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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2021
PRESENT
THE HON'BLE MR. JUSTICE G. NARENDAR
AND
THE HON'BLE MR. JUSTICE M.I.ARUN
CRIMINAL APPEAL NO.996/2021
c/w CRIMINAL APPEAL NO.1003/2021
CRIMINAL APPEAL NO.1157/2021
IN CRL.A NO.996/2021
BETWEEN:
SMT. RAJESHWARI SHETTY
W/O LATE BHASKAR SHETTY, AGED ABOUT 56 YEARS,
RESIDENT OF ‘ESHWARI NILAYA’ HAYAGRIVA NAGAR, SHIVALLI,
UDUPI TALUK, UDUPI DISTRICT – 571405.
... APPELLANT
(BY SRI HASHMATH PASHA, SR. ADV. FOR
SRI NASIR ALI, ADV.)
AND:
STATE OF KARNATAKA BY MANIPAL POLICE STATION,
BY DY.S.P.H & B, CID, BANGALORE. REPRESENTED BY LEARNED SPP,
HIGH COURT OF KARNATKA. ... RESPONDENT
R
2
(BY SRI SANDESH J.CHOUTA, SR. ADV. FOR
SRI JAGADEESHA B.N FOR IMPLEADING APPLICANT.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.PC PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 08.06.2021
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, UDUPI IN S.C.NO.2/2017 – CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCE P/U/S 120B,302,201 R/W 34 OF IPC.
IN CRL.A NO.1003/2021
BETWEEN:
NAVANEET SHETTY
S/O LATE BHASKAR SHETTY, AGED ABOUT 26 YEARS,
RESIDENT OF ‘ESHWARI NILAYA’ HAYAGRIVA NAGAR, SHIVALLI,
UDUPI TALUK, UDUPI DISTRICT, UDUPI.
... APPELLANT
(BY SRI HASHMATH PASHA, SR. ADV. FOR SRI NASIR ALI, ADV.)
AND:
STATE OF KARNATAKA BY MANIPAL POLICE STATION,
BY DY.S.P.H & B, CID BANGALORE.
(REPRESENTED BY SPP)
... RESPONDENT
(BY SRI A.S.PONNANNA, SR. ADV. FOR SRI JAGADEESHA B.N FOR IMPLEADING APPLICANT.)
3
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.PC PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 08.06.2021 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE, UDUPI IN S.C.NO.2/2017, CONVICTING THE
APPELLANT/ACCUSED NO.2 FOR THE OFFENCE P/U/S 120B,302,201 R/W 34 OF IPC.
IN CRL.A NO.1157/2021
BETWEEN:
SMT. GULABI SHEDTHI W/O LATE SHEENAPPA SHETTY
AGED ABOUT 79 YEARS, R/AT DEVI NIVASA, SARAKARI GUDDE,
SHANKARAPURA POST, UDUPI DISTRICT – 574115.
... APPELLANT
(BY SRI JAGADEESHA B.N., ADV.)
AND:
SMT. RAJESHWARI SHETTY
W/O LATE BHASKAR SHETTY, AGED ABOUT 56 YEARS,
R/AT ESHWARI HAYAGREEVA NAGAR, 2ND CROSS, INDRALI SHIVALLI VILLAGE, UDUPI – 571405.
2. NAVNEETH B SHETTY S/O LATE BHASKAR SHETTY
AGED ABOUT 26 YEARS, ESHWARI HAYAGREEVANAGARA
2ND CROSS INDRALISHIVALLI VILLAGE UDUPI TALUK,
UDUPI DISTRICT-576 102.
4
3. NIRANJAN BHAT S/O SHRINIVASA BHAT
AGED ABOUT 32 YEARS, RESIDENT OF YASHASWINI NADIBETTU NANDALIKE VILLAGE, KARKALA TALUK,
UDUPI DISTRICT-576111.
4. RAGHAVENDRA S/O PARAMESHWARA AGED ABOUT 28 YEARS,
R/AT SRI MATHRKRIPA HOUSE KAIROLI, NANDALIKE,
KARKALA TQ, UDUPI DISTRICT, UDUPI - 576111.
5. THE STATE OF KARNATAKA
THROUGH MANIPAL POLICE STATION
UDUPI DISTRICT INVESTIGATED BY C.I.D. BANGALORE
REP BY ITS STATE PUBLIC PROSECUTOR HIGH COURT BUILDING,
HIGH COURT OF KARNATAKA BANGALORE-560001.
... RESPONDENTS
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 377
CR.P.C PRAYING TO ALLOW THE PRESENT APPEAL AGAINST
THE JUDGMENT OF PRL. DISTRICT AND SESSION JUDGE,
UDUPI IN S.C.NO.02/2017 AND ENHANCE THE SENTENCE OF
LIFE IMPRISONMENT TO THE SENTENCE OF DEATH AND FINE
TO RESPONDENT NO.1 TO 3 FOR THE OFFENCE P/U/S 302 OF
IPC ETC.
THESE CRIMINAL APPEALS COMING ON FOR ORDERS
ON IAs THIS DAY, G.NARENDAR J, MADE THE FOLLOWING:
5
ORDERS ON I.A.NO.2/2021 in Crl.A.No.996/2021 &
I.A.No.1/2021 in Crl.A.No.1003/2021
Heard the learned Senior counsel Sri. Sandesh J.
Chouta along with Sri. B. N. Jagadeesh, learned counsel
for the impleading applicant/intervener in
Crl.A.No.996/2021 and learned Senior counsel Sri. A.S.
Ponnanna along with Sri. B.N.Jagadeesh, learned counsel
for the impleading applicant/intervener in
Crl.A.No.1003/2021 and the learned Senior counsel Sri.
Hasmath Pasha along with Sri. Nasir Ali, learned counsel
for the appellants.
2. The instant applications are preferred invoking
the provisions of sub-section (2) of Section 301 r/w the
proviso to sub-section (8) of Section 24 of Code of
Criminal Procedure, 1973, (hereinafter referred to as ‘the
Cr.P.C’ for short), praying that the de-facto complainant
be permitted to come on record as an intervenor and be
impleaded as a party/respondent in the appeals preferred
6
by the accused. The appeals are preferred being
aggrieved by the judgment of conviction and order of
sentence dated 08.06.2021 passed by the Court of the
Principal District and Sessions Judge, Udupi.
