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2023 Supreme(Ker) 161
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bechu Kurian Thomas, J.
T.Peethambaran And Ors. – Petitioners
Versus
The State Of Kerala, Represented By The Public Prosecutor And Ors. – Respondents
CRL.MC NO. 5191 OF 2020
Decided On : 21-03-2023
Advocate Appeared:
For the Petitioner: Srinath Girish, Sri.P.Jeril Babu
For the Respondent: Sri. Subal J. Paul, Smt. Sheeba Thomas, Smt. Sreeja V., Public Prosecutor
Point of Law: If there is inordinate delay, leave under Section 378(3) of Cr.P.C. can be refused.
Headnote:
Code of Criminal Procedure, 1973 - Section 482, 378(3), 372 - Indian Penal Code, 1860 - Sections 143, 447, 448, 467, 468, 420& 120B, 149 - Limitation Act, 1963 – Article 115, (b), 14 - Application to condone delay - Committed forgery and misused concocted documents - Judgement of acquittal - When a victim files an appeal, belatedly, against a judgement of acquittal, is it essential to file an application to condone delay - Is it also necessary in such an instance for appellate court to pass an order relating to delay – If Appellate Court is satisfied with explanations offered, court is entitled to proceed to consider admission of appeal - Para 10.
Finding of the Court:
It is evident that a delay condonation petition is not required to be filed by a victim who prefers an appeal even after a delay of more than 90 days - Only requirement is to file an affidavit explaining delay - If Appellate Court is satisfied with explanations offered, court is entitled to proceed to consider admission of appeal - When affidavit explaining delay and order admitting appeal in present case are perused, it is evident that Appellate Court was satisfied with explanation offered and proceeded to admit appeal on merits - Since petitioners are not put to any prejudice and would be getting an opportunity to have appeal itself heard on merits, Court is satisfied that no interference is warranted in exercise of powers under Section 482 of Cr.P.C. as it cannot be termed as an abuse of process of court – Court is satisfied that there is no merit in this petition
Result: Crl.M.C. dismissed.
ORDER :
When a victim files an appeal, belatedly, against a judgement of acquittal, is it essential to file an application to condone the delay? Is it also necessary in such an instance for the appellate court to pass an order relating to the delay? These questions arise for determination in this petition under Section 482 of the Code of Criminal Procedure, 1973, challenging an order admitting a criminal appeal.
2. By a judgment of 09.06.2016 in C.C.No.702/2009, the Judicial First Class Magistrate's Court-III, Kozhikode acquitted all the accused who faced prosecution for the offences under Sections 143, 447, 448, 467, 468, 420& 120B r/w Section 149 of the Indian Penal Code, 1860. The defacto complainant/ victim filed an appeal against the said judgment on 07.12.2019, apparently after three years. An affidavit was filed by the victim stating that though the appeal ought to have been filed on or before 09.07.2016, she came to know about the judgment only in 2019, there was a delay of 1249 days in filing the said appeal. It was also mentioned that the appellant has been living in Mumbai since 1962 and that after her husband's death, she left for the United States to reside with her son and was not available at her Mumbai address and that even though she used to enquire about the progress of the case, her relatives were misleading her due to the influence of the power of attorney holder of the first accused. The appellant also alleged that the complaint was filed as early as 2007 since it was realised that the person to whom she had executed the power of attorney committed forgery and misused the concocted documents and transferred her property. Appellant alleged that as she had not received any summons from the court, she could not even render evidence and also that she was 81 years of age, suffering from various ailments. In the affidavit, appellant had specifically explained the reasons for the delay in filing the appeal.
3. Based upon the said affidavit and obviously finding satisfaction in the reasonable explanation offered, the learned Sessions Judge admitted the appeal and issued notice to the respondents. There was no application to condone the delay nor is there any order condoning the delay. The memorandum of appeal was accompanied by the affidavit of the appellant explaining the delay.
4. Petitioners who are respondents 2 to 6 in the appeal and the accused before the learned Magistrate have in this petition challenged the order admitting the appeal. Petitioners contend that the learned Sessions Judge had failed to issue notice to the petitioners or hear them on the question of the delay in filing. It was pointed out that the trial court had in fact, initiated coercive steps against the defacto complainant and her evidence was closed without examining her and also that the averments in the affidavit explaining the delay were mechanically accepted without conducting an enquiry into the truth of the averments. It was further contended that though the period of limitation and the explanations offered ought to be construed liberally, in cases of inordinate delay, as in the present case, the court ought not to have condoned the same, as a matter of course.
5. I have heard Sri.Srinath Girish, the learned counsel for the petitioners as well as Sri.Subal J. Paul, the learned counsel for the respondent and Smt.V.Sreeja, the learned Public Prosecutor .
6. An elaborate discussion on the issues raised is not necessary as the answers can be deciphered from two judgments -a Full Bench judgment of this Court and the other by that of the Supreme Court.
7. In the decision in Sobhanakumari K. v. Santhosh @ Pallan Shaji [2018 (1) KHC 195], a Full Bench of this Court had observed that after coming into force of the Code of Criminal Procedure Amendment Act of 2008 (Act 4 of 2009), the victim has a right of appeal against an order passed by the court acquitting the accused or convicting the accused for a lesser offence and that, there is no period o
