Kareemul Hajazi vs State Of Nct Of Delhi & Ors
2011 Latest Caselaw 75 Del

              THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Judgment delivered on: 07.01.2011

+            CRL.M.A. 13541/2010 in CRL.A. 940/2010

KAREEMUL HAJAZI                                   ...           Appellant

                                       Versus


STATE OF NCT OF DELHI & ORS                       ...         Respondents

Advocates who appeared in this case:

For the Appellant : Mr Javed Ahmad with Mr Vaseem Mian and Mr Imran Khan For the Respondent No.1 : Ms Richa Kapoor For the Respondents 2 to 4 : Mr Pradeep Chaudhary

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE MANMOHAN SINGH

1. Whether Reporters of local papers may be allowed to see the judgment ? Yes

2. To be referred to the Reporter or not ? Yes

3. Whether the judgment should be reported in Digest ? Yes

BADAR DURREZ AHMED, J

1. This application has been filed for condonation of delay in filing

the appeal. The appellant (Kareemul Hajazi) is the father of the deceased

Nasreen, who was married to the respondent No.3 (Khurshid Anwar). The

respondent No.2 (Abdul Kayyum) and the respondent No.4 (Razia Khatun)

are the father-in-law and the mother-in-law of the deceased Nasreen. The

appellant has filed the appeal claiming to be a victim in terms of the proviso

to Section 372 of the Code of Criminal Procedure, 1973 (hereinafter

referred to as ‗the Code').

2. According to the learned counsel for the appellant, there is no

provision prescribing the period of limitation for such an appeal filed on

behalf of a victim under the proviso to Section 372 of the Code. He further

submitted that the period of limitation for an appeal by the State

Government or the Central Government against an order of acquittal is 90

days from the date of order appealed from by virtue of Article 114(a) of the

Limitation Act, 1963. It was also contended that since the State

Government's/Central Government's appeal against an order of acquittal

has been permitted to be filed within 90 days, the same logic should apply

to the victim's appeal against an order of acquittal and, therefore, the period

of limitation ought to be 90 days. He submitted that it is also a well-

established principle that where no period of limitation is prescribed by the

statute, the courts would have to infer a reasonable period of limitation.

Considered in this manner, according to the learned counsel for the

appellant, the 90 days period, which has been prescribed for the States' /

Centre's appeal, would definitely amount to a reasonable period of

limitation. The learned counsel for the appellant further submitted that in

the event the period of 90 days is taken as the period of limitation in respect

of the appeals by victims against the orders of acquittals, then the present

appeal is within limitation. He further submitted that it is only if the period

of limitation is taken as 60 days that there would be an alleged delay of 23

days in filing the accompanying appeal. He submitted that, apart from the

reasons indicated in the application for condonation of delay, in any event,

because of the confusion with regard to the period of limitation for a

victim's appeal against acquittal, the delay of 23 days, if any, ought to be

condoned.

3. On the other hand, the learned counsel appearing on behalf of the

respondent Nos. 2 to 4, submitted that the period of limitation which would

be applicable in this case would be the period which is prescribed for

appeals by convicts against conviction and that period is of 60 days. It was

submitted that for the purposes of limitation, the appeal by a victim should

be treated at par with an appeal by a convict because both are private

individuals and are distinct from the State Government or the Central

Government. The latter requires some more time because of the fact that the

State machinery does not function as quickly nor are decisions taken as

quickly as those by private individuals because the State machinery has an

in-built multi-tier system through which the file has to travel.

Consequently, the learned counsel appearing for the respondents 2 to 4

submitted that the period of limitation which ought to apply to appeals by

victims ought to be 60 days. And, if that were so, the present appeal was

clearly beyond time by 23 days for which there was no tangible explanation

and, therefore, according to him, the application for condonation of delay

ought to be rejected and, so too, the appeal as being barred by time.

4. An ancillary question also arises for consideration and that is -

whether the appellant Kareemul Hajazi can be regarded as a victim for the

purposes of the proviso to Section 372 of the Code ? By virtue of another

decision of this court delivered today itself in the case of Chattar Singh Vs.

Subhash & Others (Crl.A. No.443/2010), it was held that the word ―victim‖

in the context of the proviso to Section 372 read with Section 2(wa) of the

Code referred to the crime victim in the natural and ordinary sense as the

person who directly and most proximately suffered the loss or injury and it

would also include his or her heirs in case he or she was dead or his or her

guardian, if he or she was a minor or of unsound mind or under some other

disability.

