Calcutta High Court (Appellete Side)
Sabitri Bhunya vs The State Of West Bengal And Others on 29 March, 2022
29.3.2022
4
cm
CRA 266 of 2020
With
CRAN 1 of 2020
Sabitri Bhunya
vs.
The State of West Bengal and Others
Mr. Sabir Ahmed, Adv.
Mr. Mujibar Ali Naskar, Adv.
Mr. Shraman Sarkar, Adv.
Mr. Apan Saha, Adv.
Mr. Taslim Ahmed, Adv. ... for the Appellant.
Mr. Navanil De, Adv.
Ms. Rajeshwar Chakraborty, Adv.
Mr. Subhrajit Dey, Adv.
Ms. Ayantika Roy, Adv.
... for the Respondent No. 2 to 5.
Mr. N. P.Agarwal, Adv.
Mr. P. Bose, Adv.
... for the State.
In Re: CRAN No. 1 of 2020
Learned lawyer for the appellant/applicant submits that
there is a delay of over 1000 days in preferring the appeal.
Reason for the delay is attributed to the penurious condition of
the appellant/applicant. It is further submitted she was
unaware of her right to get free legal assistance through Legal
Service authorities. Only upon being made aware of such right,
she filed the appeal. It is also submitted that she is an injured
eyewitness and the victim in the present case.
Mr. De, learned advocate appearing for the respondent
Nos.2 to 5/acquitted accused persons submits the delay has
not been adequately explained. He also draws our attention to
the fact that the explanation of the delay as set out in
Paragraph 10 of the application has not been affirmed as true
to the knowledge of the appellant/applicant.
We have considered the materials on record.
Appellant/applicant is the injured eye-witness. Hence, she is a
'victim' as defined under Section 2(wa) of the Code of Criminal
Procedure. No doubt, there is a substantial delay of over three
years in taking out the petition of appeal. However, it appears
the appellant was in a penurious state and being unaware with
regard to her right to receive free legal aid through the Legal
Service Authorities was unable to prefer the appeal within
time. Notwithstanding passage of over four decades since the
promulgation of the Legal Services Act, 1987, litigants, like the
appellant/applicant remain unaware of their right to legal aid
for access to justice. Purpose of rendering free legal aid to
indigent persons is to ensure that the right to access to justice
comes to fruition and does not remain a dead letter of law.
Since the amendment in 2005 to the Code of Criminal
Procedure, a victim has a statutory right to appeal against an
order of acquittal which is on par with the right of a convict to
appeal against an order of conviction and sentence. To ensure
the fullest enjoyment of such right, the victim ought to make
aware of her right to appeal with legal aid, if necessary, a
judgment of acquittal is passed. In Chobban Mallick Vs.
State of West Bengal1 a Division Bench of this Court directed
(2013) 3 CHN (CAL) 704
that every copy of judgment of acquittal be forwarded to the
District Magistrate concerned for due intimation of victim
about the result of the case and limitation shall run from the
date of such communication. Having gone through the
judgment of acquittal we find the said judgment had not been
forwarded to the District Magistrate for due intimation.
Moreover, the victim was also not made aware of her
right to avail free legal aid for instituting and prosecuting such
appeal.
To communicate this right to a victim, it is essential that
at the foot of every judgment of acquittal an endorsement be
made that the victim has a right to prefer appeal and, if
necessary, she may avail free legal aid for such prayer. Failure
to do so infracts the fundamental right to know and access to
justice of the victim as enshrined under Article 19/21 of the
Constitution.
In the present case when the failure to prefer the appeal
within time was due to non-communication of her right to
prefer appeal by availing legal aid, we are of the view the delay
albeit of a protracted period ought to be condoned in the
interest of justice. Delay in preferring the appeal is, therefore,
condoned.
Before parting we take judicial notice of the fact that in
none of the judgments of acquittal delivered by the Trial Courts
there is an endorsement at the foot of the judgment that the
victim has a right to prefer appeal under the proviso to Section
372 Cr.P.C. against the said judgment and if required may
seek free legal assistance from the appropriate legal service
authority to institute and prosecute to such appeal. Such
endorsement, in our opinion, is imperative as communication
of the right to appeal to a victim is the first step towards its
effective enjoyment. In order to remedy such an anomaly and
further the cause of free and effective access to justice, we
direct as follows:
(a) Copy of the judgment of acquittal be forwarded to the
District Magistrate and DLSA concerned for due
intimation to the victim as defined under section
2(wa) of the Code of Criminal Procedure.
(b) In every copy of the judgment which ends in acquittal,
the trial court shall at the foot of the judgment
endorse the right of the victim to prefer an appeal
under proviso to Section 372 of the Code of Criminal
Procedure and if necessary, to avail free legal
assistance through the legal services authorities
concerned to prefer and prosecute such appeal.
(c) Necessary steps be taken to amend the Criminal
Rules and Orders and incorporate such requirement
in the aforesaid Rules.
Registrar General shall communicate these directions to
all the judges in the State as well as Andaman & Nicobar
Islands and to place the matter before the appropriate
authority for amendment of the criminal rules and orders, as
aforesaid.
Compliance report be filed four weeks hence.
With these directions, the application being CRAN 1 of
2020 is allowed.
CRA 266 OF 2020
Learned lawyer for the appellant/applicant submits that
the trial court failed to consider the evidence of injured eye
witness P.W.1 which is corroborated by medical evidence and
other materials on record.
In view of the aforesaid submission, we are of the opinion
appellant has made an arguable case in appeal. Hence, appeal is
admitted.
Call for the lower court records.
As the respondents are represented before us, issuance
of notice of appeal upon respondent Nos. 2 to 5 herein is
dispensed with.
The respondent Nos. 2 to 5 shall appear before the
learned trial court within a fortnight from date and upon their
appearance shall be released on bail subject to the satisfaction
of the said court till disposal of the appeal. In the event, they
fail to do so, the learned trial court, shall issue appropriate
processes to ensure their attendance in accordance with law.
(Bivas Pattanayak, J.) (Joymalya Bagchi, J.)
