Supreme Court of India
MAHABIR & ORS.versusSTATE OF HARYANA
- Citation
- 2025 INSC 120
- Decided
- 29 January 2025
- Disposal
- Appeal(s) allowed
- Bench
- B PARDIWALA
Holding
The High Court cannot convert an acquittal into a conviction under s.401 CrPC, and the proviso to s.372 CrPC is prospective, not retrospective, rendering the revision judgment erroneous and set aside.
Summary
The appellants were acquitted of murder by the Sessions Court in 2005, but a criminal revision filed by the victim's father in 2006 was allowed by the High Court, which reversed the acquittal and sentenced the appellants to life imprisonment. The Supreme Court examined whether the High Court could convert an acquittal into a conviction under its revisional jurisdiction under s.401 r/w s.397 CrPC, and whether the proviso to s.372 CrPC gave the victim a retrospective right to appeal. It held that s.401(3) expressly bars a High Court from converting an acquittal into a conviction and that s.401(5) requires a reasoned order, which was absent. The Court also found that the proviso to s.372, introduced in 2009, creates a substantive right for victims but operates prospectively, not retrospectively, so no such right existed in 2006. Consequently, the High Court’s judgment was erroneous, the conviction was set aside, the appellants were released on bail, and compensation was awarded. The decision reaffirmed the limits of revisional powers and the need for compliance with procedural safeguards and evidentiary rules.
Issues considered
- Whether the High Court erred in converting an acquittal into a conviction under its revisional jurisdiction u/s 401 r/w s.397 CrPC.
- Whether the proviso to s.372 CrPC creates a victim's right to appeal an acquittal.
- Whether the proviso to s.372 CrPC is an exception to the general rule of s.372.
- Whether the proviso to s.372 CrPC operates retrospectively.
- Whether the High Court complied with the procedural requirements of s.401(5) when treating the revision as an appeal.
- Whether the use of police statements under s.162 CrPC without proper contradiction violates evidentiary law.
Legislation cited
- Code of Criminal Procedure, 1973s. 145, s. 162, s. 372, s. 378, s. 397, s. 401, s. 401(3), s. 401(5)
- Evidence Act, 1872s. 145
Headnote
Issue for Consideration Whether the High Court committed any error in passing the impugned judgment and order of conviction in exercise of its revisional jurisdiction u/s.401 r/w. s.397 of the CrPC; Whether Proviso to s.372 of CrPC creates a right in favour of victim; Is Proviso to s.372 of CrPC is retrospective in operation. Headnotes† Code of Criminal Procedure, 1973 – s.401 r/w. s.397 – In the Criminal Revision Application No. 194 of 2006 filed by the original de facto complainant before the High Court against the judgment and order of acquittal passed by the trial
Subjects
High Court’s powers of revisionRevision as an appealGolden Rule of InterpretationSubstantive EnactmentCompensationProviso’s retrospective OperationProviso’s prospective in operationRevisional JurisdictionCross-ExaminationContradictionSubstantive EvidenceInvestigating OfficerPublic ProsecutorCriminal Law enforcement systemStatutory dutiesSection 401 of Code of Criminal Procedure, 1973Section 372 of Code of Criminal Procedure, 1973Proviso to section 372 of Code of Criminal Procedure, 1973Unlawful detention
Judgment
[2025] 1 S.C.R. 1105 : 2025 INSC 120
Mahabir & Ors.
v.
State of Haryana
(Criminal Appeal No(s). 5560-5561 of 2024)
29 January 2025
[J.B. Pardiwala* and R. Mahadevan, JJ.]
Issue for Consideration
Whether the High Court committed any error in passing the
impugned judgment and order of conviction in exercise of its
revisional jurisdiction u/s.401 r/w. s.397 of the CrPC; Whether
Proviso to s.372 of CrPC creates a right in favour of victim; Is
Proviso to s.372 of CrPC an exception; Is Proviso to s.372 is
retrospective in operation.
Headnotes†
Code of Criminal Procedure, 1973 – s.401 r/w. s.397 – In the
Criminal Revision Application No. 194 of 2006 filed by the
original de facto complainant before the High Court against the
judgment and order of acquittal passed by the trial Court came
to be allowed and the appellants herein were held guilty of the
offence of murder punishable u/s.302 of IPC – Correctness:
Held: s.401 reads the High Court’s powers of revision – s.401(3) lays
down that nothing in this section shall be deemed to authorize a High
Court to convert a finding of acquittal into one of conviction – The
bar u/s.401(3) CrPC is categorical and express – For High Court to
treat the revision as an appeal, the condition laid down u/s.401(5)
CrPC are required to be fulfilled i.e. when the High Court is satisfied
that application for revision was made under the erroneous belief
that no appeal lies and in the interest of justice, the High Court
may treat the application for revision as a petition of appeal – A
reasoned, speaking order was required to be passed recording
that conditions u/s.401(5) were fulfilled – However, in the instant
case no such procedure was adopted – The general provision on
appeals is s.372 CrPC which says that no appeal was permissible
other than provided for, in law – The Proviso to s.372 CrPC had not
* Author
1106 [2025] 1 S.C.R.
Supreme Court Reports
yet come into effect as on 19.01.2006 when the revision petition
was filed, for it was added only w.e.f. 31.12.2009 – The statutory
right of appeal by a victim against such acquittal arose only from
the date of the amendment w.e.f. 31.12.2009 – As the said revision
was filed by the father of the deceased on 19.01.2006 well before
the above amendment, such right was not available at the relevant
point of time – Therefore, the very first condition u/s.401(5) itself
would not have been possible to be fulfilled, i.e. the right of the
victim to appeal did not lie under the Code at the time of filing
the revision petition – As regards appeals against acquittals, the
relevant provision for appeals, and specifically for appeal to the
High Court are detailed out u/s.378 CrPC – Thus, only the State
had the statutory right to appeal against the order of acquittal in
2006, and indisputably, the State did not file appeal challenging
the said order of acquittal – Thus, the High Court committed an
egregious error in reversing the acquittal and passing an order
of conviction in exercise of its revisional jurisdiction and that too
without affording any opportunity of hearing to the appellants herein.
[Paras 33, 35, 36, 37, 38, 46]
Code of Criminal Procedure, 1973 – Proviso to s.372 – A right
created in favour of victim:
Held: The significant development that has taken place in this
provision is that a ‘proviso’ was added by the Amending Act No.5 of
2009 – The plain reading of the statement of objects and reasons for
introducing the proviso to s.372 CrPC makes it clear that it wanted
to confer certain rights on the victims – It has been noted therein
that the victims are the worst sufferers in a crime, and they don't
have much role in the court proceedings – They need to be given
certain “rights” and compensation, so that there is no distortion of
the criminal justice system – This, by itself, is clear that the object
of adding this proviso is to create a right in favour of the victim
to prefer an appeal as a matter of right – It not only extends to
challenge the order of acquittal, but such appeal can also be filed
by the victim if the accused is convicted for a lessor offence or
if the inadequate compensation has been imposed – Thus, it is
clear as per the golden rule of interpretation, that the ‘proviso’ is a
substantive enactment, and is not merely excepting something out
of or qualifying what was excepting or goes before – Therefore,
by adding the ‘proviso’ in s.372 of CrPC by this amendment, a
right has been created in favour of the victim. [Paras 52, 53, 54]
[2025] 1 S.C.R. 1107
Mahabir & Ors. v. State of Haryana
Code of Criminal Procedure, 1973 – Proviso to s.372 – Is
Proviso to s.372 an exception:
Held: Given the text of s.372 and the scheme of the Act, it is clear
that the proviso establishes an independent right, and must be
interpreted within that framework – s.372 forbids appeals unless
otherwise authorized by the Code, or by another law – The proviso,
however, states that the victim shall have the right to appeal under
certain circumstances – Given the rule enacted in s.372, it cannot
be said that the proviso to that provision carves out an exception
to the rule – According to the rule in s.372, appeals must be in
accordance with the Code; according to the proviso - which is
itself part of the Code - victims have the right to appeal under
certain circumstances – The proviso to s.372 dispenses with the
requirement of leave in case it is the victim who is appealing –
While s.372 enacts that no appeal shall lie except as provided
for by the Code, it refers to the various provisions of Chapter 29,
including the proviso, each of which prescribe the requirements
and procedures for appeals under different circumstances – The
proviso, therefore, is not an exception to s.372, but a stand-alone
legal provision. [Para 67]
Code of Criminal Procedure, 1973 – Is Proviso to s.372 is
retrospective in operation:
Held: In view of the various Supreme Court decisions, it is clear
that a statute which affects substantive rights is presumed to be
prospective in operation – In view of the aforesaid, the amendment
so made in s.372 CrPC by adding a proviso in the year 2009
creating a substantive right of appeal is not retrospective in
nature – A statute which creates new rights shall be construed
to be prospective in operation unless otherwise provided, either
expressly or by necessary implication – In the instant case, it
is, therefore, clear that in the year 2006 when the judgement of
acquittal was passed, the de facto complainant had no right to
challenge the impugned order passed in 2006 by way of filing the
appeal – In such circumstances sub section (5) of s.401 CrPC has
no application in the present case. [Paras 68-72]
Code of Criminal Procedure, 1973 – s.162 – Evidence Act,
1872 – s.145:
1108 [2025] 1 S.C.R.