3. That the appellants No.1 to 3 have been
convicted for the offence punishable under Sections 302,
120B, 201 read with Section 34 of IPC and sentenced to
undergo imprisonment for life for the offence punishable
under Section 302 read with Section 34 of IPC and
further sentenced to suffer imprisonment for life for the
offence punishable under Section 120B read with Section
34 of IPC and further sentenced to suffer rigorous
imprisonment for a period of four years for the offence
punishable under Section 201 read with Section 34 of
IPC. It is ordered that all the three sentences shall run
concurrently.
4. It is the case of the applicant that she is the
mother of the deceased Bhaskar Shetty and mother-in-
7
law of accused No.1 and grand-mother of accused No.2.
That accused No.3 is a stranger to the family.
5. It is the case of the applicant that her son
deceased Bhaskar Shetty went missing on 28.07.2016
and that she set the criminal law in motion on
29.07.2016 by lodging a complaint with the respondent –
Manipal Police Station, Udupi District.
6. That based on the complaint, the respondent
have commenced the investigation and in the course of
the investigation, they have come to the conclusion that
the deceased was attacked by accused Nos.1 and 2 and
done to death and suspecting the same, subjected
accused Nos.1 and 2 to interrogation and based on their
voluntary statements, Crime No.199/2016 came to be
registered against the accused on 07.08.2016 for the
offence punishable under Sections 302, 201, 204, 120B
and 34 of IPC. After filing of charge sheet and
committing the case to the Sessions Court, it came to be
registered as S.C.No.2/2017 and after a full fledged trial,
8
the Court of the Principal District and Sessions Judge,
Udupi was pleased to convict them for the offence
punishable under Sections 302, 120B, 201 and 34 of IPC
and it was further pleased to sentence them to undergo
imprisonment for life and other sentences by its
judgment and order of sentence dated 08.06.2021.
7. That the de-facto complainant/applicant being
the mother of the deceased is a victim as defined under
Section 2 (wa) of the Cr.P.C.
8. The learned Senior counsel Sri. Sandesh J.
Chouta would take the Court through the Proviso to sub-
Section (8) of Section 24 of the Cr.P.C., which reads as
under:-
“(8) The Central Government or the
State Government may appoint, for the
purposes of any case or class of cases, a person who has been in practice as an advocate
for not less than ten years as a Special Public
Prosecutor:
[Provided that the Court may permit
the victim to engage an advocate of his choice to assist the prosecution under this sub-
section.]”
9
He would then invite the attention of the Court to
sub-section (2) of Section 301 of Cr.P.C., which reads as
under:-
“301. Appearance by Public
Prosecutors.—(1)The Public Prosecutor or Assistant Public Prosecutor incharge of a case
may appear and plead without any written
authority before any Court in which that case is
under inquiry, trial or appeal.
(2)If in any such case any private
person instructs a pleader to prosecute any
person in any Court, the Public Prosecutor
or Assistant Public Prosecutor in charge of
the case shall conduct the prosecution, and
the pleader so instructed shall act therein
under the directions of the Public
Prosecutor or Assistant Public Prosecutor,
and may, with the permission of the Court,
submit written arguments after the evidence is
closed in the case.”
9. The learned Senior counsel Sri. Sandesh J.
Chouta would contend that pursuant to the amending Act
No.5 of 2009, Section 2 (wa) came to be inserted into
the Cr.P.C., with effect from 31.12.2009 and so also the
Proviso to sub-Section (8) to Section 24 and the Proviso
to Section 372, came to be inserted by the amending Act
10
No.5 of 2009. He would contend that the amendments
came about in view of the law makers’ recognition of the
fact that victims of crime did not have a say in the fight
against the crime and because of which crime they stood
victimized and suffered losses. Elaborating further, the
learned Senior counsel would contend that the
recognition of this fact gave birth to the concept of
victimology whereby the legislature recognized the need
to vest the victims with certain rights.
10. That this concept of victimology and the right
of victims, has by exposition of law by the Hon’ble Apex
Court and various High Courts, the horizon has been
greatly expanded. That today the victims are been
vested with a right to assist the prosecution and thereby
ensure and avert a mis-trial and has greatly helped in
averting the acquittals of the accused on account of
minor lapses in the case of the prosecution. He would
contend that the law as it stands today virtually places
the victim’s Lawyer/Advocate on an equal footing as the
11
Public Prosecutor, which hitherto was not the case. He
would contend that prior to the amendment, the victims
were conferred only with a limited right of assisting the
prosecutor and filing written submissions on grant of
permission by the Court under sub-Section (2) of Section
301 of the Cr.P.C. That post amendment, the law in this
regard has greatly evolved and the law as it stands
today, virtually permits the Advocate of the victim to
represent the case before the Court on an equal footing
as the Public Prosecutor appointed under the various
provisions of Section 24 of the Cr.P.C.
11. The learned Senior counsel Sri. Sandesh J.
Chouta elaborating further would contend that there is a
stark difference and distinction in the scope and ambit of
Section 301(2) and Section 24(8) of the Cr.P.C.
Elaborating further, the learned Senior counsel would
contend that the rights of the victim under Section 301
(2) of the Cr.P.C. was limited to the extent of assisting
the prosecutor, whereby the pleader appointed by the
12
victim was required to act only under the direction of the
prosecutor and additionally a right to submit written
submissions in the case. He would contend that the
legislature realizing the effect of the limitations ‘of
assisting the prosecutor’ has by its amending Act
inserted the Proviso to Section 24 (8) and while so
amending Section 24 (8) has been pleased to employ the
words ‘assist the prosecution’. That with the deployment
of the word ‘prosecution’, the legislature intended to
bring about a sea change in the domain of victimology or
rights of victims. He would take the Court through
statement of objects and reasons of the Code of Criminal
Procedure (Amendment) Act, 2008 (Act No.5 of 2009)
(received the assent of the President on 07.01.2009 and
published in the Gazette of India on 09.01.2009).
Paragraph No.2 of the same reads as under:-
2. Amendment of section 2. — In
section 2 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the principal
Act), after clause (w), the following clause
shall be inserted, namely:—
13
‘(wa) “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;’.
