Victim’s Right of Appeal: Critical Appraisal of the 2009 Amendment to Section 372 Cr.P.C.

Victim’s Right of Appeal: Critical Appraisal of the 2009 Amendment to Section 372 of the Code of Criminal Procedure, 1973

1. Introduction

The insertion of a proviso to Section 372 of the Code of Criminal Procedure, 1973 (Cr.P.C.) by Act 5 of 2009, effective from 31 December 2009, transformed India’s criminal appellate landscape by conferring a statutory right upon “victims” to challenge acquittals, convictions for lesser offences, or orders awarding inadequate compensation.[1] The amendment emerged from a growing victim-centric jurisprudence and has since generated complex interpretational questions—most notably on its interface with Sections 378 and 401 Cr.P.C., its temporal application, and the scope of leave requirements. This article critically analyses these issues through the lens of leading Supreme Court and High Court decisions, with particular focus on Mallikarjun Kodagali, Satya Pal Singh, and Joseph Stephen.

2. Legislative Background

Victim marginalisation within the criminal process was the principal concern of the 154th Law Commission Report and the Justice Malimath Committee Report, both of which recommended an independent right of appeal.[2] Parliament responded by amending Section 372, simultaneously introducing the definition of “victim” in Section 2(wa). The amendment was conceived as a substantive, victim-oriented reform aligning domestic law with the 1985 U.N. Declaration of Basic Principles of Justice for Victims of Crime.[3]

3. Textual Analysis of the Proviso

The proviso creates an exception to the negative opening words of Section 372 (“No appeal shall lie…”). Three elements are notable:

  • Entitlement: “the victim shall have a right to prefer an appeal”.
  • Appealable Orders: (i) acquittal, (ii) conviction for a lesser offence, (iii) inadequate compensation.
  • Forum: “the court to which an appeal ordinarily lies against the order of conviction of such court.”

While apparently self-contained, the proviso is silent on procedural prerequisites (limitation, leave, etc.), thereby necessitating recourse to the general appellate framework under Chapter XXIX of the Cr.P.C.

4. Interplay with Section 378 Cr.P.C.: The Leave Conundrum

4.1 Competing Approaches

Early High Court decisions diverged on whether a victim’s appeal under the proviso must satisfy the leave requirement in Section 378(3). The Full Benches of Gujarat (Bhavuben Makwana) and Patna (Parmeshwar Mandal) adopted a liberal view, dispensing with leave, whereas others insisted on conformity with Section 378.[4]

4.2 Supreme Court Guidance

The Supreme Court addressed the issue thrice:

  1. Satya Pal Singh v. State of M.P. (2015) held that a victim appealing an acquittal must obtain leave under Section 378(3), emphasising harmonious construction of the proviso and the main clause.[5]
  2. Mallikarjun Kodagali v. State of Karnataka (2018) treated the right of appeal as substantive and prospective, yet—on a narrow majority—dispensed with the leave requirement where the acquittal order post-dated 31-12-2009.[6]
  3. Parvinder Kansal v. State (NCT of Delhi) (2020) reaffirmed that the proviso does not authorise a victim to seek enhancement of sentence, and implicitly endorsed the continued relevance of Section 378 for sentence-related appeals.[7]

The jurisprudence thus remains unsettled: Mallikarjun Kodagali narrows Satya Pal Singh without expressly overruling it, producing co-existing doctrinal lines that High Courts navigate on a case-by-case basis.

5. Temporal Operation: Prospective, Retrospective, or Retroactive?

Statutory appeal rights are ordinarily prospective unless clearly expressed otherwise (Govt. of A.P. v. P. Laxmi Devi).[8] The Supreme Court in Mallikarjun Kodagali located the relevant “trigger date” in the order of acquittal, not the date of offence, thereby treating the proviso as prospective but applicable to pre-2009 offences if the acquittal occurred post-amendment.[9] Conversely, the Allahabad High Court (Ram Chandra, 2015) and Bombay High Court (Nandabai, 2012) refused retrospective application to appeals arising from pre-2009 incidents.[10] The recent Supreme Court dicta in Mahabir v. State of Haryana (2025) reiterate the prospective principle and reject arguments for retroactivity.[11]

6. Victim’s Appeal versus Revisional Jurisdiction

The 2022 decision in Joseph Stephen v. Santhanasamy revolutionises the demarcation between revision and victim appeal. The Court held that once a statutory right of appeal exists, victims should not circumvent it by filing revision petitions; High Courts lack competence under Section 401(3) to convert acquittals into convictions.[12] The judgment fortified two propositions:

  • Revisional power is supervisory and cannot be used to achieve what an appeal against acquittal would.
  • High Courts must either (i) direct victims to file proper appeals under Section 372 or (ii) treat the revision as an appeal after passing a judicial order under Section 401(5).