Supreme Court Reports
Held: The trial courts cannot independently use statements made to
the police that have not been proven, nor can it base its questions
on such statements if they conflict with the witness's testimony in
court – The phrase 'if duly proved' in s.162 of the CrPC indicates
that the statements of witnesses recorded by the police cannot be
immediately admitted as evidence or examined – They must first
be proven through eliciting admissions from the witness during
cross-examination and also during the cross-examination of the
Investigating Officer – While statements made to the Investigating
Officer can be used for contradiction, this can only be done after
strict compliance with s.145 of the Evidence Act – This requires
drawing attention to the specific parts of the statement intended for
contradiction – This is what is required u/s.145 of the Evidence Act
but even where a witness is confronted by his previous statement
and given an opportunity to explain that part of the statement that
is put to him does not constitute substantive evidence – There is a
catena of decisions laying down the principle in law that the material
elicited as contradiction by use of s.145 of the Indian Evidence
Act is not substantive evidence – Even in regard to the statement
recorded u/s.164 of the CrPC by authorised Magistrate, it has been
held accordingly – Therefore, the fact that the contradictions are
proved through the investigating officers though the witnesses
have denied having made such statements, does not translate
the contradictions into substantive evidence – Unless there is
substantive evidence, it cannot be acted upon legally particularly
to base a conviction. [Paras 80, 81]
Unlawful detention – Principle established:
Held: The principle is well established that in cases where there
can be no dispute of facts, the constitutional courts have the power
to award compensation in case a person has been deprived of
his life and liberty without following the procedure established by
law. [Para 84]
Code of Criminal Procedure, 1973 – Public Prosecutors –
Appointment should be on the basis of merit:
Held: The AGPs and APPs in respective High Courts should be
appointed solely on the merit of the person – The State Government
owes a duty to ascertain the ability of the person; how proficient
the person is in law, his overall background, his integrity etc. –
Public Prosecutor holds a “Public Office” – The primacy given to
[2025] 1 S.C.R. 1109
Mahabir & Ors. v. State of Haryana
him under the Scheme of CrPC has a “special purpose” – Certain
professional, official obligations and privileges are attached to his
office – His office may also be termed as an office of profit as he
remains disqualified to contest the election so long he holds the
office though permanency is attached to the office and not to the
term of his office – His duties are of public nature – He has an
“independent and responsible character” – He holds the public office
within the scope of a “quo warranto proceedings” – Prosecutor is
not a part of investigating agency but is an “independent statutory
authority” – He performs statutory duties and functions – He holds
an office of responsibility as he has been enclothed with the power
to withdraw the prosecution of a case on the directions of the State
Government. [Paras 92, 94]
Code of Criminal Procedure, 1973 – Public Prosecutors –
Importance of the office of the Public Prosecutor – discussed.
Case Law Cited
Bindeshwari Prasad Singh v. State of Bihar (now Jharkhand)
& Anr. [2002] Supp. 1 SCR 495 : (2002) 6 SCC 650; Joseph
Stephen & Ors. v. Santhanasamy & Ors. [2022] 8 SCR 182 :
(2022) 13 SCC 115; Ganesha v. Sharanappa & Anr. [2013] 12
SCR 400 : (2014) 1 SCC 87; Santhakumari & Ors. v. State of
Tamil Nadu & Ors. (2023) 15 SCC 440; A.N. Sehgal & Ors. v. Raje
Ram Sheoran & Ors. [1991] 2 SCR 198 : AIR 1991 SC 1406;
S. Sundaram Pillai & Ors. v. V.R. Pattabiraman & Ors. [1985] 2
SCR 643 : AIR 1985 SC 582; State of Bombay & Anr. v. United
Motors (India) Limited & Ors. [1953] 1 SCR 1069 : (1953) 1 SCC
514; State of Kerala & Anr. v. B. Six Holiday Resorts Private
Ltd. & Ors. [2010] 3 SCR 1 : (2010) 5 SCC 186; Mallikarjun
Kodagali (Dead) represented through Legal Representatives
v. State of Karnataka & Ors. [2018] 13 SCR 1 : (2019) 2 SCC
752; Hitendra Vishnu Thakur & Ors. v. State of Maharashtra &
Ors. [1994] Supp. 1 SCR 360 : (1994) 4 SCC 602; Sudhir G.
Angur & Ors. v. M. Sanjeev & Ors. [2005] Supp. 4 SCR 851 :
(2006) 1 SCC 141; Anees v. State Government of NCT [2024]
6 SCR 164 : 2024 SCC OnLine SC 757; D.K. Basu v. State of
West Bengal (1996) Supp. 10 SCR 284 : (1997) 1 SCC 416;
Nilabati Behera v. State of Orisa & Ors. [1993] 2 SCR 581 :
(1993) 2 SCC 746 – relied on.
1110 [2025] 1 S.C.R.
Supreme Court Reports
Jang Sing v. Brij Lal and Others [1964] 2 SCR 145 : AIR 1966
SC 1631; Manharibhai Muljibhai Kakadia & Anr v. Shaileshbhai
Mohanbhai Patel & Ors. [2012] 8 SCR 1015 : (2012) 10 SCC 517;
Bal Manohar Jalan v. Sunil Paswan & Anr. [2014] 7 SCR 900 :
(2014) 9 SCC 640; Nandini Satpathy v. P.L. Dani & Anr. [1978] 3
SCR 608 : (1978) 2 SCC 424; Government of Andhra Pradesh &
Ors. v. P. Laxmi Devi [2008] 3 SCR 330 : (2008) 4 SCC 720; Super
Cassettes Industries Ltd. v. State of Uttar Pradesh & Anr. [2009] 14
SCR 627 : (2009) 10 SCC 531; Ramesh Kumar Soni v. State of
Madhya Pradesh [2013] 1 SCR 1129 : (2013) 14 SCC 696; Kiran
Bedi v. Committee of Inquiry & Anr. [1989] 1 SCR 20 : (1989) 1
SCC 494; Vishwanath Agrawal v. Sarla Vishwanath Agrawal [2012]
7 SCR 607 : (2012) 7 SCC 288 – referred to.
Shiv Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass AIR 1952
Bom 365 – referred to.
Books and Periodicals Cited
Law Commission of India's 154th Report, 1996.
List of Acts
Code of Criminal Procedure, 1973; Evidence Act, 1872.
List of Keywords
High Court’s powers of revision; Revision as an appeal; Golden Rule
of Interpretation; Substantive Enactment; Compensation; Proviso’s
retrospective Operation; Proviso’s prospective in operation;
Revisional Jurisdiction; Cross-Examination; Contradiction;
Substantive Evidence; Investigating Officer; Public Prosecutor;
Criminal Law enforcement system; Statutory duties; Section
401 of Code of Criminal Procedure, 1973; Section 372 of Code
of Criminal Procedure, 1973; Proviso to section 372 of Code of
Criminal Procedure, 1973; Unlawful detention.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No(s).
5560-5561 of 2024
From the Judgment and Order dated 27.08.2024 and 02.09.2024
of the High Court of Punjab & Haryana at Chandigarh in CRR
No. 194 of 2006
[2025] 1 S.C.R. 1111
Mahabir & Ors. v. State of Haryana
Appearances for Parties
Advs. for the Appellants:
Ms. Indira Unninayar, Mrs. Rukhsana Choudhury.
Advs. for the Respondent:
Samar Vijay Singh, Ms. Sabarni Som, Keshav Mittal, Fateh Singh.
Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
1. Since the issues raised in both the captioned appeals are the same
and the challenge is also to the self-same judgement and order passed
by the High Court, those were taken up for hearing analogously and
are being disposed of by this common judgement and order.
2. We may clarify that the Criminal Appeal No. 5560 of 2024 arises
from the judgement and order passed by the High Court, reversing
the acquittal and holding the appellants herein guilty of the offence
of murder. Whereas Criminal Appeal No. 5561 of 2024 arises from
the order of sentence, which ultimately came to be passed by the
High Court.
3. These appeals arise from the judgement and order passed by the
High Court of Punjab and Haryana at Chandigarh dated 27.08.2024
in Criminal Revision Application No. 194 of 2006 by which the criminal
revision filed by the original de facto complainant against the judgment
and order of acquittal passed by the trial court came to be allowed
and the appellants herein were held guilty of the offence of murder
punishable under Section 302 of the Indian Penal Code (for short,
“the IPC”) and sentenced to undergo rigorous imprisonment for life
and fine of Rs. 50,000/- each and further, rigorous imprisonment for
3 months in default of payment of fine.
4. “There is no higher principle for the guidance of the court than the
one that no act of courts should harm a litigant and it is the bounden
duty of the courts to see that if a person is harmed by a mistake
of the court he should be restored to the position he would have
occupied, but for that mistake.”
1112 [2025] 1 S.C.R.
Supreme Court Reports
5. The above is aptly summed up in the maxim “actus curiae neminem
gravabit”. It implies that judicial actions should not unfairly harm any
party and that courts should act judiciously to prevent errors that
could lead to injustice. (Jang Sing v. Brij Lal and Others reported
in AIR 1966 SC 1631).
6. We need not delve much into the facts of the present case as our
order dated 13.12.2024 gives more than a fair idea as to how these
appeals have come up before us. The order reads thus:
“3. The three appellants herein along with three other
co-accused were put to trial for the offence of murder
punishable under Section 302 read with Section 148 and
149 of the Indian Penal Code, 1860. On conclusion of
the trial, the Trial Court held two co-accused guilty of the
alleged crime, whereas the other four, including three
appellants herein, came to be acquitted.
4. The State did not deem fit to challenge the acquittal
of the three appellants herein. One of the convicts went
in appeal before the High Court and the father of the
deceased in turn invoked the revisional jurisdiction of the
High Court under Section 401 read with Section 397 of the
Code of Criminal Procedure, 1973 seeking to challenge
the acquittal of the three appellants herein. It appears that
the appeal filed by one of the convicts against his order
of conviction came to be dismissed despite the fact that
the convict had already passed away.
5. In the revision application, which was filed by the
father of the deceased, the High Court held all the three
appellants herein guilty of the alleged offence of murder
and sentenced them to undergo life imprisonment. We
are informed that they were taken into custody on the
very same day the judgment was pronounced by the High
Court and now they are serving the sentence as imposed
by the High Court.
6. We are not able to understand, on what basis the
High Court in exercise of its revisional jurisdiction under
Section 401 read with Section 397 of the Code of Criminal
Procedure could have converted the finding of acquittal
into one of conviction. Sub-Section (3) of Section 401
[2025] 1 S.C.R. 1113
Mahabir & Ors. v. State of Haryana
reads thus: “(3) Nothing in this section shall be deemed
to authorize a High Court to convert a finding of acquittal
into one of conviction.”
7.There is one another feature which has disturbed us.
According to the learned counsel the High Court proceeded
ex-parte without issuing notice to the three appellants
herein in the revision petition, who had already been
acquitted by the Trial Court.
8. We are also informed that the father of the deceased,
who had filed the revision application before the High
Court had also passed away much before the judgment
of the High Court.
