Final Order 8

Order Details: COPY OF JUDGMENT
Pdf Text: DLSH010061882024
CA / 224/2024
HARIOM BHARDWAJ VS. YOGENDER
NATH SHARMA & ORS.
Page 1 of 15
IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA,
KARKARDOOMA COURTS, DELHI
Criminal Appeal No. 224/2024
In the matter of :-
Haridutt Sharma
S/o. Late Sh. Lal Singh
R/o. C-1/716, Gali No.25,
Harsh Vihar,
Delhi-110093 .…. Appellant / complainant
(Chaudhary Rajender Singh and
Sh. Sandeep Kumar, Advocates)
Versus
1. Yogender Nath Sharma
S/o Sh. Ramnath Sharma
2. Pradeep Kumar
S/o Sh. Mitthan Lal
3. Sachin Sharma
S/o Yogender Nath Sharma
4. Atul Sharma
S/o Sh. Yogender Nath Sharma
Appellant nos.1 –43, are residents of
1/1754, Gali No.07A,
Balbir Nagar Extension,
Shahdara, Delhi-110032 …..Respondents / accused
(Sh. Narveer Dabas, Advocate)
The State of (NCT) Delhi
………...Respondent
(Sh. Jitendra Sharma, Addl. PP for the State)
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HARIOM BHARDWAJ VS. YOGENDER
NATH SHARMA & ORS.
Page 2 of 15
CRIMINAL APPEAL UNDER SECTION 378 CR.P.C
Date of institution : 03.10.2024
Date when judgment reserved : 12.12.2024
Date of Judgment : 18.12.2024
J U D G M E N T : -
1. This appeal has been filed by complainant Hariom Bhardwaj,
aggrieved of the order on sentence dated 29.08.2024, passed
after the respondents / convicts, vide judgment dated 26.06.2024
were convicted for the offences u/s.323/452/34 IPC. The
respondents / convicts were sentenced as under :
Yogender Nath
Sharma @ Collector
Section 323 3 Months SI
Section 452 3 Months SI and Rs. 2,500/-
fine and in default 1 week SI
Pradeep Sharma Section 323 3 Months SI
Section 452 3 Months SI and Rs. 2,500/-
fine and in default 1 week SI
Sachin Sharma Section 323 3 Months SI
Section 452 3 Months SI and Rs. 2,500/-
fine and in default 1 week SI
Atul Sharma Section 323 3 Months SI
Section 452 3 Months SI and Rs. 2,500/-
fine and in default 1 week SI
2. However, all the four respondents / convicts were granted
benefit of probation for a period of one year u/s.4 of the
Probation of Offenders Act and they were further directed to pay
compensation of Rs.80,000/- (Rs.20,000/- each) to the
complainant / victim and Rs.8,000/- (Rs.2,000/- each) as cost to
prosecution.
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HARIOM BHARDWAJ VS. YOGENDER
NATH SHARMA & ORS.
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3. The maintainability of the present appeal has been challenged by
the respondents / convicts on the ground that the present appeal
does not lie u/s.372 Cr. P.C. In order dated 05.12.2024, it was
specifically mentioned that the appeal has been challenged on
the ground of its maintainability by the Ld. Counsel for
respondents / convicts, who also relied upon judgment titled
Parvender Kansal Vs. State of NCT of Delhi,
MANU/SC/0650/2020 in this regard. The said order-sheet is
reproduced as under :
“05.12.2024
Present: Chaudhary Rajender Singh and Sh. Sandeep
Kumar, Ld. Counsels for the appellant /
complainant.
Respondents / accused with Ld.Counsel Sh.
Naveer Dabas.
