The Victim in Indian Criminal Procedure

Appeal. The proviso to section 413 gives the victim a right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and the appeal lies to the court to which an appeal ordinarily lies against an order of conviction of that court.

The right of appeal, worked

This is the provision most often examined, and it has a history.

The right was created by inserting a proviso to section 372 of the Code of Criminal Procedure 1973 in 2008. Before that a victim could not appeal against an acquittal at all; only the State could, and if the State chose not to, the matter ended. The Sanhita carries the same proviso into section 413.

Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka, AIR 2018 SC 5206, (2019) 2 SCC 752, decided on 12 October 2018.

Facts. The victim of an offence sought to appeal against an acquittal under the proviso. The question was whether that right stands on its own or whether the victim must also obtain leave to appeal, as a complainant must under the provision governing appeals against acquittal.

Held. The victim's right of appeal under the proviso is not taken away, but the provisions must be read together, so a victim appealing against an acquittal in the High Court is also required to apply for leave. The Court set the victim's interest against the accused's, observing that a victim may seek revenge and that our system does not permit a victim to conduct the prosecution, and concluded that the right of appeal vested in the victim cannot be larger than the right of the State.

Why it matters here. It is the clearest statement of the compromise Indian law has struck. The victim has been given a real remedy where none existed. She has not been made a prosecutor, and the safeguards that protect an acquitted accused apply to her appeal as they do to the State's.

What the victim still cannot do

Choose or instruct the prosecutor. The Public Prosecutor conducts the case, and the victim's advocate assists with the court's permission.

Decide the charge. Framing is a matter for the court on the material placed by the prosecution.

Stop the case. Unless the offence is compoundable, the victim's wishes are legally irrelevant.

Compel an investigation of her choice. She may seek directions from a Magistrate, but the manner of investigation is for the police.

A worked example

Nanda Pawar's husband dies in an assault. The accused is acquitted by the Sessions Court, which finds the eyewitness unreliable. The State does not appeal.

Is she a victim? Yes. She is the legal heir of the person who suffered the injury, and the definition expressly includes a legal heir.

Can she appeal? Yes, under the proviso to section 413 of the Sanhita, and the appeal lies to the High Court, because that is the court to which an appeal against a conviction by a Sessions Court ordinarily lies.

Does she need leave? On the reasoning in the Kodagali case, yes: an appeal against acquittal to the High Court requires leave, and the victim's right cannot exceed the State's.

What if the acquittal had instead been a conviction for a lesser offence? The proviso covers that expressly, and it also covers an order imposing inadequate compensation, so all three of the grievances a victim typically has are within it.

And what could she not have done? She could not have prevented the Public Prosecutor from conducting the case as he thought fit, and she could not have compounded the offence, homicide being non-compoundable. Her remedy is at the end, not during.

What beginners get wrong

The victim is not a party. She has rights within a case conducted by the State.

The right of appeal is not new law waiting to be enacted. It has existed since 2008 and it is now in the Sanhita.

"Victim" is wider than "complainant" or "informant". A person may be a victim without having reported anything, and the informant may not be the victim at all.

Quick revision

• Section 2(1)(y) of the Sanhita: a victim is a person who has suffered any loss or injury caused by reason of the act or omission of the accused, and includes the guardian or legal heir.
• Rights: recording of information and a free copy; being informed of the progress of the investigation within ninety days; notice where the police report finds no case; an opportunity of being heard before withdrawal from prosecution; engaging an advocate to assist the prosecution with the court's permission; free first aid and treatment at any hospital.
• Right of appeal: proviso to section 413 of the Sanhita, formerly the proviso to section 372 of the Code of Criminal Procedure, inserted in 2008, against acquittal, conviction for a lesser offence, or inadequate compensation.
• The Kodagali case: the right is real but the victim must obtain leave where the State would have to, because the victim's right cannot be larger than the State's.
• The victim still cannot choose the prosecutor, decide the charge, stop a non-compoundable case, or direct the investigation.

Test yourself

1. Give the statutory definition of victim and state two consequences of its wording. A person who has suffered any loss or injury caused by reason of the act or omission of the accused person, including the guardian or legal heir of such victim. It follows that the family of a deceased person are victims in their own right and can exercise the right of appeal, and that a person may be a victim without having made any complaint, since the definition turns on loss and not on reporting.

2. State the victim's right of appeal and the limitation the Supreme Court placed on it. Under the proviso to section 413 of the Bharatiya Nagarik Suraksha Sanhita the victim may appeal against an acquittal, a conviction for a lesser offence, or an order imposing inadequate compensation, to the court to which an appeal ordinarily lies against a conviction by that court. In Mallikarjun Kodagali the Supreme Court held that where the appeal is against an acquittal in the High Court the victim must also seek leave, since the victim's right cannot be larger than the State's.

3. Name three things the victim still cannot do. Choose or instruct the prosecuting counsel, since the Public Prosecutor conducts the case and a victim's advocate merely assists with the court's permission; compound or otherwise terminate a non-compoundable offence; and direct the course of the police investigation.