Amendment Act. (35). It is also apropos to mention here that the Law Commission of India in its221st Report given in April, 2009 recommended amendments in Sections 378, 397 and401 of the Code to provide that (i) in complaint cases also the appeal against an orderof acquittal passed by a Magistrate should lie to the Sessions Court subject to the grantof special leave by it; (ii) wherever the District Magistrate or the State do not prefer anappeal against an order of acquittal, the aggrieved person or the informant should havethe right to appeal with the leave of the appellate Court; (iii) there should be only onerevisional forum of the Sessions Court against the orders passed by the Magistrates in-stead of two alternative forums; and (iv) the Legislature should specifically categorisereviseable orders instead of leaving the matter to the discretion of the Courts. The sug-gested amendments, however, are still awaited. (36). Be that as it may, if synergized, the amended and unamended provisions ofthe Code pose a serious threat to the well known rule of harmonious interpretation andlead to some of those unconciliatory eventualities which have been enlisted as the`questions' that arise for our determination. We now attempt to answer these questionsoff-course without forgetting that success is far from guaranteed. (A) What is the true import and meaning of the expression `victim' as defined underSection 2(wa) read with proviso to Section 372 Cr.P.C.? (37). The principal debate before us encircles the true meaning and import of theexpression \"victim\" as defined under Section 2(wa) with reference to the right to appealgiven to such `victim' on the grounds enumerated under proviso to Section 372 of theCode. Since a Division Bench of this Court as also various other High Courts haveelaborately discussed and opined on this and other allied issues, it would be beneficialat this stage to take a brief note of those decisions. (38). In Ram Kaur @ Jaswinder Kaur's case, FIR was registered on the statementof the appellant (Smt. Ram Kaur) initially under Section 307 read with Section 34 IPCbut subsequent to the death of the injured, the offence was converted under Section 302IPC. The accused were, however, acquitted by the trial court holding that the deceaseddied in a road accident. The State did not prefer appeal against the order of acquittalbut the informant-cum-complainant asserted herself to be a `victim' within the meaningof Section 2(wa) and filed appeal under proviso to Section 372 without seeking `specialleave' to appeal. Since the status of the appellant as a `victim' and her consequentialright to appeal were disputed, the Division Bench on consideration of the amended pro-visions of the Code held that :-

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 15 \"A bare perusal of the definition of \"victim\" reveals that the victim means a person, who has suffered any loss or injury caused by reason of the act or omission of the offender, and further expression \"victim\" includes his or her guardian or legal heir. The General Assembly of the United Nations in its 96th plenary meeting on 29th November, 1985, made a Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, recognising that millions of people throughout the world suffer harm as a result of crime and the abuse of power and that the rights of these victims have not been adequately recognised and also that frequently their families, witnesses and other who aid them are unjustly subjected to loss, damage or injury. The Assembly affirmed the necessity of adopting national and international norms in order to secure universal and effective recognition of and respect for, the rights of victims of crimes and abuse of power. In the said Declaration, the word \"victim\" was defined as under:- xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx The aforesaid definition of victim has been discussed in 154th Report of the Law Commission, but the legislation has not adopted the said definition and have given a restricted meaning to the word \"victim\" means only a person, who has suffered any loss or injury caused by reason of the act or omission of the offender and victim includes his or her guardian or legal heir.\" (39). The Bench consequently viewed that \"the complainant, who is a near relationof the deceased, cannot be said to be a person who has suffered any loss or injurycaused by reason of the act or omission of the offender. Undisputably, she is neitherguardian nor legal heir of the deceased. Therefore, in our view, the complainant in theinstant case is not the `victim' who can prefer an appeal under Section 372 of theCode...\". (40). The Delhi High Court had an occasion to define `victim' within the meaningof Section 2(wa) and the right to appeal of such `victim' under Section 372 of the Codein (i) Chattar Singh v. Subhash,13 2011(2) A.D. (Delhi) 252; and (ii) Kareemul Hajaziv. State of N.C.T. of Delhi and others,14 2011(2) A.D. (Delhi) 210. In the first case, theappellant who was the father of the deceased, filed appeal under proviso to Section 372of the Code against acquittal of the accused in a case under Section 302 IPC etc. andclaimed himself to be a `victim' within the meaning of Section 2(wa) of the Code. Inthe second case also, the appellant was the father of deceased Nasreen who was mar-ried to one of the accused. The primary question that arose for consideration in the firstcase was whether the appellant (Chattar Singh) could be regarded as a `victim' for thepurpose of proviso to Section 372 of the Code? The Court held that \"a victim of crimeis a person who suffers any loss or injury as a result of the crime. Although the expres-sion \"any loss or injury\" is an expansive expression, it appears that it has been used inthe context of the person whose suffering is the direct and most proximate result of thecrime\". The Bench further held that a definition which employs the expression \"meansand includes\" is an exhaustive definition and in the present case Section 2(wa) wouldrefer to a crime victim in the natural and ordinary sense as the person who directly andmost proximately suffered the loss or injury but it would also include - (a) his or herheirs in case he or she was dead; or (b) his or her guardian if he or she was a minor orof unsound mind or under some other disability. (41). The Delhi High Court thereafter concentrated on the word \"heirs\" and after re-ferring to the related case law held that \"in the case of Section 2(wa), since the word`heirs' is preceded by the word `legal', it must be construed in the legal sense as that isthe clear intention of the Legislature. The expression `legal heirs' in relation to a victim,therefore, clearly refers to a person who is entitled to the property of the victim underthe applicable law of inheritance\". Applying this principle to the facts of the first case,

16 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1)the Court rejected the appellant's plea of being a `victim' as his deceased son had leftbehind his widow and children (Class-I heirs) while the appellant (father) was only aClass-II heir and was not entitled to succeed the estate of the deceased under the HinduSuccession Act, 1956 in the presence of Class-I heirs. In the second case, the father(Karimul Hajazi) of the deceased was held to be a `victim' on applying the principle ofMuslim Law under which the person responsible for the death of another person fromwhom the first person is otherwise to inherit, would be disqualified from such inheri-tance and on this analogy the husband of the victim was treated as non-existent and fa-ther of the victim was to be her legal heir. (42). In Smt. Ganny Kaur v. The State (N.C.T.) and others,15 2007(8) A.D. (Delhi)478, the Delhi High Court while dealing with a case of compensation under the FatalAccidents Act, 1855, held that the principles of succession and inheritance prescribedunder personal laws do not apply when compensation is awarded by the State who donot function under any personal law. It was further held that the compensation in suchlike cases would not be necessarily awarded to the legal heirs only according to thepersonal law, but equitably to the next of kin. (43). The Gauhati High Court (Agartala Bench) in Crl. Appeal No.13 of 2011 (ShriGouranga Debnath v. State of Tripura and others,16) decided on August 8, 2011 hadan occasion to consider the Division Bench decision of this Court in Smt. Ram Kaur'scase and of the Delhi High Court in Chattar Singh's case. There, the appellant was thefather of deceased Pooja Debnath who was married to the second respondent (ChandanDas). She was allegedly killed by throttling and the appellant lodged a complaint thatthe deceased was tortured, mentally and physically, by the second respondent and hisparents besides having been pressurised into fetching Rs.50,000/- from him. Since theaccused were acquitted in the case under Section 302 read with Section 34 IPC, the ap-pellant claiming himself to be a `victim' preferred an appeal before the High Court un-der proviso to Section 372 of the Code. The Gauhati High Court held that \"person whohas suffered loss due to a crime is obviously a victim\" and that \"in Section 2(wa) ofthe Code, there are two parts, one part is related to the victim who has suffered lossand injury and by way of other parts, the Legislature expanded the word `victim' evento the persons who are the guardian and legal heirs\". (44). The Gauhati High Court while disagreeing with the Delhi High Court, con-cluded thus :- \"...As the words `loss' and `injury' were not defined in the Code, we have to consider that loss and injury, as mental and physical injury and also emotional sufferings and the deceased being the lone daughter of the petitioner, absence of his daughter due to alleged murder by the accused respondents created a void in the heart of the petitioner and also his family members. We are also of the view when the allegations against the accused husband of deceased and his brother are the subject matter of the appeal, if the appeal succeeds, in that case, the family members of legal heirs of the husband of the deceased would not come as `victim' for preferring appeal.\" (45). The Andhra Pradesh High Court in G.Baswaraj v. State of A.P.,17 2011(8)R.C.R. (Crl.) 1674 attempted to reconcile Section 378(4) and proviso to Section 372 ofthe Code and opined that there is no clash or conflict or inconsistency between the twoprovisions and on harmonious reading thereof it was clear that \"a victim irrespective ofthe fact whether he is complainant or not, has been conferred the right to file appealagainst an order recording acquittal by the trial Court, either to the Sessions Court or tothe High Court as the case may be. In case, the victim is also the complainant in a caseinstituted by way of a private complaint, then such person has got two options to file

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 17appeal against an order of acquittal recorded by the trial Court, either to the High Courtunder Section 378(4) Cr.P.C. or to the Sessions Court/High Court under proviso to Sec-tion 372 Cr.P.C.\". Thus according to the AP High Court, the complainant of a privatecomplaint who is also a `victim', has got both the remedies though he can avail of onlyone option. (46). There is thus lack of unanimity on the constituent and composition of `legalheirs' of a `victim' for the purpose of locus to appeal under proviso to Section 372.While the Delhi High Court has taken the view that the expression \"legal heir\" is refer-able to the personal law of the `victim' and whosoever has first preference to succeedthe estate under such law, would be the sole `legal heir' of the `victim' for the purposesunder the Code, the Gauhati High Court has viewed it differently and liberally. (47). Section 2(wa) of the Code defines `victim' to mean a person who has sufferedany loss or injury caused by the reason of the act or the omission for which the ac-cused person has been charged and the expression \"victim\" includes his or her `guardi-an' or `legal heir'. We find on its plain reading that the Legislature has classified the`victim' in two categories i.e. (i) a person who has suffered any loss or injury caused bythe act or omission attributed to the accused; and (ii) the `guardian' or `legal heirs' ofsuch `victim'. The correct understanding of the first part of the term \"victim\" is contin-gent and is subject to the true scope of the words \"loss\" or \"injury\" contained therein.Both these words are not defined in the Code, however, its Section 2(y) says that\"words and expressions used herein and not defined but defined in the Indian PenalCode (45 of 1860) have the meanings respectively assigned to them in that Code\". (48). Section 23 IPC defines \"wrongful loss\" and it says that \"'wrongful loss' is theloss by unlawful means of property to which the person losing it is legally entitled\". Itis further explained that \"a person is said to lose wrongfully when such person iswrongfully kept out of any property, as well as when such person is wrongfully de-prived of property\". According to Section 44 IPC, the word \"injury\" \"denotes any harmwhatever illegally caused to any person, in body, mind, reputation or property\". It is,thus, in the context of offences against property, especially under Section 418 and `mis-chief' as defined in Section 425 IPC that the term `wrongful loss' has been used in thePenal Code. The Legislature while defining `victim' in Section 2(wa) of the code hasused the word `any loss' before `or injury' and has not restricted it to `wrongful loss'only. We, thus, find that the words `loss' and `injury' used in Section 2(wa) are synony-mous. This view is also fortified by the use of wide term `any loss' in clause (b) ascompared to `the loss' in clause (c) of Section 357(1) of the Code. (49). It is so acte clair that a person who has suffered an injury in body or mind orreputation or to his/her property or if such person has been caused loss of property, towhich he is legally entitled to, unlawfully at the hands of another person who has beencharged as an accused, is the `victim' within the meaning of Section 2(wa). Similarly, ifas a result of the aggravated form of victimization, such `victim' of first part does notsurvive, the second part of the definition of `victim' as defined in Section 2(wa) of theCode substitutes the first part and becomes operative whereupon the guardian (if such`victim' was a minor or of unsound mind) or the legal heirs of the deceased victim, asthe case may be, step-in for the `victims' for the varied purposes under the Code. (50). It is clearly discernible from the above that broadly three categories of personshave been defined in the term `victim' in Section 2(wa) of the Code, namely, (i) whohas suffered loss or injury; (ii) Guardian of the above category, if sufferer is a minor orof unsound mind; and (iii) legal heirs of the first category if the sufferer dies. (51). The phrase \"legal heir\" has not been defined in the Code or the IPC. In its lit-eral sense the word \"legal\" means as something which is established, appointed or

18 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1)authorized by law. Black's Law Dictionary (9th Edition) explains \"heir\" to mean \"a per-son who, under the laws of intestacy, is entitled to receive an intestate descendant'sproperty - Also termed as `legal heir'; `heir at law'; `lawful heir'...\" and that in civillaw, `heir' means \"a person who succeeds to the rights and occupies the place of, or isentitled to succeed to the estate of, a descendant, whether by an act of the descendantor by operation of law\". The Chambers Dictionary defines the word \"heir\" (in law) as\"a person who actually succeeds to property, title etc. on the death of its previousholder\". The Oxford English Dictionary (Indian Edition) also defines the word \"heir\" tomean \"a person legally entitled to the property or rank of another on that person'sdeath\". It further defines \"heir-at-law\" to mean \"an heir by right of blood especially tothe real property of an intestate\". (52). According to Barron's Dictionary of Legal Terms (3rd Edition), the term\"heirs\" means \"strictly those whom statutory law would appoint to inherit an estateshould the ancestor die without a Will (intestate); sometimes referred to as `heirs-at-law', `rightful heirs', `legal heirs'. The term is often applied indiscriminately to thosewho inherit by Will or deed, as well as by operation of law\". (53). In Angurbala Mullick v. Debabrata Mullick,18 A.I.R. 1951 S.C. 293, it washeld that the word \"heirs\" cannot normally be limited to \"issues\" only. It must mean allthose persons who are entitled to the property of another under the law of inheritance.In N.Krishnammal v. R. Ekamabaram and others,19 (1979)3 S.C.C. 273, the questionthat arose for consideration was whether the expression \"heirs\" would mean `legal heir'and it was ruled that the legal terms such as `heirs' used in a Will must be construed inlegal sense, unless a contrary intention is clearly expressed by the testator. (54). Vasant Pratap Pandit and another v. Anant Trimbak Sabnis (Dr.),20 (1994)3S.C.C. 481, explained that the word \"heir\" may be construed both in a wider as well asin a narrower sense and therefore, which sense would be applicable to the facts of aparticular case would depend upon the intention and scheme of the particular legislationin which the question occurred. (55). A Division Bench of this Court in Gulzara Singh v. Smt. Tej Kaur,21 A.I.R.1961 Punjab 288 (D.B.), while interpreting Section 22 of the Hindu Adoptions andMaintenance Act, 1956 held that the word \"heir\" must be construed in the broad andgeneral sense so as to include all those on whom the estate of the deceased dwellswhether on intestacy or by means of testamentary instrument like a Will and that suchan interpretation promotes and effectuates the cardinal legislative idea or purpose tobring to a close or at least rectify the evil of neglect to Hindu women at the hands oftheir husbands and after their husbands' death by those who may succeed to or inherittheir husbands' estate. (56). We may also refer to some of the Parliamentary legislations where the expres-sion \"legal heir\" finds mention but without any definition. The Maintenance and Wel-fare of Parents and Senior Citizens Act, 2007 defines \"relative\" [Section 2(g)] whichmeans \"any legal heir of the childless senior citizen who is not a minor and is in pos-session of or would inherit his property after his death\". Such a `relative' is obligated tomaintain a senior citizen as per Sections 4&5 of the 2007 Act. The Advocates' WelfareFund Act, 2001 (Section 11) cast a duty on the Trust Committee to make payment outof the welfare fund to the members of the fund or their nominees or legal heirs. TheMerchant Shipping Act, 1958 (Section 141) also contemplates payment of compensa-tion to a seaman and in the case of a deceased seaman, to the person nominated by himor to his legal heirs. Section 44 of the Delhi Police Act, 1978 also contemplates pay-ment of compensation to a person who has suffered loss or damage to his property orgrievous hurt or to the legal heirs of any person who was no more alive. The Income

