Madhya Pradesh High Court
Madhya Pradesh Paschim Kshetra Vidyut ... vs Kutubuddin And Anr. on 7 March, 2017
Author: Rajeev Kumar Dubey
Bench: Rajeev Kumar Dubey
-: 1:- Cr.R.No.92 of 2014
HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
( Single Bench )
( Hon'ble Shri Justice Rajeev Kumar Dubey )
Criminal Revision No.92 of 2014
M.P. Pashchim Kshetra Vidyut Vitran Co. Ltd.
VERSUS
Kutubuddin S/o Abdullah Bhai and State of M.P.
through P.S. Madhav Nagar, Ujjain
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Shri Prasanna Prasad , learned counsel for the applicant.
Shri M.K.Jain, learned counsel for the respondent No.1.
Shri Abhishek Soni, learned Dy. Govt. Advocate for the respondent
No.2/State.
*****
O R D E R
( Passed on this day of March, 2017 ) This Criminal Revision has been filed under Section 397/401 of Cr.P.C. against the order dated 04.10.2013 passed in Cr.A.No.337/2013 by the IXth Additional District and Sessions Judge, Ujjain, whereby he dismissed the appeal filed by the applicant against the judgment dated 30.04.2010 passed by the Judicial Magistrate First Class, Ujjain in Criminal Case No.5665/2006, wherein learned Judge had acquitted respondent No.1 from the charges under Section 39 of Indian Electricity Act, 1910.
[2] Brief facts which are relevant for the disposal of this revision Petition are that on 17.09.2000, Ravindra Singh Tomar the then Additional Executive Engineer of M.P. Electricity Board, while conducting a random checking, -: 2:- Cr.R.No.92 of 2014 detected an electricity theft being so done by the respondent No.1 as in the checking it was found that M/s. Malwa Grinder, Maksi Road, Ujjain was drawing unauthorized electricity supply from 200 KV transformer of M.P.E.B. situated outside their premises. Thus, he lodged an FIR in Police Station Madhav Nagar, Ujjain against respondent No.1. On that FIR, Crime No.601/2000 was registered for the offence under Section 39 of M.P. Electricity Act and after investigation charge-sheet was filed before the Judicial Magistrate First Class, Ujjain. On the charge-sheet Criminal Case No.5665/2006 was registered against respondent No.1. Learned trial court after framing charge against the respondent for the offence under section 39 of Indian Electricity Act recorded the evidence. However, after trial learned Magistrate acquitted the respondent No.1 from the charge.
[3] Against that judgment of acquittal respondent No.2/State filed Criminal Appeal No.352/2010 before the Sessions Court. That appeal was dismissed by the Second A.S.J., Ujjain by order dated 14.09.2010 on the ground of delay .
-: 3:- Cr.R.No.92 of 2014
[4] Against that order present applicant preferred a Criminal Revision No.1267/2010 under Section 397 read with Section 401 of Cr.P.C. in this Court. That Revision was withdrawn by the applicant with liberty to take appropriate steps in the matter and subsequent to this the present applicant preferred Cr.A.No.337/2013 under Section 372 read with Section 378 of Cr.P.C. before the Sessions Judge, Ujjain. That appeal was rejected by the IXth Additional Sessions Judge, Ujjain observing that the appeal was time barred and earlier also an appeal filed by the state against the same judgment had been rejected by session court and the revision filled by the applicant against that order was withdrawn by the applicant without any direction of High Court. Hence the same is not maintainable. Being aggrieved from that order applicant filed this revision.
[5] Learned counsel for the applicant submitted that Cr.A.No.352/2010 was not filed by the applicant but by the State so that judgment is not binding on the applicant. As far as Criminal Revision No.1267/2010 is concerned, it was withdrawn by the applicant with liberty to take appropriate steps in the matter. Learned appellate court committed -: 4:- Cr.R.No.92 of 2014 mistake in holding that said appeal was not maintainable since applicant's Revision had been rejected by the High Court. As far as limitation is concerned Hon'ble Apex Court in many cases held that court should have a liberal view while considering an application for condonation of delay filled by the state. In this matter Revision of the present applicant company was pending before this court from where it was withdrawn with a liberty to take appropriate steps and thus, immediately an appeal was filed before sessions court. Learned court below ought to have considered this aspect and should have take a liberal view while considering an application for condonation of delay. Learned trial court also committed mistake in rejecting that appeal on the ground of limitation as time barred.
