-By Atreya Chakraborty and Aurin Chakraborty
Introduction
The Latin maxim of Ubi Jus Ibi Remedium embodies a settled principle of common law which essentially means that ‘where there is a right, there is a remedy’. It envisages the establishment of an equitable legal mechanism wherein, every grievance must have a remedy in law.
A wider interpretation of the said maxim would mean that it must be the aim of every Court to preserve and protect the rights of the parties and enforce them, rather than denying the applicable relief thereby rendering such rights otiose. Therefore, arguably, a true application of the afore-mentioned Latin maxim primarily involves two aspects, namely – a) Statutory prescription of rights by the legislature and b) the enforcement of the same by the Courts of law.
Ordinarily, in a criminal proceeding, there are primarily two entities – the victim and the accused; the balance of whose rights and obligations should be the focal point of any criminal adjudication. The rights of the accused having found unambiguous protection under Part III of the Constitution of India, there has been a definite and consistent recognition of such rights in the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”). As a result, it has been possible for the Courts to ascertain, enforce and vindicate the rights of the accused in criminal proceedings. In contrast thereto, the statutory recognition of victim’s rights was, for long, the vanishing point of criminal law in India. Such fact cannot be disputed in light of the Apex Court’s lamentation that “….It is a weakness of our jurisprudence that the victims of the crime, do not attract the attention of the law….This is a deficiency in the system which must be rectified by the legislature…..”
Nearly sixty – one years after independence, the Legislature finally recognised the right of a victim to prefer an appeal against any order of acquittal, conviction of lesser offence or imposition of inadequate compensation. Subsequent to the introduction of the proviso to Section 372 of the Code vide the Code of Criminal Procedure (Amendment) Act, 2008, there has occasioned a subtle yet complex question as to how the newly introduced right of appeal conferred on the victim should be interpreted in consideration of the pre-existing right of appeal vested in a complainant under Section 378(4) and (5) of the Code.
For the purpose of analysing such question, it shall be prudent to restrict the ensuing discussion to the following circumstances:
1) When the ‘victim’ and the ‘complainant’ are the same person.
The term ‘victim’ stands defined under Section 2(wa) of the Code. Although there is no definition of the term ‘complainant’, one could reasonably infer from Section 2(d) of the Code that a complainant is someone who orally or in writing makes an allegation to a magistrate that some person whether known or unknown has committed an offence. It is beyond argument that the right of a complainant to file an appeal against an order of acquittal, albeit restricted to a private complaint case, was recognised even prior to the amendment.
In a situation where, in a magistrate triable case initiated under a private complaint, the ‘victim’ and ‘complainant’ are the same person, it would prima facie appear that the said victim/complainant shall be vested with twin remedy of filing an appeal against acquittal under the proviso to Section 372 and Section 378(4) of the Code respectively. The High Court at Calcutta in the matter of Mrinal Kanti Sil v. Sampa Kabiraj, held that in such a case, the complainant’s pre-existing right under Section 378 would not render the right of the victim/complainant under the proviso of Section 372 of the Code, infructuous. The Court further stated that the right of a victim to prefer an appeal under the proviso of Section 372 cannot be deemed to be restricted to police cases only in view of the pre-existing right of appeal vested in a complainant under Section 378(4) in a private complaint case. If such interpretative restriction was to be adopted, it would lead to an unreasonable classification within a homogeneous class, namely ‘victim’ with reference to the nature of the proceeding. Thus, in view of such ruling, it would not be unreasonable to state that a person aggrieved either in a police case or a private complaint case should fall within the sweep of the definition of ‘victim’ under Section 2(wa) of the Code. The Court concluded that where the complainant is also the victim, such person shall be given the liberty to elect the remedy of his choice i.e. either prefer an appeal in terms of the proviso to Section 372 or seek appropriate remedy in terms of Section 378(4).
However, a full bench of the High Court at Madras in the case of K. Rajalingam v. R. Suganthalakshmi, had opined that with respect to the right of appeal available under Section 372 and 378 (4) and (5), if the victim and complainant are the same person, the appeal shall only lie under Section 378(4) of the Code in case of a proceeding instituted under a private complaint. As a result, a previous judgement of the Court in S. Ganapathy v. N. Senthilvel, upon which the High Court of Calcutta had placed reliance, in the matter of Mrinal Kanti Sil (supra), stood overruled. The Apex Court in Mallikarjun Kodagalli v. State of Karnataka had held that in a private complaint case, it is not necessary to consider the effect of a victim being a complainant as far as proviso to Section 372 is concerned and that the victim and complainant were provided distinct paths of remedy under the Code. Following such dictum, the High Court at Madras in K. Rajalingam (supra) concluded that theright of a victim to avail the remedy under the proviso of Section 372 is limited to cases initiated under a police complaint. The Court restricting itself to the example of a prosecution initiated under Section 138 of the Negotiable Instruments Act, 1881, i.e. a case instituted upon a private complaint, concluded that the complainant and victim are invariably likely to be the same person and resultantly held that such a person can only have recourse to Section 378(4) of the Code. Such ruling is at variance with the suggestion of the Calcutta High Court that if the victim and complainant are one and the same person then such person shall have the freedom to elect the remedy of choice.
