“Right to Prefer” Means “Right to Prosecute”: Legal Heirs of Victims Can Continue Criminal Appeals under the Proviso to Section 372 CrPC; Section 394 Abatement Inapplicable

Introduction

In Khem Singh (Dead through LRs) v. State of Uttaranchal (now Uttarakhand), 2025 INSC 1024, the Supreme Court of India delivered a reportable judgment clarifying and strengthening the appellate rights of crime victims and their families. The case arose from a 1992 incident in Haridwar involving a fatal shooting and injuries to the informant and his son. The Sessions Court convicted three accused in 2004; the High Court reversed and acquitted them in 2012. The original appellant (an injured victim) challenged the acquittal; during the pendency of the appeal, he died. His son—also injured in the incident—sought substitution to continue the appeals.

Two core issues were before the Court:

• Procedural: Whether, upon the death of a victim-appellant, his legal heir can be substituted to continue an appeal filed under the proviso to Section 372 of the Code of Criminal Procedure, 1973 (CrPC), and whether Section 394 CrPC causes abatement of such appeals.
• Merits/remand: Whether the High Court’s acquittal—delivered in a cryptic manner without discussing evidence—could stand.

The Supreme Court, speaking through Nagarathna, J. (Viswanathan, J. concurring), has now laid down a significant precedent: the phrase “right to prefer an appeal” in the victim’s appeal provision (proviso to Section 372 CrPC) necessarily includes the “right to prosecute” that appeal, and legal heirs of a victim-appellant can be substituted to continue such appeals. The Court also set aside the High Court’s cryptic acquittal and remanded for a fresh, reasoned decision.

Summary of the Judgment

• Substitution allowed; abatement set aside: The Court allowed the legal heir’s applications—condonation of delay, setting aside abatement, and substitution—and held that a victim’s heir can continue an appeal under the proviso to Section 372 CrPC. The expression “right to prefer an appeal” includes the right to prosecute it. Section 394 CrPC does not cause abatement of a victim’s appeal on the death of the victim-appellant.
• Remand due to cryptic High Court judgment: Without venturing into the merits, the Supreme Court found the High Court’s acquittal to be cryptic and de hors a proper analysis of evidence. It set aside the impugned judgment and remanded the matter for a fresh hearing with directions to pass a reasoned decision.
• Bail continued: Pending rehearing by the High Court, the acquitted accused shall remain on bail, subject to execution of fresh bonds of Rs. 15,000/- with sureties and conditions before the Principal District and Sessions Judge, Haridwar.
• Open question: The Court left open the separate question of what happens if a complainant (as distinct from a “victim” within Section 2(wa) CrPC) who has appealed under Section 378 CrPC dies during the pendency of the appeal.

Analysis

1) Precedents Cited and Their Influence

The Court anchored its reasoning in a line of authorities and policy materials that foreground a victim-centric criminal justice system:

• Mallikarjun Kodagali (dead) v. State of Karnataka, (2019) 2 SCC 752.
  The Court invoked this seminal decision to reiterate that the 2009 amendments conferred an independent and substantive right of appeal upon victims under the proviso to Section 372 CrPC. Mallikarjun recognized that the victim’s right embraces appeals against acquittal, conviction for lesser offences, and inadequate compensation, and drew support from the UN Declaration of Basic Principles of Justice for Victims of Crime (1985). This case set the stage for reading the proviso purposively to benefit victims.
• PSR Sadhanantham v. Arunachalam, (1980) 3 SCC 141 (Constitution Bench).
  Used to underscore that private locus (including non-complainants with a bona fide stake) can be recognized in criminal matters under Article 136, subject to safeguards. It helped reinforce the legitimacy of a victim’s heir litigating to advance public interest in criminal justice and access to justice.
• Chand Devi Daga v. Manju K. Humatani, (2018) 1 SCC 71.
  Illustrated that death of the complainant does not automatically non-suit proceedings; courts may permit legal heirs to continue, reflecting flexibility in criminal process and avoidance of mechanical abatement.
• M.R. Ajayan v. State of Kerala, 2024 SCC OnLine SC 3373; Amanullah v. State Of Bihar, (2016) 6 SCC 699.
  Reaffirmed that Article 136 locus is fact-sensitive and not closed; any person bona fide connected with the matter may pursue proceedings to advance substantial justice, aligning with broader victim access.
• Garikapati Veeraya v. N. Subbiah Choudhry, AIR 1957 SC 540 (Constitution Bench).
  Emphasized that the right of appeal is a vested substantive right accruing at the commencement of the lis, which persists through the litigation’s “career” absent express or necessarily implied legislative repeal. This principle informed the Court’s reading that “prefer an appeal” includes prosecuting it to fruition.
• State of U.P. v. Ambarish, (2021) 16 SCC 371; Shakuntala Shukla v. State of U.P., (2021) 20 SCC 818; State Bank of India v. Ajay Kumar Sood, (2023) 7 SCC 282.
  These authorities stress that appellate courts must provide reasoned decisions reflecting independent appraisal of the record. They buttress the remand by condemning cryptic appellate reversals of conviction.