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 19Tax Act, 1961 [Section 10(BC)] permits deduction of an amount received or receiv-able from the Central or State Government or a local authority by an individual or hislegal heir by way of compensation on account of any disaster etc. Similarly, the Con-sumer Protection Act, 1986 defines a \"complainant\" to mean a consumer and in case ofdeath of the consumer his legal heir or representative, who are competent to make acomplaint [Section 2(1)(v)]. (57). It thus appears that every heir who, in law, is entitled to succeed to the estateof a deceased `victim' in one or the other eventuality, shall fall within the ambit of Sec-tion 2(wa) of the Code, even if the estate of such deceased `victim' is to devolve uponthe legal heirs as per the order of preference prescribed under the personal law of such`victim'. This conclusion of ours is also compatible with the other provisions of theCode. (58). It is pertinent to take stock of two other provisions of the Code, namely, Sec-tions 357 & 357-A pertaining to \"Order to Pay Compensation\" and \"Victim Compensa-tion Scheme\", respectively.Section 357 provides that when a Court imposes a sentenceof fine or a sentence of which fine forms a part, the Court may, where such fine is re-coverable from a person convicted of any offence for having caused the death of an-other person, order the whole or any part of the fine so recovered to be applied, includ-ing \"in paying compensation to the persons who are, under the Fatal Accidents Act,1855 (13 of 1885), entitled to recover damages from the person sentenced for the lossresulting to them from such death\". (59). Section 357-A of the Code, on the other hand, contemplates formulation of aScheme by the Government for providing funds for the purpose of \"compensation tothe victim or his dependents who have suffered loss or injury as a result of the crimeand who require rehabilitation\". The Legislature has consciously prescribed two differ-ent categories of eligible persons who are entitled to be compensated under Section357(1)(c) or Section 357-A of the Code, in the case of the death of a `victim'. (60). Section 1-A of the Fatal Accidents Act, 1855 entitles the wife/husband, parentand child, if any, of the person whose death has been caused by wrongful act, neglector default, to maintain an action and recover damages in respect thereof. It may thus beseen that the persons who are entitled to be compensated by the Court under Section357(1)(c) for the death of their near and dear ones, could be the spouse, parent or childof such victim but they may not necessarily be entitled to seek compensation within thescheme formulated under Section 357-A unless it is proved that such a claimant was`dependent' on the deceased and requires `rehabilitation'. To say it differently, it is no-where contemplated under the scheme of the Code that the compensation recoverablefrom an accused or admissible under the Victim Compensation Scheme [Sections357(1)(c) & 357-A], is payable only to the `legal heirs' of a deceased victim. (61). Having held that the Legislature has not linked or preconditioned the admissi-bility of compensation to the next kin of a victim under Section 357 or Section 357-Awith the personal law of such victim, we revert back to the second part of the defini-tion of \"victim\" under Section 2(wa) of the Code which includes his/her guardian or le-gal heir within the expression \"victim\", with special reference to the right to `engage anadvocate' under Section 24(8) or the `right to appeal' under proviso to Section 372 ofthe Code. (62). The Legislature while specifying four categories of the next of kin of the de-ceased victim, has purposefully couched the language of Section 357(1)(c) in a mannerwhich leaves no grey area for the Court firstly to determine the status of the claimantas a `legal heir' and then the order of succession amongst different categories of heirs.Similarly, the Legislature did not deem it necessary to use the expression \"victim\" in

20 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1)Section 357, while in Section 357A, it has shrunk the otherwise widened circumferenceof the word \"victim\" by imposing the riders like `dependent' or his/her requirement for`rehabilitation'. (63). Since the expression \"legal heir\" has not been used in Section 2(wa) for thepurpose of non-testamentary succession including entitlement to compensation underthe Code, it must be safely inferred and construed that both the expressions \"guardian\"and \"legal heir\" are relatable to some other rights given to a `victim' under the Code in-cluding the one under proviso to Section 24(8) to `engage an advocate' with the permis-sion of the Court and the other substantive `right to appeal' under proviso to Section372 of the Code. (64). The right to `engage an advocate' given to a `victim' draws parity from theright to fair trial guaranteed to an accused and is essentially meant to enable the Courtto have the viewpoint of a `victim' who remained discounted for years and to whom theLegislature unambiguously intends to provide a presence and appearance before theCourt. Since the very object of this right is to give restricted participation in trial to the`victim' and assist the Court to arrive at a just conclusion, it is not necessary nor theCode perceives so that only that `legal heir' who has preferential entitlement to succeedto the property of an intestate, alone shall be competent to engage such advocate. The`right to appeal' under proviso to Section 372 at the best enables the Appellate Court tocall for the records, re-appraise the evidence and determine - (i) whether acquittal ofthe accused is justified? Or (ii) whether the accused has been rightly convicted for alesser offence? Or (iii) whether the compensation determined under Section 357 is in-adequate? Such an exercise, in our humble opinion, can be undertaken by the appellatecourt on presentation of appeal by any `legal heir' irrespective of his proximity with thedeceased under the personal law. Any narrow construction would defeat the very legis-lative object behind insertion of Section 2(wa) and proviso to Section 372 of the Codeand re-introduce the mischief which the Legislature has intended to remove. (65). It was contended and rightly so that the meaning of the term \"victim\" or thatof his/her \"legal heir\" deserves to be given widest amplitude to meet with all kinds ofpeculiar or unforeseen situations, two of which are illustratively given below:- (a) where a major, unmarried orphan is murdered and the accused person(s)/under trial(s) was/were acquitted of the charges and the State does not prefer an appeal against the acquittal. (b) where the entire family is murdered and the accused person(s)/under trial was/were acquitted of the charges and the State does not prefer an appeal against the acquittal.In both the mis-happenings there may not be any person known as `legal heir' or a `guardi-an' to file an appeal against unwarranted acquittal and it will be against all canons ofjustice to say that the appellate Court in such like situations would be helpless and the of-fenders will go unpunished. Since the Legislature has finally granted the right to appeal toa `victim', it is the duty of the Court to trenchantly affirm such right and provide appropri-ate remedy. (66). We say so also for the reason that the right to `engage an advocate' or to `pre-fer an appeal' under proviso to Section 372 does not ipso facto entitle the appellant toclaim compensation as a `legal heir' or the next of kin of a deceased `victim'. That be-ing so, every class or category of legal heirs of a deceased `victim' can have locus toinvoke the remedy under proviso to Section 372 of the Code, without reading into Sec-tion 2(wa) that if Class-I legal heir of a `victim' opts out of filing any appeal, the otherlegal heirs would also suffer from the same disability.

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 21 (67). The legislative intentment can be given its fullest effect by permitting all legalheirs, irrespective of their classification under the personal law to prefer appeal underproviso to Section 372. Such a purposive interpretation of the expression \"legal heir\"within the meaning of Section 2(wa) does no violence to nor does it conflict with Sec-tion 357 or 357-A of the Code. Even if a Class-II legal heir prefers an appeal sayagainst inadequate compensation, the appellate court in the event of enhancement ofcompensation shall be obligated to disburse the enhanced amount to those persons onlywho are entitled to the same under Sections 357(1)(c) or 357-A of the Code, as thecase may be. We, therefore, hold that the expression \"legal heir\" within the meaning ofSection 2(wa) of the Code does not exclude other than the Class-I legal heirs of a de-ceased `victim' nor the right to `engage an advocate' or prefer an appeal is restricted tothose persons only to whom compensation is payable under Sections 357, 357-A of theCode or under the Fatal Accidents Act, 1855. (68). The above-stated interpretation saves the Court from legislating and re-writingSection 2(wa) and is otherwise in conformity with the pro-victim jurisprudence ad-vanced by the Supreme Court in P.S.R. Sadhanantham; Ramakanth Rai; M/s JK Inter-national and Puran etc. cases. (69). The multiplicity of appeals by more than one legal heir should hardly be a de-terrent to hold otherwise as such like procedural difficulties can be effectively stream-lined by the Appellate Court through an appropriate set of rules or instructions to itsRegistry. For example, if the appeal is preferred by other than a Class-I legal heir, suchperson can be required to disclose particulars of the Class-I legal heir(s), if any, andhearing of such an appeal can be deferred till the appellate court is satisfied that theClass-I legal heirs have not chosen to prefer appeal despite informed knowledge of theorder which can be appealed against under proviso to Section 372 of the Code. Morethan one appeal, if preferred by different legal heirs, can also be not a cause of concernnor a serious impediment as all such appeals can be clubbed and decided together bypassing one consolidated order. (70). It thus finally emerges that the Legislature, before and after amendment of theCode vide Act No.5 of 2009, has recognized and conferred one right or the other onthe following categories of persons:- (i) a `victim' as defined in Section 2(wa) which includes his/her `legal heirs' can be permitted by the Court under Section 24(8) to engage an Advocate of his/her choice to assist the prosecution and if he/she is aggrieved at the acquittal of an accused (except acquittal in a case instituted on a complaint), the conviction of the accused for a lesser offence or the imposition of inadequate compensation on such accused, such `victim' (including his/her legal heirs) have got a right under proviso to Section 372 to prefer an appeal to the Court to which an appeal ordinarily lies against the order of conviction of such Court; (ii) the legal heirs comprising the wife, husband, parent and child of a deceased `victim' only are entitled to the payment of compensation under Section 357(1)(c) of the Code; (iii) in the case of death of a `victim', only those of his/her dependants who have suffered loss or injury as a result of the crime and who require rehabilitation, are eligible to seek compensation in terms of the scheme formulated under Section 357-A of the Code; (iv) While the persons falling within the categories at Sr. No.(ii) & (iii) above shall necessarily include and form part of the persons falling in category No.(i), however, vice versa may not always be true. (B) Whether `complainant' in a private complaint-case, who is also the `victim' andthe `victim' other than the `complainant' in such cases are entitled to present appealagainst the order of acquittal under proviso to Section 372 or have to seek `specialleave' to appeal from the High Court under Section 378(4) Cr.P.C.?

22 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1) (71). Section 378 of the Code provides the remedy of appeal against acquittal of anaccused. Its sub-Section (1) authorises the District Magistrate or the State Government,as the case may be, to present an appeal to the Court of Session or the High Courtagainst the order of acquittal passed by a Magistrate or the Court of Session, respec-tively. The Central Government can also present such appeal under sub-Section (2) in acase in which the offence has been investigated by CBI or any other central agency.Sub-section (3), however, puts a caveat that no appeal under sub-Sections (1) & (2) canbe presented to the High Court without its `leave'. Sub-Section (4) provides that if anorder of acquittal is passed in a case instituted upon the complaint, the `complainant'can present an appeal to the High Court against such acquittal only if the High Courtgrants `special leave' to appeal. The Legislature has thus prescribed different conditionsfor the maintainability of appeal against order of acquittal passed in a `police-case' vis-a-vis a `complaint-case' i.e. a case instituted upon a private complaint. No appealagainst acquittal in a complaint-case is maintainable to the Court of Session and for anappeal to High Court, the State or Central Government are required to obtain `leave' ofthe High Court as mandated by Section 378(3) and if such an appeal is presented bythe complainant, he/she is required to seek `special leave' of the High Court under Sec-tion 378(4). (72). It was vehemently urged that only that `victim' of a crime who is invariablynot rescued by the State machinery and whose complaint is not even registered as FIR(in other than non-cognizable offences), approaches the Judicial Magistrate under Sec-tion 200 of the Code by way of a private complaint hence the intensity of his/her `victi-misation' is much more than that of the `victim' of a police-case, therefore, both thevictims should be treated indiscriminately for the purpose of appeal under proviso toSection 372, more-so when sub-Section (4) of Section 378 restricts the right to presentappeal only against an order of acquittal. It was also advanced that the Legislature hasdrawn no distinction between the `victim' of a police case or that of a complaint case inSection 2(wa) or proviso to Section 372 of the Code. (73). The High Courts are at variance in opining on the aforesaid issue. Some haveviewed that the `victim' under Section 2(wa) is all inclusive and covers victim in acomplaint-case also. Reference in this regard may be made to (i) a Single Bench deci-sion of this Court in Mrs. Era Rani Shubh v. S.B. Enterprises and others,22 2012(2)R.C.R. (Crl.) 522; (ii) order dated 01.05.2012 in Ram Avtar Gupta v. Ravinder Ku-mar,23 Crl. Leave to Appeal No.230 of 2011, passed by a learned Single Judge of theHigh Court of Judicature for Rajasthan at Jodhpur; and (iii) of Allahabad High Courtdated 30.03.2012 passed in Ashok Kumar Srivastava v. State of U.P. and another,24Application under Section 482 Cr.P.C. No.5934 of 2012. Contrary to it, (i) MadhyaPradesh High Court in Dharamveer Singh Tomar v. Ram Raj Singh Tomar,25 2011(3)R.C.R. (Crl.) 607; (ii) Bombay High Court in Shanta Ram v. Deepak,26 2012(2)M.H.L.J. 398 as well as in (iii) Balasaheb Rangnath Khade v. State of Maharashtraand others,27 (2012) Bom.C.R. (Crl.) 632 have held that a complainant, even if he/sheis the `victim', would not fall under the proviso to Section 372 since the appeal to befiled by such victim has been separately contemplated under Section 378(4) of theCode. Uttrakhand High Court in Special Leave to Appeal in Criminal Appeal No.139of 2011, Bhagwan Singh v. State of Uttrakhand and another,28 in its order dated13.12.2011 viewed that a case of acquittal in a complaint case for non-cognizable andbailable offence falls in clause (b) of sub-Section (1) of Section 378, hence the victim(who was the complainant in a private complaint) could file appeal under proviso toSection 372 to the High Court but with the leave to appeal by the High Court. (74). There is yet a third stand of judicial opinion as well on the issue. The AndhraPradesh High Court in G.Baswaraj's case,17 has held that the `victim' in a complaint