9. Issue notice to the State of Haryana, returnable on 19th
December, 2024.
10. In such circumstances referred to above, all the
three appellants are ordered to be released on bail.
The substantive order of sentence passed by the High
Court is suspended till further orders. Accordingly, IA No.
285726/2024 stands disposed of.
11. Registry to call for the records and proceedings of
the Sessions Case No. 4 of 1988/2005, disposed of by
Additional Sessions Judge, Rewari, from the High Court
of Punjab & Haryana at Chandigarh.”
CASE PUT UP BY THE APPELLANTS HEREIN
7. The case pertains to an incident dated 13.03.1998. It was a day of
Holi festival. The incident was first reported by one Dharampal to
the police at 2:55 p.m. on 13.03.1998 itself within two hours of the
incident, stating that one Om Parkash s/o Shiv Lal (Complainant) and
Om Parkash S/o Chandgi Ram (deceased) had assaulted him, Murti
w/o Ram swarup and Usha, W/o Dayanand respectively. Dharampal
alleged that the two assailants climbed on to the roof of his house
and caught hold of him and in the scuffle, both of them fell down
from the roof and both of them also suffered injuries.
8. However, the complaint lodged by Dharampal referred to above was
neither investigated nor any FIR was registered, for the reasons best
known to the Police.
1114 [2025] 1 S.C.R.
Supreme Court Reports
9. Instead, an FIR came to be registered on the statement of the
above-mentioned Om Parkash S/o Shiv Lal (the Complainant) on
14.03.1998 i.e. one day later, implicating inter alia, the appellants
herein. This was followed by a further statement dated 15.03.1998,
naming Dharampal and Sri Chand, a senior citizen who walked with
the aid of a walking stick (baint) as accused.
10. Upon appreciation of oral as well as documentary evidence adduced
in the trial, the Sessions Court held that the prosecution had failed
to prove its case against the appellants/accused viz. Mahabir, Raj
Kumar, Dayanand and Krishan Kumar beyond reasonable doubt,
and accordingly, acquitted them vide its judgment and order dated
05.10.2005 passed in Sessions Case No. 4 of 1998/2005. The
Sessions Court, however, convicted Dharampal of the offence
under Section 302 read with Section 34 IPC. Since co-accused Sri
Chand passed away during the trial, the proceedings against him
stood abated.
11. No appeal was preferred by the State of Haryana against the said
judgment dated 05.10.2005 acquitting the appellants herein.
12. On 19.01.2006, Chandgi Ram, father of deceased Om Parkash,
preferred Criminal Revision being CRR-194-2006 (O&M), seeking
to challenge the acquittal of the appellants viz. Mahabir, Raj Kumar,
Dayanand and Krishan Kumar.
13. The convict Dharampal filed Criminal Appeal being CRA-752-DB-2005
(O&M) against the judgment of conviction dated 05.10.2005 and
order on sentence dated 08.10.2005.
14. Accused Raj Kumar s/o Raghbir Singh passed away on 24.02.2015.
The order dated 07.11.2019 indicates that service could not be
effected upon the appellants (respondents in the said Revision
Petition, CRR-194-2006), due to non-payment of process fee. As on
12.07.2022 too, the appellants who were respondents in the revision
petition were not served with the copy of the revision petition. The
counsel for the revisionist also informed the High Court that he had
no instructions in the matter. In December 2023, the revisionist
Chandgi Ram passed away; thus, there was no revisionist before
the High Court from the date of demise onwards, as well as, on
the date of final hearing. In February 2024, the convicted-accused,
Dharam Pal, also passed away. Hence, his conviction appeal also
[2025] 1 S.C.R. 1115
Mahabir & Ors. v. State of Haryana
stood abated, however, the same was not brought to the notice of
the High Court by the State.
15. On 21.08.2024, the High Court passed an order that since the
revisionist was not being represented by any counsel, the Court
was appointing legal aid counsel to assist the Court on behalf of
the revisionist in the revision petition. The Court further directed that
the legal aid counsel be supplied with the Paper book. On behalf
of the accused (appellants), a counsel was appointed to assist the
Court (without any corresponding order to supply the paper book to
him). Arguments were heard on the same day. The revision petition
and the conviction appeal were decided by the High Court and by
a common judgment and order dated 27.08.2024, the CRA-752-
DB-2005 filed by Dharampal was dismissed (O&M) and CRR-194-
2006 (O&M) was allowed.
16. After coming to know about the judgment reversing the acquittal,
the appellants surrendered/were taken into custody.
17. In such circumstances referred to above, the appellants are here
before this Court with the present two appeals.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
18. Ms. Indira Unninayar, the learned counsel submitted that despite
an express statutory bar on reversing a finding of acquittal the High
Court in violation of this statutory bar, reversed the acquittal into a
conviction.
19. She submitted that the High Court in exercise of its revisional
jurisdiction has undoubtedly the power to set aside the acquittal,
but such interference is called for only in exceptional cases and that
too only for the purpose of re-trial. However, it is not permissible to
convert such acquittal to conviction. The only course left to it in such
exceptional cases, is to order retrial, which, was not done.
20. She submitted that no right of appeal was available to the victim
in law at the time the revision was filed and therefore, there was
no scope for the court to even treat the revision as an appeal that
‘lay under the Code of Criminal Procedure (for short, “the CrPC” or
“Code”)’ at the time as provided for under Section 401(5) above.
21. Despite an express statutory bar on any order being passed to the
prejudice of the accused unless he has had an opportunity of being
1116 [2025] 1 S.C.R.
Supreme Court Reports
heard either personally or by pleader in his own defence, the High
Court proceeded to hear and pronounce its judgment without adhering
to the above. The above was also in violation of the principles of
natural justice, the right to access the criminal justice system, and
the constitutional right of the accused to be represented by a counsel
of their choice under Articles 21 & 22(1) read with 20(3) respectively
of the Constitution of India. Yet the matter proceeded without service
upon the accused.
22. The revision petition was filed on 19.01.2006. However, the High
Court’s order dated 07.11.2019, indicates that - Service could not
be effected upon the appellants who were respondents in the said
revision petition, CRR-194-2006, due to non-payment of process fee.
23. The order dated 12.07.2022 reflects that the appellants who were
respondents in the revision petition were not served with the copy of
the revision petition, as of 12.07.2022. The counsel for the revisionist
had also informed the High Court that he had no instructions.
24. The order dated 21.08.2024 reflects that - since the revisionist
was not represented by a validly engaged counsel, the High Court
appointed a legal aid counsel to assist the Court on behalf of the
deceased revisionist. The said counsel was supplied with the paper
book. Arguments were heard on the same day and judgment was
reserved.
25. By way of abundant caution, the appellants had approached the
Registry of the High Court to obtain a ‘Copy of Service Report in
CRR-194-2006’ on 3.10.2024 and the Registry replied on 14.10.2024
that ‘Required doc not available on DMS’ and ‘No Service Report is
available in CRR-194-2006 in this file’.
26. Neither the Counsel appointed by the Court had a chance to peruse
the record and prepare for any arguments to assist the Court, nor
did he had any occasion or opportunity to confer/contact/consult
with the appellants herein to seek instructions for defending their
acquittal and contesting the revision petition, as he was appointed
and asked to represent the accused/respondents there and then, on
the very same day, that the arguments were heard and judgement
reserved.
27. The above was in gross violation of the principles of natural justice
as well as the appellants’ constitutional right to be represented by
[2025] 1 S.C.R. 1117
Mahabir & Ors. v. State of Haryana
a counsel of their own choice under Articles 21 & 22(1) respectively
of the Constitution of India.
SUBMISSIONS ON BEHALF OF THE STATE OF HARYANA
28. The learned counsel appearing for the State submitted that the High
Court in exercise of its revisional jurisdiction under Section 401 read
with Section 397 of the CrPC could not have reversed the acquittal
and passed an order of conviction. However he submitted that as
sub section (5) to Section 401 provides that if an appeal lies under
the CrPC, but an application for revision had been made to the High
Court by any person and if the High Court is convinced that such
application had been filed under the erroneous belief that no appeal
lies thereto, then in the interest of justice the High Court can treat
the application for revision as an appeal and deal with the same
accordingly.
29. According to the learned counsel appearing for the State, the High
Court in the case on hand, could have invoked sub section (5) of
Section 401 and with the aid of the proviso to Section 372 of the CrPC
could have treated the revision filed by the de facto complainant as
an appeal. However, even for the purpose of invoking sub section
(5) to Section 401 CrPC, the High Court has to pass an appropriate
order in that regard.
30. The learned counsel appearing for the State went to the extent
of submitting that although the proviso to Section 372 CrPC was
introduced sometime in 2009, i.e., after the judgment of acquittal yet
the High Court could have given retrospective effect to the proviso
to Section 372 and should have treated the revision application
filed by the de facto complainant as an appeal under Section 372
of the CrPC.
ANALYSIS
31. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that
falls for our consideration is whether the High Court committed any
error in passing the impugned judgment and order of conviction in
exercise of its revisional jurisdiction under Section 401 read with
Section 397 of the CrPC.
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RELEVANT PROVISIONS OF LAW
32. Section 397 CrPC reads thus:-
“397. Calling for records to exercise powers of
revision.—(1) The High Court or any Sessions Judge
may call for and examine the record of any proceeding
before any inferior Criminal Court situate within its or
his local jurisdiction for the purpose of satisfying itself or
himself; to the correctness, legality or propriety of any
finding, sentence or order, recorded or passed, and as to
the regularity of any proceedings of such inferior Court,
and may, when calling, for such record, direct that the
execution of any sentence or order be suspended, and if
the accused is in confinement that he be released on bail
or on his own bond pending the examination of the record.
Explanation.—All Magistrates, whether Executive or
Judicial, and whether exercising original or appellate
jurisdiction, shall be deemed to be inferior to the Sessions
Judge for the purposes of this sub-section and of section
398.
(2) The powers of revision conferred by sub-section (1)
shall not be exercised in relation to any interlocutory order
passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by
any person either to the High Court or to the Sessions
Judge, no further application by the same person shall be
entertained by the other of them.”