Ld. Counsel for the respondents has submitted
that the present appeal is not maintainable, being in the teeth
of the proviso of Section 372 Cr.P.C., which is the same as
proviso of Section 413 of BNSS. He has relied upon a
judgment in this regard, titled as Parvinder Kansal Vs. The
state of NCT of Delhi & Ors., MANU/SC/0650/2020. In the
said matter, an appeal was filed, challenging the order on
sentence of the Sessions Court, seeking imposition of death
penalty for the offence u/s.302 IPC. However, the Hon’ble
Apex Court had observed that the proviso of Section 372
Cr.P.C. (same as proviso of Section 413 BNSS) is restricted
to three eventualities, namely acquittal of the accused ;
conviction of the accused for lesser offence, or for imposing
inadequate compensation. Besides the aforesaid three
eventualities, there is no right of appeal conferred by Section
372 Cr.P.C. to the victim. Noting the said law, the Hon’ble
Apex Court had upheld the order of the Hon’ble High Court.
Copy of the said judgment provided to Ld. Counsel for the
appellant / complainant, who seeks some time to go through
the said judgment and address arguments on maintainability.
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HARIOM BHARDWAJ VS. YOGENDER
NATH SHARMA & ORS.
Page 4 of 15
At request, put up for arguments on the point
of maintainability on 12.12.2024. Request has been made to
call the Trial Court record in cross-FIR No.05/10, State Vs.
Hariom Bhardwaj, PS Harsh Vihar. Let the said TCR be
summoned for the next date of hearing.
-sd-
(Saurabh Partap Singh Laler)
Special Judge (NDPS Act),
Shahdara, Karkardooma Courts
Delhi/05.12.2024”
4. On the last date of hearing, the Ld. Counsel for the appellant
submitted that the appeal is maintainable in view of the
observations of the Hon’ble Delhi High Court in two judgments
titled Jagmohan Bhola Vs. Dilbagh Rai Bhola & Ors., in Crl.
No.793/10 dated 24.01.2011 (particularly para nos.7,8 & 9) and
Shikha Beniwal Vs. State & ors., in Crl. Appeal No.1320/12
dated 18.02.2015 (particularly para nos.14,15 & 16), both of
Hon’ble Delhi High Court.
5. In view of the aforesaid arguments, the question before the Court
is :
Whether the present appeal filed by the complainant against
the order on sentence dated 29.08.2024 for enhancement of
sentence is maintainable in view of proviso to Section 372
Cr.P.C.?
6. At this point, it would be appropriate to reproduce Section 372
Cr.P.C. as under :
“372. No appeal to lie unless otherwise provided.
- No appeal shall lie from any judgment or order of a Criminal
Court except as provided for 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
convicting for a lesser offence or imposing inadequate
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HARIOM BHARDWAJ VS. YOGENDER
NATH SHARMA & ORS.
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compensation, and such appeal shall lie to the Court to which an
appeal ordinarily lies against the order of conviction of such Court.”
7. Reading of the aforesaid section shows that the legislature has
conferred a right on the victim to prefer an appeal against any
order passed by the Court under three situations ;
First, where the accused has been acquitted
Second, where the accused has been convicted, but for a lesser
offence than for which he was charged and
Third, where post conviction, the Court has imposed
compensation, which is inadequate.
8. Meaning thereby, that a victim can approach the Court by
preferring an appeal u/s.372 Cr.P.C. against acquittal, praying for
the conviction of the accused. A victim can also approach the
Court by preferring an appeal u/s.372 Cr.P.C. against conviction
for a lesser offence and praying to the Appellate Court that the
accused be convicted for the offence, for which he was charged
and not for the lesser offence. Lastly, a victim can also file an
appeal u/s.372 Cr.P.C., where the victim feels that the
compensation awarded by the Trial Court is inadequate and in
such appeal, a prayer can be made for enhancement of
compensation.
9. It may be noted that proviso of Section 372 Cr.P.C. does not
provide for an appeal by a victim, where the victim is neither
aggrieved by the order of conviction, nor aggrieved of the order
granting compensation, but is aggrieved of the fact that the
sentence awarded to the accused / convict is inadequate. The
proviso does not mention that the appeal can be filed by a
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HARIOM BHARDWAJ VS. YOGENDER
NATH SHARMA & ORS.