12. The learned Senior counsel in essence would
strive to contend that the role to be played by the
Advocate engaged by the victim is amplified and
enlarged, post the amendment of 2009 when viewed in
comparison with the position that obtained prior to
amendment and as provided under Section 301 (2) of the
Cr.P.C.
13. The Learned Senior counsel reverting to the
case on hand and the instant application would submit
that in the light of various expositions of law on the
concept of victimology and the rights of victims, the
applicant, who undoubtedly falls within the definition of
‘victim’ is entitled to be heard in the matter, more
particularly, in the application preferred under Section
389 of the Cr.P.C., which enables the Appellate Court, for
14
reasons to be recorded in writing, to order the
suspension of sentence appealed against and if in
confinement, direct he be released on bail. He would
contend that the appellant has preferred I.A.No.1/2021
in Crl.A.No.996/2021 invoking the provisions of Section
389 of the Cr.P.C. and has prayed for suspension of the
sentence, sentencing her to undergo various
punishments. That the applicant/intervener being the
mother of the deceased and the victim, is required to be
heard in the matter.
14. This Court after hearing pointed out the
absence of any provision under the Cr.P.C. similar to one
of Civil Procedure Code, enabling an interested party to
come on record in an appeal. It was also pointed out that
the victim was also not arrayed as a party before the
Trial Court. The learned Senior counsel fairly concede
that the relief sought for in the applications is not happily
worded and the same may be read as an application for
15
permission to assist the prosecution in terms of Section
24 (8) of the Cr.P.C.
15. The learned Senior counsel would place
reliance on the following rulings:-
(i) (2000) 2 SCC 391 (R Rathinam vs. State
by DSP District Crime Branch, Madurai and
another)- Reliance is placed on paragraph Nos.1, 6, 7, 8
and 11 to contend that the victim is entitled to be heard
on bail and seek cancellation of bail. That this right of
victim has been recognized even prior to the coming into
force of the amendment. On perusal of the facts, it is
seen that it is a case of hearing of cancellation of bail at
the pre-conviction stage.
(ii) (2001) 3 SCC 462 (J K International vs.
State (Govt. of NCT of Delhi) and others) – Reliance
is placed on the observations made by the Hon’ble Apex
Court in paragraph Nos.8, 9, 10, 14 and 16 to contend
that even in a proceedings for quashment of charge
16
sheet, the Hon’ble Apex Court has held that the de-facto
complainant/victim is entitled to an opportunity of being
heard before an order quashing proceedings is passed.
On perusal it is seen yet again, the proceedings are of a
pre-conviction stage and there has been no
determination of guilt of the accused.
(iii) 2005 SCC Online Ker 147 (Kunhiraman
vs. State of Kerala) – Reliance is placed on the
observations in paragraph Nos.7, 8, 9, 10, 12, 13, 16
and more particularly, paragraph Nos.16 and 17. This is
yet again a case where the Hon’ble High Court was
hearing a petition under Section 438 of the Cr.P.C. and
admittedly, at the pre-conviction stage. The learned
Single Judge taking note of the absence of any
prohibition has proceeded to hold that there is no barrier
to hear the de-facto complainant/aggrieved person. But it
is interesting to note that in paragraph No.9, the Court
has categorically held that the provisions of Section
301(2) cannot be invoked to seek audience in a petition
17
under Section 438 of the Cr.P.C as the provision relates
to an inquiry, trial or appeal and hence concluded that it
has no application to a proceedings under Section 438 of
the Cr.P.C.
(iv) 2010 (2) MWN (Cr.) 273 (Sathyavani
Ponrani vs. 1. Samuel Raj, 2. The State, through
the Inspector of Police, Umachikulam P.S.) –
Reliance is placed to demonstrate that the victim has a
right of audience in the criminal proceedings. Reliance is
placed on paragraph Nos.19, 20, 21, 24, 25, 28, 29, 30,
33, 34, 36, 37, 38, 43, 45, 52, 55, 56, 60, 70 and 71 and
more particularly, emphasis is on the observations in
paragraph No.38, which accordingly to the learned Senior
counsel is the correct exposition of the law relating to the
right vested in the victim under Section 24 (8) of the
Cr.P.C. On perusal of the facts, it is seen that the case
pertains to consideration of the right of a victim to be
heard in an application under Section 438 of the Cr.P.C.
Admittedly, it is yet again a case of pre-conviction case.
18
In paragraph Nos.45, 46, 47, 48, 49, 50, 51 and 52, the
High Court has placed reliance on the rulings in the
domain of interpretation of statutes not involving criminal
jurisprudence. The rules of interpretation involving
criminal statutes are governed by different parameters,
which will be shortly set-out in the succeeding
paragraphs. In that view of the matter, we disagree with
the principles of interpretation adopted by the learned
Judge as tools to interpret the provisions of statute in the
domain of criminal law.
(v) Crl. O.P. No.28041/2015 (S
Venkataramanan vs. State, represented by
Inspector of Police, Central Crime Branch, Chennai
and another) – Reliance is placed on paragraph Nos.4,
5, 6 and 9, where the Court placing reliance on the
preceding ruling has held that the Court can also look
into the material produced by the victim/de-facto
complainant while considering the application/petition
19
under Section 438 of Cr.P.C. The instant case also is one
at the pre-conviction stage.
(vi) 2019 SCC Online All 957 (Suneel Kumar
Singh vs. State of U.P.) – The issue involved therein is
the right of the counsel, who earlier argued in the appeal
opposing interim bail application thereafter put-in an
appearance on behalf of the victim to oppose a
subsequent application for short-term bail by the
accused, who stood convicted for the offence under
Section 302 of the IPC. The opposition by the victim
appears to be on the ground that the short-term bail
granted on the earlier occasion was mis-used by the
appellant-convict. The Division Bench, after examining
the provisions of Section 2 (u), 2 (wa), 24, 12, 301 and
302 of the Cr.P.C. and after placing reliance on the
decision of the Co-ordinate Bench of the said Court in
Brijesh Singh vs. State of Uttar Pradesh was pleased
to hold in paragraph No.52 (b) and (c) as under:-
“52. (b) If a person has already been
engaged as G.A/A.G.A. etc. and subsequently,
20
he has been discharging his duties from the
said capacity, then there is no legal impediment in his way to appear on behalf of
the complainant in an appeal which has been
filed by the accused-appellant against his conviction under Section 374 Cr.P.C. or to
oppose in the bail application filed under
Section 389 Cr.P.C but only with the permission of the Court otherwise he shall
only assists the State Government.