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 23case has a right to avail his remedy either under Section 372 or Section 378(4) and it isthe prerogative of such victim-cum-complainant as to which remedy he wants to avail.That was a matter arising out of the appeal filed by the complainant in a private com-plaint under the Negotiable Instruments Act, 1881. (75). There are not one but more than a hundred Legislations1 (List Annexure `A' tothis order) [Annnexure `A' Omitted Editor] other than the IPC where the `victim' andthe `complainant' are two separate entities. The socio-economic Legislations such as (a)Payment of Wages Act; (b) Payment of Gratuity Act; (c) Payment of Bonus Act; (d)Inter-State Migrant Workmen Act; (e) Employment of Manual Scavengers and Con-struction of Dry Latrines (Prohibition) Act etc. are a few of the ones where the `com-plainant' can only be a designated Government official though the `victim' of violationof these Statutes would either be a workman or a person belonging to the marginalizedsection of society. The second set of Legislations, being quoted on illustrative basis, are(a) Equal Remuneration Act, 1976; (b) Preconception and Pre-natal Diagnostic Tech-niques (Prohibition of Sex Selection) Act, 1994; (c) Transplantation of Human Organsand Tissues Act, 1994; and (d) Infant Milk Substitutes, Feeding Bottles and InfantFoods (Regulation of Production, Supply and Distribution) Act, 1992 whereunder be-sides the designated Government official a social and voluntary organization is alsoauthorized to institute complaint though the `victim' is essentially other than the `com-plainant'. What would be the status or locus of a `complainant' or of the `victim' insuch like cases for the purpose of presenting an appeal under proviso to Section 372 orSection 378(4) of the Code is yet another question that has been raised by the petition-ers. (76). We are not oblivious of yet another category comprising `victimless' crimes,where the act which violates the law of the land does constitute an `offence' but there isno visible `victim' of the crime though such like crimes have depraving effects on thesocietal morals and values. Such an offence includes situations where an individual actsalone or there are consensual acts of more than one participants. This is, however, notan issue raised before us and need not be further alluded. (77). A part of the uncertainty, however, has been set at rest by the Hon'ble Su-preme Court in a recent decision in Subhash Chand v. State (Delhi) Administration,29(2013)2 S.C.C. 17, where on an interpretation of Section 378 of the Code, with specialreference to its sub-Section (1)(a) & (b), it has been held that there is no distinction ina complaint-case whether such complaint is filed by a `private person' or a `public ser-vant' and an appeal against the acquittal in every single complaint-case shall lie underSection 378(4) after seeking `special leave' of the High Court and even if the acquittalorder is passed by a Magistrate in a complaint filed by a public servant or the StateGovernment, no appeal shall lie to the Court of Session under Section 378(1)(a) of theCode. The question of status of such complainant as a `victim' or his consequentialright to prefer an appeal under proviso to Section 372 of the Code, however, was notthe subject matter of consideration in that case. (78). The expression \"complainant\" is not defined in the Code though its Section2(d) defines \"complaint\" to mean \"any allegation made orally or in writing to a Magis-trate, with a view to his taking action under this Code, that some person, whetherknown or unknown, has committed an offence, but does not include a police report\". Aperson, other than the informant in a police-case, who makes the allegation orally or inwriting to the Magistrate is a `complainant' within the meaning of Section 378(4) of theCode. The words \"victim\" and \"complainant\" have been thus used and construed in theCode differently and distinctly. Also a `victim' can be the `complainant' but it may notbe necessarily that every `complainant' is a `victim'.

24 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1) (79). Section 378(4) of the Code enables a complainant to prefer appeal against ac-quittal of the accused provided that the High Court grants `special leave' to such ap-peal. The Legislature has imposed stringent condition on the maintainability of appealagainst an order of acquittal in a complaint-case, for the acquittal by the trial court rein-forces the presumption of innocence in favour of the accused who has earned acquittalin a case where the complainant himself/herself was the prosecutor unlike the `victim'in a police-case who does not have any say in the trial. Such being the legislative in-tentment, there cannot be any scope to doubt that the `complainant' of Section 378(4)who has failed to establish the complicity can assail such acquittal only with the `spe-cial leave' of the High Court under Section 378(4) only. The fact that the Legislaturehas brought no changes in this sub-Section fortifies its policy to retain the same legalposition as it existed before the Amendment Act, 2008. (80). However, if such a `victim-cum-complainant' succeeds in bringing the guilthome against the accused and establishes his/her `victimisation' but is aggrieved at theconviction for a lesser offence or imposition of inadequate compensation, he/she shallbe entitled to invoke the proviso to Section 372 of the Code. We say so for the reasonthat in such a case the accused no longer enjoys the protection of presumed innocence.The proven `victim' also has no other remedy to assail the conviction for a lesser of-fence or imposition of inadequate compensation except the proviso to Section 372. Anydifferent construction would discriminately leave his/her wrong without a remedy. Thevictims at post-conviction stage constitute one homogenous class and deserve to betreated alike. In such like cases decided by a Magistrate, even the accused has remedyto file appeal to the Sessions court under Section 374(3) of the Code. (81). It may be noted here that the Code postulates different procedures for conduct-ing Magisterial or Sessions trials in complaint cases. In a Magisterial trial, it is thecomplainant who follows the accusatorial procedure without getting any assistance fromthe Public Prosecutor. However, if the complaint pertains to an offence triable exclu-sively by the Court of Session, after such complaint-case is committed by the Magis-trate to the Court of Session under Section 209 of the Code, the Public Prosecutor shallopen the case and conduct the trial as provided by Sections 225 and 226. The proce-dural advantage available to a complainant in the complaint-case triable by the Court ofSession, is also inconsequential to take a view different from what has been held above,for in such like cases also the Public Prosecutor will have to bank upon the same set ofevidence which the complainant had produced at his own before the Magistrate at thepre-committal stage. (82). What will happen if the `victim' in a complaint-case is different from the`complainant' or where such `victim' cannot otherwise be a `complainant' due to statu-tory embargo against the filing of the complaint by some one other than the designatedauthority of State? Would he/she be entitled to file an appeal under proviso to Section372 or should he/she be clubbed together with the complainant under Section 378(4) ofthe Code? We are of the view that the `victim' in complaint-cases cannot have a rem-edy superior to that of the complainant of such case and since the Apex Court in thelatest decision in Subhash Chand's case (supra) has held that the complainant's remedy,whether he is a private person or a public servant, to question the acquittal lies only inSection 378(4) of the Code, hence the `victim' will also have to be relegated to thatconditional remedy only. Similarly, where a `victim' is competent to institute a privatecomplaint but permits or consents expressly or implicitly to the filing of such complaintby his family-members, near and dears or an acquaintance, the `victim' and `complai-nant' in such a case cannot be seen differently and would be inseparable, hence the`victim' will also fall back on Section 378(4) only which specifically refers to filing ofappeals against acquittal at the instance of complainant and not under proviso to Sec-

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 25tion 372 of the Code which has been pre-dominantly incorporated to provide right toappeal to the `victims' in police-case who are not permitted to participate or have anysay during trial. (83). The above discussion thus can be summed up to say that - (i) the `complainant' in a complaint-case who is a `victim' also, shall continue to avail the remedy of appeal against acquittal under Section 378(4) only except where he/she succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser offence or imposition of an inadequate compensation, for which he/she shall be entitled to avail the remedy of appeal under proviso to Section 372; (ii) the `victim', who is not the complainant in a private complaint-case, is not entitled to prefer appeal against acquittal under proviso to Section 372 and his/her right to appeal, if any, continues to be governed by the unamended provisions read with Section 378 (4) of the Code; (iii) the Legislature has given no separate entity to a `victim' in the complaint-case filed by a public servant under a special Statute and the appeal against acquittal in such a case can also be availed by the `complainant' of that case under Section 378(4) of the Code only. (iv) those `victims' of complaint-cases whose right to appeal have been recognized under proviso to Section 372, are not required to seek `leave' or `special leave' to appeal from the High Court in the manner contemplated under Section 378(3) & (4), for the Legislature while enacting proviso to Section 372 has prescribed no such fetter nor has it applied the same language used for appeals against acquittals while enacting sub-Section (3) & (4) of Section 378 of the Code. (C) Whether the `rights' of a victim under the amended Cr.P.C. are accessory andauxiliary to those perceived to be the exclusive domain of the `State'? (84). The answer to this question entirely depends upon the understanding of thetwo ancillary questions, namely, (i) whether the right of a `victim' is subordinate or in-ferior to that of the State? (ii) whether the fetters imposed on the right to appeal againstacquittal on the State under Section 378(3) or on a complaint under Section 378(4) alsooperate on the right of appeal given to a `victim'? (85). There are as many as three stands of judicial opinion with reference to the firstancillary question. The first category comprises those cases where the Courts have heldthat the State is superior to the `victim' and if the State files an appeal challenging theacquittal, the appeal of the `victim' will not be entertained. This view was taken by aDivision Bench of Gujarat High Court in (i) Bhikhabhai Motibhai Chavda v. State ofGujarat,30 2011(6) R.C.R. (Crl.) 1323; and (ii) Jusabhai Ayubbai Miyana v. State ofGujarat and others,31 Crl. Appeal No.45 of 2012 decided on 24.01.2012. Converse wasthe view in State of Gujarat v. Chaudhary (Patel) Pababhai Devabhai and others,32Criminal Misc. Application No.4350 of 2011, that the victim having already filed anappeal from the self same order of acquittal to which the State was also a party, thesubsequent application for leave to appeal filed by the State was not to be entertained.In Bhavuben Dinesh Bhai Makwana v. State of Gujarat and 9 others,33 Criminal Ap-peals No.238 of 2012 and 608 of 2012, another Division Bench of Gujarat High Courtreferred the matter to the larger Bench for the purpose of deciding (i) whether the ap-peal filed by the victim under the proviso to Section 372 of the Code, challenging ac-quittal, or conviction for lesser offence, or awarding inadequate compensation, is notmaintainable on the ground that the State has filed an appeal against the same orderand for the same purpose? (ii) whether an appeal filed by the State be not entertainedon the ground that the appeal preferred by the victim invoking his right under provisoto Section 372 of Code, is admitted by the Court? and (iii) if the victim prefers an ap-peal before the High Court, challenging the acquittal, should he first seek leave of theCourt, as is required in case of appeal being preferred by the State? Overruling both the

26 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1)earlier divergent views of the Division Benches, the Full Bench of Gujarat High Courtheld that the appeals in both the cases are maintainable. The Full Bench also disagreedwith the view taken by this Court in Smt. Ram Kaur's case; the Patna High Court inGuru Prasad Yadav v. State of Bihar,34 Crl. App. No.582 of 2011; and the BombayHigh Court in Balasaheb Rangnath Khade's case, and held that:- \"If the victim also happens to be complainant and the appeal is against acquittal, he is required to take leave as provided in Section 378 of the Criminal Procedure Code but if he is not the complainant, he is not required to apply for or obtain any leave. For the appeal against inadequacy of compensation or punishment on a lesser offence, no leave is necessary at the instance of a victim, whether he is the complainant or not.\" (86). It may be clarified here that the matter before the Gujarat High Court aroseout of an appeal against acquittal in the case investigated by the police, and the word`complainant' was used in that sense in answer to the question (iii) formulated there. (87). The reason that found favour with the Gujarat High Court to take the afore-quoted view is that if the `victim' is excluded from the purview of proviso to Section372, he would have no remedy to challenge inadequate compensation though the awardof compensation is one of the vital means for redressing the grievances of a `victim' asruled by the Apex Court in (i) Manish Jalan v. State of Karnataka,35 (2008)8 S.C.C.225; (ii) R.Vijayan v. Baby and another,36 (2012)1 S.C.C. 260; and (iii) Roy Fernandesv. State of Goa and others,37 A.I.R. 2012 S.C. 1030. (88). The second view, in total contrast to the first one, is of Allahabad High Courtin Ajay Misra v. Rajiv Gupta and others,38 Crl. Misc.Case No.32 of 2011 decided on23.03.2011, holding that the right of appeal given to a `victim' is more comprehensiveand superior to the right of the State. The third view is that of the Full Bench of Gu-jarat High Court in Bhavuben Dineshbhai Makwana's case (supra) laying down that therights of the `victim' and the State operate in different spheres and neither ousts theother, therefore, filing of appeal by the one will not rob the other of its right to appeal. (89). Right to challenge a conviction or acquittal or any other sentence or order,emanates only from a Statute. The scheme of the Code after various amendments, con-fers right of appeal only on four categories of persons; (i) accused; (ii) State; (iii) vic-tim; and (iv) complainant in complaint cases, and none else. In tune with what has beendiscussed above, the correct interpretation, in our opinion, would be that a `victim' whohappens to be the `complainant' in the police-case, if files appeal against acquittal is notrequired to take `leave' under Section 378 of the Code. To this extent we are, therefore,unable to agree, with reverence, to the view taken by the Full Bench of Gujarat HighCourt and hold that the `victim' (including a complainant in a police case) is not re-quired to apply for or obtain any leave under Section 378(4) of the Code nor such a`victim' is required to seek leave in cases where appeal is against inadequacy of com-pensation and punishment for lesser offence. (90). It hardly calls for a debate that the varied rights given to the State, the victimor a complainant under Chapter XXIX of the Code are not inter se dependent and eachright operates within its own sphere. For example, the State has got a right to appeal onthe ground of inadequacy of sentence [Section 377] but a victim (including complainantwho is also a victim in police case) has got no such right though he/she can prefer ap-peal if the accused is convicted for a lesser offence. State has no right to appeal againstconviction of an accused for a lesser offence. The legislative scheme thus does not per-mit an inter se comparison of the rights or duties granted or assigned to a `victim' orthe State under the afore-stated Chapter of the Code.

