Advocates:
['YOGESH DUTTA MISHRA', '', 'MANJULESH KUMAR SHUKLA', 'G A', '', 'SHRI PRAKASH DWIVEDI']

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AFR

Court No. - 42

Case :- CRIMINAL APPEAL DEFECTIVE U/S 372 CR.P.C. No.

- 10 of 2022

Appellant :- Triyugi Nath Tiwari

Respondent :- State Of U.P. And 2 Others

Counsel for Appellant :- Yogesh Dutta Mishra,Manjulesh

Kumar Shukla

Counsel for Respondent :- G.A.,Shri Prakash Dwivedi

Hon'ble Vivek Kumar Birla, J.

Hon'ble Vikas Budhwar, J.

Re: Order on Criminal Appeal

Heard Sri Yogesh Dutta Mishra, learned counsel for

the appellant and Mr. Shri Prakash Dwivedi, learned

counsel appearing for the accused-respondents.

This is an appeal u/s 372 of the Code of Criminal

Procedure (CrPC) seeking to challenge the judgement 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.

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.

Present appeal has been filed by the appellant under

the Proviso to Section 372 Cr.P.C. The judgement 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.

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Significantly, the incident had allegedly taken place

on 1.5.2003 and the impugned judgement 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:

The Code of Criminal Procedure, 1973

"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)

Right to appeal has been considered by this Court in

Prithvi Singh vs. State of UP 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:

“23. Insofar as the statutes regulating appeal are

concerned, the law is well established that the right to

file an appeal is a statutory right and it can be

circumscribed by the conditions of the statute granting

it. As was observed in Government of Andhra Pradesh

vs. P. Laxmi Devi, (2008) 4 SCC 720 and Super

Cassettes Industries Ltd. vs. State of U.P., (2009) 10

SCC 531, it is not a natural or inherent right and

cannot be assumed to exist, unless provided by a

statute.

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

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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 sh