Enhancement Seek By The Victim For The Accused Sentence

A victim can seek enhancement of her/ his offender’s jail time (sentence) only through a revision application and not by filing an appeal against the trial court’s judgment, the Bombay High Court has held.

The division bench of Justices Sadhana S. Jadhav and Milind N. Jadhav noted that the victim could prefer an appeal because of the proviso under section 372 of the CrPC, only under three circumstances.

Against the acquittal of an accused.
The conviction of the accused is for a lesser offense.
Inadequate compensation is awarded to the victim.

And while the victim’s appeal against the sentence may not be maintainable under section 372 of the CrPC, a revision application under section 401 of the CrPC for the same relief would survive.

The court said that such an application is also recognized under Rule 2(II)(a) of the Bombay High Court Appellate Side Rules 1960.

The revision would go before a division bench. “It is seen that undoubtedly a revision application for enhancement of sentence at the instance of the victim/complainant would be maintainable.

However because the specific observations of the Supreme Court in Parvinder Kansal (supra) and Mallikarjun Kodagali (supra) stated that the right to appeal against the sentence will not be available for the appellant (victim) because of the specific provisions of the statute,” the court held.

Case of the victim

The dismissing of the criminal appeal filed by the bench ruled by a woman who is working for a multinational company sedated under section 328 of IPC, conned under section 417 of IPC, and threatened under section 506 of IPC by a prospective groom from Uttar Pradesh, after the woman’s father placed a matrimonial advertisement in the ‘Times of India,’ in 2010.

The appeal was filed in 2015 by the woman under section 372 of the CrPC to seek an enhancement of the punished award to the man from seven years to a maximum of ten years.

Despite two notices, the woman was untraceable, after which, the court-appointed advocate Mihir Joshi espoused her cause.

The accused was released after the completion of his entire punishment in 2016. Therefore, his appeal against conviction was infructuous.

Advocate Mihir Joshi for the woman cited the judgment of Mallikarjun Kodagali v. the State of Karnataka reported in (2019) 2 SCC 752, wherein it was observed that the proviso to section 372, under which a victim seeks to remedy, is social welfare legislation to empower a victim and challenge an unfavorable order passed by the trial court.

Therefore, the section should be given a meaning that is realistic, liberal, progressive, and beneficial to the victim of an offense, he argued.

The notes were pointed out from the Code of Criminal Procedure (Amendment) Bill, 2006 in which the proviso of Section 372 was introduced.

The notes, talk about a victim’s right to appeal against “any adverse order” of the trial court.

The additional public prosecutor, public prosecutor Shinde for the State here argued that the appeal of the victim was not maintainable.

This is because the Malimath Committee though submitted the report which is recommending certain rights for the victim in 2003, and the parliament didn’t specify the right of victims which he had in its wisdom to appeal for enhancement of sentence.

Observations for enhancement

The bench relied on the judgment of Parvinder Kansal Vs. The State of NCT of Delhi & Anr, wherein the Supreme Court held that the father’s appeal, to enhance the convict’s sentence from life imprisonment to death for murdering his child, was not maintainable.

The court noted that only the state government can file an appeal against a sentence under 377 of the CrPC.

The court observed that it was bound by the SC’s decision but a perusal of the report presented to the Parliament of India / Rajya Sabha Secretariat and the Lok Sabha Secretariat in 2007 never mentioned that the victim shall have the right to prefer an appeal against any adverse order passed by the court.

Finally, the bench held that a victim’s revision application against the sentence would be maintainable.