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 27 (91). Having held that the right(s) of the `victim' under the Code including the onetranslated through proviso to Section 372, are incomparable with and are distinct fromthose of the State, the second ancillary question, namely, whether the fetters imposedon the right to appeal against acquittal on the State will also operate on the right to ap-peal given to a `victim', also stands answered in part. Since the right of a `victim' toprefer appeal under proviso to Section 372 is independent of and is not contingent uponor subject to the right to appeal of the State under Section 378(1) to (3) of the Code,the condition of seeking `leave' of the High Court expressly imposed on the State underSection 378(3) cannot be read into proviso to Section 372 where the Legislature con-sciously did not incorporate such a fetter. (92). The Court shall always presume that while amending or bringing a new enact-ment, the Legislature was fully aware of the provisions of the existing Statute. The Par-liament had thus full knowledge of the fetters imposed by it on the presentation of ap-peals by the State or a complaint through Section 378(3) & (4) of the Code, yet it gavethe right to appeal to a `victim' free from any obstacle under proviso to Section 372 ofthe Code. The legislative policy to grant unconditional right to appeal to a `victim' isthus writ large. It would indeed not only amount to re-writing the proviso to Section372 but would also defeat the legislative will if the restrictions expressly embedded inSection 378(3) & (4) are impliedly planted into proviso to Section 372 of the Codealso. Since leave to appeal under Section 378(3) is confined only to such appeals whichare presented by the State or Central Governments under sub-Section (1)(b) or sub-Sec-tion (2)(b) of Section 378 of the Code, with due regard at our command, we are unableto agree with the view taken by the Division Bench of this Court in Smt. Ram Kaur'scase (supra) that a `victim' shall be required to seek leave/special leave to appeal whileexercising his/her right to appeal under proviso to Section 372 of the Code and overrulethe same to that extent. On the same analogy, we express our inability to agree with theview taken by the Patna High Court in Guru Prasad Yadav's case (supra). (93). The cumulative effect of the above discussion is that the right(s) of a `victim'under the amended Code are substantive and not mere brutam fulmen hence these arenot accessory or auxiliary to those of the State and are totally incomparable as both thesets of rights or duties operate in different and their respective fields. We thus hold thata `victim' is not obligated to seek `leave' or `special leave' of the High Court for pres-entation of Appeal under proviso to Section 372 of the Code. (D) Whether presentation of appeal against acquittal is a `right' or an `obligation'of the `State' stemming from the Constitution? (94). The evolution of right to appeal against acquittal discussed in extenso in theearlier part of this order unveils that the right to appeal against acquittal has seen roller-coaster like changes ranging from the `no right to appeal' [1861] to `the unconditionalright to appeal' [1898] followed by a `conditional right to appeal' [1973 Code] andagain `unconditional right to appeal' in some of the cases to be filed in the Court ofSession [2005] in favour of the State. While the complainant in a case instituted oncomplaint got a conditional right to appeal against acquittal under Section 378(4)[1973], a `victim' as defined or explained by us has also now got unconditional right toappeal [2009]. (95). Right to live with human dignity without any fear or actual subjection to anykind of unlawful, unsocial and physical or mental abuse and be a member of the self-regulated civic society too is one of the most cherised fundamental right bestowed onevery person under Article 21 of the Constitution. The protection or conferment of cer-tain rights on a victim under the Code therefore cannot be mirrored as a favour shownto him/her by the Legislature. These are only a minuscule part of the fundamental

28 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1)rights of vast magnitude guaranteed under the Constitution. The State as a custodian ofthe power for enforcement of the rule of law owes a corresponding duty to protectthese Fundamental Rights. The State also performs the duty of parens patriae besidesmaking an endeavour to fulfill the promises contained in Articles 38 or 39-A of theConstitution. The right to prosecute a wrong-doer, to bring his guilt home and to com-pel such guilty person to undergo the awarded sentence is an essential part of theState's enormous duties. The presentation of appeal against an unmerited and recklessacquittal is also an integral duty of a welfare State, who \"has an overall control overthe law and order and public order of the area under its jurisdiction\", even if such aduty has been assigned by the Legislature as a `right' in the literal sense. State of Ra-jasthan v. Sohan Lal and others,39 (2004)5 S.C.C. 573, lends full support to us in thisregard when it holds that \"The State does not in pursuing or conducting a criminal caseor an appeal, espouse any right of its own but really vindicates the cause of society atlarge, to prevent recurrence as well as punish offences and offenders respectively, in or-der to preserve orderliness in society and avert anarchy, by upholding the rule of law\". (96). In an era of enlightened and well-informed society who justifiably demands itsrights or frowns upon the belied promises, it will be too farfetched to say that the `duty'of the State under Sections 377 or 378 is actually a `right' exercisable at the discretionof State Executive. The fact that the Legislature has chosen to grant unconditional rightto appeal to a `victim' as compared to the conditional right given to a State under Sec-tion 378(3) implies towards the failure of the State machinery in preserving the fair bal-ance upto the expectations of the people. The State therefore no longer enjoys anyprivileged status as an `appellant' and hitherto there shall be no legal distinction be-tween an appeal preferred by the `State' or a `victim'. (E) Where would the appeal of a `victim' preferred under proviso to Section 372 liewhen the State also prefers appeal against that order of acquittal under Clauses (a) or(b) of Section 378(1) Cr.P.C.? (97). This is indeed a difficult proposition to be solved, for how to provide a uni-form appellate forum to a `victim' when he/she prefers an appeal under proviso to Sec-tion 372, and the State also prefers its appeal against the same order under Section378(1)(b) of the Code? Under proviso to Section 372, the victim's appeal shall lie tothe Court to which an appeal lies against the order of conviction of such Court. To sayit differently, the victim shall present the appeal in the same Court where the appeal ofthe accused, had he been convicted, would have been maintainable. Now, if the orderof acquittal is passed by the Magistrate in respect of a cognizable but bailable offence,the victim's appeal shall lie to the Court of Session before whom the accused, if con-victed, can prefer his appeal under Section 374(3) of the Code. (98). If we turn to Section 378(1)(a), it provides that the District Magistrate mayask the Public Prosecutor to present an appeal to the Court of Session from an order ofacquittal passed by a Magistrate in respect of a cognizable and non-bailable offence.Clause (b) of Section 378(1) of the Code enables the State Government to direct thePublic Prosecutor to present an appeal to the High Court from an original or appellateorder of acquittal passed by any Court other than the High Court [not being an orderunder Clause (a)]. There is thus no ambiguity that if an order of acquittal is passed bya Magistrate in respect of a cognizable but bailable offence and the State decides tochallenge it, the State's appeal shall lie to the High Court only but if the `victim' prefersappeal against the same order, it shall lie to the Court of Session. (99). Similarly, the scheme of the Code nowhere discerns that the Legislature everintended to create two parallel streams for adjudication of appeal(s) against the sameorder. Contrary to it, Section 372 lays emphasis that no appeal shall lie from any judg-

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 29ment or order except as provided for by this Code. That apart, the literal interpretationof proviso to Section 372 or Section 378(1)(a)&(b) of the Code leads to a piquant,anomalous and absurd situation of utter confusion where the Court of Session wouldhave no choice but to await the outcome of the appeal preferred by the State before theHigh Court and then perform its bounden duty to follow that decision of the superiorCourt to negate, for all intents and purposes, the right to appeal of a `victim' contrary tothe legislative object behind insertion of the proviso to Section 372 of the Code.(100). The following table demonstrates the after-effects of the 2005 and 2009amendments on Appeals before different Courts:-Order State's Victim Will filePassed By Appeal lies Before Court before Where Accused Will File Appeal1. Magistrate in Sessions Court Accused will file appeal The appeal of the Statecognizable u/S 378(1)(a) before Sessions Court u/s and Victim can beand non-bail- 374(3) therefore victim Clubbed together, henceable offence will file appeal before no difficulty the Sessions Court u/s 372 proviso2. Sessions High Court Accused will file appeal The appeal of the State u/S 378(1)(b) before the High Court and the Victim can be u/s 374(2) therefore clubbed together subject victim will file appeal to certain guidelines. before the High Court u/s 372 proviso3. Magistrate in High Court u/S Accused will file appeal Grey Area - How tocognizable 378(1)(b) before Sessions Court harmonise?and bailable u/s 374(2) thereforeoffence victim will file appeal before the Sessions Court u/s 372 proviso(101). Let us now analyse the second part of the proviso added to Section 372. Itsays that \"the victim shall have a right to prefer an appeal.......and such an appeal shalllie to the Court to which an appeal ordinarily lies against the order of conviction ofsuch Court\". The adverbial expression \"ordinarily\" is suffixed to the Court where con-vict's appeal shall lie. The marginal discretion or exception of Forum carved out by theLegislature pertains to the appeal preferable by an accused against his conviction andnot of the `victim' which `shall' lie to the same Court where the appeal against the or-der of conviction of such Court is maintainable. To say it differently, if there is nochange in the appellate forum for the presentation of appeal by a convict, the victim'sappeal shall not lie to any other Court except that Court. (102). Caught in the web of apparent conflict, the Uttrakhand High Court in Bhag-wan Singh's case (supra), drew force from the word `ordinarily' mentioned in proviso toSection 372 and made an attempt to reconcile the provisions, holding that the appeal ofthe `victim' in the cases at Sr.No.3 of the table given in para 100 of this order, shouldalso lie in the High Court and not in the Sessions Court. The expression \"ordinarily\"has been construed to mean that the appellate forum made available to a `victim' underproviso to Section 372 is not mandatory in character and can be changed in exceptionalor special circumstances. The said construction assumes as if the proviso to Section 372says that \"the victim shall have a right to prefer an appeal........and such appeal shall or-

30 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1)dinarily lie to the Court to which an appeal lies against the order of conviction of suchCourt\". The proviso, however, says otherwise. (103). The afore-stated shift in the venue of appeal to be preferred by a `victim'from the Court of Session to the High Court, otherwise runs parallel to the legislativescheme inhering Section 378(1)(a), namely, to provide easier, less cumbersome and lesstime-consuming process of presenting appeal against the unmerited and reckless acquit-tals by Magistrates. In fact, the suggested recourse would substantially nullify the effectof the amendment made in Section 378 by Act No.25 of 2005 and will re-introduce theunamended provision whereunder all appeals against acquittal used to be maintainablebefore the High Court only. (104). Similarly, the victim will be severely prejudiced and tribulated (the accusedas well) if his appeal in respect of a `cognizable' and `bailable' offence is ordered to liein the High Court only. Even if the victim is excepted from the rigors of Section378(3) or (4), the high cost of litigation in the High Court will dissuade him from ap-pealing. The victim would always be uncertain and at the cross-roads in choosing theforum of appeal which shall depend on the decision of the State to prefer or not its ap-peal. The very presentation of their respective appeals by the `victim' and the State be-fore different forums would lead to indecisiveness and adhocism. (105). The `draftsman' has inconversantly slipped up while drafting the proviso toSection 372, when he overlooked Section 378(1) as amended by Act No.25 of 2005.Resultantly, the laudable legislative policy behind enabling the District Magistrate topresent an appeal to the Sessions Court so as to avoid time taxing procedure of seekingState's sanction for filing an appeal has been put on hold. (106). The only effective modicum to meet with the situation as we perceive can beto interpret and construe Section 378(1)(a) in such a manner that the State's appeal(s) inrespect of all the cognizable offences (whether bailable or non-bailable) are presentedto the Court of Session, for such a recourse is the least harmful, non-prejudicial andsubstantively conforms to the legislative vision underlying the amendments carried outin the Code in the years 2005 and 2009. This can be feasible if the word \"and\" con-tained in Clause (a) of Section 378(1) of the Code is read as \"or\" so that the appealpreferred by the State against an order of acquittal passed by the Magistrate in respectof every cognizable offence, whether bailable or not, lies to the Court of Session only.We hasten to add that the action in respect of a non-cognizable offence can be initiatedonly by filing a private complaint before the Magistrate and against acquittal in such acase the appellate recourse lies under Section 378(4) of the Code. (107). The Supreme Court in a catena of decisions has ruled that the intention ofthe Legislature is generally gathered from the language used and the words chosen by itto express its intentment. Conventionally, the Court would not add or mend the lan-guage of the Statute or read words into it by substituting some other words or other-wise. Similarly, the Court should endeavour to give meaning to each and every wordused by the Legislature as neither the words in a Statute can be brushed aside beingsurplus-age nor they be construed to render a part of the Statute blank. Rather, theCourts always believe that the legislature has inserted every part of the Statute for apurpose and words are not there for mere fustian eloquence. Any construction whichrenders a word or a provision of a Statute redundant needs to be avoided unless thereare compelling reasons.2 2 (i) British India General Insurance Co. Ltd. v. Captain Itbar Singh and others, A.I.R. 1959 S.C. 1331; (ii) Ghanshyamdas v. Regional Assistant Commissioner of Sale Tax, Nagpur and others, A.I.R. 1964 S.C. 766 and (iii) Shri Balaganeshan Metals v. M.N. Shanmugham Chetty, (1987)2 S.C.C. 707.

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 31 (108). The pro-pounders of the rule of literal interpretation always insist that thewords of a Statute should first be understood in their natural, ordinary or popular senseand the phrases and sentences be construed according to their unambiguous literalmeaning unless such a recourse leads to some absurdity or where the object of the Stat-ute suggests to the contrary. The strict literal expression of the words has thus beentaken as the safest key to open up the true intentment of a Statute.3. 3 (i) SA Venkataraman v. The State, A.I.R. 1958 S.C. 107; and (ii) Workmen of Na-tional and Grindlays Bank Ltd. v. The National Grindlays Bank Ltd., (1976)1 S.C.C.925. given to both...\". Thus, a construction that reduces one of the provisions to a `use-less', `lumber' or `dead-letter' is not a harmonious construction as `to harmonise is notto destroy'. [Ref. (i) JK Cotton Spinning & Weaving Mills Co. Ltd. v. State of UP and others,41(1986)4 S.C.C. 90:[A.I.R. 1961 S.C. 1170]; and (ii) Calcutta Gas Co. (Prop.) Ltd. v.State of West Bengal and others,42 A.I.R. 1962 S.C. 1044]. (109). In those cases where the language used in a Statute is capable of bearingmore than one construction, the Court in its attempt to find out the true meaning shallhave due regard to the consequences of alternative constructions so as to avoid the re-sultant hardship, serious inconvenience, injustice, absurdity, inconsistency or a `straightclash' between two Sections of the same Act. In Venkataramana Devaru v. State ofMysore,40 A.I.R. 1958 S.C. 255, the Supreme Court held that \"the rule of constructionis well-settled that when there are in an enactment two provisions which cannot be re-conciled with each other, they should be so interpreted that, if possible, effect shouldbe. (110). An equally acceptable principle and oftenly pressed into aid is that when achoice has to be made out of the two given constructions, both of which require read-ing of some additional words, the Court will naturally prefer the one which is more inconsonance with reason or justice. [Ref. Ramaswamy Nadar v. State of Madras,43A.I.R. 1958 S.C. 56] (111). New India Sugarmills Ltd. v. Commissioner of Sale Tax, Bihar,44 A.I.R. 1963S.C. 1207 says that \"it is a recognized rule of interpretation of statutes that expressionsused therein should ordinarily be understood in a sense in which the best harmonizedwith the object of the statute, and which effectuate the object of the legislature\". Busch-ing Schmitz Pvt. Ltd. v. P.T. Menghani,45 A.I.R. 1977 S.C. 1569, also ruled that theCourt should adopt a project-oriented approach keeping in mind the principle that legis-lative futility is to be ruled out so long as the interpretative possibility permits. (112). The Heydon's rule known as the `Mischief Rule' or the Rule of `PurposiveConstruction' also serves as a master-key to remove the ordeal caused by the materialwords in a Statute which congenitally possess two or more constructions. This rule laysdown four guiding principles namely, (i) what was the law before the making of theAct? (ii) what was the mischief or defect for which the law did not provide? (iii) whatis the remedy that the Act has provided? and (iv) what is the reason behind the rem-edy? The Heydon's rule says that after following these principles, the Courts mustadopt that construction which shall `suppress the mischief and advance the remedy'.The quoted rule has been approved by the Hon'ble Supreme Court and consistently fol-lowed by the Indian Courts.4 4 (i) Bengal Immunity Co. v. State of Bihar, A.I.R. 1955 S.C. 661; (ii) CIT, MP & Bhopal v. Sodra Devi, A.I.R. 1957 S.C. 832. (113). The Court would invariably be reluctant to create casus omissus where thereis none, nor shall insert a desired provision in an enactment as it will amount to legis-lating and not construing the Statute. However, where a vacuum caused in a Statute due