5. Section 2(wa) of the Code reads as under:-

―2. Definitions.--In this Code, unless the context otherwise requires,--

                xxxxx         xxxxx            xxxxx           xxxxx

                (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;‖

6. In the present case, the victim of the crime, taken in the natural

and ordinary sense, was the appellant's daughter (Nasreen). However, now

that the actual crime victim (Nasreen) is no more, the question arises as to

whether the appellant being her father can be regarded as a victim ? It was

held in the said decision [Chattar Singh (supra)] that such a person could

only be regarded as a victim if he was covered by the ―includes‖ part of the

definition under Section 2(wa) on the Code by falling within the expression

―legal heir‖. It was further held that that the said expression ―legal heir‖ in

relation to a victim clearly referred to a person who was entitled to the

property of the victim under the applicable law of inheritance.

7. In the present case, the victim was a Muslim lady and, therefore,

it is the Muslim Personal Law which would be the applicable law of

inheritance. As per the said law, Nasreen's estate would, under the normal

circumstances, be inherited by her husband (Khurshid Anwar - respondent

No.3). He would be a sharer alongwith Nasreen's mother. Nasreen's father,

i.e., the present appellant would also inherit as a residuary (See: paragraph

63 of Mulla's Principles of Mahomedan Law, 19th Edition). However, in

the present case, the respondents 2 to 4 were charged under Section 498-

A/304-B read with Section 34 of the Indian Penal Code. Although they

were acquitted by the impugned judgment dated 11.05.2010, for the

purposes of ascertaining the person or persons entitled to file the present

appeal as a ‗victim' under the proviso to Section 372 of the Code, they

would have to be regarded as if they were still under a cloud. It is a

principle of Muslim Law that a person responsible for the death of another

person from whom the first person is otherwise to inherit, would be

disqualified from such inheritance. For the purposes of determining the

persons who would, in such a situation, inherit the estate of the deceased,

the person who was responsible for the death, would, as aforesaid, be

disqualified from inheritance and would be regarded as non-existent (See:

paragraph 58 of Mulla's Principles of Mahomedan Law, 19 th Edition).

Employing this analogy in the present case for the purposes of determining

as to who are the persons who can be regarded as ―victims‖ in the context of

the proviso to Section 372 of the Code, the respondent No.3 would have to

be treated as non-existent. Consequently, Nasreen's estate would be

inherited by her parents. Resultantly, the appellant Kareemul Hajazi would

be a legal heir of Nasreen and, therefore, would fall within the meaning of

victim for the purposes of the proviso to Section 372 of the Code.

8. The main issue that arises for consideration in the present

application is whether the same is within time and, if not, whether the delay

ought to be condoned ? The following proviso was added to Section 372 of

the Code:-

―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.‖

The proviso to Section 372 was introduced with effect from 31.12.2009 by

virtue of the Code of Criminal Procedure (Amendment) Act, 2008. Because

of this proviso, a victim has been given a specific right of appeal against any

order passed by a court under three different situations. The first being

where the accused is acquitted; the second, where the accused is convicted

for a lesser offence and, the third, where inadequate compensation is

imposed.

9. Prior to the introduction of the said proviso to Section 372 of the

Code, the victim as such did not have any statutory right of appeal. Section

374 of the Code had provided for a convict's right of appeal against

conviction. Section 377 enabled the State Governments or the Central

Government to file an appeal with regard to inadequacy of sentence. This

appeal provision was, however, conditional upon the fact that there could be

no enhancement without an opportunity to the accused and that in case such

an appeal was preferred, the accused had a right to plead for acquittal and /

or for reduction in sentence in that very appeal. Apart from this, under

Section 378, two streams of appeals against acquittals were provided. The

first stream was of appeals against acquittals by the State Government /

Central Government and the same would fall under sub-sections (1) and (2)

of Section 378. This provision is equivalent to sub-sections (1) and (2) of

Section 417 of the Criminal Procedure Code, 1898 (hereinafter referred to

as ‗the old Code'). However, before such an appeal is entertained, leave of

the High Court has to be taken by virtue of the provisions of Sections

378(3). The other stream is in the case of complaint cases wherein, by

virtue of Section 378(4), the complainant has to seek special leave to appeal

from the High Court. The further requirement is that by virtue of Section

378 (5), the application for grant of special leave to appeal must be filed, if

the complainant is a public servant, within six months from the date of order

of acquittal and in all other cases, within 60 days from the date of order of

acquittal. The provision of appeal by a complainant under Section 378 (4)

is equivalent to Section 417(3) of the old Code for which, by virtue of

Article 114(b) of the Limitation Act, 1963, a further period of 30 days was

stipulated for filing the appeal after the special leave was granted by the

High Court. We may also point out that in case the special leave application

filed by the complainant is rejected, then this also precludes the State

Government / Central Government from filing an appeal against acquittal

under Section 378 (1) and (2). This is clearly stipulated in Section 378 (6)

of the Code which is equivalent to Section 417(5) of the old Code.