In view of the definition of ‘complaint’ as provided under Section 2(d), it would not be unrealistic to state that the right of a complainant to seek special leave for filing an appeal against acquittal in the High Court under Section 378(4) is limited to private complaint cases only. However, the definition of ‘victim’ in the Code, is not prima facie limited to proceedings initiated only under police complaints. Thus, it is argued that classifying the homogenous class of ‘victim’ based on the nature of proceedings would be an artificial classification, with no prima facie link to the objective of the Code. Moreover, the Madras High Court, in paragraph 38 of its judgement, had stated that the terms ‘complainant’ and ‘victim’ may be interchanged while using it as a term per se but such interchange cannot be allowed as far as the right of filing an appeal against acquittal arising out of a private complaint case is concerned. The Court further held that the right of appeal cannot be conferred upon the complainant under proviso to Section 372 by reading the term ‘victim’ into the term ‘complainant’. Here, the authors argue that the interchange of the terms ‘victim’ and ‘complainant’ can, by necessary implication, be allowed only in cases where the victim and complainant refer to the same person. In these specific cases, while it is immaterial as to the manner in which the aggrieved person is referred to, i.e. whether as the ‘victim’ or ‘complainant’, it would result in an anomaly if the said person is allowed to take recourse to both remedies either concurrently or one after the other. In other words, since the same person dons both hats, he should be given the choice to take recourse to either of the two remedies available. Such an argument would be in consonance with the decision of the Calcutta High Court in Mrinal Kanti Sil (supra).
2) When the ‘victim’ and the ‘complainant’ are not the same person.
The course of action to be undertaken wherein the ‘victim’ and the ‘complainant’ are not the same person, is rather dichotomous and unclear. While there lies no explicit bar in the Code, there arises a pertinent question as to whether concurrent appeals under Section 372 and 378(4), can be filed by the ‘victim’ and the ‘complainant’ separately. It has been settled by the Apex Court that the proviso to Section 372 of the Code, is a tool for the ‘victim’ to be part of the proceedings and not merely be a silent spectator. Thus, the proviso under Section 372 provides an additional right to the ‘victim’ and prima facie would not be barred by the doctrine of Res Judicata for instituting a concurrent proceeding along with section 378(4), by the complainant. However, the Courts have not been able to settle this confusion. A full bench of theMadras High Court in K. Rajalingam (supra) has recognised the issue and in the Court’s attempt to partially address it, laid down that an appeal shall only lie under Section 378(4). At this juncture, it would be prudent to refer to the decision of the High Court at Calcutta in Mrinal Kanti Sil (supra), wherein the Court had laid down that in situations where the ‘victim’ and the ‘complainant’ are not the same, the High Court shall exercise its powers under Section 407 of the Code to transfer the other appellate preceding, i.e. the proceeding under Section 372 to itself and hear both appeals analogously and thus, not disturbing even a strict interpretation of the doctrine of Res Judicata.
Conclusion
To conclude, it shall be appropriate to reiterate that as per the law laid down by the Supreme Court and thereafter followed by the High Court at Madras, if the victim and complainant are the same person in a private complaint case, the appropriate remedy would lie in Section 378(4) of the Code. However, at the same time, there appears to be a lack of strong prima facie statutory evidence to suggest that the definition of ‘victim’ as provided in the Code would be applicable only to police cases and as such, no classification of the ‘victim’ class is, on the face of it, detectable from the statutory language. As such, the authors argue that the verdict of the Calcutta High Court in Mrinal Kanti Sil (supra) favouring the doctrine of electing the appropriate remedy might warrant a closer introspection.
Furthermore, apart from the ruling of the Calcutta High Court in Mrinal Kanti Sil (supra) that recourse could be taken to Section 407 of the Code for hearing matters analogously if the victim and complainant in a private complaint case, apply for concurrent remedies; there is a dearth of clarity as to what should be the course of action in case the victim and complainant are in fact, different people. As such it would be necessary to observe if the appropriate course of action to be undertaken, stands clarified by the Calcutta High Court in the reference matter arising out of the order of the Hon’ble Single Judge in Mrinal Kanti Sil (supra).
[Atreya Chakraborty is a fourth year Student at Department of Law, University of Calcutta and Aurin Chakraborty is a second year student at Symbiosis Law School, NOIDA.]