32 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1)to the omission by its draftsman forestalls the Court to construe it consistent with itslegislative policy, it becomes the bounden duty of the Court to fill in such gap and se-cure the object of the Statute. Gladstone v. Bower,46 (1960)3 All.E.R. 353 (C.A.) veryaptly explains that \"the Court will always allow the intention of the Statute to overridethe defects of wording but the Court's ability to do so is limited by recognized canonsof interpretation...\". (114). While applying these principles to resolve the incongruity between proviso toSection 372 and Section 378(1)(a) & (b) of the Code, it deserves to be mentioned thatthere was no clash between Section 378(1) as amended by Act No.25 of 2005 and anyother provision till the Code was further amended by Act No.5 of 2009. However, afterthe addition of proviso to Section 372 whereunder a `victim' can prefer appeal againstacquittal irrespective of the State's right to appeal under Section 378(1) & (2), there islittle choice but to shift the appellate forum either for a `victim' or for the State to en-sure maintainability of both the appeals against the same order of acquittal before oneForum only. (115). As to the fair balance that is needed to be struck between the interests of a`victim' and those of the State, it appears more appropriate, just, fair and proper not tocompel the `victim' to go to High Court instead the State can be detoured to present itsappeal to the Sessions Court even against an order of acquittal passed by a Magistratein respect of cognizable and bailable offence. The Legislative intent underlying Section378(1)(a) and 2(a) is to provide a distinct forum of appeals against acquittal passed bythe Magistrate in relation to cognizable offences. The recourse so suggested is the mostviable substitute which neither jeopardizes the rights of the parties nor dilutes the legis-lative intention. It also does not traverse through unknown jurisprudential principles asthe interpretative power of the Court to notice the omission of a draftsman vis-a-vis theLegislature's intention and to abridge that distance is well recognized. There is adequatejurisprudence bearing directly on the issue that may be briefly noticed at this juncture. (116). In Ishwar Singh Bindra and others v. State of U.P. and others,47 A.I.R. 1968S.C. 1450, the word `and' used in Section 3(b)(i) of the Drugs Act, 1940 between\"medicines\" and \"substances\" was the subject matter of consideration and after referringto Stroud's Judicial Dictionary (3rd Edition) and Maxwell on Interpretation of Statutes,it was held that the word `and' sometimes is to be read as `or' so as to carry out thereal intention of the Legislature. (117). In Municipal Corporation of Delhi v. Tek Chand Bhatia,48 (1980)1 S.C.C.158 also, the Hon'ble Supreme Court considered whether the word \"or\" can be read as\"and\" and vice versa. Reference was again made to Stroud's Judicial Dictionary (3rdEdition) and Maxwell on Interpretation of Statutes as also some decisions of the Houseof Lords, to hold that the reading of `or' as `and' is not to be resorted to \"unless someother part of the same Statute or the clear intention of it requires that to be done\". (118). In O.S. Singh v. Union of India,49 (1996)7 S.C.C. 37, Rule 3(3)(b) of the IPS(Regulation of Seniority) Rules, 1954 was found to be suffering from casus omissusand after discussing the judicial decisions revealing two trends to meet with such likesituation, it was held that where the seniority rules are silent in the matter of assign-ment of year of allotment to a particular type of promotee officer, the order passed bythe competent authority assigning the year of allotment to such an officer shall be takento have been passed in its `administrative discretion'. (119). State (Delhi Administration) v. Dharampal,50 (2001)10 S.C.C. 372, is yet an-other instance of an inadvertent mistake in the phrasing of Section 378 as noticed andrectified by the Apex Court in the following paragraph:-

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 33\"28. It must also be noted that sub-section (6) of Section 378 is identical to sub-section (5)of Section 417. Thus under Section 378 also the State Government cannot maintain an appealif special leave to appeal is refused to the complainant. In this behalf there is no change. Section417(1) specifically provided that it was \"subject to provisions of sub-section (5)\". Section417(1) similarly provide that it is \"subject to sub-sections (3) and (5)\". Sub-section (3) is thenewly added provision which now provides that an appeal by the State or Central Governmentcannot be entertained without leave of the High Court. However the reference to sub-section (6)in sub-section (1) is clearly an inadvertent mistake. As pointed out above sub-section (5) ofSection 378 applies only to application for special leave by a complainant. Sub-section (5) ofSection 378 has no application to an appeal by the State Government or to an application forleave under sub-section (3). What the Legislature clearly intended was to continue to providethat an appeal by the State Government would not be maintainable if special leave to appeal hadbeen refused to a complainant. Thus sub-section (1) of Section 378 was to be subject toprovisions of sub-section (6) and not sub-section (5) as inadvertently provided therein.Inadvertently the figure (5) in Section 417(1) was continued, without noticing that now underSection 378 the relevant provision was sub-section (6). In our view it is clear that the figure (5)in Section 378(1) is inadvertently retained. Thus in Section 378(1) the figure (6) will have to beread in place of the figure (5).\" (Emphasis applied) (120). In the light of the above discussion, we hold that while in view of proviso toSection 372 an appeal preferred by a `victim' against the order of acquittal passed by aMagistrate in respect of a cognizable offence whether bailable or non-bailable shall lieto the Court of Session, the State's appeal under Section 378(1)(a) of the Code againstthat order shall also be entertained and/or transferred to the same Sessions Court. (F) Whether proviso to Section 372 Cr.P.C. inserted w.e.f. December 31, 2009 isprospective or retrospective in nature and whether a revision petition pending againstan order of acquittal before the insertion of the said proviso, can be converted into anappeal and transferred to the Court of competent jurisdiction?(121). The right to appeal was vested for the first time in a `victim' under proviso toSection 372 of the Code inserted by the Code of Criminal Procedure (Amendment) Act,2008. Section 1(2) of this Act loudly states that \"it shall come into force on such dateas the Central Government may, by notification in the Official Gazette, appoint; anddifferent dates may be appointed for different provisions of this Act\". The aforesaid Act[except its Sections 5, 6 & 21(b)] was indisputably enforced by the Central Govern-ment w.e.f. December 31, 2009 through a Gazette Notification.(122). Section 29 of the Amendment Act, 2008 pertaining to amendment of Section372 of the Code states that \"In Section 372 of the principal Act, the following provisoshall be inserted, namely:- Provided that the victim shall have a right to prefer an ap-peal against any order passed by the Court acquitting the accused or convicting for alesser offence or imposing inadequate compensation, and such appeal shall lie to theCourt to which an appeal ordinarily lies against the order of conviction of such Court.\".(123). The legislative intent that provisions of the Amendment Act, 2008 includingits Section 29 reproduced above, shall come into force from a future date is very ex-plicit and doubtless to call for any further discussion. A piece of legislation cannotcommence or become effective unless it is brought into operation either by the Legisla-ture itself or by its delegate, who is authorised to enforce it, as explained by the Su-preme Court in (i) State of Orissa v. Chandrashekhar Singh Bhoi etc.,51 (1969)2 S.C.C.334; and (ii) Union of India and others v. Sukumar Sengupta and others,52 (1990)Suppl. S.C.C. 545.(124). It is equally well-established that every Statute shall be presumed prospectivein operation unless the Legislature expressly or by necessary implication gives retro-

34 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1)spective effect to it. No such inference can possibly be drawn, even remotely, in the in-stant case. Otherwise also, it is one of the cardinal principles of statutory interpretationthat a Statute dealing with substantive rights shall be prospective unless there are wordsin the Statute sufficient to show the intention of the Legislature to affect existing rights.Osborn's Concise Law Dictionary says that \"a new law ought to regulate what is to fol-low, not the past\". These principles have been laid down and reiterated in a string ofdecisions including in (i) Keshavan Madhava Menon v. State of Bombay,53 A.I.R. 1951S.C. 128; (ii) Arjan Singh v. State of Punjab,54 A.I.R. 1970 S.C. 703; (iii) Ex. Capt.K.C. Arora and another v. State of Haryana and others,55 (1984)3 S.C.C. 281; and (iv)State of Madhya Pradesh v. Rameshwar Rathod,56 (1990)4 S.C.C. 21. (125). These very principles apply in the case of an amendment in a Statute. If theamendment intends to create a substantive right or if it affects the vested right, it shallordinarily be prospective in nature though an amendment in the procedural law like re-lating to form and limitation can be applied retrospectively. These principles have beenextensively discussed and summed up by the Hon'ble Supreme Court in a recent deci-sion in Ramesh Kumar Soni v. State of Madhya Pradesh,57 2013 S.T.P.L. (Web) 161S.C. (126). Since right to appeal is a substantive right and it cannot be inferred by impli-cation unless the Statute expressly provides so, the only inescapable conclusion wouldbe to hold that the right to appeal given to a `victim' under proviso to Section 372 ofthe Code is prospective and has become enforceable w.e.f. December 31, 2009 only. A`victim' is entitled to prefer appeal in respect of any type of order referred to in theproviso to Section 372 if such order has been passed on or after December 31, 2009 ir-respective of the date of registration of FIR or the date of occurrence etc. To be morespecific, it is clarified that it is the date of passing of the order to be appealed from andnot any other fact situation, which shall determine the right to appeal of a `victim'. As acorollary thereto, it is held that the remedy availed by a `victim' including revision peti-tion against acquittal of the accused by an order passed before December 31, 2009,cannot be converted into an appeal under proviso to Section 372 and it shall have to bedealt with in accordance with the parameters settled for exercising revisional jurisdic-tion by a superior Court. (G) What would be the period of limitation for a `victim' to prefer an appeal underproviso to Section 372 Cr.P.C.? (127). Various High Courts have experienced difficulty in determining the period oflimitation for an appeal preferable by a victim under proviso to Section 372 of theCode. A Division Bench of Patna High Court in Raghunath Yadav v. State of Bihar,582011(6) R.C.R. (Crl.) 133, has viewed that since the period of limitation for filing anappeal against the acquittal under Section 378 is ninety days and no period of limitationhas been provided for filing an appeal under Section 372 by a `victim', the same periodof limitation as provided under Article 114 of the Limitation Act will be applicable forfiling an appeal under Section 372 of the Code also. The Full Bench of Gujarat HighCourt in Bhavuben Dineshbhai Makwana's case (supra) too, with reference to Article114(a) of the Limitation Act, has held that the period of ninety days should be the rea-sonable period for a `victim' to file an appeal as the said period is the longest period oflimitation for filing an appeal against an order of acquittal prescribed by the Legisla-ture. (128). The Delhi High Court in Kareemul Hajazi's case (supra), however, thoughtdifferently and after referring to certain precedents laying down that `in the absence ofprescription of the limitation period, the statutory authority must exercise its jurisdictionwithin a reasonable period', it decided to bring the `victim' at par with the `accused' for

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 35the purpose of period of limitation to prefer appeal and held that since an accused is re-quired to prefer appeal to the High Court within sixty days as prescribed under Section374 of the Code read with Article 115(b)(i) of the Limitation Act, the period of limita-tion for the appeal of a `victim' shall also be the same i.e. sixty days. (129). One of the well-recognized principles of criminal jurisprudence is that `crimenever dies'. The maxim `nullum tempus qut locus occurrit regi' [lapse of time is no barto Crown in proceedings against offenders] is an age-old rule embedded in criminal jus-tice delivery system. The public policy behind this rule is that a criminal offence isconsidered as a wrong committed against the State and the Society though it is commit-ted against an individual. The aforesaid rule of prudence has been duly acknowledgedby the Parliament as it has prescribed no period of limitation for filing an appeal underproviso to Section 372 of the Code against an order of acquittal. (130). Article 114 of the Schedule to the Limitation Act, 1963, however, prescribesperiod of limitation for State's appeal against order of acquittal and it reads as under:- Description of Period of Time from which period begins appeal limitation to run114. Appeal From an order of acquittal- (a) Under sub-section (1) Ninety Days The date of the order appealed or sub Section (2) of from. Section 417 of the Code of Criminal Procedure, 1898 (5 to 1898). (b) Under sub-Section (3) Thirty days The date of the grant of special of Section 417 of the Code. leave. (131). Since Article 114 of the Limitation Act refers to Section 417 of the Code ofCriminal Procedure, 1898 (since repealed), it is beneficial to reproduce the same and itreads as follows:-\"417. (1) Subject to the provisions of sub-section (5) the State Government may, in anycase, direct the Public Prosecutor to present an appeal to the High Court from an original orappellate 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 beeninvestigated by the Delhi Special Police Establishment constituted under the Delhi SpecialPolice Establishment Act, 1946, the Central Government may also direct the Public Prosecutorto 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 theHigh Court on an application made to it by the complainant in this behalf, grants special leaveto appeal from the order of acquittal, the complainant may present such an appeal to the HighCourt.(4) No application under sub-section (3) for the grant of special leave to appeal from anorder of acquittal shall be entertained by the High Court after the expiry of sixty days from thedate of that order of acquittal.(5) If, in any case, the application under sub-section (3) for the grant of special leave toappeal from an order of acquittal is refused, no appeal from that order of acquittal shall lieunder sub-section (1).\" (132). From the combined reading of the above-reproduced provisions, it is clearthat the State could present its appeal to the High Court within 90 days from the dateof passing of the order of acquittal. Similarly, sub-Section (4) of Section 417 provided60 days' period of limitation to apply for grant of special leave to appeal to the HighCourt against the order of acquittal passed in a complaint-case. The appeal against ac-quittal in such cases can be filed within 30 days of the date of grant of special leave to

36 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1)appeal as provided under Clause (b) of Article 114 of the Limitation Act. The Hon'bleSupreme Court in Dharam Pal's case compared the provisions of old Code with Sec-tion 378 of the new Code and held that appeals against acquittal preferred by the StateGovernment or the Central Government continue to be governed by Article 114(a) ofthe Limitation Act. In other words, those appeals must be filed within 90 days from thedate of order appealed from. A `victim' therefore is also entitled to the said maximumperiod of limitation i.e. 90 days to prefer his/her appeal against an order of acquittal. (133). Under Section 378(5) of the Code, an application for the grant of specialleave to appeal from an order of acquittal moved by the complainant who is a publicservant, can be entertained by the High Court within a period of six months and withinsixty days in every other case, from the date of the order of acquittal. However, theState or Central Governments are not entitled to take benefit of six months' periodgiven to the complainant-public servant for the purpose of their appeal against an orderof acquittal which is required to be preferred within ninety days as per Article 114 ofthe Limitation Act. The grey area in this regard, if any, also stands clarified by the Su-preme Court in Dharampal's case (supra).(134). Likewise, the period of limitation for appeal against the orders other than ofacquittal i.e. of `any other sentence' or `any order' is governed by Article 115(b) of theSchedule to the Limitation Act. The orders of imposition of lesser sentence, inadequatesentence or awarding inadequate compensation passed by a Magistrate or the SessionsCourt, as the case may be, are fully covered within the ambit of the expressions \"anyother sentence\" or \"any order\" mentioned in Clause (b) of Article 115 of the LimitationAct, which is to the following effect:-Description of Period of Time from which period beginsappeal limitation to run115. Under the Code of Criminal Procedure, 1898 (5 of 1898)(b) from any other sentence orany order not being an order ofacquittal -(i) to the High Court. Sixty days The date of the sentence or order.(ii) to any other court. Thirty days The date of the sentence or order.(135). The legislature has not chosen to provide different period(s) of limitation forthe purpose of appeals maintainable at the instance of a `victim' under proviso to Sec-tion 372. It has also not carried out any corresponding amendment in the provisions ofthe Limitation Act. Since Article 115(b) thereof does not draw any distinction betweenthe appeals preferable by the State, the `victim' or the accused, the period of limitationfor an appeal preferred by the State, the `victim' against an order other than that of ac-quittal or by the accused, shall therefore be governed by Article 115(b) of the Limita-tion Act.(136). The Supreme Court in Japani Sahoo v. Chander Shekhar Mohanty,59 (2007)7S.C.C. 374, observed that mere delay in approaching the court of law would not by it-self afford a ground for dismissing the case though it may be a relevant circumstance inreaching the final verdict. There is no gain saying that where no period of limitation isexpressly provided to prefer an appeal, the aggrieved person is expected to approachthe appellate court within a reasonable period. The `reasonableness' of the period withinwhich an appeal may be preferred, however, is purely a question of fact and will haveto be determined keeping in view the peculiar facts and circumstances of each case. (137). The Legislative intentment behind Articles 114 & 115(b) of the LimitationAct in prescribing the period of limitation for appeals to the High Court or to the Courtof Session against different type of orders, is the best guiding factor to determine rea-sonableness of the period of limitation for an appeal preferable at the instance of a `vic-