(c) If G.A./A.G.A. etc. who has been
appointed as per under Section 24 (1) of
Cr.P.C.by the State Government, filed any
objections/conduct of the case filed on behalf
of the State in an appeal filed by the accused-
persons against his conviction or in a bail
application under Section 389 Cr.P.C.,
subsequently, disengaged from the said
capacity, then in that circumstances, he
cannot appear on behalf of the complainant.”
A reading of the above would leave no doubt in the mind
of this Court that the primary question that was being
adjudicated is whether a government advocate
discharging functions is entitled to also represent the
complainant and appear on his behalf and oppose the
application under Section 389 of the Cr.P.C. Though the
case is post-conviction stage, it is pertinent to note that
there is no consideration of the provisions of Section 372
21
of the Cr.P.C. Much emphasis is placed on the
observations in paragraph No.51, more particularly,
paragraph Nos.14 and 15 of the extracted portion.
(vii) (1984) 2 SCC 500 (A R Antulay vs.
Ramdas Sriniwas Nayak and another) – Reliance is
placed on this ruling to buttress the contention that the
counsel, who represented the complainant is deemed to
be a public prosecutor. There can be no doubt that in a
proceedings before a Magistrate, the Magistrate in
exercise of powers under Section 302 read with Section
303 of the Cr.P.C., is entitled to permit the prosecution
to be conducted by any person other than the
prosecutor. There can be no dispute with the proposition
as the said procedure is applicable only to proceedings
before a Magistrate only. This fact has also been
amplified in (2001) 5 SCC 407 (Manohar Lal vs.
Vinesh Anand and others).
(viii) 2015 SCC Online Del 9802 (Ram Phal vs.
State and others) – In paragraph No.3, the Court has
22
formulated the two questions for consideration by the
Full Bench on an order of reference. The questions
formulated for consideration by the Full Bench leave not
doubt in the mind of the Court with regard to the
applicability of the said ruling. The said ruling is
inapplicable to the facts of the case.
(ix) (2019) 2 SCC 752 (Mallikarjun Kodagali
(dead) Represented through Legal Representatives
vs. State of Karnataka and others) – The said ruling
revolves around that right of a victim to prefer an appeal
in terms of Section 372 of the Cr.P.C. Paragraph No.9 of
the said ruling details the issue determined by the
Hon’ble Apex Court. A reading of the ruling reveals that
the same has no bearing on the issue at hand. A useful
reference could be made to the observations in
paragraph No.96.
(x) 2017 SCC Online Mani 79 ( Khumukcham
Nikita Devi and another vs. The State of Manipur
and another) – The said ruling has been rendered on a
23
conjunctive reading of Sections 24(8) and 301(2) of the
Cr.P.C.
(xi) (2020) 2 SCC 474 (Rekha Murarka vs.
State of West Bengal and another) - Reliance is
placed on paragraph No.11, more particularly, paragraph
No.11.5.
16. Per contra, the learned Senior counsel
appearing on behalf of the appellant/accused has
endeavored to resist the claim of the applicant. He would
take the Court through Section 24 (1) of the Cr.P.C. to
contend that an appeal is a distinct proceeding and that
the defence counsel is only intended to have a secondary
role to that of the public prosecutor. He would contend
that originally the amendment bill use the words ‘co-
ordinate with the prosecution’. That the law makers, after
a reflection, deemed it wiser to substitute the word ‘co-
ordinate’ with the word ‘assist’. Elaborating, he would
contend that this change by the legislature is suffice to
demonstrate that what is assigned to the victim under
24
the amendment is only a supportive role and does not
empower the victim to conduct a parallel prosecution by
oneself. That this is the most plausible view in view of
the primacy accorded to Public Prosecutor under Sections
225 and 301 (2) of the Cr.P.C. and any other
interpretation resulting in a free-hand would go against
the scheme envisaged under the statute. In support he
would placed reliance on paragraph No.11.1 of Rekha
Murarka case supra.
17. He would nextly contend that legislative intent
is manifest in clear terms and that prosecution before a
Sessions Court can only be conducted by the Public
Prosecutor as it is the intention of the legislature that
fairness of trial is of prime importance.
18. That a Public Prosecutor is not expected to
show a thirst to ensure the case concludes with a
conviction. That the Courts have repeatedly held that the
expected attitude of a Public Prosecutor, while conducting
prosecution must be couched in fairness not only to the
25
Court and to the investigating agencies but to the
accused as well. That if an accused is legitimately
entitled to any benefits during trial, it is the duty of the
Public Prosecutor not to scuttle or conceal it. That, it is
the duty of the Public Prosecutor to winch it to the fore
and make it available to the accused even if the defence
counsel has overlooked it.
19. That if a private counsel and more
importantly, a counsel engaged by a victim is allowed to
conduct the prosecution, it would turn adversarial and
the counsel would attempt to secure a conviction by hook
or by crook and he would contend that it is for that
reason that the Parliament in its wisdom has applied a
bridle and reduced the role of the victim’s counsel to
imparting instructions or assisting the public
prosecutor/prosecutor. In support of the above
contention, he would place reliance on the ruling of the
Hon’ble Apex Court rendered in the case of Shiv Kumar
vs. Hukam Chand reported in (1997) 7 SCC 467.
26
20. Nextly, the learned Senior counsel would place
reliance on the observations of the Hon’ble Apex Court in
paragraph No.13 of the ruling rendered in the case of
Sundeep Kumar Bafna vs. State of Maharashtra
reported in (2014) 16 SCC 623. The learned Senior
counsel would contend that in the light of the
observations, wherein a right to be heard would occur to
the victim only if the Appellate Court were to infer
anything adversely against the prosecution and that in
the matter of bail, it is purely between the Court and the
convict and the hands of the Division Bench cannot be
tied down.
