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IN THE HIGH COURT OF ALLAHABAD
VIVEK KUMAR BIRLA, VIKAS BUDHWAR, JJ.
Triyugi Nath Tiwari – Appellant
Versus
State of U.P. and Others – Respondents
Criminal Appeal Defective U/s 372 Cr.P.C. No. 10 of 2022
Decided On : 21-07-2022
Indian Penal Code, 1860 - Section 302/34 – Criminal Procedure Code, 1973 - Section 372 and 404 - Delay in Filing Appeal - Order of Acquittal - Stamp Reporter has reported delay of 6228 days in filing present appeal - Present appeal has been filed by appellant under Proviso to Section 372 Cr.P.C - Judgment under challenge is passed whereby accused-respondents were acquitted from offences under Section 302/34 IPC – Held, What is significant is that several High Courts have taken a consistent view to effect that victim of an offence has a right of appeal under proviso to Section 372 Cr.P.C - This view is in consonance with plain language of proviso - But what is more important is that several High Courts have also taken view that date of alleged offence has not relevance to right of appeal - It has been held, and Court have referred to those decisions above, that significant date is date of order of acquittal passed by trial Court - In view of aforesaid, it is very much clear that amendments so made in Section 372 CrPC by adding a proviso in year creating substantive right of appeal is not retrospective in nature - It is, therefore, clear that in year when impugned judgment under challenge was passed, appellant herein who claims to be victim had no right to challenge impugned order by way of filing appeal - It is, therefore, held that present appeal, which was filed after a delay of about more than 21 years challenging impugned judgment passed much prior to the amendment is clearly not maintainable – Since appeal itself is not maintainable, question of consideration of delay condonation application, which was filed with delay of 6228 days, does not arise - Appeal dismissed.
ORDER :
1. Heard Sri Yogesh Dutta Mishra, learned counsel for the appellant and Mr. Shri Prakash Dwivedi, learned counsel appearing for the accused-respondents.
2. This is an appeal u/s 372 of the Code of Criminal Procedure (CrPC) seeking to challenge the judgment and order dated 2.12.2004 passed by the Sessions Judge, Mirzapur in S.T. No. 157 of 2003 (State vs. Devi Shankar Chaubey and Others) whereby the accused-respondents were acquitted from the offences under Section 302/34 IPC, P.S. Lalganj, District Mirzapur, arising out of Case Crime No. 118 of 203.
3. The Stamp Reporter has reported delay of 6228 days in filing the present appeal. Apart from such huge delay, we find that the appeal itself is not maintainable.
4. Present appeal has been filed by the appellant under the Proviso to Section 372 Cr.P.C. The judgment under challenge is dated 2.12.2004 passed in S.T. No. 157 of 2003 (State vs. Devi Shankar Chaubey and Others) whereby the accused-respondents were acquitted from the offences under Section 302/34 IPC.
5. Significantly, the incident had allegedly taken place on 1.5.2003 and the impugned judgment and order was passed on 2.12.2004. Proviso to Section 372 Cr.P.C. was added by way of amendment inserted by Act 5 of 2019 with effect from 31.12.2009 on the appointed date as notified by the Central Government by Notification No. SO 3313 (E) dated 30.12.2009. The Proviso to Section 372 Cr.P.C. 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.”
(Added by Act No. 5 of 2009)
6. Right to appeal has been considered by this Court in Prithvi Singh vs. State of U.P. and Others passed in Criminal Misc. Application u/s 372 Cr.P.C. (Leave To Appeal) No. 329 of 2012 on 21.4.2022, paragraphs 23, 24, 27, 28 and 29 whereof are quoted as under:
24. Therefore, the scheme of right of appeal under Chapter XXXIX of the Criminal Procedure Code, which provides the right to file appeals including abatement of appeals, has to be understood on the basis of the above golden rules of statutory interpretation.
27. Now on a comparison between Section 404 of Cr.P.C. 1898 and Section 372 of Cr.P.C. 1973, it is clear that the main provision is intact, insofar it provides that no appeal shall lie from any judgment or order of a criminal court, except as provided by this Code or by any other law for the time being in force. The significant development that has taken place in this provision is that a “proviso” was added by the Amending Act No. 5 of 2009, which provides 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 passed by such Court.
28. Therefore, by the aforesaid provision a right has been created in favour of the victim, which was not existing earlier in the Code, that a victim shall have right to prefer an appeal against any order by th
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