JUDGMENT :

1. Heard Sri Baijant Kumar Mishra, learned counsel for the appellant and learned A.G.A. Sri Ratan Singh through video conferencing.

2. The present appeal has been filed against the acquittal order dated 11.01.2002 passed by Additional Sessions Judge, Court No.7, Deoria in Sessions Trial No.94 of 1992 (State vs. Yogendra and others) arising out of Case Crime No.150 of 1991, under Sections 147, 148, 302, 302/149 IPC P.S. Vishunpura District Doeria now Kushinagar.

3. The present appeal has been filed along with delay condonation application filed under Section 5 of Limitation Act as well as along with a Misc. Application for granting leave to appeal under Section 372 CrPC.

4. The Stamp Reporter has reported this appeal beyond time by 5172 days and on the date of presenting this appeal before this Court which was beyond time by 5173 days.

5. Learned counsel for the appellant has submitted that appeal filed at the instance of the informant would be maintainable under Section 372 CrPC in view of the amendment inserted by Act No.5 of 2009 w.e.f. 31.12.2009. Learned counsel for the appellant has drawn the attention of this Court towards Section 372 CrPC which is quoted as under:

"372. No appeal to lie unless otherwise provided.—No appeal shall lie from any judgment or order of a criminal court except as provided for by this Code or by any other law for the time being in force:

Provided 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."

6. Learned counsel for the appellant has submitted that the delay was for the reason that in the year 2002 the appellant was suffering from poor health and he could not approach his local counsel, when he was feeling quite well he approached his counsel, then he got information that a State appeal will be filed by the State. Thereafter, the appellant went outside of house for earning livelihood and when he came to Allahabad in the march, 2016 for his personal work, then he got information that State appeal was not filed and therefore, there is a delay in filing the present appeal.

7. We have asked the learned counsel for the appellant as to how this appeal would be maintainable as the judgment is of the year 2002 i.e. 11.01.2002, when the proviso to Section 372 CrPC, quoted above, was not in force which was enforced w.e.f. 31.12.2009. It is submitted by learned counsel for the appellant that the appellant is the informant and therefore, he could have challenged the aforesaid judgment in view of the aforesaid proviso.

8. Before proceeding further it would be relevant to take note of the judgment of Supreme Court in Mallikarjun Kodagali vs. State of Karnataka and others, (2019) 2 SCC 752 (3 Judges), paragraphs 9, 24, 26, 27, 45, 46, 47, 48, 50, 51 and 72 whereof are quoted as under:

"9. With this background, we need to consider the questions that arise before us consequent to the introduction of the proviso to Section 372 CrPC with effect from 31-12-2009. The questions are somewhat limited: Whether a "victim" as defined in CrPC has a right of appeal in view of the proviso to Section 372 CrPC against an order of acquittal in a case where the alleged offence took place prior to 31-12-2009 but the order of acquittal was passed by the Trial Court after 31-12-2009? Our answer to this question is in the affirmative. The next question is: Whether the "victim" must apply for leave to appeal against the order of acquittal? Our answer to this question is in the negative.

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24. Feeling aggrieved by the decision of the High Court, the National Commission for Women preferred a petition for special leave to appeal admittedly invoking the inherent powers of this Court. In that context this Court held that in view of Section 372 CrPC no appeal shall lie from a