The Allahabad High Court recently comprising of a bench of Justice Vivek Kumar Birla and Justice Mohd. Aslam while dealing with a case filed under Section 5 of the Limitation Act for condonation of delay observed that a Victim/Informant under Section 372 of CrPC can't prefer an appeal against an acquittal/lesser offence/inadequate compensation order passed before December 31, 2009 (the day on which a proviso was added to Section 372 CrPC). (Toofani v. State Of U.P and others)
The bench further clarified that such an appeal can be filed only if the order in question has been passed after the enforcement of the provision to Section 372 CrPC.
Facts of the case
The present appeal has been filed against the acquittal order dated 11.01.2002 passed by Sessions Judge, in a case arising out for the offenses under Section 147, 148, 302, 302/149 IPC.
The present appeal was filed along with a delay condonation application filed under Section 5 of Limitation Act as well as along with a Misc. Application for granting leave to appeal under Section 372 CrPC.
The Stamp Reporter reported the appeal beyond time by 5172 days and on the date of presenting this appeal before this Court Which was beyond time by 5173 days.
Section 372 CrPC reads, "No appeal to lie unless otherwise provided.—No appeal shall lie from any judgment or order of a criminal court except as provided for by this Code or by any other law for the time being in force: Provided that the victim shall have a right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court."
Contention of the Parties
Learned counsel for the appellant has submitted that appeal filed at the instance of the informant would be maintainable under Section 372 CrPC in view of the amendment inserted by Act No.5 of 2009 w.e.f. 31.12.2009.
Learned counsel for the appellant has submitted that the delay was for the reason that in the year 2002 the appellant was suffering from poor health and he could not approach his local counsel, when he was feeling quite well he approached his counsel, then he got information that a State appeal will be filed by the State. Thereafter, the appellant went outside of the house for earning a livelihood and when he came to Allahabad in march, 2016 for his personal work, then he got information that State appeal was not filed and therefore, there is a delay in filing the present appeal.
The counsel on being asked as to how this appeal would be maintainable as the judgment is of the year 2002 i.e. 11.01.2002, when the proviso to Section 372 CrPC, quoted above, was not in force which was enforced w.e.f. 31.12.2009. It was submitted by learned counsel for the appellant that the appellant is the informant and therefore, he could have challenged the aforesaid judgment in view of the aforesaid proviso.
Courts Observation and Judgment
The bench at the very outset referred to the case of Mallikarjun Kodagali vs. State of Karnataka and others, (2019) 2 SCC 752.
The bench taking note of the same remarked, "It is not in dispute that the impugned judgment is of the year 2002. We are not satisfied with the argument of the learned counsel for the appellant as the amendment has been brought into force and statutory right in favour of the victim was granted by way of amendment under Section 372 CrPC w.e.f. 31.12.2009 and prior to that amendment, in State case only the State Government could have filed the appeal that too along with an application for granting leave to appeal. The appellant at the time of passing of the impugned judgment could have at the most challenged the order by filing criminal revision which right was admittedly not exercised by the appellant. It is after 14 years of the impugned judgment and even after 7 years of the amendment having been enforced, he approached this Court by filing a delay condonation application along with an application for granting to leave.
It is not in dispute that in view of the judgment of the Hon'ble Apex Court in Mallikarjun Kodagali (supra), the appeal can be filed in the light of proviso to Section 372 CrPC and there is no requirement to file an application to grant leave to appeal. However, this provision was not in force in the year 2002 as there is no specific provision that this amendment is retrospective in nature."
The bench taking note of the same dismissed the appeal as not maintainable.
The bench noted, "Therefore, in the opinion of the Court, the present appeal would not be maintainable and accordingly, the same is dismissed as not maintainable. We find that provision of Section 5 of Limitation Act is, therefore, not available to the appellant and in fact, this appears to be a meaningless attempt on the part of the appellant to file this appeal by invoking the provision of Section 5 of the Limitation Act. As we find that the appeal itself is not maintainable and the grounds narrated in the affidavit filed in support of delay condonation application under Section 5 of Limitation Act need not be looked into, which, in any case, are not sufficient to condone such huge delay."
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