Criminal Procedure Code

Bhavuben Dineshbhai Makwana v. State of Gujarat

decided 23 October 2012

Facts

Several accused were acquitted of offences including:
unlawful assembly;
hurt;
attempt to murder;
and murder.
Bhavuben, the widow of the deceased, filed an appeal under the proviso to Section 372 CrPC.
The State of Gujarat separately filed an appeal against the same acquittal and sought leave.
Conflicting Gujarat High Court decisions had created uncertainty:
one view said a victim’s appeal became unnecessary or non-maintainable once the State appealed;
another suggested that admission of the victim’s appeal made the State’s appeal unnecessary.
A Larger Bench was asked to decide:
whether State and victim appeals could coexist;
whether one depended upon the other;
and whether a victim required leave to appeal against acquittal.

The proviso to Section 372 created a substantive right in favour of a victim.
The victim may appeal against:
acquittal;
conviction for a lesser offence;
or inadequate compensation.
The State’s appellate rights are different:
it may appeal against acquittal;
and inadequacy of sentence;
but not specifically against inadequate compensation under the victim proviso.
Therefore, the State’s and victim’s rights are not identical or mutually dependent.
Both may file appeals and the court should ordinarily hear them together to avoid inconsistent decisions.
The Larger Bench held at that time that a victim who was not also the complainant did not require leave because no such condition appeared in the proviso.
It suggested ninety days as a reasonable limitation period.
Later development: Satya Pal Singh held that a victim appealing an acquittal to the High Court must obtain leave under Section 378(3). The Larger Bench’s contrary no-leave conclusion is therefore no longer binding. ( )

Bhavuben’s loss as the deceased’s widow was personal and legally distinct from the State’s general prosecutorial interest.
The State might focus upon:
public justice;
evidentiary errors;
and proper enforcement of criminal law.
The widow might additionally focus upon:
her direct loss;
a lesser conviction;
or inadequate compensation.
Making her appeal dependent upon whether the State acted would defeat the purpose of recognising victims as independent participants.
Conversely, the State’s statutory responsibility could not disappear merely because the widow filed first.
The Court therefore rejected both extreme positions:
the victim’s appeal is not barred by the State’s appeal;
and the State’s appeal is not barred by the victim’s appeal.
The proper solution is analogous or joint hearing.
On limitation, unlimited delay would create uncertainty for an acquitted person. In the absence of an express period, the Court adopted ninety days as reasonable by analogy.
On leave, the Larger Bench relied on statutory silence. That part must now be read subject to the contrary Supreme Court ruling.

The Larger Bench held that:
the victim’s right of appeal is separate and independent;
State and victim appeals against the same decision are both maintainable;
they should preferably be heard together;
and filing by one does not extinguish the right of the other.
It then held that a non-complainant victim need not obtain leave and should appeal within a reasonable period of approximately ninety days.
Today, its independent-right and simultaneous-appeal principles remain valuable, but its no-leave conclusion has been superseded by Satya Pal Singh.