10. The period of limitation for filing the appeal under Section

378(1) and (2) of the Code is 90 days from the date of the order appealed

from. This is provided in Article 114(a) of the Limitation Act, 1963, which

is with reference to Section 417(1) and (2) of the old Code, but would

equally apply to Section 378(1) and (2) as was held by the Supreme Court in

the case of State (Delhi Administration) v. Dharampal: 2001 (10) SCC

372, where the Supreme Court observed as under:-

―... Appeals by the State Government or the Central Government continue to be governed by Article 114 (a) of the Limitation Act. In other words, those appeals must be filed within 90 days from the date of the order appealed from. Needless to state if there is a delay in filing an appeal by the State Government or Central Government it would be open to them to file an application under Section 5 of the Limitation Act for condonation of such delay. That period can be extended if the court is satisfied that there was sufficient cause for not preferring the appeal within the period of 90 days.‖

11. From the above discussion, it is clear that appeals have been

provided for under Sections 374, 377 and 378 of the Code in respect of

appeals against conviction, inadequacy of sentence and acquittals,

respectively. Now, with the introduction of the proviso to Section 372, a

victim has also been given the right of appeal in respect of an order of

acquittal, a conviction for a lesser offence and for inadequacy of

compensation. However, while specific periods of limitation have been

prescribed for the earlier three kinds of appeals either in the Code itself or

by virtue of the Limitation Act, 1963, there is no period of limitation

prescribed for the filing of an appeal by a victim under the proviso to

Section 372. Therefore, as is well-established, a reasonable period would

have to be inferred from the statutory provisions. [See: State of Punjab and

Ors. v. Bhatinda District Coop. Milk P. Union Ltd.: 2007(11) SCC 363

para 17: ―It is trite that if no period of limitation has been prescribed,

statutory authority must exercise its jurisdiction within a reasonable period.

What, however, shall be the reasonable period would depend upon the

nature of the statute, rights and liabilities thereunder and other relevant

factors‖ and Government of India v. Citedal Fine Pharmaceuticals,

Madras and Ors: 1989(3) SCC 483 para 6: ―In the absence of any period of

limitation it is settled that every authority is to exercise the power within a

reasonable period. What would be reasonable period would depend upon

the facts of each case.‖]

12. In the present case, we tend to agree with the submissions made

by the learned counsel for the respondents 2 to 4 that the reasonable period

of limitation for filing of an appeal by a victim ought to be regarded as 60

days from the date of order appealed from. We say this because under

Section 374 read with Article 115(b)(i) of the Limitation Act, the convict's

right of appeal to the High Court bears a limitation period of 60 days.

Similarly, even the State's appeal with regard to inadequacy of sentence

under Section 377 read with Article 115(b) of the Limitation Act in respect

of an appeal to the High Court is required to be filed within 60 days.

Furthermore, the application seeking special leave to appeal by the

complainant under Section 378(4) read with Section 378(5) has to be filed

within 60 days in all cases where the complainant is not a public servant.

Of course, the period of limitation where the complainant is a public servant

is much longer, i.e., six months. Furthermore, the limitation for an appeal

by the State Government or by the Central Government under Section

378(1) and (2) is 90 days as pointed out above. It is clearly discernible from

the above that the period of limitation, which has been prescribed for public

servants and / or the State Government and the Central Government is

greater than the period of limitation, which has been prescribed in respect of

convicts and complainants. Therefore, since the victim is in a similar

position to that of a complainant and is a private individual, a lesser period

of limitation than that provided to the State Government/ Central

Government ought to be considered as reasonable. It is in this background

that we accept the views of the learned counsel for the respondents 2 to 4

that the reasonable period of limitation for a victim's appeal should be 60

days from the date of the order appealed from.

13. This brings us to the point where we have to decide as to whether

the delay of 23 days ought to be condoned or not. We feel that because no

period of limitation had been prescribed by the legislature and that it is only

by virtue of this decision that we are inferring a reasonable period of

limitation of 60 days from the date of the order appealed from, it would not

be fair and just if the victim's appeal is thrown out on the point of

limitation. There was sufficient reason for the appellant to be confused with

regard to the period of limitation. Apart from anything else, this ground

itself is sufficient for us to condone the delay of 23 days in the filing of this

appeal. As a result this application is allowed.

BADAR DURREZ AHMED, J

MANMOHAN SINGH, J JANUARY 07, 2011 dutt