[6] Learned counsel for the respondent No.1/accused submitted that earlier appeal filed by respondent No.2/State against the judgment of acquittal passed by the Judicial Magistrate First Class, Ujjain in Criminal Case No.5665/06 was dismissed by the Second A.S.J., Ujjain by order dated 14.09.2010 so second appeal filled by the applicant is not maintainable. Learned IXth Additional Sessions Judge, -: 5:- Cr.R.No.92 of 2014 Ujjain did not commit any mistake in rejecting the Cr.A.No.337/2013 filed by the applicant before him. Learned counsel for the respondent further submitted that the charge-sheet of Crime No.601/2000 registered against the respondent for alleged offence was filed before the JMFC in the year 2006 when there was no provision in Cr.P.C. under which complainant could file appeal against the acquittal. Provision in this regard was first inserted in Section 372 of Cr.P.C. by way of an amendment on December 31st, 2009 which is not retrospective. So otherwise also applicant has no right to file this appeal and prayed for rejection of this revision.
[7] Following questions emerge before this court for deciding this criminal revision :-
(i) What is the relevant date for applying the test of maintainability of appeal by the victim filed under proviso of section 372 of Cr.P.C.
(ii) whether after dismissal of State's Criminal Appeal No.352/2010 against the judgement passed by the trial court (J.M.F.C.Ujjain) in Criminal Case No.5665/06 an appeal filed by the applicant (victim) invoking his right under proviso to section 372 of Cr.P.C, challenging acquittal, is not maintainable on the ground that the State had filed an appeal against the same order and for the same purpose which was rejected by the competent court ?-: 6:- Cr.R.No.92 of 2014
(iii) Whether the Cr.A.No.337/2013 filed by the applicant before court of sessions is maintainable after withdrawal of Criminal Revision No.1267/2010 filed by the applicant before High Court against the order of IInd Additional Sessions Judge, Ujjain passed in Criminal Appeal No.352/2010.
(iv) What would be the period of limitation for a victim to prefer an appeal under proviso to section 372 CrPC? and whether applicant has a sufficient reason to condone the delay occurred in filling of Cr.A.No.337/2013.
[8] Regarding point No.1 - Learned counsel of the respondent submitted that earlier there was no provision in Cr.P.C. under which appeal against the acquittal could be filed by the victim, it was inserted in the Section 372 on December 31st, 2009 which is not retrospective while in this case Police filed charge-sheet against respondent in the year 2006 so amended provision is not applicable herein, therefore, applicant has no right to file this appeal. In this regard he placed reliance on Apex Court Judgement passed in National Commission for Women Vs State of Delhi and Another reported in (2010)12 SCC 599 wherein Apex Court opined that the proviso inserted by Section 372 (Act 5 of 2009) w.e.f. 31st December, 2009 has no retrospective effect. But in this case this point was not directly involved. -: 7:- Cr.R.No.92 of 2014
[9] A Division Bench of Patna High Court in Parmeshwar Mandal V/s. The State of Bihar and others reported in 2014 Cri.L.J. Page 1046 examined this issue and opined as thus, "the expression in paragraph 5 of the judgment of the Apex Court passed in National Commission for Women Vs State of Delhi and another - "long after the present incident"
- used within bracket, is not a finding of the Apex Court on any issue, to be treated as law in terms of Article 141 of the Constitution of India and is only an obiter dictum. This Court has already noticed above that the scope and ambit of the said proviso to Section 372 of the Code and its applicability was not at all an issue before the Apex Court. In fact, it is clear that the notice of said proviso to Section 372 of the Code by the Apex Court was only for the purpose that the same was a new insertion and an addition to the existing provision of Section 372 of the Code and it vested a right in the victim also now to prefer appeal under the three contingencies."
[10] In Parmeshwar Mandal V/s. The State of Bihar and others (supra) Division Bench of the Bihar High Court also held that, "in absence of any express intention notified by the legislature to the contrary, it has to be concluded that the right of victim, to prefer an appeal in terms of said proviso to section 372 became available to the victim(s) of all cases in which orders were passed by any criminal court acquitting the accused or convicting him for a lesser offence or imposing inadequate compensation, on or after 31st of -: 8:- Cr.R.No.92 of 2014 December, 2009. In other words, date of judgment of a criminal court has to be necessarily treated as the relevant date for applying the test of maintainability of appeal by the victim under three contingencies laid down under the proviso to section 372 of the Code, irrespective of the date of occurrence, institution of the case, cognizance or commitment."
A Full Bench of Delhi High Court also reiterated the above view in the case of Ramphal Bansal V/s. State & Ors. reported in 2015 Cri.L.J. Page 3220.
