Allowed

Kamal Sunderdas Bathija v. the State of Maharashtra and Ors.

Bombay HC14 Oct 2014REVN/376/2014

Case brief

AI extract

What is this about?

The High Court of Bombay Criminal Appeal Jurisdiction held that an appeal under Section 372 CrPC by a victim seeking enhancement of sentence to death was not maintainable. The appeal was allowed to convert into a criminal revision application. The court held it was not a fit case to interfere with the life sentence awarded under Section 302 IPC.

What did the court decide?

Appeal not maintainable as Section 372 CrPC appeal; converted to criminal revision application and subsequently dismissed.

Kamal Sunderdas Bathija Vs the State of… — Constitutional and Fundamental Rights | Bombay HC (2014)

cri appeal 108-14

srk

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.108 OF 2014

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Kamal Sunderdas Bathija .. Appellant Versus State of Maharashtra and others .. Respondents

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Mr. Subhash Jha with Ms. Rushita Jain i/by M/s. Law Global for the appellant.

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Mr. Vikas B. Patil-Shirgaonkar, Special P.P. for State.

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CORAM:S.C.DHARMADHIKARI

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AND A.K. MENON, JJ

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Reserved on : 16th September, 2014 Pronounced on : 14th October, 2014

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P.C.

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The prayer in this appeal reads as under:-

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“(a) that this Hon'ble Court may be pleased to call for the records and proceedings concerning Sessions Case No.218/99 from the Court of the Ld. Ad-hoc Addl. Sessions Judge, Kalyan and after examining the legality, validity and/or propriety of the same and more particularly the accused being let off lightly by awarding them only with imprisonment for life, their sentence be altered to death sentence and/or capital punishment;”

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2 cri appeal 108-14

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srk

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At the outset, Mr. Mundargi, learned senior counsel appearing on behalf of respondent No.2 (original appellant A1 in Criminal Appeal No.1309 of 2013) raises a preliminary objection to the maintainability of this appeal. He invites our attention to Section 372 of the Code of Criminal Procedure and submits that this appeal is not maintainable. His precise contention is that Section 372 of the Criminal Procedure Code which has been brought on the statute book earlier now has a proviso which has been inserted by Act 5 of 2009 with effect from 31st December, 2009. Mr. Mundargi submits that even if the provision confers a right in the victim and to prefer an appeal, that right is not such as would enable the appellant herein to prefer and maintain this appeal. Mr. Mundargi submits that the appeal is a creature of a statute. It cannot be inferred. Once the right of appeal is created by the statute and in limited terms, then, this appeal is not maintainable. The victim can prefer an appeal against the trial Court’s order acquitting the accused or convicting the accused for a lesser offence or imposing inadequate compensation but not to seek an enhancement in the sentence awarded. In other words, the victim cannot prefer an appeal against the order of the trial Court imposing inadequate sentence. That right has been conferred in the State Government and by clause (b) of Sub-section (1) of Section 377 of the Criminal Procedure Code. This appeal is complaining of alleged inadequacy in the sentence.

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For these reasons, he submits that this appeal be dismissed.

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Mr. Jha, learned counsel appearing on behalf of the appellant has after a careful perusal of both sections 372 (proviso) and 377(1)(b) conceded that this appeal is not maintainable but prays that it be allowed to be converted and treated as criminal revision application.

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srk 3 cri appeal 108-14

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After hearing both sides on the limited point noted above and perusing the statutory provisions, we are of the view that this appeal is not maintainable and cannot be entertained as such. However, we allow its conversion into a criminal revision application.

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Office to give effect to this order and number this appeal as criminal revision application. It shall be registered as such within a period of two weeks from the period of receipt of copy of this order.

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We have heard Mr. Jha on this revision application. We have noted his complaint that the attack on the deceased was gruesome, brutal. It was, according to Mr. Jha, a fatal blow to a witness to a serious crime of murder. We have also noted his further argument that the eye witnesses to crimes, may have a criminal record or antecedent, but they cannot be done away with by a murderous assault on them and that too by influential political opponents. We have also noted his another submission that this is a blow to the maintenance of peace and law and order in the society and any eye witness, therefore, would not come forward to depose at the trial of serious crimes or if he deposes, he may not speak the truth. We have also noted Mr. Jha’s submission about the eye witness in this case being killed even after he was granted police protection.

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After perusing the entire record and hearing all parties, we are not satisfied that this is a fit case for our interference in the limited jurisdiction under section 397 of the Code of Criminal Procedure. This is also not a case for interference in our jurisdiction conferred by Section 401 of the Criminal Procedure Code either. The judgment of conviction and sentence has been confirmed by us in criminal appeal. We do not feel that this is a fit case for interference with the quantum of punishment or sentence. Normally, the sentence of imprisonment for life has to be

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srk 4 cri appeal 108-14

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handed down by the trial Court after it convicts the Accused for the offence punishable under Section 302 IPC. This cannot be considered to be rarest of rare case so as to make any departure from this normal rule. The request to impose that sentence is, therefore, rejected. Revision dismissed.

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(A.K. Menon, J.)

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(S.C. Dharmadhikari, J.)

Kamal Sunderdas Bathija v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Kamal Sunderdas Bathija v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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