Crl.A.@S.L.P.(Crl.) No.3928 of 2020
The Code Of Criminal Procedure, 1973 The Indian Penal Code Section 372 in The Code Of Criminal Procedure, 1973 Section 377 in The Code Of Criminal Procedure, 1973 Section 372 in The Indian Penal Code Section 364A in The Indian Penal Code Section 201 in The Indian Penal Code Section 302 in The Indian Penal Code Section 302 in The Code Of Criminal Procedure, 1973 Section 201 in The Code Of Criminal Procedure, 1973
The Appellant herein was the complainant in FIR No.742 of 2007 registered 15.10.2007 for the offence under section 364A read with section 34, IPC and the Second Respondent 1Crl.@S.L.P.(Crl.) No.3928 of 2020 herein was the accused. After investigation of the crime charge sheet dated 11.01.2008 was filed against the second Respondent accused under section 364A/301/201 of IPC. On committal, the case was referred to the Court of Special Judge (NDPS) North District, Rohini Courts, Delhi and the Second Respondent was tried in sessions case No. 58259 of 2016. By judgement dated 30th July 2019 in the above said Session Case No. 742 of 2007, the second Respondent was convicted for an offence punishable under section 364A, 302 and 201 IPC. By subsequent order dated 17th August 2019 he was sentenced for an offence under Sections 302,364A and 201 IPC as under:
Given the above observations, this Court directs that:
The complainant who is the father of the deceased boy who was kidnapped and later brutally murdered has filed an appeal challenging the order of sentence dated 17th August 2019 passed by ASJ/ Special Judge (NDPS), North District, Rohini Courts Delhi in sessions case No. 58259 of 2016 seeking enhancement of sentence to the death penalty. In the appeal filed before the High Court under section 372 CrPC. It was his case that the sentence of life imprisonment imposed on the second respondent convict is inadequate and needs to be enhanced to the death penalty. Vide impugned judgement dated 27th November 2019 the High Court of Delhi dismissed the appeal as not maintainable. The Appellant further filed an appeal in Supreme court. The Supreme Court did not find any merit on the same, and hence the appeal was dismissed.
Whether section 372 CrPC can resort for enhancement of sentence in case of inadequacy by the Appellant?
The counsel for the Appellant contended that the sessions judge had awarded life imprisonment instead of the death penalty for the commission of kidnapping and murder of a child. The Appellant counsel relies on section 372 of CrPC, which gives the right to prefer an appeal to the victim when the accused is convicted for a lesser offence. The counsel submitted that it is a fit case for enhancement of sentence from life imprisonment to death penalty for the second Respondent since the High Court did not consider the provision under section 372 CrPC properly and dismissed the appeal.
On the other hand, it is submitted by learned counsel for the State of NCT of Delhi that a reading of provision under Section 372 and Section 377 of CrPC makes it clear that the appeal by the victim is a non-qualified one. Because it is maintainable only on three grounds namely acquittal of the accused or convicted for a lesser offence or for imposing inadequate compensation, whereas under Section 377 Crpc State Government is empowered to prefer an appeal to the High Court in the event of the inadequate sentence by the Sessions Court. Learned counsel states that the appeal for enhancement of sentence by the victim cannot be maintained under Section 372 of Cr. PC.
The Court observed that According to Section 372, CrPC.No appeal should lie from any judgement or order of a Criminal Court except as provided by this Code or by any other law for the time being in force. Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicted for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. While the victim can appeal for imposing inadequate compensation, there is no provision for appealing in case of the inadequate sentence. It is fairly settled that the remedy appeal is a creature of Statute. Unless the same is provided either under CrPC or by any other law for the time being in force no appeal seeking enhancement of sentence at the instance of the victim is maintainable.
A reading of the proviso makes it clear that so far as victim’s right of appeal is concerned, same is restricted to three eventualities, namely, the acquittal of the accused; conviction of the accused of the lesser offence; or for imposing inadequate compensation. While the victim is allowed to prefer an appeal in the event of imposing inadequate compensation, but at the same time, there is no provision for appeal by the victim for questioning the order of sentence as inadequate. In contrast, Section 377, CrPC gives the power to the State Government to prefer appeal for enhancement of sentence. It is settled law that an appeal is a creature of a statute and cannot lie under any inherent power. The language of Section 372 Cr.P.C. is explicit, and it states in categorical terms that no appeal shall lie until and unless specifically provided for under section 372.
The appeal of the victim stands non-maintainable and dismissed because inadequacy of sentence is not a ground for appeal under section 372. The state government has the power to appeal before the High Court against the order of the sessions court if it deems fit. However, it is necessary to have provision for the Appellant to file an appeal in case of inadequacy of the sentence.
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