Criminal Appeal (Victim) No. 36 of 2022, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **TUESDAY, THE 13[TH] DAY OF DECEMBER 2022 / 22ND AGRAHAYANA, 1944 CRA(V) NO. 36 OF 2022** **AGAINST THE JUDGMENT DATED 18.7.2016 IN S.C.NO.439/2015 AND ORDER DATED 5.12.2019 ON CRL.M.P. NO. 979/2019 IN S.C.NO.439/2015 OF THE ADDITIONAL DISTRICT COURT & SESSIONS COURT (FOR THE TRIAL OF CASES RELATING TO ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN), ERNAKULAM** ## **APPELLANT/DEFACTO COMPLAINANT:** **XXXXXXXXXX XXXXXXXXXX** **BY ADVS. M/S.P.RAMESH, FATHIMA NARGIS K.A. & SANGEERTHANA M.** ## **RESPONDENT/STATE:** **STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031.** **SRI. ALEX M.THOMBRA, PUBLIC PROSECUTOR** **THIS CRL. APPEAL BY DEFACTO COMPLAINANT/VICTIM HAVING COME UP FOR ADMISSION ON 13.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **(C.R.)** ## ALEXANDER THOMAS & SOPHY THOMAS, JJ. ============================================= Crl. Appeal (V) No. 36 of 2022 _(arising out of the impugned judgment dated 18.7.2016 in S. C. No. 439 of 2015 and order dated 5.12.2019 on Crl.M.P.No. 979/2019 in S.C.No.439/2015 on the file of the Additional District and Sessions Court (For the Trial of cases relating to Atrocities & Sexual Violence against Women and Children), Ernakulam)_ ============================================= Dated this the 13[th] day of December, 2022 ## J U D G M E N T ## ALEXANDER THOMAS, J. The prayer in the above Criminal Appeal (Victim) is as follows: _“.......allow this Criminal Appeal (Victim) and direct the Trial Court to release MO1 to MO5 to the Appellant/Victim/Defacto complainant, in the interest of justice.”_ 2. Heard Sri.P.Ramesh, learned counsel appearing for the appellant and Sri.Alex M. Thombra, learned Prosecutor appearing for the respondent State of Kerala. 3. The Sessions Court concerned has convicted the accused persons (A1 to A6) for various offences mentioned in the judgment and have also ordered sentences on them as mentioned in the judgment. Further, in para 103 of the said judgment dated 18.7.2016 rendered by the Sessions Court concerned in S.C.No.439/2015, it was specifically ordered that MO1 to MO5 properties would be given to PW1/lady defacto complainant/victim, etc. Further, we are told that Crl. Appeal (V) No. 36/2022 - : 2 :- the accused persons concerned have preferred Criminal Appeals as Criminal Appeal Nos.1069, 1101, 1072 of 2016, which are pending before this Court and further that, the defacto complainant has already got herself impleaded as additional respondent in these Criminal Appeals filed by the respective accused persons concerned, in the light of the dictum laid down by the Apex Court in _**Jagjeet Singh & Ors. v. Ashish Mishra alias Monu & anr.** [(2022) 9 SCC 321, paras 22 & 23]_ regarding the participatory rights of victims in criminal trials, appeals, revisions, etc. 4. The counsel for the appellant submits that later, the appellant herein/defacto complainant has preferred Criminal Miscellaneous Petition No.979/2019 in the said Sessions Case, S.C.No.439/2015, before the Sessions Court concerned, with the prayer that directions may be issued by the Sessions Court that MO1 to MO5 properties shall be given to the defacto complainant, as ordered in para 103 of the judgment dated 18.7.2016, rendered by the Sessions Court concerned in S.C.No.439/2015. The Sessions Court concerned has passed the impugned order dated 5.12.2019 on Crl. Appeal (V) No. 36/2022 - : 3 :- Crl.M.P. No. 979/2019 in S.C.No.439/2015 dismissing the said Crl.M.P., on the ground that the plea for return of those material objects cannot now be acceded to, as Criminal Appeals filed by the accused persons are pending before this Court. 5. The appellant herein had earlier preferred a Criminal Appeal (Victim) as Crl. Appeal (V) No. 24/2020, challenging the order dated 5.12.2019 rendered by the Sessions Court, Ernakulam on Crl.M.P. No. 979/2019 in S.C.No.439/2015, rejecting the plea for return of the abovesaid material objects. The learned Single Judge has dismissed Crl. Appeal (V) No. 24/2020, filed by the appellant herein, as per judgment dated 10.3.2022, ordering that, since Criminal Appeals filed by the accused persons concerned are pending against the judgment in S.C.No.439/2015, the appellant herein will be at liberty to approach the Division Bench concerned, where the Appeals are pending. It is thereafter, that the appellant has preferred the instant Criminal Appeal, which has been placed before us by the Registry. 6. The learned Prosecutor submits that it is an elementary Crl. Appeal (V) No. 36/2022 - : 4 :- position of law that Appeals, in terms of the Cr.P.C., can be maintained only if it is explicitly provided for and envisaged as per the provisions of the Cr.P.C. or as per any special enactment concerned and that this legal position is adumbrated in the operative portion of Sec.372 of the Cr.P.C., which is with the caption “No appeal is to lie unless otherwise provided”, wherein it is stipulated that 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, etc. It is submitted by the Prosecutor that no provisions of the Cr.P.C. or any special law enables the victim to file an appeal before this Court to challenge an order in the nature of the impugned order rendered by the Sessions Court concerned on 5.12.2019 on Crl.M.P. No. 979/2019 in S.C.No.439/2015, rejecting the plea of the defacto complainant/victim for return of the material objects concerned, in view of the pendency of the Criminal Appeal before this Court. Unless the law explicitly provides for an Appeal, there is no question of maintaining an appeal. 