JUDGMENT :

In Re: CRAN No. 1 of 2020

1. 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.

2. 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.

3. 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 Bengal, (2013) 3 CHN (CAL) 704 a Division Bench of this Court directed 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.

4. Moreover, the victim was also not made aware of her right to avail free legal aid for instituting and prosecuting such appeal.

5. 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.

6. 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.

7. 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 t