33. Section 401 CrPC reads thus:-
“401. High Court’s powers of revision.—(1) In the case
of any proceeding the record of which has been called
for by itself or which otherwise comes to its knowledge,
the High Court may, in its discretion, exercise any of the
powers conferred on a Court of Appeal by sections 386,
389, 390 and 391 or on a Court of Session by section 307,
and, when the Judges composing the Court of Revision
are equally divided in opinion, the case shall be disposed
of in the manner provided by section 392.
[2025] 1 S.C.R. 1119
Mahabir & Ors. v. State of Haryana
(2) No order under this section shall be made to the
prejudice of the accused or other person unless he has
had an opportunity of being heard either personally or by
pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise
a High Court to convert a finding of acquittal into one
conviction.
(4) Where under this Code an appeal lies and no appeal
is brought, no proceeding by way of revision shall be
entertained at the instance of the party who could have
appealed.
(5) Where under this Code an appeal lies but an application
for revision has been made to the High Court by any person
and the High Court is satisfied that such application was
made under the erroneous belief that no appeal lies thereto
and that it is necessary in the interests of Justice so to do,
the High Court may treat the application for revision as
a petition of appeal and deal with the same accordingly.”
34. Section 401(3) says – “Nothing in this section shall be deemed to
authorize a High Court to convert a finding of acquittal into one of
conviction.”
i. Thus, the bar is categorical and express.
35. Section 401(5) says – “Where under this Code an appeal lies but
an application for revision has been made to the High Court by any
person and the High Court is satisfied that such application was
made under the erroneous belief that no appeal lies thereto and
that it is necessary in the interests of justice so to do so, the High
Court may treat the application for revision as a petition of appeal
and deal with the same accordingly.”
i. For the High Court to treat the revision as an appeal, all of the
above conditions were required to be fulfilled.
ii. And a reasoned, speaking order was required to be passed
recording that they were fulfilled.
iii. However, no such procedure was adopted.
36. The general provision on appeals is Section 372 Cr PC which says –
No appeal to lie unless otherwise provided. – No appeal shall lie
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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.
i. Thus, no appeal was permissible other than provided for, in law.
37. The Proviso to the above had not yet come into effect as on
19.01.2006 when the revision petition was filed, for it was added
only w.e.f. 31.12.2009. The Proviso says – [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.]
i. Thus, the statutory right of appeal by a victim against such
acquittal arose only from the date of the amendment w.e.f.
31.12.2009. As the said revision was filed by the father of the
deceased on 19.01.2006 well before the above amendment,
such right was not available at the relevant point of time.
ii. Therefore, the very first condition under Section 401(5) itself
would not have been possible to be fulfilled, i.e. the right of
the victim to appeal did not lie under the Code at the time of
filing the revision petition.
38. As regards appeals against acquittals, the relevant provision for
appeals, and specifically for appeal to the High Court, are detailed
out below:
a. Section 378. Appeal in case of acquittal – Section 378 (1) says –
Save as otherwise provided in sub-section (2), and subject to
the provisions of sub-sections (3) and (5), -
b. The relevant section pertaining to an appeal to the High Court is
Section 378(1)(b) which says – The State Government may, in
any case, direct the Public Prosecutor to present an appeal to
the High Court from an original or appellate order of an acquittal
passed by any Court other than a High Court [not being an
order under clause (a)] or an order of acquittal passed by the
Court of Session in revision.].
i. Thus, only the State had the statutory right to appeal
against the order of acquittal in 2006, and
[2025] 1 S.C.R. 1121
Mahabir & Ors. v. State of Haryana
ii. Indisputably, the State did not file appeal challenging the
said order of acquittal.
PRECEDENTS EXPLAINING THE POSITION OF LAW
39. This Court in Bindeshwari Prasad Singh v. State of Bihar (now
Jharkhand) & Anr. reported in (2002) 6 SCC 650, laid down that
there is a limit on the powers of the High Court as a Revisional
Court, prohibiting it from converting a finding of acquittal into one of
conviction. Para 12 reads thus: -
“12. We have carefully considered the material on record
and we are satisfied that the High Court was not justified
in reappreciating the evidence on record and coming to a
different conclusion in a revision preferred by the informant
under Section 401 of the Code of Criminal Procedure. Sub-
section (3) of Section 401 in terms provides that nothing
in Section 401 shall be deemed to authorize a High Court
to convert a finding of acquittal into one of conviction.
The aforesaid sub-section, which places a limitation on
the powers of the revisional court, prohibiting it from
converting a finding of acquittal into one of conviction, is
itself indicative of the nature and extent of the revisional
power conferred by Section 401 of the Code of Criminal
Procedure. If the High Court could not convert a finding
of acquittal into one of conviction directly, it could not do
so indirectly by the method of ordering a retrial. It is well
settled by a catena of decisions of this Court that the High
Court will ordinarily not interfere in revision with an order
of acquittal except in exceptional cases where the interest
of public justice requires interference for the correction of
a manifest illegality or the prevention of gross miscarriage
of justice. The High Court will not be justified in interfering
with an order of acquittal merely because the trial court has
taken a wrong view of the law or has erred in appreciation
of evidence. It is neither possible nor advisable to make
an exhaustive list of circumstances in which exercise of
revisional jurisdiction may be justified, but decisions of
this Court have laid down the parameters of exercise of
revisional jurisdiction by the High Court under Section 401
of the Code of Criminal Procedure in an appeal against
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acquittal by a private party. (See D. Stephens v. Nosibolla
[1951 SCC 184 : AIR 1951 SC 196 : 1951 Cri LJ 510],
K. Chinnaswamy Reddy v. State of A.P. [AIR 1962 SC
1788 : (1963) 1 Cri LJ 8] , Akalu Ahir v. Ramdeo Ram
[(1973) 2 SCC 583 : 1973 SCC (Cri) 903], Pakalapati
Narayana Gajapathi Raju v. Bonapalli Peda Appadu [(1975)
4 SCC 477 : 1975 SCC (Cri) 543 : AIR 1975 SC 1854]
and Mahendra Pratap Singh v. Sarju Singh [AIR 1968 SC
707 : 1968 Cri LJ 665] .)”
40. This Court in Joseph Stephen & Ors. v. Santhanasamy & Ors.
reported in (2022) 13 SCC 115, laid down that on a plain reading of
sub-section (3) of Section 401 CrPC, it has to be held that sub-section
(3) of Section 401 CrPC prohibits/bars the High Court to convert a
finding of acquittal into one of conviction. Para 10 reads thus:-
“10. Applying the law laid down by this Court in the aforesaid
decisions and on a plain reading of sub-section (3) of
Section 401CrPC, it has to be held that sub-section (3) of
Section 401CrPC prohibits/bars the High Court to convert
a finding of acquittal into one of conviction. Though and
as observed hereinabove, the High Court has revisional
power to examine whether there is manifest error of law
or procedure, etc. however, after giving its own findings on
the findings recorded by the court acquitting the accused
and after setting aside the order of acquittal, the High
Court has to remit the matter to the trial court and/or the
first appellate court, as the case may be.”
41. This Court in Joseph Stephen (supra), holds that first, the High
Court has to pass a judicial order to treat an application for revision
as petition of appeal. The High Court has to pass a judicial order
because sub-section (5) of Section 401 CrPC provides that if the High
Court is satisfied that such revision application was made under the
erroneous belief that no appeal lies thereto and that it is necessary
in the interests of justice so to do. While treating the application for
revision and to deal with the same as a petition of appeal, the High
Court has to record the satisfaction as provided under sub-section
(5) of Section 401 CrPC. Para 14 reads thus:-
“14. Now so far as the power to be exercised by the High
Court under sub-section (5) of Section 401 CrPC, namely,
[2025] 1 S.C.R. 1123
Mahabir & Ors. v. State of Haryana
the High Court may treat the application for revision as
petition of appeal and deal with the same accordingly is
concerned, firstly the High Court has to pass a judicial order
to treat the application for revision as petition of appeal.
The High Court has to pass a judicial order because sub-
section (5) of Section 401 CrPC provides that if the High
Court is satisfied that such revision application was made
under the erroneous belief that no appeal lies thereto and
that it is necessary in the interests of justice so to do.
While treating with the application for revision as petition
of appeal and deal with the same accordingly, the High
Court has to record the satisfaction as provided under
sub-section (5) of Section 401 CrPC. Therefore, where
under the CrPC an appeal lies, but an application for
revision has been made to the High Court by any person,
the High Court has jurisdiction to treat the application for
revision as a petition of appeal and deal with the same
accordingly as per sub-section (5) of Section 401 CrPC,
however, subject to the High Court being satisfied that
such an application was made under the erroneous belief
that no appeal lies thereto and that it is necessary in the
interests of justice so to do and for that purpose the High
Court has to pass a judicial order, may be a formal order,
to treat the application for revision as a petition of appeal
and deal with the same accordingly.”
42. This Court in Ganesha v. Sharanappa & Anr. reported in (2014) 1
SCC 87, in para 11, clarifies that :
“… Interference with the order of acquittal is called for
only in exceptional cases – where there is manifest error
of law of procedure resulting into miscarriage of justice,
and, where the acquittal has been caused by shutting out
evidence which otherwise ought to have been considered
or where material evidence which clinches the issue has
been overlooked. In such exceptional cases, the High
Court can set aside an order of acquittal, but it cannot
covert it into one of conviction. The only course left to the
High Court in such exception cases, is to order retrial”.
43. This Court in Santhakumari & Ors. v. State of Tamil Nadu & Ors.
reported in (2023) 15 SCC 440, laid down that the order passed by
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Supreme Court Reports
the High Court is in the teeth of the provisions of sub-section (2) of
Section 401 of the CrPC as interpreted by this Court in Manharibhai
Muljibhai Kakadia & Anr. v. Shaileshbhai Mohanbhai Patel & Ors.
reported in (2012) 10 SCC 517. Paras 5 and 6 respectively read thus:-
“5. Having considered the submissions, since it is not in
dispute that the proposed accused were not served notice
of the revision proceedings, the order passed by the High
Court is in the teeth of the provisions of sub-section (2)
of Section 401 of the Code as interpreted by this Court
in Manharibhai Muljibhai Kakadia [Manharibhai Muljibhai
Kakadia v. Shaileshbhai Mohanbhai Patel, (2012) 10 SCC
517 : (2013) 1 SCC (Cri) 218] .