7. The proviso to Sec.372 stipulates that the victim shall have Crl. Appeal (V) No. 36/2022 - : 5 :- 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. 8. The proviso to Sec.372 will not enable the present appellant to maintain an appeal in terms of that provision to challenge the present impugned order dated 5.12.2019, rendered by the Sessions Court on Crl.M.P.No. 979/2019 in S.C.No.439/2015, as the prayer rejected therein is in regard to the return of the material objects. So, such an appeal, as in the instant case, will not come within the narrow bandwidth of the various scenarios conceived in the proviso to Sec.372. Chapter XXIX of the Cr.P.C. deals with Appeals and it contains the provisions from Sec.372 up to Sec.394. The scenario arising out of the present impugned order may not be appealable in terms of any other provisions envisaged in Chapter XXIX of the Cr.P.C. 9. However, we note that Chapter XXXIV of the Cr.P.C. deals Crl. Appeal (V) No. 36/2022 - : 6 :- with disposal of property and it contains provisions from Sec.451 up to Sec.459. Sec.452 deals with order for disposal of property at the conclusion of a trial. Sec.453 deals with payment to innocent purchaser of money found on accused. Sec.454 deals with appeal against orders under Sec.452 or Sec.453. We are not concerned with Sec.453 in the facts of this case. Sec.452(1) stipulates that when an inquiry or trial in any Criminal Court is concluded, the said Court may make such order, as it thinks fit, for the disposal, by destruction, confiscation or delivery to any person, claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence, etc. 10. In the instant case, the Sessions Court has already given its directions as per the main judgment rendered on 18.7.2016 in S.C.No. 439/2015 (which deals with the conviction and sentence of the accused persons) wherein, in para 103 thereof, the Sessions Court has ordered that MO1 to MO5 shall be returned back to the defacto Crl. Appeal (V) No. 36/2022 - : 7 :- complainant. Hence, the said order passed by the Sessions Court is an order under Sec.452(1) of the Cr.P.C., which is in favour of the defacto complainant. Since the order passed under Sec.452(1) is in favour of the appellant herein/defacto complainant, there is no question of holding that such a party is aggrieved by such an order, so as to maintain an appeal in terms of Sec.454 of the Cr.P.C. Only a person who is aggrieved by an order under Sec.452(1) of the Cr.P.C. can maintain an appeal under Sec.454 of the Cr.P.C. In the instant case, a subsequent order was passed by the Sessions Court concerned, on 5.12.2019 on Crl.M.P.No.979/2019 in S.C.No. 439/2015, holding that MO1 to MO5 need not now be returned to the appellant herein, on account of the pendency of the Criminal Appeals filed by the accused persons before this Court. The said order dated 5.12.2019 is only an interlocutory order, pending consideration of the appeals before this Court and the said order cannot supersede or take the place of the directions passed in para 103 of the main judgment rendered by the Sessions Court on 18.7.2016, whereby it has been directed that the material objects MO1 to MO5 shall be returned back to the defacto Crl. Appeal (V) No. 36/2022 - : 8 :- complainant. Therefore, as of now, we are of the view that an appeal, in terms of Sec.454, is not maintainable at the instance of the defacto complainant, as the said party cannot be said to be aggrieved by the order already passed by the Sessions Court, in terms of Sec.452(1), which are the directions issued by the Sessions Court on 18.7.2016, in para 103 of the main judgment. 11. However, we are of the view that the proper remedy of the appellant in the present case may be to file a Criminal Miscellaneous Application under Sec.482 of the Cr.P.C. in the pending Criminal Appeals filed by the accused persons before this Court, with the present plea for return back of material objects concerned. 12. The powers under Sec.482 is of wide plentitude and grievances of a defacto complainant, which are arising out of an interlocutory order passed by the Sessions Court, could certainly be examined in a plea under Sec.482 of the Cr.P.C. However, since appeals are pending, it may not be proper to file an independent application, under Sec.482 of the Cr.P.C. as a Criminal Miscellaneous Case and the proper approach would be to file a Criminal Crl. Appeal (V) No. 36/2022 - : 9 :- Miscellaneous Application under Sec.482 of the Cr.P.C., to be filed in the main Criminal Appeals filed by the accused persons. Moreover, the said procedure would be legally correct and wholesome inasmuch as the right of the accused to be heard, could also be effectuated, in cases where criminal appeals of accused are pending. 13. Hence, it is ordered that the present Appeal is not maintainable and liberty is accorded to the appellant herein to file Criminal Miscellaneous Applications under Sec.482 of the Cr.P.C. with the abovesaid plea, to be filed in the main Criminal Appeals filed by the respective accused persons concerned which are now pending before this Court. With these observations and directions and with the said liberty, the above Crl. Appeal (V) will stand dismissed as not maintainable. Sd/- ALEXANDER THOMAS, JUDGE Sd/- SOPHY THOMAS, JUDGE MMG