The main legal point established in the judgment is the interpretation of the provisions of Section 372 Cr.P.C. and the Amendment Act 5 of 2009, which provided relief to the victims of the offence and gave them a remedy to challenge the acquittal in appeal.

Rakesh Tiwari, J.

1. Heard learned counsel for the applicant-appellant on Delay Condonation Application and perused the affidavit filed in support of this application.

Order on Delay Condonation Application: -

2. It is reported by the Stamp Reporter in his report dated 7.1.2014 that the Criminal Appeal is beyond time by 74 days.

3. Learned counsel for the applicant-appellant submits that the victim is a poor person having no source of income, hence he could not file the criminal appeal along with the application for grant of leave to appeal within time.

4. After hearing learned counsel for the applicant-appellant and the learned AGA for the State-respondents, we are of the view that normally a poor person should not be deprived of his right to appeal merely because he has no source of income or could not arrange expenses for filing the appeal until and unless there are strong reasons for not condoning the delay. Law is equally applicable for every body whether he is poor or rich. The learned AGA for the State-respondents has no objection for condonation of delay. We, therefore, in the aforesaid circumstances, find the cause shown to be sufficient and condone the delay in filing the appeal. The Delay Condonation Application is accordingly, allowed.

5. The Application for Grant of Leave to Appeal along with Criminal Appeal is now heard on merit.

Order on Application for Leave to Appeal : -

6. Before dealing with the facts of the case, grounds of acquittal in appeal and the evidence of the witnesses we would like to decide the application for grant of leave to appeal.

7. Learned counsel for the appellant has then addressed us on the application for leave to appeal. He argues that right of appeal is a creation of statute and procedure of filing an appeal is also provided therein. According to him, where the victim is legally incapacitated to file appeal against acquittal even though the judgment of acquittal may be suffering from fundamental legal vices or extraneous factors, his right to appeal is denied. Requiring the victim to move an application for leave to appeal in Allahabad High Court by an order passed by an Hon'ble Judge, on the administrative side compelling the appellant to file an application for leave to appeal, is directly opposed to the spirit of the amendment inserted by Central Act No. 5 of 2009 practically negativing in granting justice to the victim.

8. It is urged that the newly inserted proviso in Section 372 Cr.P.C. does not postulate filing of any application by the victim praying for leave to appeal and there is no provision in Cr.P.C. that only on such leave being granted, further steps in the prosecution of the appeal being preferred by the victim, is to be considered.

9. It is also submitted that the appellant who is the victim of the aforesaid assault made upon him, preferred an appeal before this Court as envisaged under Section 372 Cr.P.C. against the judgment of acquittal passed by the Addl. Sessions Judge aforesaid, thereupon the Stamp Reporter (Criminal) pursuant to aforesaid administrative order has in his report has compelled the appellant for filing an application seeking leave to file appeal along with the affidavit. The argument advanced by the learned counsel for the appellant in this appeal is that the appellant has been compelled by the Stamp Reporter to move an application for leave to appeal along with the appeal is not supported by any material on record because the Stamp Reporter has not compelled the learned counsel for the appellant to file an application for leave to appeal under Section 372 Cr.P.C.

10. It is contended that the amendment inserted in Section 372 Cr.P.C. confers right of appeal upon the victim and does not provide the victim to seek any prior leave for presenting such an appeal. Thus, it is not necessary as a matter of law that an application for leave to entertain the appeal ought to have been preferred first and only after the leave to be granted by this Cour