This doctrinal clarification promotes procedural discipline and preserves the hierarchy of corrective remedies.

7. Substantive Limits of the Proviso

7.1 Enhancement of Sentence

Parvinder Kansal definitively ruled that Section 372 does not authorise victims to seek enhancement of sentence; such prayers remain channelled through Section 377 at the instance of the State.[13]

7.2 Participation during Trial

Although the proviso augments appellate rights, trial-stage participation continues to be governed by Sections 24(8) and 301. In Rekha Murarka v. State of W.B. (2019) the Supreme Court restricted victims’ counsel to an assisting role, preserving prosecutorial primacy.[14]

8. Unresolved Questions and Reform Imperatives

  • Uniform Leave Requirement: A statutory clarification—perhaps by amending Section 378(3)—is desirable to resolve the conflicting dicta of Satya Pal Singh and Mallikarjun Kodagali.
  • Limitation Period: The Cr.P.C. is silent on limitation for victim appeals. Borrowing the 90-day period under Section 378(5) or prescribing a bespoke timeline would enhance certainty.
  • Sentence-Related Appeals: Legislative attention is needed to determine whether victims should be empowered to contest inadequate sentences, complementing their right to challenge inadequate compensation.
  • Awareness and Access: Empirical studies indicate low utilisation of the proviso owing to limited awareness among victims, particularly in rural areas. State Legal Services Authorities should institutionalise counselling and assistance mechanisms.

9. Conclusion

The 2009 amendment to Section 372 Cr.P.C. constitutes a watershed in Indian criminal procedure, signalling the judiciary’s shift from an accused-centric to a more balanced, victim-inclusive model. Yet, doctrinal fissures—especially regarding leave and temporal scope—dilute its transformative potential. The Supreme Court’s recent pronouncements in Joseph Stephen and allied cases have begun to reconcile these tensions by emphasising procedural propriety and substantive fairness. Nonetheless, legislative fine-tuning and administrative support remain imperative to fulfil the amendment’s victim-centric promise while safeguarding the rights of the accused and the integrity of criminal adjudication.

Footnotes

  1. Code of Criminal Procedure, 1973, s. 372 as amended by the Code of Criminal Procedure (Amendment) Act 5 of 2008, enforced 31-12-2009.
  2. Satya Pal Singh v. State of M.P., (2015) SCC Online SC 906, ¶18.
  3. Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752, ¶73–75.
  4. See Bhavuben Dineshbhai Makwana v. State of Gujarat, 2013 Cri LJ 4080 (Guj FB); Parmeshwar Mandal v. State of Bihar, 2014 Cri LJ 1046 (Pat FB).
  5. Satya Pal Singh, supra note 2, ¶20–26.
  6. Mallikarjun Kodagali, supra note 3, ¶86–98 (Lokur J., for the majority).
  7. Parvinder Kansal v. State (NCT of Delhi), 2020 SCC Online SC 685, ¶15–18.
  8. Govt. of A.P. v. P. Laxmi Devi, (2008) 4 SCC 720.
  9. Mallikarjun Kodagali, supra note 3, ¶93.
  10. Ram Chandra v. State of U.P., 2015 SCC Online All 10301; Nandabai v. Maruti Mehetre, 2012 SCC Online Bom 1441.
  11. Mahabir v. State of Haryana, SC Civil Appeal No. ____/2025, slip op. at ¶17–25.
  12. Joseph Stephen v. Santhanasamy, 2022 SCC Online SC 90, ¶25–35.
  13. Parvinder Kansal, supra note 7, ¶16.
  14. Rekha Murarka v. State of W.B., 2020 1 SCC 501, ¶28–33.