Gauhati High Court
Paye Mosing vs Naba Bora @ Jalia @ Jintu & 2 Ors on 9 October, 2015
Author: P.K. Saikia
Bench: P.K. Saikia, Rumi Kumari Phukan
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IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Crl. MC No. 468/2014
In Crl. Appeal Sl. No. ..............
Paye Mosing,
Wife of Late Tanya Mosing,
Resident of 'C' Sector,
C/o Itaford Shopping Complex,
Bank Tinali, Itanagar, Paupum Pare,
District, Arunachal Pradesh.
Applicant / Appellant
-Vs-
1. Naba Bora @ Jalia @ Jintu,
Son of Hem Bora, Resident of
Gobindapur, PS - Laluk.
2. Dignata Gohain,
Son of Aniram Gohaiin,
Resident of Gobindapur,
PS - Laluk.
3. Smt. Yaying Pulsar,
wife of Late Yugen Pulsar,
Resident of Bank Tiniali,
PS - Itanagar, Arunachal Pradesh
The State of Assam.
......Respondents
BEFORE
HON'BLE MR.JUSTICE P.K. SAIKIA
AND
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
For the petitioner : Mr. P.K. Tiwari, Sr. Adv.
Mr. Barunav Das, Advocate
For the respondents : Ms. S.G. Baruah, Adv.
: Ms. S. Jahan, Addl. P.P.
Date of hearing : 30/07/2015
Date of Judgment : 09.10.2015
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JUDGMENT AND ORDER (CAV)
(P.K. Saikia, J)
This application u/s 5 of the Limitation Act, 1963 has been filed seeking
condonation of delay of 82 (Eighty Two) days in preferring the connected appeal
against the judgment dated 25.09.2013 passed by learned Sessions Judge,
Lakhimpur in Session Case No. 1(NL)/2007 (State of Assam Vs. Naba Bora and 2
Ors.) acquitting the accused persons therein holding that the charge against the
accused persons could not be established beyond all reasonable doubt.
2. Being aggrieved by and dissatisfied with, one Paye Mosin, wife of the
deceased, namely, Tina Mohsin preferred an appeal along with this application
seeking condonation of delay of 82 (Eighty Two) days in preferring the connected
appeal. On the receipt of the application aforesaid, notice was ordered to be issued
on the respondents including the accused persons in the aforesaid Session Case
asking them to show cause as to why the delay of 82 (Eighty Two) days in
preferring the connected appeal should not be condoned.
3. The respondents/accused persons entered appearance and contended that the
delay of 82 days should not be condoned in preferring the connected appeal since
the applicant/appellant could not assign good reason for not preferring appeal in
time. Such a contention was also supported by Ms. S. Jahan, learned Addl. Public
Prosecutor for the State/respondent.
4. Mr. P.K. Tiwari, learned Senior Counsel assisted by Mr. B.Kaushik
for the applicants referring to proviso to Section 372 CrPC submits
that before the Amendment Act of 2008, there was no scope for the
victim to prefer an appeal against a judgment of acquittal etc. After the
Amendment Act of 2008, the proviso to Section 372 CrPC has been incorporated
giving the victim a right to prefer an appeal against an order of acquittal or
conviction for a lesser offence or imposing inadequate sentence.
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5. Mr. P.K. Tiwari, learned Senior Counsel submits that though the Limitation
Act has prescribed limitations for applications/appeal/revision/ review etc. but in
view of incorporation of proviso to Section 372 CrPC, no corresponding
amendment there-for has been made prescribing the period of limitation in respect
of appeal filed by the victim as contemplated in Section 2(ww) of the CrPC.
6. Mr. Tiwari, learned Senior Counsel contends that the legislation of proviso to
Section 372 CrPC creates a very special right in favor of the victim which is
evident from a comparative reading of proviso to section 372 CrPC on one side
and section 377/378 which deal with appeal against acquittal etc by the State/its
instrumentality/complainant on the other side. In that connection, it has been
submitted that while in section 377/378 CrPC, the legislature choose to use the
word "may" whereas in proviso to section 372 CrPC, the legislature use the word
"shall".
7. Uses of such words clearly demonstrates the intention of legislature which,
according to Mr. P.K.Tewari, firmly show that in matter of appeal against
acquittal etc by the victim of crime, law put him/her on a much higher pedestal
than the pedestal, offered to State/its instrumentality/complainant vis-a vis appeal
against the order of acquittal etc. The fact that the victim, as has been held by
different High courts including our own High Court, is not required to obtain any
leave before preferring an appeal against an order of acquittal etc (which is
mandatory in case of appeal against an order of acquittal etc by the State/its
instrumentality/complainant) makes such conclusion inevitable.