[11] So in the light of above pronouncement this court also is of the view that the date of judgment of a criminal court has to be necessarily treated as the relevant date for applying the test of maintainability of appeal by the victim under three contingencies laid down under the proviso to section 372 of the Code, irrespective of the date of occurrence, institution of the case, cognizance or commitment.
[12] Regarding point No.2.- The right to file an appeal against the judgments of criminal courts was earlier available only either to the accused in cases of convictions or to the state in cases of acquittals or in cases of inadequate sentencing. Hence, the victims of offences had no right to -: 9:- Cr.R.No.92 of 2014 file an appeal in case of acquittal of accused. The provisions of Cr.P.C., relating to the right of appeal was amended in the year 2009, a proviso to Section 372, Cr.P.C., was introduced which conferred upon victims, the right of appeal in these terms :
"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."
The appeal filed by the victim under Section 372 of Cr.P.C. is different from the appeal filed by the State under Section 378 of Cr.P.C.This proviso gives an unqualified "right to a victim" to prefer an appeal in its terms. Full Bench of Gujarat High Court in the case of Bhavuben Dinesh Inteshbhai Makwana V/s. State of Gujrat & others reported in 2013 Cri.L.J. Page 4225 opined as thus, "the correct law, as emerging from the Scheme of the Code, would be that the right of a victim to prefer an appeal (on limited grounds enumerated in proviso to Section 372 of the Code) is a separate and independent statutory right and is not dependent either upon or is subservient to right of appeal of the State.
In other words, both the victim and the -: 10:- Cr.R.No.92 of 2014 State/prosecution can file appeals independently without being dependent on the exercise of the right by the other."
So in the light of above, this court also is of the view that the appeal filed by the victim under Section 372 of Cr.P.C. is different from the appeal filed by the state under Section 378 of Cr.P.C.. So, even after rejection of the appeal filed by the state, appeal filed by the victim under Section 372 of Cr.P.C. is maintainable. More so in the instant case, the appeal filed by the State was rejected by the appellate court merely on the ground of delay and not on the merits. So, otherwise also appeal filed by the applicant (victim) is maintainable.
[14] Reagrding the point No.3 - It is apparent from the order dated 22.08.2012 of this court passed in Cr.R.No.1267/10 filed by the applicant that applicant withdraw his Criminal Revision with liberty to take appropriate step in the matter. The order passed by this court in Cr.R.No.1267/10 read as thus :
"Learned counsel for the applicant prays for withdrawal of this criminal revision with liberty to take appropriate step in the matter.-: 11:- Cr.R.No.92 of 2014
Prayer allowed.
With the aforesaid liberty, this criminal revision is dismissed as withdrawn."
So learned Trial Court without paying attention to this fact wrongly held that Criminal Appeal No.337/2013 filed by the applicant is not maintainable because applicant's Criminal Revision was dismissed by the High Court. More so it is also clear from the order that this court did not decide the Revision filed by the applicant on merits and while dismissing the Revision as withdrawn also gave opportunity to the applicant to take appropriate steps in the matter.
Therefore in view of this court learned Trial Court also committed mistake in holding that appeal is not maintainable, because the Cr.R.No.1267/2010 against the order passed in Cr.A.No.352/2010 was rejected by the High Court. So, this court holds that appeal No.337/10 filed by the applicant (victim) before the court of sessions is maintainable even after withdrawal of Criminal Revision No.1267/2010 filled by the applicant before this court against the the judgment passed by the Judicial Magistrate First Class, Ujjain in Criminal Case No.5665/2006.
[15] Point No. 4 Regarding Limitation Issue :- -: 12:- Cr.R.No.92 of 2014
No limitation of time has been provided by the legislature in exercising of such a right of appeal by the victim in terms of proviso of Section 372 of Cr.P.C. where no period of limitation is expressly provided to prefer an appeal, the aggrieved person is expected to approach the appellate court within a reasonable period. The 'reasonableness' of the period within which an appeal may be preferred, however, is purely a question of fact and will have to be determined keeping in view the peculiar facts and circumstances of each case.
[16] The Division Bench of Bombay High Court in the case of Amit S/o Bhagirath Mishra V/s. The State Of Maharashtra reported in 2016 Cr.L.J.1418 also held that, "In our humble opinion, and with respect to the Full Bench of the Punjab & Haryana High Court providing for the limitation for filing of an appeal against acquittal does not fall within the realm of the judicial function. It is for the Legislature to provide for limitation under Article 114 when the occasion has arisen as a result of insertion of proviso to Section 372 of Cr.P.C. with effect from December 31, 2009. Till then, the settled principle that such appeals must be filed within a reasonable time should hold the field. Further, the appellate Court has always a power to consider the reason about the date of knowledge of the order appealable by the victim as appeal, sufficient cause for -: 13:- Cr.R.No.92 of 2014 condoning the delay in filing the appeal. With respect, it would not be appropriate to hold that the limitation should be counted from the date of knowledge acquired by the victim without the same being projected as a reason to condone the delay."
