appeal u/s.372 of Cr.P.C. seeking enhancement of sentence at the instance of the victim, is not maintainable

Chapter XXIX of the Code of Criminal Procedure, 1973 deals with ‘Appeals’ and Section 372 makes it clear that no appeal to lie unless otherwise provided by the Code or any other law for the time being in force. It is not in dispute that in the instant case appellant has preferred appeal only under Section 372, Cr.PC. The proviso is inserted to Section 372, Cr.PC by Act 5 of 2009. Section 372 and the proviso which is subsequently inserted read as under:

“372. No appeal to lie unless otherwise provided. – 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:
Provided that the victim shall have 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.” 

  A reading of the proviso makes it clear that so far as victim’s right of appeal is concerned, same is restricted to three eventualities, namely, acquittal of the accused; conviction of the accused for lesser offence; or for imposing inadequate compensation. While the victim is given opportunity to prefer appeal in the event of imposing inadequate compensation, but at the same time there is no provision for appeal by the victim for questioning the order of sentence as inadequate, whereas Section 377, Cr.PC gives the power to the State Government to prefer appeal for enhancement of sentence. While it is open for the State Government to prefer appeal for inadequate sentence under Section 377, Cr.PC but similarly no appeal can be maintained by victim under Section 372, Cr.PC on the ground of inadequate sentence. It is fairly well settled that the remedy of appeal is creature of the Statute. Unless same is provided either under Code of Criminal Procedure or by any other law for the time being in force no appeal, seeking enhancement of sentence at the instance of the victim, is maintainable. Further we are of the view that the High Court while referring to the judgment of this Court in the case of National Commission for Women v. State of Delhi & Anr. (2010) 12 SCC 599 has rightly relied on the same and dismissed the appeal, as not maintainable.[Para No.9]

What factor's has to be considered while awarding sentence for an offense?

A proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances extenuating or aggravating of the offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, prospect for rehabilitation of the offender, the possibility of return of the offender to normal life and the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect of the particular type of the offence. 

These factors have to be taken into account by the Court in deciding upon the appropriate sentence.

{Relied on Mohd. Giasuddin v. State of A.P.: (1977) 3 SCC 387}

Accused can challenge the sentence in an appeal filed by State for inadequacy of sentence

Can a convicted person; without filing an appeal, challenge his conviction, in an appeal filed by the State on the ground of inadequacy of sentence?

 Held: Yes

It is open to accused to challenge the finding and order of conviction recorded against him in the appeal filed by the State?

    In an appeal filed by the State; against the sentence, on the ground of its inadequacy, the accused can plead for his acquittal or for reduction of the sentence. [Para No.6]