6. The decision in Manharibhai Muljibhai Kakadia
[Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai
Patel, (2012) 10 SCC 517 : (2013) 1 SCC (Cri) 218] has
also been followed in Bal Manohar Jalan v. Sunil Paswan
[Bal Manohar Jalan v. Sunil Paswan, (2014) 9 SCC 640 :
(2014) 5 SCC (Cri) 256], wherein it was held : (Bal Manohar
Jalan case [Bal Manohar Jalan v. Sunil Paswan, (2014) 9
SCC 640 : (2014) 5 SCC (Cri) 256] , SCC p. 644, para 9)
“9. In the present case challenge is laid to the order
dated 4-3-2009 at the instance of the complainant
in the revision petition before the High Court and by
virtue of Section 401(2) of the Code, the accused
mentioned in the first information report get the right
of hearing before the Revisional Court although the
impugned order [Sunil Paswan v. State of Bihar, 2011
SCC OnLine Pat 600] therein was passed without
their participation. The appellant who is an accused
person cannot be deprived of hearing on the face of
the express provision contained in Section 401(2) of
the Code and on this ground, the impugned order
[Sunil Paswan v. State of Bihar, 2011 SCC OnLine
Pat 600] of the High Court is liable to be set aside
and the matter has to be remitted.””
44. The decision in Manharibhai Muljibhai (supra) was referred to
and relied upon in Bal Manohar Jalan v. Sunil Paswan & Anr.
reported in (2014) 9 SCC 640, wherein it was inter alia, held that
[2025] 1 S.C.R. 1125
Mahabir & Ors. v. State of Haryana
“The appellant who is an accused person cannot be deprived of
hearing on the face of the express provision contained in Section
401(2) of the Code and on this ground, the impugned order of the
High Court is liable to be set aside…”.
45. This Court in Nandini Satpathy v. P.L. Dani & Anr. reported in (1978)
2 SCC 424 held that the right to consult an advocate of choice shall
not be denied to any person who is arrested. This does not mean
that persons who are not under arrest or custody can be denied such
right. The spirit and ethos of Article 22(1) is that it is fundamental
to the rule of law that the service of a lawyer shall be available for
consultation to the accused person under circumstances of near
custodial interrogation. Moreover, the right against self-incrimination
is best practiced & best promoted by conceding to the accused, the
right to consult a legal practitioner of his choice. Lawyers’ presence
is a constitutional claim in some circumstances of our country, and
in the context of Article 20(3), is an assurance of awareness and
observance of the right to silence.
46. Thus, it is as clear as a noonday that the High Court committed an
egregious error in reversing the acquittal and passing an order of
conviction in exercise of its revisional jurisdiction and that too without
affording any opportunity of hearing to the appellants herein.
47. We could have closed this matter at this stage; however, we would
like to explain the position of law in so far as the applicability of sub
section (5) to Section 401 of the CrPC read with the provision to
sub section 372 of the CrPC is concerned.
IS THE PROVISO TO SECTION 372 CRPC RETROSPECTIVE IN
OPERATION?
48. A very fabulous argument was canvassed on behalf of the State that
the proviso to Section 372 of the CrPC is retrospective in operation.
Therefore, although the revision was filed in 2006, yet as it came to
be decided in 2014, the proviso to Section 372 CrPC was applicable.
The High Court could have treated the revision application as an
appeal under Section 372 at the instance of the complainant. If the
High Court would have treated it as an appeal, then it would have
been within its jurisdiction to reverse the acquittal and passed an
order of conviction.
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49. It seems one and all are under a serious misconception of law.
50. Insofar as the statutes regulating appeal are concerned, the law is
well settled that the right to file an appeal is a statutory right and it
can be circumscribed by the conditions of the statute granting it. As
was observed by this Court in Government of Andhra Pradesh &
Ors. v. P. Laxmi Devi reported in (2008) 4 SCC 720 and Super
Cassettes Industries Ltd. v. State of Uttar Pradesh & Anr. reported
in (2009) 10 SCC 531, it is not a natural or inherent right and cannot
be assumed to exist, unless provided by a statute.
51. Therefore, the scheme of right of appeal under Chapter XXXIX of the
CrPC, which provides the right to file appeals including abatement
of appeals, should be understood on the basis of the above golden
rules of statutory interpretation.
52. Comparing Section 404 of CrPC 1898 with Section 372 of CrPC,
would indicate that the main provision is intact, insofar it provides
that no appeal shall lie from any judgment or order of a criminal
court, except as provided by this Code or by any other law for the
time being in force. The significant development that has taken place
in this provision is that a ‘proviso’ was added by the Amending Act
No. 5 of 2009, which provides 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 passed by such
Court’.
53. Therefore, by the aforesaid provision a right has been created in
favour of the victim, which was not existing earlier in the Code, i.e.,
that a 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 .The plain reading
of the statement of objects and reasons for introducing the proviso
to Section 372 CrPC makes it clear that it wanted to confer certain
rights on the victims. It has been noted therein that the victims are
the worst sufferers in a crime, and they don’t have much role in
the court proceedings. They need to be given certain “rights” and
compensation, so that there is no distortion of the criminal justice
system. This, by itself, is clear that the object of adding this proviso
is to create a right in favour of the victim to prefer an appeal as a
[2025] 1 S.C.R. 1127
Mahabir & Ors. v. State of Haryana
matter of right. It not only extends to challenge the order of acquittal,
but such appeal can also be filed by the victim if the accused is
convicted for a lessor offence or if the inadequate compensation
has been imposed.
54. Thus, it is clear as per the golden rule of interpretation, that the
‘proviso’ is a substantive enactment, and is not merely excepting
something out of or qualifying what was excepting or goes before.
Therefore, by adding the ‘proviso’ in Section 372 of CrPC by this
amendment, a right has been created in favour of the victim.
55. The relevant statutory provisions are excerpted for convenience.
First, Section 2(wa) of the CrPC defines “victim” as:
“victim” means a person who has suffered any loss or
injury caused by reason of the act or omission for which
the accused person has been charged and the expression
“victim” includes his or her guardian or legal heir.”
56. The second provision is Section 372 of the CrPC, which stipulates that:
“No appeal shall lie from any judgment or order of a
Criminal Court except as provided for by this Code or any
other law for the time being in force.”
57. The third statutory provision is the proviso to Section 372 CrPC,
which was introduced in 2008, conferring upon victims, the right of
appeal in these terms:
“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.”
LEGISLATIVE HISTORY
58. A victim-oriented approach to certain aspects of criminal procedure
was advocated in the Law Commission of India›s 154th Report,
1996, which noted that “increasingly, the attention of criminologists,
penologists and reformers of criminal justice system has been directed
to victimology, control of victimization and protection of the victims
of crimes.” (Chapter XV, Paragraph 1) While focused on issues of
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compensation, the Law Commission Report cited the 1985 United
Nations Declaration of Basic Principles of Justice for Victims of Crime
and Abuse of Power for its definition of “victim”:
“persons who, individually or collectively, have suffered
harm, including physical or mental injury, emotional
suffering, economic loss or substantial impairment of their
fundamental rights, through acts or omissions that are in
violation of criminal laws.” (Chapter XV, Paragraph 6.2).
59. The said report prompted the Code of Criminal Procedure
(Amendment) Bill of 2006. Its Statement of Objects and Reasons
noted that:
“… The Law Commission has undertaken a comprehensive
review of the Code of Criminal Procedure in its 154th
report and its recommendations have been found very
appropriate, particularly those relating to provisions
concerning arrest, custody and remand, procedure for
summons and warrant-cases, compounding of offences,
victimology, special protection in respect of women and
inquiry and trial of persons of unsound mind. ..”
60. It also noted that:
“At present, the victims are the worst sufferers in a crime
and they don’t have much role in the court proceedings.
They need to be given certain rights and compensation,
so that there is no distortion of the criminal justice system.”
61. The definition of “victim”, as well as the proviso to Section 372 was
eventually inserted into the Code of Criminal Procedure through
the Code of Criminal Procedure (Amendment) Act, 2008 (Act No.
5 of 2009). The Amendment inserts victim-oriented provisions at a
number of places in the CrPC. For instance, a proviso to Section
157(1) is added, stipulating that:
“Provided further that in relation to an offence of rape, the
recording of statement of the victim shall be conducted at
the residence of the victim or in the place of her choice
and as far as practicable by a woman police officer in the
presence of her parents or guardian or near relatives or
social worker of the locality.”
[2025] 1 S.C.R. 1129
Mahabir & Ors. v. State of Haryana
62. Through a new Section, 357A(1), it is provided that
“Every State Government in co-ordination with the Central
Government shall prepare a scheme for providing funds
for the purpose of compensation to the victim or his
dependents who have suffered loss or injury as a result
of the crime and who, require rehabilitation.”
IS PROVISO TO SECTION 372 AN EXCEPTION?
63. The victims’ right to appeal has been framed in the language of a
proviso to Section 372 of the CrPC. As held in A.N. Sehgal & Ors.
v. Raje Ram Sheoran & Ors. reported in AIR 1991 SC 1406, it is
well-accepted that normally, a proviso “carves out an exception to
the main provision to which it has been enacted as a proviso and
to no other.” This, however, is subject to context. This Court, in S.
Sundaram Pillai & Ors. v. V.R. Pattabiraman & Ors. reported in
AIR 1985 SC 582, held that a proviso may be of four different types
: in one set of circumstances,
“it may be so embedded in the Act itself as to become an
integral part of the enactment and thus acquire the tenor
and colour of the substantive enactment itself;”
64. Emphasizing that undue importance should not be given on the
appellation (explanation, proviso, saving clause, etc) and rather, the
intent of the law maker should be given effect, this Court, in State of
Bombay & Anr. v. United Motors (India) Limited & Ors. reported
in (1953) 1 SCC 514 ruled that:
“… It may be that the description of a provision cannot
be decisive of its true meaning or interpretation which
must depend on the words used therein but, when two
interpretations are sought to be put upon a provision,
that which fits the description which the Legislature has
chosen to apply to it, is, according to sound canons of
constructions, to be adopted, provided of course, it is
consistent with the language employed in preference to
the one which attributes to the provision a different effect
from what it should have according to its description by
the Legislature.”