[17] So, in the light of above pronouncements, this court is of the view that, no limitation of time has been provided by the Legislature for exercise of such a right of appeal by the "victim" in terms of the said proviso to Section 372 of Cr.P.C., hence, in the facts and circumstances of each case, the Court has to determine as to whether the appeal was entertainable, or not, on the ground of absence of bona fide explanation for delay by the appellant.
[18] If in the light of above we consider the ground made by the applicant for condonation of delay in filing in Cr.A.No.337/13, it is apparent that the judgment against which the applicant filed an appeal was passed by the Judicial Magistrate First Class, Ujjain in Criminal Case No.5665/06 on 13.04.2010 while applicant filed the Cr.A.No.337/13 on 21/10/12 after 2½ years of judgment, but earlier appellant had filed Cr.R.No.1267/10 before this court, because that Revision had been wrongly filed by the -: 14:- Cr.R.No.92 of 2014 applicant. Correct remedy available to the applicant was under Section 372 of Cr.P.C. so he withdrew that Revision on 22.08.2012 and then filed Cr.A.No.337/13 before the Sessions Judge, Ujjain on 20.11.2012. This court feels that no limitation has been prescribed by the legislature. It would not be fair and just if the victim's appeal is thrown out on the point of limitation as in the instant case there was sufficient reason for the applicant to get confused regarding the point that whether he file separate appeal under section 372 Cr.P.C. against the trial court's judgement or criminal revision against the order passed by the IInd A.S.J., Ujjain in Cr.A.No.352/10 and applicant engaged bonafide in prosecution in this court in criminal revision. So this ground is sufficient to entertain his appeal filed after 2½ years of the judgement. Hence, in the view of this court learned A.S.J. also committed mistake in rejecting the applicant's Criminal Appeal No.337/13 on the ground of delay.
[19] Thus this court answered the questions that emerged before this court for deciding this Criminal Revision as thus:-
(i) the relevant date for applying the test of maintainability of appeal by the victim filed -: 15:- Cr.R.No.92 of 2014 under proviso of Section 372 of Cr.P.C is date of judgment of a criminal court. So Criminal Appeal No.337/13 filled by the applicant against judgement passed by the Judicial Magistrate First Class, Ujjain in Criminal Case No.5665/06 on 13.04.2010 is maintainable because the judgement was passed by the court after incorporation of amendment.
(ii) That after dismissal of State's Criminal Appeal No.352/2010 against the judgement passed by the trial court (J.M.F.C.Ujjain) in Criminal Case No.5665/06 the Cr.A.No.337/2013 filed by the applicant (victim) invoking his right under proviso to section 372 of Cr.P.C, challenging acquittal, is maintainable.
(iii) The Cr.A.No.337/2013 filed by the applicant before court of sessions is maintainable after withdrawal of Criminal Revision No.1267/2010 filed by the applicant against the order of IInd A.S.J., Ujjain passed in Criminal Appeal No.352/2010 before high court.
(iv) No limitation of time has been provided by the Legislature for exercise of such a right of appeal by the "victim" in terms of the said proviso to Section 372 of Cr.P.C., hence, in the facts and circumstances of each case, the Court has to determine as to whether the appeal was entertainable, or not, on the ground of absence of bona fide explanation for delay by the appellant and in the instant appeal reason assigned by the applicant show his bonafide. learned trial court committed mistake in holding that appeal is time barred so is not maintainable. this court hold that Criminal Appeal No.337/2013 filed by the applicant is maintainable.
[20] Hence the revision is allowed and order dated 04.10.2013 passed by the IXth A.S.J., Ujjain in Cr.A.No.337/13 is set aside and held that said appeal is maintainable. The IXth Additional District and Sessions -: 16:- Cr.R.No.92 of 2014 Judge, Ujjain, is directed that he decides the appeal according to law after hearing both the parties. Both the parties are directed to appear before IXth A.S.J., Ujjain on 10/04/17 in Cr.A.No.337/2013.
Record be sent back to the trial court along with the copy of this order. Accordingly, this Criminal Revision is disposed of.
[RAJEEV KUMAR DUBEY] JUDGE ns