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victim, if the imposition of the sentence is inadequate or not
commensurate to the offence, for which the accused has been
convicted.
10. However, Ld. Counsel for the appellant submitted that an appeal
filed by complainant / victim against conviction for enhancement
of sentence is akin to State’s appeal for enhancement of sentence
u/s.377 Cr.P.C., therefore, the present appeal is maintainable. He
submitted that an appeal against enhancement of sentence was
filed before the Hon’ble High Court and specifically this
question was decided by the Hon’ble High Court in favour of the
complainant, holding that the appeal being akin to State’s appeal
for enhancement of sentence u/s.377 Cr.P.C. is maintainable. He
relied upon judgment titled Shikha Beniwal vs. State and Ors.
(18.02.2015 - DELHC) : MANU/DE/1417/2015, wherein a
similar question was framed by the Hon’ble High Court in para-
14. Paras-11 to 16 of the said judgment are reproduced as under :
“11. As regards first limb of argument of learned counsel for
respondent No. 2 regarding the maintainability of the appeal for
enhancement of sentence, various provisions have been provided for
appeals under the Code. Prior to the introduction of the proviso to
Section 372 a victim did not have a right of appeal. At that point of
time, the appeals could be filed either by the convict against an
order of conviction under Section 374 or by the State for
enhancement of sentence under Section 377 or by the State or the
complainant, as the case may be, against acquittals under Section
378 of the Code. Section 372 of the Code provided that no appeal
shall lie from any judgment or order of a criminal court except as
provided by the Court or by any other law for the time being in
force. By virtue of Act 5 of 2009 which came into force w.e.f. 31st
December, 2009, a proviso was appended to Section 372 of the
Code whereby a right was conferred on the victim to prefer an
appeal against any order passed by the Court acquitting the accused
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HARIOM BHARDWAJ VS. YOGENDER
NATH SHARMA & ORS.
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or convicting for a lesser offence or against imposition of
inadequate compensation.
12. Learned counsel for the respondent, therefore, submitted that
there are only three eventualities in which a victim can approach the
Court by preferring, an appeal u/s. 372 of the Code and the same
are:-
"(i) Acquittal of the accused.
(ii) Conviction for a lesser offence.
(iii) Imposition of inadequate compensation.
13.It was submitted that no right has been conferred upon the
victim to file an appeal for enhancement of sentence which
right has been conferred upon the State u/s. 377 of the Code.
Admittedly, State has not come in appeal u/s. 377 of the
Code.
14.The question, therefore, which falls for consideration is
whether the victim has the right to approach the Court for
enhancement of sentence.
15. In Jagmohan Bhola (supra) although the issue was
whether leave to appeal was required to be obtained by a
victim for preferring an appeal u/s. 372 of the Code but the
observations of Division Bench of this Court are material
which are as under:-
"...The proviso to Section 372 is a special provision
and it deals with three different situations, namely,
appeals against acquittal, conviction for a lesser
offence and inadequacy of compensation. The
proviso to Section 372 is not limited to appeals
against acquittals. All the appeals, whether they are
against acquittal or conviction for a lesser offence or
inadequate compensation, have been placed on the
same footing. So, while a parallel is sought to be
drawn by the learned counsel for the respondents
between an appeal under the proviso to Section 372
with an appeal against acquittal under Section 378, it
cannot be forgotten that the appeal under the proviso
to Section 372 is not limited to appeals against
acquittals but also concerns itself with appeals
against conviction for lesser offence which is akin to
the State's appeals for enhancement of sentence under
Section 377 which, in turn, does not require any leave
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HARIOM BHARDWAJ VS. YOGENDER
NATH SHARMA & ORS.
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of the High Court to be taken. Similarly, there is no
requirement under the statute for leave to be taken in
respect of an appeal in respect of inadequate
compensation. All these three circumstances have
been placed on the same footing under the proviso to
Section 372 and, therefore, no limitation with regard
to the requirement of taking leave or special leave of
the High Court before an appeal is presented to it by
a victim can be read into the proviso to Section 372."