8. Mr. P.K.Tewari further submits that the reason for assigning the special place
to the victim of crime in matter of appeal against acquittal etc is not far to find
since the victim of crime, despite being the person who has to bear the brunt of
the crime in question, is relegated to a position of insignificance in almost all the
criminal trials, conducted in our country. In most of the cases, the cries of the
victim get lost completely in din and bustle fervently raised for perpetrators of the
crime.
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9. In such a hopeless and horrible situation, the legislature has found it fit to
enact the law in the form of proviso to section 372 CrPC which tries to address
effectively the deplorable, terrible and awful treatments meted out to the victims
of crime over a long period of time although such a victim of crime is supposed to
be centre of criminal trial involving him all the time.
10. According to learned counsel for the applicant, following the
incorporation of proviso to Section 372 CrPC, no amendment has been made to
the law of limitation prescribing any period of limitation for enforcement of such
very special right. However, learned counsel for the applicant further submits that
such silence on the part of legislature in not prescribing any limitation in respect
of appeal under proviso to section 372 CrPC is not accidental or fortuitous but
very intentional and same was done having regard to ground reality since in
dispensation of criminal justice in India victims of the crimes in most cases are
forgotten persons although his/her sufferance one day sets the law in motion.
11. He, however, admits that since law does not prescribe any period for
preferring an appeal by a victim against an order of acquittal etc and since
according to learned counsel for the petitioner, the court cannot assume the role of
the legislature to legislate a law prescribing the period of limitation for
enforcement of the right, conferred on the victim of crime, it does not mean that
the victim would be at liberty to come to the court at any point of time
challenging the order of acquittal.
12. In fact, till the time, the legislature put in place appropriate legislation
prescribing the period of limitation for enforcement of the aforesaid right,
conferred on the victim of crime, some mechanisms must be evolved regulating
the period of limitation for preferring an appeal by a victim against an order of
acquittal etc.
13. According to learned counsel for the applicant, the period of limitation in
respect of appeal preferred by victim of crime is to be decided case-wise
depending on the facts and circumstances assigned by the person in preferring
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such appeal. In support of such contention, he referred us to the case of
Parmeshwar Mandal Vs. State of Bihar and Ors. reported in (2014) 0 CrLJ
1046.
14. Here it needs to be stated that M/s Tata Steel Ltd. Vs. Atma Tube Products
Ltd. & Ors., CRM-790-MA-2010 (O&M), the Punjab and Haryana High Court ,
amongst other things, had the occasion to decide the question of limitation in
respect of appeal against the acquittal etc preferred by victim of crime and on
considering various authorities and having regard to the Article 114/115 of the
Schedule attached to Law of Limitation was pleased to prescribe a period of
limitation in respect of aforesaid appeals. The relevant part of the judgment in
M/s Tata Steel Ltd.(Supra), is reproduced below :-
127. Various High Courts have experienced difficulty indetermining
the period of limitation for an appeal preferable by a victim under proviso
to Section 372 of the Code. A Division Bench of Patna High Court in Raghunath
Yadav vs. State of Bihar, 2011 (6) RCR (Crl.) 133, has viewed that since the period
of limitation for filing an appeal against the acquittal under Section 378 is ninety
days and no period of limitation has been provided for filing an appeal
under Section 372 by a 'victim', the same period of limitation as provided
underArticle 114 of the Limitation Act will be applicable for filing an appeal
under Section 372 of the Code also. The Full Bench of Gujarat High Court in
Bhavuben Dineshbhai Makwana's case (supra) too, with reference to Article
114(a) of the Limitation Act, has held that the period of ninety days should be
the reasonable period for a 'victim' to file an appeal as the said period is the
longest period of limitation for filing an appeal against an order of acquittal
prescribed by the Legislature.
(128). The Delhi High Court in Kareemul Hajazi's case (supra), however, thought
differently and after referring to certain precedents laying down that 'in the
absence of prescription of the limitation period, the statutory authority must
exercise its jurisdiction within a reasonable period', it decided to bring the
'victim' at par with the 'accused' for the purpose of period of limitation to prefer
appeal and held that since an accused is required to prefer appeal to the High
Court within sixty days as prescribed under Section 374 of the Code read with
CRM-790-MA-2010 final - Article 115(b)(i) of the Limitation Act, the period of
limitation for the appeal of a 'victim' shall also be the same i.e. sixty days.