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 37tim' also. It would, therefore, be reasonable to view that for appeal against acquittalfiled by a `victim' to the High Court the period of limitation would be 90 days andwhere such appeal lies to the Sessions Court such period shall be 60 days. For appealagainst any other order, the reasonable period would be 60 days to the High Court and30 days for appeals to the Sessions Court from the orders passed by the Magistrate, asthe case may be. To be more specific, the period of limitation for the purpose of filingappeal(s) by a victim shall be as under:-(a) In case of acquittal -(i) Where appeal lies to the 90 days Date of order appealedHigh Court against(ii) Where appeal lies to 60 days Date of order appealed againstany other Court(b) Any other sentence or order -(i) to the High Court 60 days The date of sentence or order(ii) to any other court 30 days The date of sentence or order(138). The limitation period of ninety, sixty and thirty days, as the case may be,prescribed above for the maintainability of an appeal by a victim, in our consideredview, ought to be counted from the date such `victim' acquires knowledge of the orderappealable under proviso to Section 372. We say so for the reason that in most of theState cases, the `victim' has no participatory role at the trial stage and the possibility ofhis/her remaining in the dark about the adverse order cannot be lightly brushed aside.The above rule of limitation, therefore, cannot be mechanically enforced even if thevictim had no informed knowledge regarding culmination of the trial proceedings as itmight cause serious prejudice to his/her rights, close to the extent of snatching away theright to appeal earned by the victims after a long drawn battle.(139). For the reasons assigned above, we sum up our conclusions and answer thequestions as formulated in para 6 of this order, in the following terms:-Question-(A) (i) The expression \"victim\" as defined in Section 2(wa) includes all categories of his/her legal heirs for the purpose of engaging an advocate under Section 24(8) or to prefer an appeal under pro- viso to Section 372 of the Code.(ii) However, legal heirs comprising only the wife, husband, parent and child of a deceased victim are entitled to payment of com- pensation under Section 357(1)(c) of the Code. Similarly, only those dependents of a deceased victim who have suffered loss or injury as a result of the crime and require rehabilitation, are eligible to seek compensation as per the Scheme formulated under Section 357-A of the Code.Question-(B) (iii) The `complainant' in a complaint-case who is also a `victim' and the `victim' other than a `complainant' in such case, shall have remedy of appeal against acquittal under Section 378(4) only, except where he/she succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser offence or imposition of an inadequate compensation, for which he/she shall be entitled to avail the remedy of appeal under proviso to Section 372 of the Code.(iv) The `victim', who is not the complainant in a private complaint case, is not entitled to prefer appeal against acquittal under pro- viso to Section 372 and his/her right to appeal, if any, continues

38 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1) to be governed by the unamended provisions read with Section 378 (4) of the Code. (v) those `victims' of complaint-cases whose right to appeal have been recognized under proviso to Section 372, are not required to seek `leave' or `special leave' to appeal from the High Court in the manner contemplated under Section 378(3) & (4) of the Code.Questions - (vi) The right conferred on a `victim' to present appeal under pro-(C) & (D) viso to Section 372 is a substantive and independent right which is neither inferior to nor contingent upon the filing of appeal by the State in that case. Resultantly, the condition of seeking `leave to appeal' or `special leave to appeal' as contained in Section 378(3) & (4) cannot be imposed for the maintainability of appeal by a `victim' under proviso to Section 372 of the Code.Question-(E) (vii) In view of proviso to Section 372 an appeal preferred by a `victim' against the order of acquittal passed by a Magistrate in respect of a cognizable offence whether bailable or non- bailable shall lie to the Court of Session, the State's appeal under Section 378(1)(a) of the Code against that very order shall also be entertained and/or transferred to the same Sessions Court.Question-(F) (viii) The proviso to Section 372 inserted w.e.f. December 31, 2009 is prospective in application and only those orders which have been passed on or after December 31, 2009, irrespective of the date of occurrence or registration of FIR or filing of complaint, shall be appealable at the instance of a `victim' under the afore- stated proviso. Consequently, a revision petition preferred against an order of acquittal passed prior to December 31, 2009 cannot be converted into an appeal and shall be decided accor- dingly.Question-(G) (ix) Subject to the exception carved out in para-138 of this order, the period of limitation for an appeal by a `victim' under pro- viso to Section 372 of the Code shall be as under:-(a) In case of acquittal -(i) Where appeal lies 90 days Date of order appealed to the High Court against(ii) Where appeal lies 60 days Date of order appealed to any other Court against(b) Any other sentence or order -(i) to the High Court 60 days The date of sentence or order(ii) to any other court 30 days The date of sentence or order(140). Let the records of these cases be accordingly placed before the respectiveBenches as per roster for final disposal.Sd/- Paramjit Singh, J.Sd/- R.P. Nagrath, J.R.M.S. - Order accordingly.

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 39 PUNJAB AND HARYANA HIGH COURT Before: Mr. Justice Rajive Bhalla and Mrs. Justice Rekha Mittal. CHARAN SINGH and another - Appellants, VersusTHE COMMISSIONER, PATIALA DIVISION, PATIALA and others - Respondents. Letters Patent Appeal No.2025 of 2012 (O&M).Punjab Land Revenue Act, 1887 (17 of 1887) Section 45 - Person ag-grieved by an entry in the record-of-rights or in an annual record, is re-quired by, Section 45 of the Punjab Land Revenue Act, 1887, to approach aCivil Court - Fard Badar, i.e., a correction, particularly, when parties are al-ready litigating on the question of title, cannot be recorded. Mr. R.D. Bawa, for the Appellant. JUDGMENTRajive Bhalla, J. - (7th December, 2012) - C.M.No.5321 of 2012Allowed as prayed for. C.M.No.5322 of 2012 and LPA No.2025 of 2012 The appellants, pray that order dated 21.11.2012, dismissing their writ petition, maybe set aside. 2. Counsel for the appellants submits that as the gift deed was ignored by the Assis-tant Collector, while declaring surplus area in the hands of Jethu Singh, the entry re-garding the gift deed in the revenue record should be deleted by recording a \"FardBadar\". It is argued that the impugned order directing the appellants to approach a CivilCourt for deletion of the said entry is contrary to law, and may be set aside. 3. We have heard counsel for the appellants, perused the impugned order as well asorders passed by revenue authorities and find no reason to interfere with the impugnedorders. A person aggrieved by an entry in the record-of-rights or in an annual record, isrequired by, Section 45 of the Punjab Land Revenue Act, 1887, to approach a CivilCourt. Fard Badar, i.e., a correction, particularly, when parties are already litigating onthe question of title, cannot be recorded.Dismissed.Sd/- Rekha Mittal, J.R.M.S. - Appeal dismissed. PUNJAB AND HARYANA HIGH COURT Before: Mr. Justice A.N. Jindal. HARPAL SINGH - Petitioner, Versus HARMOHINDER SINGH and others - Respondents. Civil Revision No.4436 of 2011 (O&M).Revision - Maintainability - Though some objections have been raised bythe petition regarding the report of the Local Commissioner, yet the same donot finally decide the rights of the parties - It is still for the court, while pass-ing the final decree, to decide whether the report has to be accepted or not -As such, no revision was maintainable. Cases referred to:- 1. 2003(1) R.C.R. (Civil) 755 (S.C.), Rajinder & Co. v. Union of India. 2. (2011-4)164 P.L.R. 164, The Bassi Arkh Scheduled Caste Co-op. Land Owing Society Ltd. v. Atma Singh son of Bachan Singh. Mr. N.R. Dahia, for the Petitioner. Mr. J.C. Batra, for the Respondents.

40 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1) JUDGMENT A.N. Jindal, J. - (15th February, 2013) - The petitioner has challenged the two or-ders, one dated 16.9.2008 passed by the Additional District Judge, Chandigarh, partlyaccepting the appeal and the other dated 8.5.2011 passed by the Civil Judge (Jr. Divi-sion), Chandigarh, dismissing the objection petition filed qua the report of the LocalCommissioner dated 25.3.2010, qua the property, regarding which preliminary decreefor partition has been passed and the application for final decree was pending. 2. At the very outset, learned counsel for the respondent has raised the preliminaryobjection that the order passed qua the report of the Local Commissioner was not ame-nable to revision. In this regard, he has referred to the judgment delivered by the ApexCourt in the case of Rajinder & Co. v. Union of India and others,1 2003(1) R.C.R.(Civil) 755 wherein it was observed as under - \"2. We cannot appreciate why the High Court had interfered with that part of the order passed by the trial Court appointing a commission for inspecting the site and to file a report and to measure the work done by Respondent. The learned counsel for the appellants submits that respondent will not be made responsible for the cost or expenses which may be involved in the commission to file the report. The question whether the Commissioner's report is finally acceptable or not would be decided by the Court de hors the order passed by the authority concerned. In the light of the said innocuous position, it was not necessary for the High Court to alter the trial court's order. We, therefore, set aside the impugned order of the High Court and restore the order of the trial court in full measure, with the rider that this action will be without prejudice to the right of the parties to substantiate the respective contentions regarding the tenability or untenability of the Commissioner's report and its conclusions.\" 3. This judgment clearly holds that the question whether the Commissioner's reportis acceptable or not would be decided by the court de hors the order passed by theauthority concerned. As such the revision petition was not maintainable. This Courtalso took the same view from time to time. 4. This Court in case Civil Revision No.1873 of 2010, titled as The Bassi ArkhScheduled Caste Coop. Land Owing Society Ltd. v. Atma Singh son of Bachan Singhand others,2 (2011-4)164 P.L.R. 164 decided on 1.6.2011 has also observed that the or-der of refusal or appointment of the Local Commissioner is not amenable to revision. 5. However, the case regarding the decision as to how and in what manner the finaldecree has to be passed is still pending before the court. Though some objections havebeen raised by the petition regarding the report of the Local Commissioner, yet thesame do not finally decide the rights of the parties. It is still for the court, while pass-ing the final decree, to decide whether the report has to be accepted or not. As such, norevision was maintainable.6. Resultantly, this revision petition being not maintainable is dismissed.R.M.S. - Petition dismissed. PUNJAB AND HARYANA HIGH COURT Before: Mr. Justice Surya Kant and Mr. Justice R.P. Nagrath. IKBAL SINGH and others - Petitioners, Versus STATE OF PUNJAB and others - Respondents. Civil Writ Petition No.7992 of 2013. Punjab Panchayati Raj Act, 1994 (9 of 1994) Section 3 - Inclusion or ex-clusion of an area within municipal limits or constitution of a grampanchayat would not per se come within the ambit of a writ Court though thestatutory procedure required to be followed by the Competent Authority for

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 41such determination undoubtedly falls within the ambit of judicial review -Keeping these limitations in mind, we have refrained ourselves from express-ing any views on merits while directing the authorities to take an appropriatedecision in the matter in accordance with law - Since two contradictory noti-fications have been issued by two different departments of the State Govern-ment, in our considered view, the immediate remedial measures are requiredto be taken at the highest level in the State Government to take an appropri-ate decision after giving opportunity of hearing to various stake holders, maybe in representative capacity. Mr. Rajeev Anand, for the Petitioners. Ms. Munisha Gandhi, Additional A.G., Punjab, for the Respondent-State. JUDGMENT (ORAL) Surya Kant, J. - (12th April, 2013) - Notice of motion. 2. Ms. Munisha Gandhi, learned Additional Advocate General, Punjab, accepts no-tice on behalf of the respondents. 3. Let five copies of the writ petition be supplied to the learned State counsel dur-ing the course of day failing which the order shall be automatically recalled and thewrit petition shall be deemed to have been dismissed for non-prosecution. 4. In view of the nature of order which we propose to pass, there is no need to seekany counter-reply from the respondents at this stage. 5. This may be 4th or 5th writ petition raising claim and counter-claim for inclu-sion/exclusion of village `Bir Amloh' from municipal limits of Municipal Council, Am-loh, District Fatehgarh Sahib. We take judicial notice of the fact that Municipal Coun-cil, Amloh as also some residents of village Bir Amloh, including the petitioners wantthe inclusion of village Bir Amloh Hadbast No.27 within municipal area of MunicipalCouncil, Amloh while the others including some religious persons who had approachedthe Court earlier, want a separate gram panchayat for village Bir Amloh to be consti-tuted in terms of Section 3 of the Punjab Panchayati Raj Act, 1994. 6. The inclusion or exclusion of an area within municipal limits or constitution of agram panchayat would not per se come within the ambit of a writ Court though thestatutory procedure required to be followed by the Competent Authority for such deter-mination undoubtedly falls within the ambit of judicial review. Keeping these limita-tions in mind, we have refrained ourselves from expressing any views on merits whiledirecting the authorities to take an appropriate decision in the matter in accordance withlaw. 7. It further appears to us that the State Government/District Administration hasfailed to take into consideration the aspirations or interest of residents of the area andapparently no transparent procedure was followed while issuing the notifications dated12.11.2012 (Annexure P-3) by the Local Government Department, Punjab and26.11.2012 (Annexure P-4) by the Department of Rural Development and Panchayats,Punjab. Both these notifications indeed demonstrate that left hand does not know whatthe right hand is doing. 8. Since two contradictory notifications have been issued by two different depart-ments of the State Government, in our considered view, the immediate remedial meas-ures are required to be taken at the highest level in the State Government. Conse-quently, we dispose of this writ petition with a direction to the Chief Secretary, Gov-ernment of Punjab, to immediately convene a meeting to be attended by the Secretariesof Department of Local Bodies and Department of Rural Development and Panchayats,Punjab and other concerned authorities, ascertain the will of the residents of the area