(emphasis supplied)
16. In view of these observations, an appeal filed by the
complainant victim against conviction for enhancement of
sentence being akin to the State's appeal for enhancement of
sentence u/s. 377 is maintainable.”
11. In the aforesaid case, appeal was filed by complainant for
enhancement of sentence in a conviction under s.307 IPC and
the appeal was entertained by Hon’ble High Court. In the paras
reproduced above, the Hon’ble Court reproduced portion of
judgment of Division Bench in judgment titled Jagmohan Bhola
vs. Dilbagh Rai Bhola and Ors. MANU/DE/0420/201. This
judgment is also relied upon by the appellant complainant. In
Jagmohan (supra) the Hon’ble Court was dealing with an appeal
against acquittal filed by victim and the question before the court
was whether leave of the Hon’ble court was required for filing
the appeal.
12. According to the aforesaid judgment of the Hon’ble High Court
of the year 2015, the present appeal is maintainable, being akin
to an appeal for enhancement of sentence filed by State u/s.377
Cr.P.C.
13. However, Ld. Counsel for the respondents / convicts, submitted
that subsequent to the passing of the aforesaid judgment, the
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HARIOM BHARDWAJ VS. YOGENDER
NATH SHARMA & ORS.
Page 9 of 15
same question came up for consideration before the Hon’ble
Apex Court in the year 2020 in case titled as Parvinder Kansal
vs. The State of NCT of Delhi and Ors. (28.08.2020 - SC) :
MANU/SC/0650/2020. In the said case, an appeal was filed by
the father of deceased for enhancement of sentence from Life
Sentence to death, before the Hon’ble Delhi High Court1. The
said appeal was dismissed as not maintainable by the Division
Bench of the Hon’ble Delhi High Court vide order dated
27.09.2019. The Division Bench in the aforesaid case considered
both the judgments titled Jagmohan Bhola (supra) and Shikha
Beniwal (supra) in para-5. The Hon’ble High Court also
considered judgments of various other High Courts and after
detailed discussion held the appeal by a complainant against
order on sentence to be not maintainable, while observing in
para-16 as under :
“16. It is pertinent to note that the decision in Shikha Beniwal
(supra) had not been followed by the same learned Single Judge in
the subsequent judgment in Shakeel Ahmed (supra), which has been
discussed above. Consequently, the judgments in Jagmohan Bhola
(supra) and Shikha Beniwal (supra) offer no assistance to the
appellant.”
14. Therefore, it is clear that the Hon’ble Division Bench of Hon’ble
Delhi High Court, came to the conclusion that the two judgments
cited by Ld. Counsel for the appellant did not offer any
1 Para 4 of the judgment: “4. The complainant, who is the father of the deceased boy,
has filed 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 death penalty. In the appeal filed
before the High Court Under Section 372, Code of Criminal Procedure, 1973 (for
short, 'Code of Criminal Procedure.'), it was his case that the sentence of life
imprisonment imposed on the second Respondent-convict is inadequate and needs to
be enhanced to death penalty. Vide impugned judgment dated 27th November 2019 the
High Court of Delhi has dismissed the appeal as not maintainable.”
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assistance to the case of the appellant / complainant therein.
15. The said judgment of the Hon’ble Division Bench dated
27.11.2019 was challenged before the Hon’ble Apex Court in the
aforementioned judgment of Parvinder Kansal (supra).
16. Hon’ble Apex Court in Parvinder Kansal (supra) observed that
the High Court rightly held the appeal to be not maintainable in
para 9, reproduced as under:
“9. Chapter XXIX of the Code of Criminal Procedure, 1973
deals with 'Appeals' and Section 372 makes it clear that no
appeal to lie unless otherwise provided by the Code or any
other law for the time being in force. It is not in dispute that
in the instant case Appellant has preferred appeal only Under
Section 372, Code of Criminal Procedure The proviso is
inserted to Section 372, Code of Criminal Procedure by Act
5 of 2009. Section 372 and the proviso which is
subsequently inserted read as under:
372. No appeal to lie unless otherwise provided.-No
appeal shall lie from any judgment or order of a
Criminal Court except as provided for 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 convicting 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.