21. Nextly, the learned Senior counsel has placed
reliance on ruling reported in AIR 1966 SC 911
(Thakur Ram and others vs. State of Bihar)
(paragraph No.9) which is rendered in terms of the
erstwhile provisions of Section 435. He would contend
that provisions of the criminal law cannot be permitted to
be invoked by a private party to wreck vengeance and
27
that barring a few instance, the party that is treated as
aggrieved is the State, which is the custodian of social
interest of the community at large.
22. The learned Senior counsel would place
reliance on the observations made in paragraph Nos.9
and 10 of the ruling reported in 2013 2 KCCR 994
(Shankar vs. State of Karnataka and others),
whereby this Court has been pleased to hold that the
insertion of the proviso to sub-Section (8) of Section 24
of the Cr.P.C. does not in any manner detract from the
object, intent and scheme of the Court and he would
reiterate that the permissible role of the victim is only a
supportive role or to assist the Prosecutor.
23. Having adverted to the contentions, we are of
the opinion that the definition of the following words,
namely, ‘assist’ and ‘prosecution’ as defined in the
Lexicon 5th Edition need be relied upon, in view of the
fact that the said words are not defined under the Code.
The words are defined to mean as under:
28
“Assist : To aid ; succour ; help ;lend
encouragement to.
Prosecution: Prosecution means a criminal
action; a proceeding instituted and carried on by due course of law, before a competent
tribunal, for the purpose of determining the
guilt or innocence of a person charged with crime.”
That apart, it is necessary to extract certain
provisions for the sake of easy reference and
convenience, namely, Section 24, Section 301, Section
372 and Section 389. Section 24, Section 301, Section
372 and Section 389 read as under:
“24. Public Prosecutors.—(1) For
every High Court, the Central Government
or the State Government shall, after
consultation with the High Court, appoint
a Public Prosecutor and may also appoint
one or more Additional Public Prosecutors, for
conducting in such Court, any prosecution,
appeal or other proceeding on behalf of the
Central Government or State Government, as the case may be.
(2)The Central Government may appoint one or more Public Prosecutors
for the purpose of conducting any case or
class of cases in any district or local area.
29
(3)For every district, the State
Government shall appoint a Public Prosecutor and may also appoint one or more
Additional Public Prosecutors for the district:
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one
district may be appointed also to be a Public
Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.
(4) The District Magistrate shall, in
consultation with the Sessions Judge, prepare
a panel of names of persons, who are, in his
opinion fit to be appointed as Public
Prosecutors or Additional Public Prosecutors
for the district.
(5) No person shall be appointed by
the State Government as the Public
Prosecutor or Additional Public Prosecutor for
the district unless his name appears in the
panel of names prepared by the District
Magistrate under sub-section 94).
(6) Notwithstanding anything contained
in sub-section (5), where in a State there
exists a regular Cadre of Prosecuting
Officers, the State Government shall
appoint a Public Prosecutor or an Additional
Public Prosecutor only from among the
persons constituting such Cadre:
Provided that where, in the opinion
of the State Government, no suitable person is available in such Cadre for such
appointment that Government may appoint
a person as Public Prosecutor or Additional Public Prosecutor, as the case may
30
be, from the panel of names prepared by the
District Magistrate under sub-section (4).
[Explanation.—For the purposes of this
sub-section,—
(a)“regular Cadre of Prosecuting
Officers” means a Cadre of Prosecuting Officers which includes
therein the post of a Public
Prosecutor, by whatever name called,
and which provides for promotion of
Assistant Public Prosecutors, by
whatever name called, to that post;
(b)“Prosecuting Officer” means a person,
by whatever name called, appointed
to perform the functions of a Public
Prosecutor, an Additional Public
Prosecutor or an Assistant Public
Prosecutor under this Code.]
(7) A person shall be eligible to be
appointed as a Public Prosecutor or an
Additional Public Prosecutor under sub-
section (1)or sub-section (2)or sub-section
(3)or sub-section (6),only if he has been in
practice as an advocate for not less than
seven years.
(8) The Central Government or the State Government may appoint, for the
purposes of any case or class of cases, a
person who has been in practice as an advocate for not less than ten years as a
Special Public Prosecutor:
[Provided that the Court may permit
the victim to engage an advocate of his
31
choice to assist the prosecution under this
sub-section.]
(9) For the purposes of sub-section
(7)and sub-section (8),the period during which a person has been in practice as a
pleader, or has rendered (whether before or
after the commencement of this Code) service as a Public Prosecutor or as an Additional
Public Prosecutor or Assistant Public
Prosecutor or other Prosecuting Officer, by
whatever name called, shall be deemed to be
the period during which such person has been
in practice as an advocate.]”
“301. Appearance by Public
Prosecutors.—(1)The Public Prosecutor or
Assistant Public Prosecutor incharge of a case
may appear and plead without any written
authority before any Court in which that case
is under inquiry, trial or appeal.
(2)If in any such case any private
person instructs a pleader to prosecute any
person in any Court, the Public Prosecutor
or Assistant Public Prosecutor in charge of
the case shall conduct the prosecution,
and the pleader so instructed shall act
therein under the directions of the Public
Prosecutor or Assistant Public Prosecutor,
and may, with the permission of the Court, submit written arguments after the evidence
is closed in the case.”
“372. No appeal to lie unless
otherwise provided.—
Proviso-1: No appeal shall lie from any judgment or order of a Criminal Court
32
except as provided for by this Code or by any
other law for the time being in force:
Proviso-2: [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.]”
“389. Suspension of sentence
pending the appeal; release of appellant on
bail.—(1)Pending any appeal by a convicted
person, the Appellate Court may, for reasons
to be recorded by it in writing, order that the
execution of the sentence or order appealed
against be suspended and, also, if he is in
confinement, that he be released on bail, or
on his own bond:
[Provided that the Appellate Court shall,
before releasing on bail or on his own bond a
convicted person who is convicted of an
offence punishable with death or
imprisonment for life or imprisonment for a
term of not less than ten years, shall give
opportunity to the Public Prosecutor for
showing cause in writing against such release:
Provided further that in cases where
a convicted person is released on bail it
shall be open to the Public Prosecutor to file an application for the cancellation of the
bail.]