42 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1)and then take an appropriate decision after giving opportunity of hearing to variousstake holders, may be in representative capacity. Till such decision is taken by the StateGovernment, both the notifications (Annexures P-3 & P-4) shall remain in abeyance. Incase the authorities find that there is any conflict between the directions issued herein-above or those passed in earlier cases pertaining to Village Bir Amloh/Municipal Coun-cil, Amloh, this order shall amount to modification of the previous orders. The StateGovernment is directed to take an appropriate decision within a period of one monthfrom the date of receiving a certified copy of this order.9. Ordered accordingly. 10. Let a copy of this order be given dasti to Ms. MunishaGandhi, learned Additional Advocate General, Punjab, for information and necessarycompliance.Dasti.Sd/- R.P.Nagrath, J.R.M.S. - Ordered accordingly. PUNJAB AND HARYANA HIGH COURT Before: Mr. Justice Ajay Kumar Mittal and Mr. Justice Jaspal Singh. RATTAN SINGLA - Petitioner, Versus STATE OF PUNJAB and others - Respondents. Civil Writ Petition No.13885 of 2003 (O&M).Allotment of Plot - Scheme of Improvement Trust, Bhatinda - Applica-tions in 1989 for allotment of plot - After the lapse of seven years the drawof plots was held - Eligibility - The petitioner was fulfilling the conditions ofeligibility and in such a situation, the subsequent development of purchase ofplot from open market would not render him ineligible for the draw of lotsheld in 1996, especially where no allotment was made on concessional ratefrom any source between the date of application and the date of draw of lots. [Para 9] Cases referred to:- 1. A.I.R. 2000 S.C. 2011, Bhupinderpal Singh v. State of Punjab. 2. A.I.R. 2002 Punjab 37, Notan Dass Manchanda v. Chandigarh Housing Board. 3. L.P.A .No.137 of 2007, decided on 13.8.2007, Punjab Urban Planning and Development Authority v. The Special Secretary to Govt. of Punjab. 4. A.I.R. 2003 S.C. 578, B.L.Sreedhar v. K.M. Munireddy (Dead). 5. 2012(3) R.C.R. (Civil) 825, Kesar Singh v. State of Punjab through its Director, Rural De- velopment and Panchayats, Punjab. 6. A.I.R. 1999 S.C. 1347, Jalandhar Improvement Trust v. Sampuran Singh etc. Mr. Kawaljit Singh, Senior Advocate with Mr. Sidharth Gupta and Mr. Amarjit Markan, for thePetitioner. Mr. N.K.Verma, Sr. D.A.G., Punjab, for the Respondent-State. Mr. Sandeep Khunger with Mr. Shakti Mehta, for Respondent No.2. JUDGMENT Ajay Kumar Mittal, J. - (16th September, 2013) - 1. Prayer in this petition filed under Articles 226/227 of the Constitution of India isfor quashing the order dated 11.8.2003, Annexure P.2, whereby the allotment of PlotNo.91 in 25.21 Acre scheme of Improvement Trust, Bathinda in favour of the petitionerwas cancelled. Further prayer has been made for a direction to the respondents not tocharge more than the price which was circulated at the time of advertisement in theyear 1989 and quash the order dated 16.7.2002, Annexure P.27 passed in this regard. 2. A few facts relevant for the decision of the controversy, as narrated in the peti-tion, may be noticed. In July/August 1989, respondent No.1 invited applications by

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 4331.8.1989 from general public for allotment of different categories of plots in a schemeknown as 25.21 Acre Scheme of Improvement Trust, Bathinda, situated at Guru KanshiMarg (Goniana Road), Bathinda. The petitioner being eligible submitted his applicationon 29.8.1989 alongwith a draft of Rs.5000/- on 28.8.1989 for allotment of plot measur-ing 200 square mtrs. (239 square yards) in the office of respondent No.2 vide receiptdated 29.8.1989, Annexure P.4. The petitioner also submitted an affidavit dated29.8.1989, Annexure P.5 to the effect that he or his spouse did not own any residentialhouse/plot in Union Territory of Chandigarh or any Urban Estate or in any scheme ofthe Improvement Trust in Punjab or Panchkula. The petitioner made number of repre-sentations to the respondents for holding draw of lots. After the lapse of seven years on18.8.1996, the draw of lots was held by Respondent No.2 and the petitioner receivedletter dated 17.3.1997 for allotment of the plot in question alongwith the Performa ofaffidavit which was to be submitted in the office of Respondent No.2. Similar letterswere also issued to the other successful candidates. Accordingly, the petitioner submit-ted his affidavit dated 20.3.1997, Anenxure P.9 alongwith forwarding letter to Respon-dent No.1. Thereafter, the petitioner made various representations to the differentauthorities for issuance of allotment letter. The said representations were considered byRespondent No.3 exercising the powers of the Government and after perusal of the fileand the affidavit dated 20.3.1997, he issued a direction dated 18.8.1999, Annexure P.14to the Chairman Improvement Trust to issue allotment letter to the petitioner. On30.8.1999, Annexure P.15, the Government reconsidered the order dated 18.8.1999 anddecided to withdraw the same which was communicated to Respondent No.2 as well asthe petitioner. Thereafter various representations were made by the petitioner to thePrincipal Secretary to the Government-respondent No.1 for considering his case sympa-thetically for allotment of plot at the rate of Rs.421/- per square yard. After seekingopinion from the Legal Remembrancer, respondent No.2 issued allotment letter on22.1.2001 to the petitioner at the total price of Rs.2,09,723/-. On 14.2.2001, AnnexureP.21, the petitioner filed representation to the Chairman, Improvement Trust, Bathindato the effect that the trust could not demand price at the rate of Rs.877.50 per squareyard on the ground that at the time of advertisement in the year 1989, it was circulatedat the rate of Rs.421/- per square yard. On 19.2.2001, Annexure P.22, Respondent No.2entered into an agreement of sale with the petitioner which was signed by the then Ex-ecutive Officer on 8.5.2001. On 11.6.2001, Annexure P.23, Respondent No.2 issued let-ter to the petitioner for deposit of sale price of Rs.2,09,723/- through five half yearlyinstallments. On 28.8.2002, Annexure P.30, Respondent No.2 handed over possessionof the plot in question to the petitioner and since then he is in possession of the same.On 6.12.2002 and 4.2.2003, Annexures P.28 and P.29, the petitioner made repre-sentations to the Government against the rejection order dated 16.7.2002 vide which hisrequest for reduction of the price was rejected. On 17.7.2003, the petitioner depositedRs.2,38,041/- through installments with interest as well as enhanced price ofRs.18,285/- as demanded by Respondent No.2. Vide order dated 11.8.2003, AnnexureP.2, Respondents No.1 and 2 cancelled the allotment of the plot in favour of the peti-tioner on the ground that he had misconceived the facts in his affidavit. Hence the pre-sent petition. 3. In the written statement filed on behalf of respondent No.2, it has been inter-alia,submitted that since the petitioner had purchased Plot No.451 in another scheme of theImprovement Trust as mentioned above between the date of application i.e. 1989 andthe draw of lots in the year 1996, he became ineligible for the allotment in question. Itwas further submitted that the affidavit submitted by the petitioner to the effect that heor his spouse did not own any plot/house in any scheme of the Improvement Trustproved wrong. On these premises, prayer for dismissal of the petition has been made.

44 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1) 4. Learned counsel for the petitioner submitted that the order dated 11.8.2003, An-nexure P.2 cancelling the allotment of Plot No.91 in 25.21 Acre Scheme of Improve-ment Trust, Bathinda in favour of the petitioner, is bad in law. It was argued that thesaid scheme was floated by Respondent Improvement Trust in 1989 in which the peti-tioner was declared successful for allotment of the plot in question in the draw of lotsheld on 18.8.1996 and the letter in this regard was issued on 22.1.2001 and sale agree-ment dated 19.2.2001 (Annexure P.22) was entered between the petitioner and respon-dent No.2. The petitioner's wife had purchased Plot measuring 150 square yards in theopen market bearing residential plot No.451 in Kamla Nehru Nagar DevelopmentScheme of Improvement Trust, Bathinda in 1993 as it was uncertain whether the peti-tioner would be successful in the draw of lots in respect of 1989 scheme. It waspointed out that the petitioner had filed an affidavit dated 29.8.1989 Annexure P.5,wherein it was specifically stated that he or his spouse jointly or severally had not beenallotted any plot/house in Union Territory of Chandigarh or in any Urban State or inany scheme of Improvement Trust in Punjab or Panchkula in the State of Haryana,which was in conformity with the conditions of brochure. Relying upon following ob-servations in Bhupinderpal Singh and others v. State of Punjab,1 A.I.R. 2000 S.C.2011, it was contended that the petitioner fulfilled the conditions on the date of bro-chure and therefore, the subsequent change whereby the petitioner had purchased 150square yards plot in the name of his wife from open market in the year 1993 would notdis-entitle him to retain the plot which was allotted to him in the draw of lots in 1996:-\"13......(i) that the cut off date by reference to which the eligibility requirementmust be satisfied by the candidate seeking a public employment is the date appointedby the relevant service rules and if there be no cut off date appointed by the rules thensuch date as may be appointed for the purpose in the advertisement calling forapplications; (ii) that if there be no such date appointed then the eligibility criteriashall be applied by reference to the last date appointed by which the applications haveto be received by the competent authority...\"5. It was further submitted that vide letter Annexure P.6 issued on 17.3.1997, thepetitioner was required to submit an affidavit in the following form:- \"I _____ son of _______aged ____ years, resident of ______do hereby solemnlyaffirm and declare that I am not dependent on any person and that I or my spouse,jointly or severally has not been allotted any plot/house in Union Territory ofChandigarh or in any Urban Estate or in any scheme of Improvement Trust in Punjabor Panchkula in the state of Haryana, since submitting an application for 25.21 acresDevelopment Scheme, till date. DeponentVerificationI do hereby further solemnly affirm and declare that the particulars given aboveare correct to the best of my knowledge and belief and nothing has been concealedtherein. Deponent.\"The affidavit in the aforesaid form was duly filed by the petitioner. Reference was alsomade to legal opinion from the Legal Remembrancer dated 18.8.1999, Annexure P.14though the same was withdrawn vide letter dated 30.8.1999, Annexure P.15. Support wasgathered from the judgments in Notan Dass Manchanda v. Chandigarh Housing Board,2A.I.R. 2002 Punjab 37, Punjab Urban Planning and Development Authority v. The Spe-cial Secretary to Govt. of Punjab and others,3 L.P.A .No.137 of 2007, decided by thisCourt on 13.8.2007 and B.L.Sreedhar and others v. K.M. Munireddy (Dead) and others,4A.I.R. 2003 S.C. 578.

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 45 6. Lastly, it was urged that Charanjeet Singh's case, Annexure R.2/1 on which theImprovement Trust had relied upon, would not take away the right of the petitioner asit is not a binding precedent. Under Rule 14 of the Punjab Town Improvement (Utiliza-tion of Land and Allotment of Plots) Rules 1983, the Government had the power to re-lax and therefore, the order dated 6.12.2000, Annexure P.32, whereby the Governmenthad interpreted the provisions in favour of the petitioner would amount to relaxationbeing made by the Government. 7. On the other hand, learned counsel for the Improvement Trust submitted thatthere could not be any estoppel against the statute. Reliance was placed upon judg-ments in Kesar Singh and another v. State of Punjab through its Director, Rural Devel-opment and Panchayats, Punjab and another,5 2012(3) R.C.R. (Civil) 825 and Jaland-har Improvement Trust v. Sampuran Singh etc.,6 A.I.R. 1999 S.C. 1347. It was arguedthat the eligibility condition was required to be seen at the time of draw of lots and notat the time of submitting the application. 8. After hearing learned counsel for the parties, we find merit in the submissionsmade by learned counsel for the petitioner. 9. The scheme was introduced in the year 1989 and as required under the brochure,the petitioner fulfilled the condition as he was not allotted any plot in any Schemefloated by Government or Governmental Agency at concessional rate or was not own-ing any plot in any of the places specified therein. It would be relevant to see the eligi-bility of the applicant as per brochure on the date of application in the year 1989. How-ever, there would be an exception where during the period between date of applicationand the date of draw of lots, an applicant acquired plot on concessional terms fromGovernment or Governmental agency, his eligibility would cease to be effective. Thepurpose of incorporating such a condition in the brochure was to see that any bodywho had acquired property either through Government or Governmental Agency at con-cessional rate be made ineligible. Affidavit dated 29.8.1989, Annexure P.5 duly certi-fied in that behalf was filed alongwith the application. However, as the matter waspending before this court wherein the scheme was under challenge, the petitioner fromopen market purchased plot measuring 150 square yards in Kamla Nehru Nagar Devel-opment Scheme of Improvement Trust, Bathinda in the name of his wife in the year1993. Further, vide letter dated 17.3.1997, Annexure P.6, affidavit as required by theImprovement Trust was duly submitted as the Trust had sought an affidavit that therewas no allotment of any plot/house in Union Territory of Chandigarh or in any UrbanEstate or in any Scheme of Improvement Trust in Punjab or Panchkula in the State ofHaryana. The petitioner was fulfilling the conditions of eligibility and in such a situ-ation, the subsequent development of purchase of plot from open market would not ren-der him ineligible for the draw of lots held in 1996, especially where no allotment wasmade on concessional rate from any source between the date of application and the dateof draw of lots. The petitioner was, thus, entitled to retain Plot No.91 allotted to him.This Court in Notan Dass Manchanda and Punjab Urban Planning and DevelopmentAuthority's cases (supra) under similar circumstances where the petitioner had pur-chased the plot from open market and had not acquired any property at a concessionalrate through Government or Governmental agency held that the same would not renderhim ineligible for allotment of plot at a concessional rate. 10. Adverting to the judgments relied upon by learned counsel for the respondents,it may be noticed that those were the cases relating to promissory estoppel which is notthe case in hand. Further, Annexure R.2/1 in the case of Charanjeet on which reliancehas been placed by the respondents, was passed by Secretary to Government of Punjaband is not a binding precedent on this Court in view of legal position noticed herein

46 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1)before. Accordingly, we find that order dated 11.8.2003, Annexure P.2 cannot be le-gally sustained. It is accordingly quashed. The writ petition is allowed. 11. The summoned record be returned to learned counsel for respondent No.2against proper receipt.Sd/- Jaspal Singh, J.R.M.S. - Petition allowed. PUNJAB AND HARYANA HIGH COURT Before: Mr. Justice Nawab Singh. SEEMA DEVI and others - Appellants, Versus AMARJIT SINGH and others - Respondents. First Appeal from Order No.5783 of 2011.Motor Vehicles Act, 1988 (59 of 1988) Section 166 - Claimants widow andminor children - Widow aged 32 years and the deceased 39 years - Rs.1 lacawarded as loss of consortium - Rs.25,000/- each is awarded to the minordaughter and son of the deceased. Cases referred to:- 1. (2009-3)155 PLR 22 (SC) : 2009(6) S.C.C. 121, Smt. Sarla Verma v. Delhi Transport Corpo- ration. 2. 2013 A.C.J. 1403, Rajesh v. Rajbir Singh. 3. 2013 A.C.J. 1441 : (2013-3)171 PLR 776 (SC), Vimal Kanwar v. Kishore Dass. Mrs. Ekta Thakur, for the Appellants. Mr. Sandeep Suri, for Respondent Nos.2 and 3. JUDGMENT (ORAL) Nawab Singh, J. - (9th September, 2013) - Seema Devi, aged 32 years, widow,Reena daughter, aged 15 years, Babita daughter, aged 12 years and Archana, aged 8years (hereinafter referred to as `the claimants') filed claim application under Section166 of the Motor Vehicles Act before the Motor Accident Claims Tribunal (for short\"the Tribunal\"), Chandigarh seeking compensation on account of death of Inder Parsad,aged 39 years, in a road accident on April 27th, 2008. 2. It was pleaded that the deceased was working as Baildar in Municipal Corpora-tion, Mani Majra Sub Division No.8, Chandigarh drawing salary of Rs.5834/- permonth. 3. The Tribunal, vide Award dated June 6th, 2011, awarded compensation ofRs.7,20,200/- along with interest at the rate of 7.5% per annum from the date of filingof claim application till its realization.4. The amount of compensation was awarded under the following heads:-Sr. Head under which amount AmountNo. awarded Rs.7,00,200.001. Loss of dependency2. Transportation & Last Rites Expenses Rs. 10,000.003. Compensation on account of consortium Rs. 10,000.00 Total Rs.7,20,200.005. By filing present appeal, the claimants have challenged the impugned Award. 6. The date of birth of the deceased was May 15th, 1969 as per the Identity Card.He was drawing salary of Rs.5834/- as deposed by Ram Karan, Superintendent, PublicHealth, Municipal Corporation, Manji Majra, Chandigarh. He proved salary certificateof the deceased (Exhibit P-4). The Tribunal assessed the income of the deceased atRs.5834/- per month. Deduction of 1/3rd was made for his personal and living ex-penses and thereafter, multiplier of 15 was applied.