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Supreme Court Reports
65. The aforesaid thought was brought home in State of Kerala & Anr.
v. B. Six Holiday Resorts Private Ltd. & Ors. reported in (2010)
5 SCC 186, where this Court held as follows:
“32.A proviso may either qualify or except certain provisions
from the main provision; or it can change the very concept
of the intendment of the main provision by incorporating
certain mandatory conditions to be fulfilled; or it can
temporarily suspend the operation of the main provision.
Ultimately the proviso has to be construed upon its terms”.
66. It is the intention of the legislature, therefore, which is paramount.
67. In the present context, given the text of Section 372 and the scheme
of the Act, it is clear that the proviso establishes an independent right,
and must be interpreted within that framework. Section 372 forbids
appeals unless otherwise authorized by the Code, or by another law.
The proviso, however, states that the victim shall have the right to
appeal under certain circumstances. Given the rule enacted in Section
372, it cannot be said that the proviso to that provision carves out an
exception to the rule. According to the rule in Section 372, appeals
must be in accordance with the Code; according to the proviso -
which is itself part of the Code - victims have the right to appeal
under certain circumstances. At various other places in the CrPC,
appeal procedures are specified. For instance, Section 378 stipulates
the procedure in case of appeals from acquittal, and Section 378(3)
specifies that “no appeal under sub-section (1) or sub-section (2)
shall be entertained except with leave of the High Court.” The proviso
to Section 372 dispenses with the requirement of leave in case it is
the victim who is appealing. From the scheme of the Act, therefore,
it seems clear that the proviso is better understood to be one of the
many provisions governing appeals under Chapter 29 of the CrPC.
While Section 372 enacts that no appeal shall lie except as provided
for by the Code, it refers to the various provisions of Chapter 29,
including the proviso, each of which prescribe the requirements and
procedures for appeals under different circumstances. The proviso,
therefore, is not an exception to Section 372, but a stand-alone
legal provision.
68. This Court in the case of Mallikarjun Kodagali (Dead) represented
through Legal Representatives v. State of Karnataka & Ors.
[2025] 1 S.C.R. 1131
Mahabir & Ors. v. State of Haryana
reported in (2019) 2 SCC 752, after discussing various judgments
of different High Courts, observed in para 72, as under:
“72. What is significant is that several High Courts have
taken a consistent view to the effect that the victim of
an offence has a right of appeal under the proviso to
Section 372 CrPC. This view is in consonance with the
plain language of the proviso. But what is more important
is that several High Courts have also taken the view that
the date of the alleged offence has no relevance to the
right of appeal. It has been held, and we have referred
to those decisions above, that the significant date is the
date of the order of acquittal passed by the trial Court. In
a sense, the cause of action arises in favour of the victim
of an offence only when an order of acquittal is passed
and if that happens after 31.12.2009 the victim has a right
to challenge the acquittal, through an appeal. Indeed, the
right not only extends to challenging the order of acquittal
but also challenging the conviction of the accused for a
lesser offence or imposing inadequate compensation. The
language of the proviso is quite explicit, and we should
not read nuances that do not exist in the proviso.”
(Emphasis supplied)
69. In Hitendra Vishnu Thakur & Ors. v. State of Maharashtra & Ors.
reported in (1994) 4 SCC 602, one of the questions which this Court
was examining was whether clause (bb) of Section 20(4) of the
Terrorist and Disruptive Activities (Prevention) Act, 1987 introduced
by an Amendment Act governing Section 167(2) CrPC in relation to
TADA matters was in the realm of procedural law and if so, whether
the same would be applicable to pending cases. Answering the
question in the affirmative this Court speaking through A.S. Anand,
J. (as His Lordship then was), held that Amendment Act 43 of 1993
was retrospective in operation and that clauses (b) and (bb) of sub
section (4) of Section 20 of TADA apply to the cases which were
pending investigation on the date when the amendment came into
force. The Court summed up the legal position with regard to the
procedural law being retrospective in its operation and the right
of a litigant to claim that he be tried by a particular Court, in the
following words:
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“(i) A statute which affects substantive rights is presumed
to be prospective in operation unless made retrospective,
either expressly or by necessary intendment, whereas a
statute which merely affects procedure, unless such a
construction is textually impossible, is presumed to be
retrospective in its application, should not be given an
extended meaning and should be strictly confined to its
clearly defined limits.
(ii) Law relating to forum and limitation is procedural in
nature, whereas law relating to right of action and right
of appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but
no such right exists in procedural law.
(iv) A procedural statute should not generally speaking be
applied retrospectively where the result would be to create
new disabilities or obligations or to impose new duties in
respect of transactions already accomplished.
(v) A statute which not only changes the procedure but
also creates new rights and liabilities shall be construed
to be prospective in operation, unless otherwise provided,
either expressly or by necessary implication.”
(Emphasis supplied)
70. We may also refer to the decision of this Court in Sudhir G. Angur
& Ors. v. M. Sanjeev & Ors. reported in (2006) 1 SCC 141, where a
three-Judge Bench of this Court approved the decision of the Bombay
High Court in Shiv Bhagwan Moti Ram Saraoji v. Onkarmal Ishar
Dass reported in AIR 1952 Bom 365 and observed:
“11. … It has been held that a court is bound to take notice
of the change in the law and is bound to administer the law
as it was when the suit came up for hearing. It has been
held that if a court has jurisdiction to try the suit, when it
comes on for disposal, it then cannot refuse to assume
jurisdiction by reason of the fact that it had no jurisdiction
to entertain it at the date when it was instituted. We are
in complete agreement with these observations. …”
(Emphasis supplied)
[2025] 1 S.C.R. 1133
Mahabir & Ors. v. State of Haryana
71. In Ramesh Kumar Soni v. State of Madhya Pradesh reported
in (2013) 14 SCC 696, this Court reiterated the aforesaid principle
with approval.
72. In view of the aforesaid, it is very much clear that the amendment
so made in Section 372 CrPC by adding a proviso in the year
2009 creating a substantive right of appeal is not retrospective in
nature. A statute which creates new rights shall be construed to be
prospective in operation unless otherwise provided, either expressly
or by necessary implication. It is, therefore, clear that in the year
2006 when the judgement of acquittal was passed, the de facto
complainant had no right to challenge the impugned order passed in
2006 by way of filing the appeal. In such circumstances sub section
(5) of Section 401 CrPC has no application in the present case.
73. There is yet one another shocking aspect of the matter, we need to
take cognizance of.
74. It appears that the High Court relied upon the police statement of
PW-7 recorded under Section 161 of the CrPC instead of his oral
testimony before the trial court.
75. The PW-7 Om Parkash s/o Durga Ram, turned hostile and was
cross examined by the Public Prosecutor under Section 145 of the
Evidence Act. While discussing the evidence of PW-7 as recorded
by the trial court, the High Court observed thus:-
i. “Resultantly, the answer meted to question No. 1
(supra), qua his only intimating the police, that both
the parties were throwing brickbats from the top of
the houses, is to be construed to be a pretextual or
prevaricated version qua the crime event.”
ii. “Cumulatively hence, since the deposition embodied
in the examination-in-chief of PW-7, becomes
contradicted from his previously made statement
in writing to the police. Resultantly when during
the course of his cross-examination, he omitted
to make any speakings, that his previously made
statement, thus was concocted or manufactured
by the investigating officer concerned, nor when he
stated that he had never made any previous statement
in respect of the crime incident to the police officer
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concerned. Therefore, the consequential effect thereof
is that, the previously made statement by the witness
(supra) to the police officer concerned, was both
genuine and a true reflection of the crime incident.
Contrarily, the statement made by the witness
(supra) before the learned trial Judge concerned,
was an engineered and concocted version vis-à-vis
the crime incident. In sequel, since the previously
made statement by the witness (supra) to the police
officer concerned, for the reasons (supra) is a truthful
reflection of the crime event, thereby immense
credence is to be assigned thereto, rather than to
the ill resilings therefrom by the witness (supra).
Resultantly thereby the prosecution has been able to
prove the genesis of the prosecution case. The said
reason becomes founded upon the principle of law
that even if the prosecution witness turns hostile yet
when during the course of his being cross-examined
by the Public Prosecutor concerned, he is proven to
be ill- resiling from his previously made untutored
statement to the police officer concerned, thereupon
the resilings as made by the prosecution witness
in his examination-in-chief, vis-à-vis, his previously
made statement to the police officer concerned, are
ill-resilings therefrom, thus thereto no credence is
to be assigned, rather credence is to be assigned
to the evidently untutored and undoctored version
comprised in his previously made statement in writing
to the police officer concerned.”
(Emphasis supplied)
76. Whereas Section 162 of the CrPC expressly provides that the
statements recorded under Section 161 of the CrPC shall not be used
for any purpose save as provided in Section 162, and the Proviso
to Section 162 clearly says that, any part of the statement, if duly
proved, may be used by the accused, to contradict such witness in
the manner provide in Section 145 of the Evidence Act. And when
any part of such statement is so used, any part thereof may also be
used in the re-examination of such witness, but only for the purpose
of explaining any matter referred to in the cross-examination.
[2025] 1 S.C.R. 1135
Mahabir & Ors. v. State of Haryana
77. We may remind the High Court of the observations made by this
Court (a 3-Judge Bench speaking through one of us, J. B. Pardiwala,
J.) in Anees v. State Government of NCT reported in 2024 SCC
OnLine SC 757. We quote some of the observations made in paras
62 and thereafter from 63 onwards till 69:
“62. … There could be innumerable reasons for a witness
to resile from his/her police statement and turn hostile.
Here is a case in which a five-year-old daughter might
have resiled thinking that having lost her mother, the father
was the only person who may take care of her and bring
her up. However, why she turned hostile is not important.
