Quick answer
Yes. The proviso to Section 413 of the B.N.S.S. (old proviso to Section 372 CrPC) gives the victim a right to appeal against an order of the court (i) acquitting the accused, (ii) convicting him for a lesser offence, or (iii) imposing inadequate compensation. The appeal lies to the court to which an appeal ordinarily lies against a conviction by that court. The Supreme Court has held that the victim does not need leave (permission) of the High Court to file this appeal (Mallikarjun Kodagali v. State of Karnataka, 2018).
The law
- Section 413 B.N.S.S.: no appeal lies from a criminal court's judgment or order except as provided by the Sanhita or another law. The proviso then creates the victim's right of appeal in the three situations listed above.
- Section 2(1)(y) B.N.S.S.: "victim" means a person who has suffered any loss or injury caused by the act or omission of the accused, and includes the victim's guardian or legal heir.
- Section 173(2) B.N.S.S.: the victim's rights begin early; a copy of the F.I.R. must be given forthwith, free of cost, to the informant or the victim.
Leading case
Mallikarjun Kodagali (Dead) v. State of Karnataka, (2019) 2 SCC 752, Supreme Court of India, 12 October 2018. Three-judge bench; majority opinion by Madan B. Lokur, J. (with S. Abdul Nazeer, J.), and a partly dissenting opinion by Deepak Gupta, J. The majority held that the proviso to Section 372 CrPC gives the victim a substantive right of appeal against acquittal that does not depend on leave of the High Court under Section 378 CrPC. Deepak Gupta, J. agreed that the victim has a right of appeal but would have required leave.
Victim, State and complainant appeals compared
| Who appeals | Provision | Against what | Leave needed? |
|---|---|---|---|
| Victim | Proviso to Section 413 B.N.S.S. | Acquittal, conviction for a lesser offence, inadequate compensation | No (Mallikarjun Kodagali) |
| State Government (through Public Prosecutor) | Section 419(1)(b), (3) B.N.S.S. | Acquittal by a court other than a High Court | Yes, leave of the High Court for an appeal to the High Court |
| Complainant in a complaint case | Section 419(4) B.N.S.S. | Acquittal | Yes, special leave of the High Court |
| State Government | Section 418 B.N.S.S. | Inadequate sentence | No leave required by the section |
Key points
- The victim's appeal covers only the three grounds in the proviso. It does not give the victim an appeal merely because the sentence is too light; an appeal against inadequate sentence is filed on the State's direction under Section 418 B.N.S.S.
- The appeal goes to the forum that hears appeals against conviction by that court, for example the Court of Session from a Magistrate's order (Section 415(3) B.N.S.S.).
Zoya is badly injured in an attack. The trial court convicts the accused only of a lesser hurt offence, although Zoya believes the evidence proves a more serious offence. As the victim, Zoya may appeal against the conviction for a lesser offence under the proviso to Section 413 B.N.S.S. without first seeking leave. If the court had convicted for the right offence but given a short sentence, her proper course would be to ask the State to appeal under Section 418.
Current law note
The victim's right of appeal was first inserted as a proviso to Section 372 CrPC by the CrPC (Amendment) Act, 2008 (5 of 2009). Section 413 B.N.S.S. repeats it word for word. The definition of "victim" is slightly wider in the B.N.S.S.: the old Section 2(wa) CrPC referred to loss or injury caused by the act or omission "for which the accused person has been charged", while Section 2(1)(y) B.N.S.S. refers to the act or omission "of the accused person". For more rulings on the new code, see B.N.S.S. Case Law.
Exam point
Proviso to Section 413 B.N.S.S. (old Section 372 CrPC): the victim may appeal against acquittal, conviction for a lesser offence or inadequate compensation, without leave (Mallikarjun Kodagali, 2018), but not against an inadequate sentence.