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, acquittal of the Accused; conviction of
the Accused for lesser offence; or for imposing inadequate
compensation. While the victim is given opportunity to
prefer 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, whereas Section 377, Code of Criminal
Procedure gives the power to the State Government to prefer
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appeal for enhancement of sentence. While it is open for the
State Government to prefer appeal for inadequate sentence
Under Section 377, Code of Criminal Procedure but
similarly no appeal can be maintained by victim Under
Section 372, Code of Criminal Procedure on the ground of
inadequate sentence. It is fairly well settled that the remedy
of appeal is creature of the Statute. Unless same is provided
either under Code of Criminal Procedure 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.
Further we are of the view that the High Court while
referring to the judgment of this Court in the case of
National Commission for Women v. State of Delhi and Anr.
(2010) 12 SCC 599 has rightly relied on the same and
dismissed the appeal, as not maintainable.”
(emphasis supplied)
17. In Parvinder Kansal (supra), Hon’ble Apex Court on 28.08.2020
observed that reading of the proviso to S.372 makes it clear that
so far as victim's right of appeal is concerned, same is restricted
to three eventualities, namely, acquittal of the accused;
conviction of the accused for lesser offence; or for imposing
inadequate compensation. The Hon’ble Court further
categorically observed that the remedy of appeal is creature of
the Statute and unless same is provided either under Code of
Criminal Procedure 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.
18. More recently, in 2022, in an appeal titled Smt. Shireen vs State
Of U.P. And Ors2, similar to the present one, filed in Hon’ble
Allahabad High Court by the victim, aggrieved by the fact that
2 Para 9: “9. Above placed case laws makes it clear that no appeal can be maintained by
the victim under Section 372 CrPC on the ground of inadequacy of sentence. Thus the
appeal preferred by the victim of the crime against inadequacy of sentence is not
maintainable and is dismissed as such.”
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the accused in that case were given the benefit of probation
under s.4 of the Probation of Offenders Act, the Hon’ble High
Court while relying upon Parvinder Kansal (supra), held the
appeal to be not maintainable.
19. The Constitution of India, Article 141, mandates that the law
declared by the Supreme Court shall be binding on all courts and
tribunals within the country’s territory. This binding nature
extends to all courts and tribunals of the nation.
20. Hon’ble Supreme Court in M/s East India Commercial Co. Ltd.
V. Collector of Customs, Calcutta AIR 1962 SC 1893, after
considering Articles 215, 226, and 227 of the Constitution of
India, concluded that the cumulative effect of these provisions is
that the decisions of the High Court have binding effect on the
subordinate judiciary and tribunals.
21. As here, before the court is a judgment of the Hon’ble Apex
Court directly on the question to be decided by this court, hence,
this court is bound by Article 141 to follow the said judgment.
22. Ld. Counsel for the appellant / complainant on 17.12.2024 filed
judgment titled as Anand Singh vs. The State of Maharashtra
(10.06.2022 - BOMHC) : MANU/MH/1834/2022, in support of
his arguments regarding maintainability of the present appeal.
The Court has perused the said judgment and found that in the
said judgment, the Hon’ble High Court categorically followed
the decision of Hon’ble Apex Court in Parvinder Kansal (supra)
and held the appeal against the sentence to be not available to the
complainant. Paras-20 to 24 of the said judgment are reproduced
as under :
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“20. Though we are conscious of the fact that the remedy of Appeal
is the creation of statute under the provisions of the Cr.P.C. and as
interpreted by the Supreme Court that unless the same is provided
no Appeal would lie. However in the same breath though under
Article 141 of the Constitution of India we are completely bound by
the decision of the Supreme Court, we would like to however place
our considered opinion in this respect in the present case. We have
perused the report presented to the Parliament of India/Rajya Sabha
Secretariat and the Lok Sabha Secretariat, this report is the 128th
report prepared by the Parliamentary Standing Committee on home
affairs to suggest amendment to the Code of Criminal Procedure
and which was tabled before both the houses of the Parliament on
16.08.2007. In the said report Clause VII is relevant and is
reproduced herein under:-
"7. VICTIMOLOGY:
(i) Victim may be permitted to engage an advocate in a case
(Clause 3)
(ii) A comprehensive scheme to be prepared for
compensating the victim or his dependents who have
suffered loss or injury, as a result of crime and who require
rehabilitation (Clause 37).