2) Legal Reasoning

The Court’s reasoning proceeds along four integrated axes—text, structure, purpose, and constitutional values:

• Text and structure of CrPC post-2009 amendments:
  • Section 2(wa) defines “victim” broadly to include the person suffering “loss or injury” and also “his or her guardian or legal heir.”
  • The proviso to Section 372 CrPC confers on the victim the “right to prefer an appeal” against acquittal, conviction for a lesser offence, or inadequate compensation.
  • Section 378(4) is a special pathway for complainant-appeals against acquittal with “special leave” filters; but the proviso to Section 372 gives victims a separate, superior, and unconditioned right to appeal—whether or not the victim is the complainant. Therefore, a victim-complainant may invoke the proviso to Section 372 without the constraints of Section 378(4).
  • The Court clarified the architecture: State-appeals (Sections 377–378) and complainant-appeals (Section 378(4)) are distinct from victim-appeals (proviso to Section 372). Each serves different constituencies and is governed by different conditions and purposes.
• “Prefer an appeal” = “prosecute the appeal”:
  • Drawing from Black’s Law Dictionary and purposive interpretation, “prefer” includes bringing and prosecuting a proceeding.
  • It would defeat the object of the 2009 victim-centric reform if a victim’s appeal could be filed but could not be continued by a legal heir upon the victim’s death. Such a reading would render the new right hollow.
• Section 394 CrPC (abatement) does not bar continuation of victim-appeals by heirs:
  • Section 394(1) causes abatement of State/complainant appeals against acquittal under Sections 377–378 on the death of the accused—because those appeals are against the accused’s sentence/acquittal.
  • Section 394(2) refers to “every other appeal” (except appeals from a sentence of fine) abating on the death of the appellant. The Court read this primarily as appeals by accused-appellants (e.g., Section 374 conviction appeals) which abate on the accused’s death, subject to the proviso enabling near relatives to continue to seek vindication (e.g., to clear stigma or recover monetary consequences).
  • Applying the logic and the broader definition of “victim” (including legal heirs), the Court held that a victim’s heir can similarly continue a victim-appeal under the proviso to Section 372 CrPC. In short, Section 394 cannot be read to extinguish the specially conferred victim’s right to continue an appeal via heir substitution.
• Constitutional underpinnings and access to justice:
  • The Court grounded the interpretive approach in Articles 14 and 21—equality and fair process—reasoning that if an accused enjoys an appeal as of right against conviction (Section 374), a victim should not face artificial curtailment of the newly conferred appellate right.
  • The UN Declaration of Basic Principles of Justice for Victims of Crime (1985) supports a broad and facilitative approach to victims’ access to justice and redress.
  • Article 136 was also noted: where special leave is granted, appeals are not constrained by Chapter XXIX of the CrPC, and legal heirs should be permitted to continue in the interests of justice—reinforcing the logic for substitution in victim appeals.

On the merits dimension, the Court emphasized the duty of the High Court as the first appellate court in a criminal case to conduct an independent and reasoned appraisal of the entire record, including witnesses, medical evidence, defence contentions, and to test whether the prosecution has proved its case beyond reasonable doubt. The impugned judgment was found “cryptic” and lacking the required evidentiary engagement; hence, it was set aside and the case remanded.

3) Impact and Prospective Significance

• Doctrinal consolidation of victim’s appellate rights: This decision cements that the 2009 victim-appeal reform is not merely a right to file, but to meaningfully prosecute an appeal to conclusion—even across generational succession. It will likely guide High Courts and trial courts to readily allow substitution of victim-appellants’ heirs.
• Clarifies abatement landscape: By decoupling Section 394 abatement from victim-appeals under the proviso to Section 372, the Court has removed a recurring obstacle used to thwart victim-led appellate oversight of acquittals and sentencing outcomes.
• Strategic choices for victims and complainants: Where the victim is also the complainant, this judgment steers them toward the proviso to Section 372 route (unconditioned right) rather than Section 378(4) (which requires special leave), reinforcing a purposive distinction crafted by Parliament.
• Higher standards for appellate reasoning: The remand message is clear: High Courts must avoid summary reversals of convictions. Reasoned, evidence-based adjudication is mandatory, particularly given the stakes of personal liberty and victim redress.
• Pending open question: The Court has left open the fate of a complainant-appeal under Section 378 when the complainant dies; that issue may be decided in a future case. Expect litigation to test parity-based extension of substitution principles there as well.
• Practical courtroom implications:
  • Registries are likely to see an increase in substitution motions by heirs of victims; courts should process these in light of this ruling.
  • State decisions not to appeal acquittals will not preclude victim’s heirs from ensuring appellate scrutiny.
  • On remands, accused on bail may be continued with protective conditions—as here—balancing liberty and expedition.