What is important is the role of the public prosecutor after
a prime witness, more particularly a child witness of tender
age, turns hostile in a murder trial. When any prosecution
witness turns hostile and the public prosecutor seeks
permission of the trial court to cross-examine such witness
then that witness is like any other witness. The witness
no longer remains the prosecution witness.
xxx xxx xxx
63. Section 162 Cr.P.C. bars the use of statement of
witnesses recorded by the police except for the limited
purpose of contradiction of such witnesses as indicated
therein. The statement made by a witness before the
police under Section 161(1) Cr.P.C. can be used only for
the purpose of contradicting such witness on what he has
stated at the trial as laid down in the proviso to Section
162(1) Cr.P.C. The statements under Section 161 Cr.P.C.
recorded during the investigation are not substantive
pieces of evidence but can be used primarily for the
limited purpose : (i) of contradicting such witness by an
accused under Section 145 of the Evidence Act; (ii) the
contradiction of such witness also by the prosecution but
with the leave of the Court; and (iii) the re-examination of
the witness if necessary.
64. The court cannot suo motu make use of statements to
police not proved and ask questions with reference to them
which are inconsistent with the testimony of the witness in
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the court. The words ‘if duly proved’ used in Section 162
Cr.P.C. clearly show that the record of the statement of
witnesses cannot be admitted in evidence straightaway,
nor can be looked into, but they must be duly proved for
the purpose of contradiction by eliciting admission from
the witness during cross-examination and also during
the cross-examination of the Investigating Officer. The
statement before the Investigating Officer can be used for
contradiction but only after strict compliance with Section
145 of the Evidence Act, that is, by drawing attention to
the parts intended for contradiction.
65. Section 145 of the Evidence Act reads as under:
“145. Cross-examination as to previous statements
in writing.— A witness may be cross-examined as
to previous statements made by him in writing or
reduced into writing, and relevant to matters in
question, without such writing being shown to him, or
being proved; but, if it is intended to contradict him
by the writing, his attention must, before the writing
can be proved, be called to those parts of it which
are to be used for the purpose of contradicting him.”
66. Under Section 145 of the Evidence Act when it is
intended to contradict the witness by his previous statement
reduced into writing, the attention of such witness must
be called to those parts of it which are to be used for
the purpose of contradicting him, before the writing can
be used. While recording the deposition of a witness, it
becomes the duty of the trial court to ensure that the part of
the police statement with which it is intended to contradict
the witness is brought to the notice of the witness in his
cross-examination. The attention of witness is drawn to
that part and this must reflect in his cross-examination
by reproducing it. If the witness admits the part intended
to contradict him, it stands proved and there is no need
of further proof of contradiction and it will be read while
appreciating the evidence. If he denies having made that
part of the statement, his attention must be drawn to
that statement and must be mentioned in the deposition.
[2025] 1 S.C.R. 1137
Mahabir & Ors. v. State of Haryana
By this process the contradiction is merely brought on
record, but it is yet to be proved. Thereafter, when the
Investigating Officer is examined in the court, his attention
should be drawn to the passage marked for the purpose of
contradiction, it will then be proved in the deposition of the
Investigating Officer who, again, by referring to the police
statement will depose about the witness having made that
statement. The process again involves referring to the
police statement and culling out that part with which the
maker of the statement was intended to be contradicted.
If the witness was not confronted with that part of the
statement with which the defence wanted to contradict him,
then the court cannot suo motu make use of statements
to police not proved in compliance with Section 145 of
the Evidence Act, that is, by drawing attention to the parts
intended for contradiction.” [See : V.K. Mishra v. State of
Uttarakhand : ((2015) 9 SCC 588]
67. In the case at hand, not only proper contradictions
were not brought on record in the oral evidence of the
hostile witnesses, but even those few that were brought
on record, were not proved through the evidence of the
Investigating Officer. Does the State expect Section 106
of the Evidence Act to come to its aid in every criminal
prosecution. At times, such procedural lapses may lead
to a very serious crime going unpunished. Any crime
committed against an individual is a crime against the
entire society. In such circumstances, neither the public
prosecutor nor the presiding officer of the trial court can
afford to remain remiss or lackadaisical in any manner.
Time and again, this Court has, through its judgments,
said that there should not be any element of political
consideration in the matters like appointment to the post
of public prosecutor, etc. The only consideration for the
Government should be the merit of the person. The person
should be not only competent, but he should also be a
man of impeccable character and integrity. He should
be a person who should be able to work independently
without any reservations, dictates or other constraints. The
relations between the Public Prosecution Service and the
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Supreme Court Reports
judiciary are the very cornerstone of the criminal justice
system. The public prosecutors who are responsible for
conducting prosecutions and may appeal against the
court decisions, are one of judges’ natural counterparts
in the trial proceedings and also in the broader context of
management of the system of criminal law.
68. A criminal case is built upon the edifice of evidence
(whether it is direct evidence or circumstantial evidence)
that is admissible in law. Free and fair trial is the very
foundation of the criminal jurisprudence. There is a
reasonable apprehension in the mind of the public at
large that the criminal trial is neither free nor fair with the
Prosecutor appointed by the State Government conducting
the trial in a manner where frequently the prosecution
witnesses turn hostile.
69. Over a period of time, we have noticed, while hearing
criminal appeals, that there is practically no effective and
meaningful cross-examination by the Public Prosecutor
of a hostile witness. All that the Public Prosecutor would
do is to confront the hostile witness with his/her police
statement recorded under Section 161 of the Cr. P.C. and
contradict him/her with the same. The only thing that the
Public Prosecutor would do is to bring the contradictions
on record and thereafter prove such contradictions
through the evidence of the Investigating Officer. This is
not sufficient. The object of the cross-examination is to
impeach the accuracy, credibility and general value of the
evidence given in-chief; to sift the facts already stated by
the witness; to detect and expose the discrepancy or to
elicit the suppressed facts which will support the case of
the cross-examining party. What we are trying to convey is
that it is the duty of the Public Prosecutor to cross-examine
a hostile witness in detail and try to elucidate the truth &
also establish that the witness is speaking lie and has
deliberately resiled from his police statement recorded
under Section 161 of the Cr. P.C. A good, seasoned and
experienced Public Prosecutor will not only bring the
contradictions on record, but will also cross-examine the
hostile witness at length to establish that he or she had
[2025] 1 S.C.R. 1139
Mahabir & Ors. v. State of Haryana
actually witnessed the incident as narrated in his/her
police statement.”
(Emphasis supplied)
78. Thus, this Court took a serious notice of lack of thorough cross-
examination by Public Prosecutors in criminal appeals, specifically
with hostile witnesses. The prosecutors often only confront them
with their police statement, aiming to highlight contradictions but
not fully explore the witness’s testimony. The Court emphasized
that the purpose of cross-examination is to challenge the accuracy
and credibility of the witness’s statement, uncover hidden facts, and
establish if the witness is lying. Public Prosecutors should conduct
detailed cross-examinations to reveal the truth and establish the
witness’s first hand knowledge of the incident described in their
police statement.
79. In the decision referred to above the Court noted that after the witness
was declared hostile, all that the Public Prosecutor had done was to
put few suggestions to her for the purposes of cross-examination.
Even proper contradictions were not brought on record.
80. This Court explained that the trial courts cannot independently use
statements made to the police that have not been proven, nor can it
base its questions on such statements if they conflict with the witness’s
testimony in court. The phrase ‘if duly proved’ in Section 162 of the
CrPC indicates that the statements of witnesses recorded by the
police cannot be immediately admitted as evidence or examined. They
must first be proven through eliciting admissions from the witness
during cross-examination and also during the cross-examination of
the Investigating Officer. While statements made to the Investigating
Officer can be used for contradiction, this can only be done after
strict compliance with Section 145 of the Evidence Act. This requires
drawing attention to the specific parts of the statement intended
for contradiction. This is what is required under Section 145 of the
Evidence Act but even where a witness is confronted by his previous
statement and given an opportunity to explain that part of the statement
that is put to him does not constitute substantive evidence.
81. There is a catena of decisions laying down the principle in law that
the material elicited as contradiction by use of Section 145 of the
Indian Evidence Act is not substantive evidence. Even in regard to
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Supreme Court Reports
the statement recorded under Section 164 of the CrPC by authorised
Magistrate, it has been held accordingly. Therefore, the fact that the
contradictions are proved through the investigating officers though
the witnesses have denied having made such statements, does not
translate the contradictions into substantive evidence. Unless there
is substantive evidence, it cannot be acted upon legally particularly
to base a conviction.
UNLAWFUL DETENTION OF THE APPELLANTS FOR A PERIOD
OF THREE MONTHS
82. This Court in D.K. Basu v. State of West Bengal reported in (1997)
1 SCC 416 observed as under:—
“44. The claim in public law for compensation for
unconstitutional deprivation of fundamental right to life
and liberty, the protection of which is guaranteed under
the Constitution, is a claim based on strict liability and
is in addition to the claim available in private law for
damages for tortious acts of the public servants. Public
law proceedings serve a different purpose than the private
law proceedings. Award of compensation for established
infringement of the indefeasible rights guaranteed under
Article 21 of the Constitution is a remedy available in
public law since the purpose of public law is not only
to civilise public power but also to assure the citizens
that they live under a legal system wherein their rights
and interests shall be protected and preserved. Grant of
compensation in proceedings under Article 32 or Article
226 of the Constitution of India for the established violation
of the fundamental rights guaranteed under Article 21, is
an exercise of the courts under the public law jurisdiction
for penalising the wrongdoer and fixing the liability for the
public wrong on the State which failed in the discharge
of its public duty to protect the fundamental rights of the
citizen.”
(Emphasis supplied)
83. In Nilabati Behera v. State of Orisa & Ors. reported in (1993) 2
SCC 746, while dealing with the power of a constitutional court to
[2025] 1 S.C.R. 1141
Mahabir & Ors. v. State of Haryana
award compensation rather than relegating such person to file a suit
for recovery of damages, this Court observed as under:—
“22. The above discussion indicates the principle on
which the court’s power under Articles 32 and 226 of the
Constitution is exercised to award monetary compensation
for contravention of a fundamental right. This was indicated
in Rudul Sah [(1983) 4 SCC 141 : 1983 SCC (Cri) 798 :
(1983) 3 SCR 508] and certain further observations therein
adverted to earlier, which may tend to minimise the effect
of the principle indicated therein, do not really detract
from that principle. This is how the decisions of this Court
in Rudul Sah [(1983) 4 SCC 141 : 1983 SCC (Cri) 798 :
(1983) 3 SCR 508] in that line have to be understood and
Kasturilal [(1965) 1 SCR 375 : AIR 1965 SC 1039 : (1965)
2 Cri LJ 144] distinguished therefrom. We have considered
this question at some length in view of the doubt raised,
at times, about the propriety of awarding compensation
in such proceedings, instead of directing the claimant to
resort to the ordinary process of recovery of damages by
recourse to an action in tort. In the present case, on the
finding reached, it is a clear case for award of compensation
to the petitioner for the custodial death of her son.”
