1. The question involved in this case is whether an application to condone the delay in filing the application for leave under S. 378(3) of the Code of Criminal Procedure is required in an appeal filed by the victim under the proviso to S. 372 of the Code of Criminal Procedure. The present appeal is filed by the victim challenging the acquittal of accused Nos. 2 to 9 in S.C. No. 143 of 1998 on the file of the Court of Session, Thalassery. Along with the appeal, an affidavit explaining the delay was filed in the light of the decision of the Division Bench (in which one of us was a member) in Yohannan vs. State of Kerala, 2015 (3) KLT 333. The Registry pointed out that in the light of the decision of the Supreme Court in Satya Pal Singh vs. State of Madhya Pradesh & Others, 2015 (4) KLT Suppl. 36 (SC) : AIR 2015 SC (Cri.) 1834, an application for leave to appeal is required to be filed under S. 378(3) of the Code of Criminal Procedure in an appeal filed by the victim under the proviso to S. 372 Crl. P.C. An application for leave was accordingly filed. However, no application to condone the delay in filing the application for leave was filed by the appellant. We passed an order dated 22.12.2015 directing the appellant to file an application for condonation of delay. We also observed that the affidavit dated 3rd December, 2015 can be treated as part of the application for condonation of delay. Accordingly, the appellant filed Crl. M.A. No. 7508 of 2015.

2. When the application came up, the learned counsel for the appellant submitted that the Supreme Court held that an application for leave is required under S. 378(3) Crl. P.C. in an appeal filed by the victim under the proviso to S. 372 of the Code of Criminal Procedure. The counsel submitted that the leave contemplated under S. 378(3) is distinct and different from the Special Leave Petition contemplated under S. 378(4) of the Code of Criminal Procedure in respect of which a period of limitation of 60 days is provided under S. 378(5) Crl. P.C.

3. The proviso to S. 372 Crl. P.C. says 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.

4. In Yohannan vs. State of Kerala, 2015 (3) KLT 333, the question considered was whether there is any period of limitation for filing an appeal by the victim challenging the acquittal of the accused and if so, what is the period of limitation. The Division Bench held thus:

"22. A new right is conferred on the victim by the insertion of the proviso to S. 372, by defining the term "victim" and by the introduction of S. 357A of the Code of Criminal Procedure (Victim Compensation Scheme). No fetter of limitation is placed by the Legislature on the exercise of the right of the victim to file an appeal under the proviso to S. 372 of the Code of Criminal Procedure. The Court cannot make a provision prescribing a period of limitation for an appeal for which either the Code of Criminal Procedure or the Limitation Act does not provide for a period of limitation. The victim would be entitled to file an appeal and if the Appellate Court finds that the appeal is designedly or deliberately delayed, the Appellate Court need not entertain the appeal on that ground. It would be sufficient if the appellant explains the circumstances under which he could not file the appeal within a reasonable time after the impugned judgment was passed. The Court would be entitled to consider the same and arrive at a conclusion as to the reasonableness or otherwise. Every case has to be decided on the facts and circumstances of that case and no hard and fast formula can be prescribed with respect to the time within which the appeal is to be filed by the victim. So long as the victim is not a party to the proceedings before the c