Complex Concepts Simplified

• Victim (Section 2(wa) CrPC): Not just the person physically harmed; includes anyone suffering loss or injury (physical, mental, reputational, or property) and explicitly includes their guardian or legal heir. This inclusive definition empowers families to pursue legal remedies.
• “Prefer an appeal” (Proviso to Section 372): In legal usage, “to prefer” an appeal means to bring and prosecute it. It is not limited to filing; it includes carrying the appeal through the appellate process to a decision.
• Abatement (Section 394 CrPC): Abatement means the appeal ends because the party dies. Section 394(1) concerns appeals against an accused’s acquittal/sentence, which abate on the accused’s death. Section 394(2) concerns “every other appeal,” read mainly as conviction appeals by accused-appellants, which abate on the appellant’s death. This judgment clarifies that these abatement rules do not extinguish a victim’s heir’s right to continue a victim-appeal.
• Victim-appeal vs. Complainant-appeal:
  • Victim-appeal under proviso to Section 372: An independent, unconditional right to appeal against acquittal, lesser conviction, or inadequate compensation. No special leave requirement.
  • Complainant-appeal under Section 378(4): Available only in complaint cases and subject to the High Court’s grant of special leave within limitation periods. If refused, no appeal lies under Section 378(1) or (2).
• First appellate duty in criminal cases: The High Court must conduct a fresh and independent assessment of evidence and reasoning, not merely pronounce outcomes. Cryptic judgments reversing convictions risk being set aside.

Additional Case Background (for context)

• Incident: 09.12.1992 attack resulting in one death (Virendra Singh) and injuries to the informant (Tara Chand, PW-1) and his son (Khem Singh, PW-3).
• Trial court (2004): Convicted the three respondents-accused with life sentences inter alia under Sections 302/34, 307, and 452 IPC; acquitted other co-accused.
• High Court (2012): Allowed the accused’s appeals and acquitted them in a short, cryptic judgment.
• Supreme Court (2025): Allowed substitution of the deceased victim-appellant’s heir (who is also an injured victim), set aside High Court’s judgment for want of reasons, and remanded for fresh hearing. Accused continued on bail with fresh bonds and sureties.
• State’s stance: State had not appealed the acquittal but supported the victim’s heir in the Supreme Court.

Key Takeaways

• The victim’s statutory “right to prefer an appeal” under the proviso to Section 372 CrPC includes the right to prosecute and continue that appeal; legal heirs of a victim-appellant can be substituted to carry it forward.
• Section 394 CrPC does not cause abatement of a victim’s appeal on the death of the victim-appellant; a contrary reading would defeat the 2009 victim-centric reforms.
• Victims, including their guardians and legal heirs, have a superior, unconditioned appellate right distinct from complainant and State appeals.
• High Courts must deliver reasoned judgments in criminal appeals, especially when reversing convictions; cryptic acquittals are liable to be set aside and remanded.
• The Court left open the question of substitution when a complainant’s Section 378 appeal abates due to the complainant’s death.

Conclusion

The Supreme Court’s decision in Khem Singh marks a decisive step in giving full effect to India’s post-2009 victim-centric criminal procedure. By interpreting “prefer an appeal” to include the right to prosecute and by recognizing substitution of a victim-appellant’s legal heir, the Court prevents technical abatement from frustrating substantive justice. It reinforces that the victim’s right to appellate scrutiny is independent of the State’s choices and is not to be diluted by borrowing constraints from State or complainant appeal provisions.

Equally, the judgment reasserts appellate discipline: High Courts must articulate reasons and transparently assess evidence when overturning convictions. As trial backlogs and appellate pressures persist, this ruling ensures that both victim dignity and accused liberty are safeguarded through reasoned adjudication. Going forward, this precedent will guide substitution motions, shape appellate strategies for victims and their families, and promote a robust, accessible appellate framework in criminal justice.