1. The unnumbered revision with the afore numbered petition to condone delay, has been filed by the de facto complainant in C.C.No.127 of 2004 of the Judicial First Class Magistrate Court – V, Kozhikode, impeaching the legality and correctness of the order of acquittal passed in favour of the first respondent/accused, who was prosecuted for the offences punishable under Sections 166, 167 and 466 of the Indian Penal Code, on a report filed by the Sub Inspector of Police, Faroke Police Station.

2. The delay petition coming up for consideration, a question arose whether the de facto complainant/revision petitioner has an alternate efficacious remedy of preferring an appeal against the order of acquittal. The crux of the allegations for prosecution of the first respondent was that on account of the illegal acts committed by him in making false entries in the service records of the de facto complainant calculation of his pensionable service was wrongly made and, thereby, he suffered reduction in pension. Since he suffered injury by the alleged illegal acts, constituting the offences imputed against the accused, the de facto complainant has the status of ‘victim’ as defined under Section 2 (wa) of the Code of Criminal Procedure, for short, the ‘Code’, which was inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009), is conceded to. As under the aforesaid Amendment Act, by the proviso added to Section 372 of the Code, a right of appeal is provided to a victim against an order of acquittal of the accused, it has become necessary to examine whether this Court has to consider the delay petition on its merits when a challenge under the revision appears to be not entertainable.

3. The learned counsel for the revision petitioner canvassed that a revision against the order of acquittal is maintainable in the case placing reliance on an order passed by a learned Judge of this Court in an unnumbered revision, in which, the applicability of the proviso added to Section 372 of the Code under the Amendment Act was considered and a view expressed, taking note of the decision rendered by the Apex Court in National Commission for Women v. State of Delhi and Another ((2010) 12 SCC 599), that the aforesaid proviso will have only prospective effect, and the remedy of the de facto complainant against the order of acquittal is by filing a revision. The learned counsel also relied on Subodh S. Salaskar v. Jayprakash M. Shah (2008 (3) KLT 616 (SC)) and Bhaskaran v. State of Kerala (2010 (2) KLT 908) to contend that the proviso inserted to Section 372 of the Code has effect only from the date when the amendment came into operation with reference to the date of incident giving rise to the prosecution of the accused, and not with reference to the date of judgment rendered in the case.

4. Since the question posed for consideration required a deeper look, I have requested Adv.Sri.T.N.Manoj to assist this Court, and, accordingly, the learned counsel argued extensively over the scope and ambit of the aforesaid proviso inserted to Section 372 of the Code.

5. The learned counsel for the revision petitioner has produced a copy of the order passed in the unnumbered revision, which had been banked upon to contend that the amendment inserting the proviso to Section 372 of the Code has no retrospective effect and it is inapplicable to cases registered over incidents which had taken place before such proviso was brought into operation, that is, on 31.12.2009. Going through the order, it is seen, in the case considered in that unnumbered criminal revision the Registry had raised objections over the entertainability of the revision on the basis of the applicability of the aforesaid proviso. In that case, the incident involved and also the judgment rendered, both of them, were earlier to the date of commencement of operation of the proviso to Section 372 of the Code. The incident in that case was on 02.12.2003 and judgment was rende