33
Section 24 is placed in Chapter II and deals with
Constitution of Regular Courts and Offices that is the
offices of the Public Prosecutor, Additional Public
Prosecutor and Special Public Prosecutor. Section 301 is
placed in Chapter XXIV, which deals with general
provisions as to enquiries and trials. Section 372 and
389 are placed in Chapter XXIX and deals with the
appeals arising out of the judgments of the trial Courts.
24. The instant application prima facie calls for an
interpretation in the background of the above provisions.
25. As contended by the learned Senior counsels
on behalf of the applicant, there is no denying the fact
that victomology as a facet of Criminal law came to be
recognized by the law makers and as a consequence
thereof the amendment Act of 2008 (Act 5 of 2009)
came to be introduced. By Section 3 of the Amendment
Act, Proviso to Section 24 and the Proviso to Section 372
came to be inserted and whereby and as rightly
contended by the learned Senior Counsel, certain rights
34
have been vested in the victims and who is defined under
Section 2 (wa). It is these insertions coupled with the
sub-Section (2) of Section 301 that is made the
foundation for the application seeking impleadment as a
necessary party to the proceedings, i.e., in the appeals
preferred by the accused, who have been convicted and
have been sentenced to undergo imprisonment for life
and also suffer such other punishments as imposed
under the judgment of conviction and order of sentencing
dated 08.06.2021.
26. It is the case of the applicant, who is none
other than the de-facto complainant and mother of the
deceased that the appeal being a continuation of the
prosecution, the applicant is entitled to be heard in the
appeal, including on the application preferred under
Section 389 of the Cr.P.C. praying to suspend the
sentence and enlarge the appellants on bail. It is
vehemently contended by the learned Senior counsels on
behalf of the applicant that in the light of insertion of the
35
Proviso to Section 24 of the Cr.P.C., the applicants are
entitled to be heard and the Advocate engaged by the
victim is deemed to be a Public Prosecutor. It is the case
of the applicants that in view of provisions of Section 24
(8) of the Cr.P.C., the applicants are required to be heard
before any orders are passed on the application preferred
by the appellants under Section 389 of the Cr.P.C.
27. As noted in the foregoing paragraphs, this
Court has been taken through various rulings including
ruling rendered by the Division Bench of the Allahabad
High Court. The rulings rendered by the Allahabad High
Court has no doubt permitted the victim be heard on the
short term bail application preferred by the convict. It is
also relevant to note that having heard the victim it was
pleased to allow the application of the accused.
28. The point that arises for consideration is,
whether the appeal by an accused, who has been
convicted by a judgment and sentenced can be construed
as a continuation of the “prosecution” of the accused ?
36
29. To determine this issue, it is necessary to
appreciate the word “prosecution” and “prosecutor”. The
word “prosecution” has been defined as a criminal action
or proceeding before a Court of law to determine the
guilt or innocence of a person charged to trial. The
distinction between the words “to prosecute“ and
“prosecution” can be gainfully stated to mean “to set the
law in motion” and as a successful conclusion of the
proceedings by determining the guilt or innocence of the
person charged with a crime”. In effect, the process of
“prosecution” or the proceedings would conclude with the
proclamation of guilt or innocence of the person charged
with a crime. This conclusion can also be inferred by the
very arrangement of the provisions under the Code.
30. As could be seen Section 24 is placed in
Chapter II which deals with the Constitution of the
criminal courts and its offices, whereas the right to
appeal and the right of the convict to seek suspension of
sentence are placed in Chapter XXIX. If it was the
37
intendment of the law makers that the application of a
convict to have himself released on bail was to be treated
as an application by any other person the same could
have been provided under Chapter XXXIII. On the
contrary the right of a convict to seek such suspension of
sentence has been placed in Chapter XXIX as a separate
provision and the provision has an interesting aspect.
The first proviso to Section 389 (1) came to be inserted
by Act 25 of 2005. It places certain fetters on the
Appellate Court, whereby in respect of appeals where the
convict has been sentenced to death or sentenced to life
or imprisonment for not less than 10 years then such
application can be considered only after providing an
opportunity to the public prosecutor to show cause
against the application in writing. Thus, the provision is a
standalone provision.
31. Before we further embark upon interpreting
the provisions it would be advantageous to dwell from
the principles of interpretation in matters concerning
38
statutes in the domain of criminal jurisprudence. In this
regard, we desire to place reliance upon certain rulings of
the Hon’ble Apex Court to act as a guiding light in our
endeavor to settle the law.
32. One of the earliest reported judgments of the
Hon’ble Apex Court is in the case of M.V. Joshi v. M.U.
Shimpi and another reported in AIR 1961 SC 1494
wherein the Hon’ble Apex Court was pleased to observe
in paragraphs 11, 12 and 15 as under:
“11. Learned Counsel for the appellant contends that the rule being a part of a penal statute, it should be construed in favour of the accused. When it is said
that all penal statutes are to be construed strictly it only means that the court must see that the thing
charged is an offence within the plain meaning of the words used and must not strain the words. To put it
in other words, the rule of strict construction requires that the language of a statute should be so
construed that no case shall be held to fall within it
which does not come within the reasonable interpretation of the statute. It has also been held
that in construing a penal statute it is a cardinal principle that in case of doubt, the construction
favourable to the subject should be preferred. But these rules do not in any way affect the fundamental
principles of interpretation, namely, that the primary test is the language employed in the Act and when
the words are clear and plain the court is bound to accept the expressed intention of the legislature.
39
12. The latest view on the relevant rule of
construction is found in Maxwell on Interpretation of Statutes, 10th Edn., at p. 262, which reads,
“… it is now recognized that the paramount duty of
the judicial interpreter is to put upon the language of the Legislature, honestly and faithfully, its plain and
rational meaning and to promote its object”.
Adverting to Acts against adulteration, the learned
author quotes Day, J., in Newby v. Sims [(1894) 63 LJMC 229] as follows:
“I cannot concur in the contention that because
these Acts (against adulteration) impose penalties, therefore, their construction should, necessarily, be
strict. I think that neither greater nor less strictness should be applied to those than to other statutes.”