(iii) Victim shall have a right to prefer an appeal against any
adverse order passed by the court (Clause 38)."
21. As seen the proposal tabelled before both the houses of the
Parliament was with respect to the victim having a right to prefer an
appeal against any adverse order passed by the Court. The vista of
this proposal was very wide in as much as enabling the victim to file
an Appeal against any adverse order and not pertaining the right of
the victim/complainant as being noticed under the proviso to section
372 of the Cr.P.C. We are also equally conscious of the fact that the
Supreme Court in the case of Bachan Singh Vs. State of Punjab,
MANU/SC/0077/1979 : (1979) 4 SCC 754 while interpreting the
powers of the High Court under section 397 of the Cr.P.C. has in
paragraph 11 held as under:-
"11. There is another reason for this view. It was permissible
for the High Court under Section 397 Cr.P.C. to call for and
examine the record of the proceeding before the trial court
for the purpose of satisfying itself as to the correctness,
legality or "propriety" of any finding, "sentence" or order,
recorded or passed by that inferior court. The High Court's
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power of revision in the case of any proceeding the record of
which has been called for by it or which otherwise comes to
its knowledge, has been stated in Section 401 Cr.P.C. to
which reference has been made above. That includes the
power conferred on a Court of Appeal under Section 386 to
enhance or reduce the sentence. So when the record of the
case was before the High Court in connection with the two
appeals and the revision petition referred to above, there was
nothing to prevent the High Court from invoking its powers
under Section 397 read with Section 401 Cr.P.C. and to make
an order for the enhancement of the sentence."
22. In addition to the above we have seen that the Bombay High
Court Appellate Side Rules 1960 and more specially Rule 2(II)(a)
which pertains to Appeal against conviction reads as under:-
"(a) Appeals against convictions [except in which the
sentence of death or imprisonment for life has been passed]
appeals against acquittals wherein the offence with which the
accused was charged is one punishable on conviction with a
sentence of fine only or with a sentence of imprisonment not
exceeding ten years] or with such imprisonment and fine,
and appeals under section 377 of the Code of Criminal
Procedure, revision applications and Court notices for
enhancement for offences punishable on conviction with
sentence of fine only or with sentence of imprisonment not
exceeding [ten years] or with such imprisonment and fine."
Thus, a revision application for enhancement of sentence at the
behest of the victim would be maintainable and the same is
recognized by the Bombay High Court Appellate Side Rules, 1960."
23. From the above, it is seen that undoubtedly a revision
application for enhancement of sentence at the instance of the
victim/complainant would be maintainable. The Appellant has also
in the alternative in her written submissions prayed for converting
this appeal into an application under Section 401 of the Cr.P.C.
24. However in view of the specific observations of the Supreme
Court in the case of Parvinder Kansal (supra) and Mallikarjun
Kodagali (supra), it is seen that the right to appeal against the
sentence will not be available to the Appellant in view of the
specific provisions of the statute”.
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25. Hence we are constrained hold that Criminal Appeal No. 669 of
2015 shall stands dismissed with the above observations.
Final observation
23. In view of the aforesaid discussion, the present appeal is not
maintainable. The appeal is accordingly dismissed.
24.Appeal file be consigned to Record Room. TCR, if any, be sent
back alongwith copy of this judgment.
Announced in the open Court
on 18th December, 2024
(Saurabh Partap Singh Laler)
Special Judge (NDPS Act),
Shahdara, Karkardooma Courts
Delhi/18.12.2024
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