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 47 7. In considered opinion of this Court, an addition of 50% to the actual income ofthe deceased was to be given for future prospects in view of the judgment rendered inSmt. Sarla Verma and others v. Delhi Transport Corporation and another,1 (2009-3)155 PLR 22 (SC) : 2009(6) S.C.C. 121 and Rajesh and others v. Rajbir Singh andothers,2 (2013)171 PLR 776 (SC) : 2013 A.C.J. 1403. Adding the same, income of thedeceased comes to Rs.8751 (5834+2917). The family of the deceased consisted of fivemembers so, deduction of 1/4th is made therefrom and the monthly income is assessedat Rs.6564/- (8751-2187). Multiplier of 15 was correctly applied by the Tribunal. Thus,the loss of dependency is assessed at Rs.11,81,520/- (6564x12x15). 8. In view of the judgment of the Hon'ble Supreme Court in Rajesh's case (supra)and considering age of wife of the deceased (32 years) and that of the deceased (39years), a sum of Rs.1 lac is awarded to the widow of the deceased for loss of consor-tium, that is, Rs.90,000/- over and above the amount awarded by the Tribunal. 9. In view of Vimal Kanwar and others v. Kishore Dass and others,3 2013 A.C.J.1441 a sum of Rs.25,000/- each is awarded to the minor daughters and son of the de-ceased. 10. In view of above, Award of the Tribunal is modified to the extent that the ap-pellants-claimants are held entitled to total compensation of Rs.13,56,520/-. Interest onthe enhanced amount of Rs.6,36,320/- shall be paid from the date of filing claim appli-cation till the amount was deposited by the respondents under the impugned Award atthe same rate of interest as was awarded by the Tribunal.R.M.S. - Appeal allowed. PUNJAB AND HARYANA HIGH COURT Before: Mr. Justice Vijender Singh Malik. THE ORIENTAL INSURANCE COMPANY LIMITED - Appellant, Versus SMT. SANTOSH DEVI and others - Respondents. First Appeal from Order No.1743 of 2011 [O&M].Motor Vehicles Act, 1988 (59 of 1988) Section 149 - Finding of the Tribu-nal that the deceased was travelling on the mud guard of the tractor - In theunnumbered paragraph of the claim petition detailing the cause of accidentwith particular description, it has been clearly mentioned that the deceasedwas sitting with respondent No.2 on the said tractor - It would clearly provethat the deceased was travelling on the tractor and not on the trolley - Insur-ance company cannot be held responsible for indemnifying the insured in theamount of the award. Cases referred to:- 1. 2012 A.C.J. 640, United India Insurance Co. Ltd. v. Ramji Lal. Mr. D.P.Gupta, for the Appellant. Mr. Sandeep Lather, for Respondent Nos.1 to 4. Mr. Anil Khetarpal, for Respondent Nos.5 and 6. JUDGMENT Vijender Singh Malik, J. - (12th September, 2013) - This is an appeal brought byOriental Insurance Company Limited, the insurer against the award dated 14.1.2011passed by learned Motor Accidents Claims Tribunal, Yamuna Nagar at Jagadhri (forshort, \"the Tribunal\") vide which, awarding compensation in a sum of Rs.4,31,900/-,the responsibility to pay the compensation has been fixed on the appellant. 2. The offending vehicle, i.e., tractor bearing No.HR-02J-3734 was insured with theappellant at the relevant point. However, the liability is sought to be evaded for the rea-

48 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1)son that the deceased was unauthorized person travelling on the tractor and he was notcovered by the insurance policy. 3. Learned counsel for the appellant has contended that the deceased Balbir Singhwas travelling on the tractor, a vehicle which was not meant for carrying passengers.According to him, this vehicle was not insured for carrying passengers and, therefore,the deceased had not been covered by the insurance policy and, so, the insurance com-pany is not liable to pay compensation. He has cited before me a decision of a coordi-nate Bench of this court in United India Insurance Co. Ltd. v. Ramji Lal and others,12012 A.C.J. 640. The question there was regarding passenger risk and liability of theinsurance company. The passenger was travelling on mudguard of the tractor and hewas thrown off and killed in the accident. Insurance company sought to evade its liabil-ity on the ground that the tractor was not meant for carrying passengers and had noseating capacity except that of its driver and there was no insurance cover for a personsitting on mudguard of the tractor. It was held that the Tribunal was not justified in fas-tening liability on the insurance company. 4. Learned counsel for the respondents has submitted, on the other hand, that thedeceased was travelling on the mudguard of the trolley and not that of the tractor and,therefore, this fact makes all the difference, making the decision in Ramji Lal's case[supra] inapplicable to the facts of this case. 5. It is true that learned Tribunal has come to the conclusion that the deceased wastravelling on the mudguard of the trolley attached to the tractor. However, that findingis not sustainable because that finding is based on evidence which is contrary to thevery pleadings in the petition. It is unquestionable as a preposition of law that any evi-dence which is beyond the pleadings cannot be taken into consideration. In the unnum-bered paragraph of the claim petition detailing the cause of accident with particular de-scription, it has been clearly mentioned that the deceased was sitting with respondentNo.2 on the said tractor. It would clearly prove that the deceased was travelling on thetractor and not on the trolley. 6. In these circumstances, learned Tribunal was not justified in reaching the conclu-sion that the deceased was travelling on the trolley instead of the tractor. So, as the de-ceased was travelling on the tractor itself, the insurance company cannot be held re-sponsible for indemnifying the insured in the amount of the award. The appeal is,therefore, allowed exonerating the appellant of its liability in this case.R.M.S. - Appeal allowed. PUNJAB AND HARYANA HIGH COURT Before: Mr. Justice Vijender Singh Malik. UNITED INDIA INSURANCE COMPANY LTD. - Appellant, Versus GURMIT KAUR and others - Respondents. First Appeal from Order No.4078 of 2009.Motor Vehicles Act, 1988 (59 of 1988) Section 149 - Insurance - Liability -Covernote issued - Mentioned effective date and time of commencement ofinsurance for the purpose of the Act - Accident occurred earlier to that andat that time the vehicle in question was not insured - Insurance company notliable. Cases referred to:- 1. 2002 A.C.J. 613 (S.C.), J. Kalaivani v. K. Sivashankar. 2. 1998 A.C.J. 121, Oriental Insurance Co. Ltd. v. Sunita Rathi. 3. 2001 A.C.J. 2022 (Mad.), Oriental Insurance Company Ltd. v. Vedathal. 4. 2008 A.C.J. 1452 (Jharkhand), National Insurance Co. Ltd. v. Ram Chandra Gope. Mr. D.P. Gupta, for the Appellant.

VOL.CLXXIII-(2014-1) THE PUNJAB LAW REPORTER 49 None, for Respondent Nos.1 & 2. Mr. S.S.Brar, for Respondent Nos.3 and 4. JUDGMENT Vijender Singh Malik, J. - (20th September, 2013) - This is an appeal brought byUnited India Insurance Company Ltd., the insurer against the award dated 28.05.2009passed by learned Motor Accidents Claims Tribunal, Amritsar (for short `the Tribunal')vide which the appellant has been held liable to pay compensation. 2. The facts required to be noticed in this appeal are that the accident took place at11.15 PM on 19.12.2006 while the insurance cover note which was issued at 5.00 PMon 19.12.2006 had 10.00 AM on 20.12.2006 as the effective date and time of com-mencement of insurance for the purpose of the Act. 3. Learned Tribunal took the vehicle to be insured the moment the cover note wasissued i.e. at 5.00 PM on 19.12.2006 and as the accident took place at 11.15 PM on19.12.2006 it has been held that the vehicle was insured at the time of the accident andthe liability of the insurance company would be there to satisfy the award. 4. Learned counsel for the appellant has contended that the insurance cover notewould be there for the vehicle with effect from 10.00 AM on 20.12.2006 and as the ac-cident occurred earlier to that, though after issuance of the cover note, the vehicle wasnot covered by the insurance agreement. According to him, learned Tribunal has beenwrong in holding that the vehicle was covered by the insurance policy. He has cited be-fore me a decision of Hon'ble Supreme Court of India in J. Kalaivani and others v. K.Sivashankar and another,1 2002 A.C.J. 613. It was a case of gap in the period of cov-erage. The earlier policy expired by midnight of 07.02.1996 and the owner obtained an-other policy, which was made specifically operative from 10.00 AM on 08.02.1996.The accident occurred at 4.30 AM on 08.02.1996. Finding that there was no policyfrom twelve in midnight till 10.00 AM, the insurance company is held not liable. Hehas cited before me another decision on the point reported as Oriental Insurance Co.Ltd. v. Sunita Rathi and others,2 1998 A.C.J. 121 where the cover note was having anexpress mention of effective date and time of commencement of insurance as 2.55 PMand the accident occurred at 2.20 PM, it has been held that the insurance company isnot liable. 5. Learned counsel for respondents No.3 and 4 has submitted, on the other hand,that learned Tribunal has been right in holding that the insurance had covered the vehi-cle at the time of the accident. He has supported himself by two decisions in this re-gard. The first is a decision of High Court of Judicature at Madras in Oriental Insur-ance Company Ltd. v. Vedathal and another,3 2001 A.C.J. 2022 .In the reported case,the policy was obtained at 10.30 AM, on the date of the accident i.e. 20.05.1991 andthe accident occurred at 2.00 PM, the date of commencement mentioned in the policyhad been there from midnight on 21.05.1991. It was held that when the premium waspaid and accepted by the insurance company on 20.05.1991, the effective date of com-mencement of the policy would be 20.05.1991. Similarly is the ratio of another deci-sion of High Court of Jharkhand at Ranchi in National Insurance Co. Ltd. v. RamChandra Gope and others,4 2008 A.C.J. 1452. 6. No decision of Hon'ble Supreme Court of India laying down a preposition of lawcontrary to that of J. Kalaivani's and Sunita Rathi's cases(supra) has been brought tomy notice. In the face of the decisions of Hon'ble Supreme Court of India, the ratio ofthe decision in Vedathal's and Ram Chandra Gope's cases (supra) cannot be followed. 7. The cover note Ex.R-4 clearly mentions the effective date and time of com-mencement of the insurance as 20.12.2006 at 10.00 AM. The accident occurred earlierto that and at that time the vehicle in question was not insured.

50 THE PUNJAB LAW REPORTER VOL.CLXXIII-(2014-1) 8. In these circumstances, I find that the vehicle was not insured at the time of theaccident and liability of insurance company is not there to indemnify the owner of theoffending vehicle. Consequently, the appeal is allowed and the appellant is exoneratedfrom its liability to satisfy the award. The liability to pay compensation shall be of re-spondents No.1 and 2 only.R.M.S. - Appeal allowed. PUNJAB AND HARYANA HIGH COURT Before: Mr. Justice Ajay Kumar Mittal and Mr. Justice Jaspal Singh. GURUDWARA HAR DARSHAN SAHIB - Petitioner, Versus STATE OF PUNJAB and others - Respondents. Civil Writ Petition No.18579 of 2009.GMADA - Invited applications for religious sites for setting up of temple,gurdwara, masjid etc. on lease hold basis - Respondent who was found to besuitable for allotment was not eligible as its application form itself was notcomplete - Had not appended the bank balance statement with the applica-tion form - Production at the time of interview would not make him eligible -Had stated that it was caste based society whereas in the eligibility condi-tions, it was specified that the allotment of the land shall not be made tocastes and baradari based organisations - A allotment of land in violation ofthe eligibility conditions. [Para 10] Mr. Ranjivan Singh, for the Petitioner. Mr. N.K. Verma, Sr. D.A.G., Punjab, for the Respondent-State. Mr. R.S. Khosla, for Respondent Nos.2 and 3. Mr. Sunil Garg, for Respondent No.4. JUDGMENTAjay Kumar Mittal, J. - (18th September, 2013) - 1. Prayer in this petition filed under Articles 226/227 of the Constitution of India isfor quashing the letter of intent dated 23.10.2009, Annexure P.5 issued in favour of re-spondent No.4-Chief Khalsa Diwan, G.T. Road, Near Rigo Bridge, Amritsar, allotting ita religious site measuring 1000 square yards in Sector 48-C, Mohali, being in violationof the terms and conditions of the brochure, Annexure P.2. 2. A few facts relevant for the decision of the controversy, as narrated in the peti-tion, may be noticed. The petitioner is a religious/social body duly registered under theSocieties Registration Act, 1860. Shri Kulbir Inder Singh Mann is its President. It isperforming various religious and social activities for the general welfare, harmony andbrotherhood of the residents of Mohali. In September 2007, respondent No.2-GreaterMohali Area Development Authority (GMADA) issued an advertisement inviting appli-cations for religious sites for setting up of temple, Gurdwara, Masjid etc. on leaseholdbasis in Urban Estate, SAS Nagar. The scheme opened on 14.9.2007 and was to beclosed on 15.10.2007. As per the conditions of the advertisement, Annexure P.3, the al-lotment of sites was to be determined on the basis of the population of the concernedreligious community in the area. It was further provided that allotment of the land toreligious bodies was to be made if there was a demand by the local residents and therewas no religious place of the concerned religion in that area. The petitioner applied forallotment of a two kanal site for Gurudwara earmarked for Sector 48-C, Mohali videapplication form dated 13.10.2007 alongwith all the necessary documents as required.Besides the petitioner, two other institutions namely Chief Khalsa Diwan, Amritsar, re-spondent No.4 and one Chadha Motor Transport Charitable Trust Society, Amritsaralso applied for allotment of Gurudwara site earmarked in Sector 48-C, Mohali. Vide