So judged, we have no doubt that the butter prepared out of curd falls within the plain meaning of
the words in the said rule.
xxx
15. The conclusion we have arrived at is not only
supported by the plain words of the rule, but also carries out the clear intention of the Legislature. The
Act was passed to make provisions for the prevention of adulteration of food. Butter is a
favourite edible fat and is consumed in different ways by innumerable persons in this country. As we
have already pointed out, butter is prepared in the rural areas throughout this country by the
indigenous process of churning soured milk, whereas only in a few cities butter is prepared directly from
milk. The interpretation suggested by learned
counsel for the appellant, if accepted, would make the rule a dead-letter, for all practical purposes, and
the object of the Legislature would be defeated. In our view, the intention of the Legislature has been
clearly expressed in the rule.”
40
33. Nextly, we would place reliance on the ruling
of Full Bench of the Hon’ble Apex Court reported in
(1976) 1 SCC 560 (Dilip Kumar Sharma and others
vs. State of Madhya Pradesh) and more particularly
on the observations in paragraph Nos.11, 22, 23 and 24.
In paragraph 23 the Full Bench has reiterated the rule of
interpretation as settled in M V Joshi’s case (supra).
34. Thirdly, we place reliance on the observations
of the Hon’ble Apex Court in the ruling reported in
(2003) 11 SCC 405 (Assistant Commissioner,
Assessment – II, Bangalore and others vs.
Velliappa Textiles Ltd., and others) in paragraphs 26,
27 and 33.
35. Lastly the observations of the Apex Court in
paragraphs 7 to 11 in the case of Rekha Murarka vs.
State of West Bengal and another reported in (2020)
2 SCC 474.
41
36. From a reading of the above, it is apparent
that in matters involving interpretation of criminal statute
the rule of interpretation to be followed is the rule of
strict or literal interpretation. The Courts have
categorically held where on a plain reading of the
provision, the clear and compelling nature of the
language used in the provision gives a particular meaning
or where there is no ambiguity in the provision, liberal
interpretation of the same is impermissible. Further, as
held by the Full Bench If two constructions are possible
upon the language of the statute, the Court must choose
the one which is consistent with good sense and fairness,
and eschew the other which makes its operation unduly
oppressive, unjust or unreasonable, or which would lead
to strange, inconsistent results or otherwise introduce an
element of bewildering uncertainty and practical
inconvenience in the working of the statute.
37. In the background of the above dictum we
now proceed to appreciate the provisions and we
42
commence by delving into the statement of objects and
reasons of Act 5 of 2009. The third sentence in
paragraph 2 reads as under:
“They need to be given certain rights
and compensation, so that there is no distortion of the criminal justice system.”
(Emphasis supplied)
Thus, what can be gathered from the above
statement of objects and reasons are that the law
makers intended to give or confer upon victims “certain
rights”. It makes it obvious that the law makers were
clear that they intended to give or confer specific rights
and it was not their intent to tweak or bring about a
complete transformation in the criminal justice
dispensation system. This our opinion, is fortified by the
Amendments proposed by way of insertions and the
Proviso to sub section 8 of Section 24 came to be
inserted. It speaks of permitting the victim to engage an
advocate of his or her choice to assist the prosecution. It
is now relevant to look into the main provision i.e.,
Section 24. Section 24(8) pertains to appointment of the
43
Special Public Prosecutor. It is needless to state that a
special public prosecutor can be appointed either for a
case or for a class of cases only and he stands apart from
a public prosecutor of the High Court or those appointed
under sub Section (6). Thus, enabling the victim to seek
leave of the Court to assist even in the event a Special
Public Prosecutor is appointed. We are required to
observe the distinction in view of sub Section (1) of
Section 24 which speaks of “any prosecution, appeal or
other proceeding” on behalf of the State or Central
Government. Thus, for the provisions of Section 24 of
Cr.P.C. prosecution does not include appeal. This aspect
has not been considered in the judgments of Allahabad
High Court relied upon by the victim. Thus, Section 24
which is placed in Chapter II relating to constitution of
criminal Court or offices distinctly refers to prosecution or
appeal or other proceeding. Sub Section (2) of Section
301 is placed in Chapter XXIV which provides for general
provisions as to enquiries and trials. Sub Section (2) can
be read in two parts, (1) the pleader who is so instructed
44
by the private party can act under the directions of the
PP or APP (2) may with the permission of the pleader so
engaged, may with the permission of the court submit
written arguments after the evidence is closed in the
case, thereby implying the stage of arguments. Thus the
role permitted is a severely limited one. The use of the
words “shall act” would demonstrate the mandatory
nature of the provision implying thereby no right is
vested in the pleader so engaged to act independently.
Secondly it permits the submission of written
submissions and that too with the leave of the Court and
only after a particular stage i.e., closure of evidence. If
that be the mandatory nature of the provision then it
cannot be gainfully argued that the law permits the
pleader so engaged to act independently or make
independent submissions or oral submissions to the
Court.
38. The words assist the prosecution occurring in
proviso to Section 24(8) have to be construed in such a
45
manner that the principles of liberal interpretation or
purposive construction cannot be adopted as such an
approach is likely to jeoparadise the solemn and
constitutionally guaranteed rights of the accused and it
does not require much to turn a “prosecution” into a
“persecution”. The law makers have been categorical
with the rights that they intended to confer upon a
victim. The very use of the word “assist” the prosecution
would clearly demonstrate that the law makers did not
intend to confer any independent role to the advocate or
pleader representing the victim. That apart the sanctity
of Chapter XXIV has also been considered by the
constitutional bench in the case of Hardeep Singh vs.
State of Punjab and others reported in (2014) 3 SCC
92 wherein the constitutional bench has gone into and
considered the aspects of trial, enquiry, etc., Hence we
are unable to accept the case of the applicants.
39. One more provision which fortifies our
conclusion is Section 372 itself which is placed in Chapter
46
XXIX. The proviso to Section 372 came to be inserted by
Act 5 of 2009. Under the proviso, a right to appeal has
been conferred on the victim. Even the said right is not
conferred absolutely, but is a restricted one. The proviso
permits or enables the victim to prefer an appeal in
certain circumstances i.e., one in the event of accused
being acquitted or in the event of accused being
convicted for a lesser offence or imposing inadequate
compensation. Inadequacy of sentence has not been
provided as a ground enabling the victim to prefer an
appeal. Thus, is this limited right under the proviso to
Section 372 and the words “assist the prosecution”
occurring in the proviso to Section 24(8) are juxtaposed
with the words “certain rights” used in paragraph 2 of the
statement of objects and reasons of the amending act 5
of 2009, it becomes clear that the intent of the law
makers was only to confer a limited right on the victim.