(Emphasis supplied)
84. The principle as aforesaid is now well established that in cases where
there can be no dispute of facts, the constitutional courts have the
power to award compensation in case a person has been deprived of
his life and liberty without following the procedure established by law.
85. The learned counsel appearing for the appellants vehemently
submitted that the appellants are in their 60s and 70s. 26 years after
the incident, and nearly 20 years after their acquittal, the appellants
were unjustly subjected to rigorous imprisonment for over 3 months,
due to the impugned judgment and order, before they came to be
released by this Court on bail vide order dated 13.12.2024. She
highlighted the following for the purpose of making good her case for
awarding appropriate compensation to each of the three appellants.
a. The appellants and their respective families suffered shock,
trauma and despair, upon they being taken in sudden custody
1142 [2025] 1 S.C.R.
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after being acquitted twenty years ago, for a crime that they
had not committed.
b. The appellants have had to suffer the ignominy of incarceration,
with its concomitant physical, mental and emotional hardship.
c. The appellants were wrongly denied their liberty, dignity and
reputation as they were branded as criminals for this period.
d. The appellants live within a small community in their village, and
today, they face social stigma as well, for the above reasons.
e. It is, therefore, only just and proper that their positions be duly
vindicated, their names be cleared, and that they be properly
compensated as well, for their unjust denial of liberty, dignity
and reputation.
f. This step by the Court would enable a sense of restoration of
justice and dignity within themselves and among their community.
86. This Court in D.K. Basu (supra), while dealing with the aspect of
‘torture’, held:
“10. ‘Torture’ has not been defined in the Constitution or
in other penal laws. ‘Torture’ of a human being by another
human being is essentially an instrument to impose the
will of the ‘strong’ over the ‘weak’ by suffering. The word
torture today has become synonymous with the darker
side of human civilisation.
‘Torture is a wound in the soul so painful that sometimes
you can almost touch it, but it is also so intangible that
there is no way to heal it. Torture is anguish squeezing in
your chest, cold as ice and heavy as a stone, paralysing
as sleep and dark as the abyss. Torture is despair and
fear and rage and hate. It is a desire to kill and destroy
including yourself.’ — Adriana P. Bartow
11. No violation of any one of the human rights has been
the subject of so many conventions and declarations as
‘torture’ — all aiming at total banning of it in all forms, but
in spite of the commitments made to eliminate torture, the
fact remains that torture is more widespread now than ever
before. ‘Custodial torture’ is a naked violation of human
[2025] 1 S.C.R. 1143
Mahabir & Ors. v. State of Haryana
dignity and degradation which destroys, to a very large
extent, the individual personality. It is a calculated assault
on human dignity and whenever human dignity is wounded,
civilisation takes a step backward — flag of humanity must
on each such occasion fly half-mast.
12. In all custodial crimes what is of real concern is not
only infliction of body pain but the mental agony which a
person undergoes within the four walls of police station
or lock-up. Whether it is physical assault or rape in police
custody, the extent of trauma, a person experiences is
beyond the purview of law.”
87. From the above, it is quite vivid that emphasis has been laid on
mental agony when a person is confined within the four walls of the
police station or lock up.
88. In Kiran Bedi v. Committee of Inquiry & Anr. reported in (1989)
1 SCC 494, this Court reiterated the following observation from the
decision in D.F. Marion v. Davis reported in 55 ALR 171 : 217 Ala
176 (1927):
“25. … ‘The right to the enjoyment of a private reputation,
unassailed by malicious slander is of ancient origin, and
is necessary to human society. A good reputation is an
element of personal security, and is protected by the
Constitution equally with the right to the enjoyment of life,
liberty, and property.’”
89. Reputation of an individual is an insegregable facet of his right to life
with dignity. In a different context, a two-Judge Bench of this Court
in Vishwanath Agrawal v. Sarla Vishwanath Agrawal reported in
(2012) 7 SCC 288, has observed:
“55. … reputation which is not only the salt of life, but
also the purest treasure and the most precious perfume
of life. It is extremely delicate and a cherished value this
side of the grave. It is a revenue generator for the present
as well as for the posterity.”
90. The most disturbing feature of this litigation is the order passed by
the High Court on quantum of sentence. In para 2, the High Court
has observed thus:
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“Learned State counsel submits that the instant case is
the rarest of rare case, whereby, capital punishment is
required to be imposed upon the present convicts/accused.
However, in the facts and circumstances of the present
case, the above submission is liable to be rejected.”
91. The Public Prosecutor instead of assisting the learned Judges in
the right direction by pointing out the correct position of law went
to the extent of praying before the Court that the appellants herein
deserved capital punishment. It is a different thing that the High
Court rejected the prayer of the Public Prosecutor.
92. Such is the standard of the Public Prosecutors in the High Courts of
the country. This is bound to happen when the State Governments
across the country appoint AGPs and APPs in their respective High
Courts solely on political considerations. Favouritism and nepotism
is one additional factor for compromising merit. This judgement is
a message to all the State Governments that the AGPs and APPs
in respective High Courts should be appointed solely on the merit
of the person. The State Government owes a duty to ascertain the
ability of the person; how proficient the person is in law, his overall
background, his integrity etc.
93. Time and again this Court has observed in so many of its decisions
that such appointments be it in the High Court or in the district judiciary
should be only taking into consideration the merit of the candidate
and no other consideration should weigh in such appointments.
94. Public Prosecutor holds a “Public Office”. The primacy given to
him under the Scheme of CrPC has a “special purpose”. Certain
professional, official obligations and privileges are attached to his
office. His office may also be termed as an office of profit as he
remains disqualified to contest the election so long he holds the office
though permanency is attached to the office and not to the term of
his office. His duties are of public nature. He has an “independent
and responsible character”. He holds the public office within the
scope of a “quo warranto proceedings”. Prosecutor is not a part
of investigating agency but is an “independent statutory authority”.
He performs statutory duties and functions. He holds an office of
responsibility as he has been enclothed with the power to withdraw
the prosecution of a case on the directions of the State Government.
[2025] 1 S.C.R. 1145
Mahabir & Ors. v. State of Haryana
95. The Criminal law enforcement system investigates crimes and
prosecutes offenders. It must also protect valued rights and freedoms,
and convict only the guilty. The prosecutor must recognize these
different and competing interests. He should strike a fair balance
between the competing interests of convicting the guilty, protecting
citizens’ rights and freedoms and protecting the public from criminals.
Prosecutors should ensure that prosecutions are conducted in a
diligent, competent and fair manner. The importance of the office
of the Public Prosecutor cannot be overemphasized. The Public
Prosecutor must be a person of high merit, fair and objective, because
upon him depends to a large extent the administration of criminal
justice. The office of the Public Prosecutor is a public office and the
incumbent has to discharge statutory duties. The person appointed
as Public Prosecutor must, therefore, be one who is not only able
and efficient, but also enjoys a reputation and prestige which satisfy
his appointment as a Public Prosecutor. The duty of the prosecutor
is to assist the Court in reaching a proper conclusion in regard to the
case which is brought before it for trial. The prosecutor has to be fair
in the presentation of the prosecution case. He must not suppress or
keep back from the court evidence relevant to the determination of
the guilt or innocence of the accused. He must present the complete
picture, and not a one sided picture. He must not be partial to the
prosecution or to the accused. He has to be fair to both sides in the
presentation of the case.
96. A Public Prosecutor is not expected to show a thirst to reach the case
in the conviction of the accused somehow or the other irrespective
of the true facts of the case. The expected attitude of the Public
Prosecutor while conducting prosecution must be couched in fairness
not only to the Court to the investigation agencies but to the accused
as well. If an accused is entitled to any legitimate benefit during trial,
the Public Prosecutor should not scuttle/conceal it. On the contrary, it
is the duty of the Public Prosecutor to winch it to the fore and make
it available to the accused. Even if the court or defence counsel
overlooked it, the Public Prosecutor has the added responsibility
to bring it to the notice of the Court, if it comes to his knowledge.
97. Law Officers are one of the important wheels of the chariot, driven
by the Judges to attain the cherished goal of human being to secure
justice against the wrong doers. The main object of the State is to
curb the crime, investigate and prosecute the offenders and punish
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them, with a view to maintain law and order, amity and harmony,
tranquillity and peace. The various provisions of the CrPC and
the Rules provide the manner and procedure by which the Public
Prosecutor should be appointed and provide assistance to the Courts.
The object of the CrPC and the Rules is to appoint the best among
the lawyers as the Public Prosecutor to provide assistance to the
Court. The people have the vital interest in the matter.
98. Judges are human beings and at times they do commit mistakes.
The sheer pressure of work at times may lead to such errors. At the
same time, the defence counsel as well as the Public Prosecutor
owes a duty to correct the Court if the Court is falling in some error
and for all this, we hold the State Government responsible. It is the
State Government who appointed the concerned Public Prosecutor.
The State Government should be asked to pay compensation to the
three appellants herein.
99. For all the foregoing reasons, the appeals succeed and are hereby
allowed. The impugned judgment and order passed by the High Court
is hereby set aside. The State Government shall pay Rs. 5,00,000/-
each to the three appellants towards compensation within a period of
four weeks from today failing which we shall take appropriate action
against the responsible officer.
100. The bail bonds furnished by the appellants herein stand discharged.
101. Registry shall notify this matter once again before this Bench after
four weeks to report compliance of payment of compensation as
awarded.
Result of the case: Appeals allowed.
†
Headnotes prepared by: Ankit Gyan
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