NANDRAJOG,J. - (1.) The following five points have been referred to a Larger Bench:- (i) Whether any appeal filed by the victim under proviso to Section 372 can be dismissed summarily in the event if no sufficient ground for interference is made out and thereby apply to the provisions of Section 384 Cr.P.C., 1973 to such appeals filed by the victims. (ii) Whether the proviso to Section 372 as introduced by the amending Act No.5 of 2009 which has been brought into effect on 31.12.2009 can be given effect to in cases where the offence occurred prior to 31.12.2009 and thereby given the right of appeal to the victim in the event; (a) whether the court below has acquitted the accused or (b) has convicted the accused for a lesser offence or (c) has imposed inadequate compensation. Though the judgment in such cases may have been passed by the court below after 31.12.2009. (iii) Whether the appeal by the victim under proviso to Section 372 is also required to be dealt with in the same manner as an appeal filed by the State under Section 378 Cr.P.C., 1973 and the provisions of Section 378 are required to be read into the provisions of Section 372 Cr.P.C., 1973 with regard to appeals filed by the victims. (iv) The further question arises whether the State can maintain an appeal under Section 378 Cr.P.C., 1973 after the amendment to the Code of Criminal Procedure, 2009 in cases where the court below has convicted the accused for a lesser offence than the one charged when seen in the light of the amendment to Section 372 where under the proviso appeals have been provided for three separate and distinct purposes namely; acquittal, conviction for lesser offence and awarding inadequate compensation, in contrast Section 378 on the other hand, only refers to order of acquittal passed by the court below in contradistinction to passing a judgment of conviction for a lesser offence as mentioned in proviso to Section 372. (v) Whether the victim can prefer an appeal for enhancement of the sentence when no such express right has been conferred under the proviso to Section 372 Cr.P.C., 1973
(2.) Learned counsel for the parties state that points at serial No.1, 3 to 5 need not be answered for the reason in the decision reported as (2015) 15 SCC 613, Satya Pal Singh v. State of M.P. and Ors., the Supreme Court held that the proviso to section 372 of the Code of Criminal Procedure, 1973 cannot be read as conferred upon the victim a right to prefer an appeal against an order acquitting the accused or convicting the accused for a lesser offence or imposing inadequate compensation. The right is to file an application seeking leave to appeal. In the decision reported as (2010) 12 SCC 599, National Commission of Women v. State of Delhi and Anr., it has been held that a victim has no right under the proviso to challenge the sentence on ground of it being inadequate.
(3.) As regards point No.2, the date wherefrom right accrues to a victim to seek leave to appeal, in the decision reported as (2011) 6 SCC 739, Thirumalai Chemicals Ltd. v. Union of India, the Supreme Court clearly held that the 'right of appeal being a substantive right always acts prospectively. It is trite law that every statute is prospective unless it is expressly or by necessary implication made to have retrospective operation.' This is a consistent position of law, and has been affirmed by the Supreme Court in numerous cases, such as AIR 1994 SC 2623, Hitendra Vishnu Thakur v. State of Maharashtra, (2005) 4 SCC 480, Kailash v. Nanhku and Ors., and (2014) 5 SCC 219, H.P. State Electricity Regulatory Commission v. H.P. SEB,;