40. Thus, if the statement of objects and reasons
and the amendments by way of insertion to Section
47
24(8) and Section 372 are read conjunctively, it is crystal
clear and there is no ambiguity to state that the
construction can be placed. It is pertinent and relevant
to note that the long list of rulings relied upon by the
parties do not reveal the consideration of the insertion of
the proviso to Section 372 and its impact. In that view
the rulings relied upon by the appellant will not be of any
assistance to the applicant.
41. Thus, on a plain reading the only conclusion
we can draw is that the victims have been conferred with
specific rights only i.e., either to assist the prosecution
before the trial Court and to prefer an appeal only in
specific grounds before the appellate Court. It is relevant
to note that proviso to Section 372 and proviso to
Section 24(8) have been introduced under Amending Act
5 of 2009. If it was the intention of the legislature to
confer a wider or enlarged right on the victims the law
makers would certainly have stated so. The law makers
having consciously decided to insert the provisos to
48
Section 24(8) and Section 372, it cannot be gainfully
argued that the intendment of the legislature was
otherwise, or that a wider construction ought to be given
to the said amendments so as to bring the appeals
preferred against judgment of conviction and the
accompanying application under Section 389 within their
ambit.
42. The legislature having enacted a specific
provision to deal with the subject of suspension of
sentence and having mandated that in certain
circumstances the public prosecutor ought to be given an
opportunity to show cause in writing, would have as well
conferred a similar right on the victim as supposively
enacted under Section 24(8). Section 24 recognises a
distinction between a prosecution and an appeal or other
proceeding. It also recognizes the distinction between
different class of prosecutors and for differently
appointed prosecutors. In respect of appeals by an
aggrieved victim the circumstances under which certain
49
appeals can be lodged is specified. If that being the case
it would be futile to contend that the victim, in view of
the words “assist the prosecution”, is also entitled to
intervene and claim to be heard in appeals not preferred
by the victim, much less oppose the application under
Section 389 preferred in an appeal by the convict.
43. The word “prosecution” as defined clearly
indicates the stage upto and culminating with a
proclamation of the guilt or innocence of the person
charged with the crime. If that be the definition and if
the guilt of a person has been proclaimed and such
convict prefers an appeal it can by no stretch of
imagination can be construed as a continuation of the
“prosecution”. With the proclamation of guilt there is a
conclusion and a transformation in the status of the party
sets in and the guilty is transposed from the status of an
accused to a status of a convict and hence the contention
that the appeal by a convict is a continuation of the
prosecution is unacceptable.
50
44. We deem it necessary to state so in view of
the caution sounded by the Apex Court in Rekha
Murarka’s case supra, wherein the Apex Court has gone
to the extent of cautioning the courts from attempting to
alter the inherent balance and undoubtedly the court has
drawn the scheme to ensure fairness in the trial of an
accused and in the criminal justice dispensation system.
The mischief and damage that can be caused if the
interpretation as placed by the learned Senior counsels
appearing on behalf of the applicants is accepted the
mischief and damage that it can cause to the justice
dispensation system is immeasurable.
45. The arguments that the pleader or advocate of
the victim has to be equated with that of a public
prosecutor, if accepted can cause tremors in the justice
dispensation system and become a spoke in the wheel of
the justice delivery system. It is imperative to quote the
constitutional bench in Hardeep Singh’s case in
paragraph No.42, which reads as under:-
51
” It is a settled principle of law that an
interpretation which leads to the conclusion
that a word used by the legislature is
redundant, should be avoided as the
presumption is that the legislature has
deliberately and consciously used the words
for carrying out the purpose of the Act. The
legal maxim a verbis legis non est
recedendum which means, “from the words of
law, there must be no departure” has to be
kept in mind.”
It is also relevant to note the observations in
paragraphs 43 and 45.
“43. The court cannot proceed with an
assumption that the legislature enacting the statute
has committed a mistake and where the language of
the statute is plain and unambiguous, the court
cannot go behind the language of the statute so as
to add or subtract a word playing the role of a
political reformer or of a wise counsel to the
legislature. The court has to proceed on the footing
that the legislature intended what it has said and
even if there is some defect in the phraseology, etc.,
it is for others than the court to remedy that defect.
The statute requires to be interpreted without doing
52
any violence to the language used therein. The court
cannot rewrite, recast or reframe the legislation for
the reason that it has no power to legislate.
xxx
45. This Court in Rohitash Kumar v. Om
Prakash Sharma [(2013) 11 SCC 451 : AIR 2013 SC
30] , after placing reliance on various earlier
judgments of this Court held : (SCC pp. 460-61,
paras 27-29)
“27. The court has to keep in mind the
fact that, while interpreting the provisions of a
statute, it can neither add, nor subtract even a
single word. … A section is to be interpreted by
reading all of its parts together, and it is not
permissible to omit any part thereof. The court
cannot proceed with the assumption that the
legislature, while enacting the statute has
committed a mistake; it must proceed on the
footing that the legislature intended what it
has said; even if there is some defect in the
phraseology used by it in framing the statute,
and it is not open to the court to add and
amend, or by construction, make up for the
deficiencies, which have been left in the Act. …
28. The statute is not to be construed in
light of certain notions that the legislature
53
might have had in mind, or what the
legislature is expected to have said, or what
the legislature might have done, or what the
duty of the legislature to have said or done
was. The courts have to administer the law as
they find it, and it is not permissible for the
court to twist the clear language of the
enactment in order to avoid any real or
imaginary hardship which such literal
interpretation may cause. …
29. … under the garb of interpreting the provision, the court does not have the power
to add or subtract even a single word, as it would not amount to interpretation, but
legislation.” (emphasis in original)
46. In the light of the above observations coupled
with the observations in Rekha Murarka’s case we have
no hesitation in holding that the code of Criminal
Procedure Chapter XXIX does not confer any right on the
victim to seek impleadment in an appeal preferred by the
convict. Section 389 of the Code of Criminal Procedure
placed in Chapter XXIX does not confer any right of
audience on victim in and during the consideration of the
application for suspension of sentence in an appeal