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(129). One of the well-recognized principles of criminal jurisprudence is that
'crime never dies'. The maxim 'nullum tempus qut locus occurrit regi' [lapse of
time is no bar to Crown in proceedings against offenders] is an age-old rule
embedded in criminal justice delivery system. The public policy behind this rule is
that a criminal offence is considered as a wrong committed against the State and
the Society though it is committed against an individual. The aforesaid rule of
prudence has been duly acknowledged by the Parliament as it has prescribed no
period of limitation for filing an appeal under proviso to Section 372 of the Code
against an order of acquittal.
(130). Article 114 of the Schedule to the Limitation Act, 1963, however,
prescribes period of limitation for State's appeal against order of acquittal and it
reads as under :-
Description of appeal Period of Time from
limitation which period
begins to run
114. Appeal From an order of acquittal-
acquittal-
(a) Under sub-section (1) or Ninety The date of
sub Section (2) of Section Days order appealed
417 of the Code of Criminal from.
Procedure,1898(5 to 1898).
(b) Under sub-Section (3) of Thirty The date of the
Section 417 of the Code. days grant of special
leave.
CRM-790-MA-2010 final - 77 -
(131).Since Article 114 of the Limitation Act refers to Section 417 of the Code of
Criminal Procedure, 1898 (since repealed), it is beneficial to reproduce the same
and it reads as follows:-
"417. (1) Subject to the provisions of sub-section (5) the State Government may,
in any case, direct the Public Prosecutor to present an appeal to the High
Court from an original or appellate order of acquittal passed by any Court
other than a High Court.
(2) If such an order of acquittal is passed in any case in which the offence has
been investigated by the Delhi Special Police Establishment constituted under
the Delhi Special Police Establishment Act, 1946, the Central Government may
also direct the Public Prosecutor to present an appeal to the High Court from the
order of acquittal.
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(3) If such an order of acquittal is passed in any case instituted upon complaint
and the High Court on an application made to it by the complainant in this
behalf, grants special leave to appeal from the order of acquittal, the
complainant may present such an appeal to the High Court.
(4) No application under sub-section (3) for the grant of special leave to appeal
from an order of acquittal shall be entertained by the High Court after the expiry
of sixty days from the date of that order of acquittal.
(5) If, in any case, the application under sub-section (3) for the grant of special
leave to appeal from an order of acquittal is refused, no appeal from that order
of acquittal shall lie under sub-section (1)."
(132). From the combined reading of the above-reproduced provisions, it is clear
that the State could present its appeal to the High Court within 90 days from the
date of passing of the order of acquittal. Similarly, sub-Section (4) of Section
417 provided 60 days' period of limitation to apply for grant of special leave to
appeal to the High Court against the order of acquittal passed in a complaint-
case. The appeal against acquittal in such cases can be filed within 30 days of the
date of grant of special leave to appeal as provided under Clause (b) of Article
114 of the Limitation Act. The Hon'ble Supreme Court in Dharam Pal's case
compared the provisions of old Code with Section 378 of the new Code and held
that appeals against acquittal preferred by the State Government or the Central
Government continue to be governed by Article 114(a) of the Limitation Act. In
other words, those appeals must be filed within 90 days from the date of order
appealed from. A 'victim' therefore is also entitled to the said maximum period
of limitation i.e. 90 days to prefer his/her appeal against an order of acquittal.
(133). Under Section 378(5) of the Code, an application for the grant of special
leave to appeal from an order of acquittal moved by the complainant who is a
public servant, can be entertained by the High Court within a period of six
months and within sixty days in every other case, from the date of the order of
acquittal. However, the State or Central Governments are not entitled to take
benefit of six months' period given to the complainant-public servant for the
purpose of their appeal against an order of acquittal which is required to be
preferred within ninety days as per Article 114 of the Limitation Act. The grey
area in this regard, if any, also stands clarified by the Supreme Court in
Dharampal's case (supra).
(134). Likewise, the period of limitation for appeal against the orders other than
of acquittal i.e. of 'any other sentence' or 'any order' is governed by Article 115
(b) of the Schedule to the Limitation Act. The orders of imposition of lesser
sentence, inadequate sentence or awarding inadequate compensation passed by
a Magistrate or the Sessions Court, as the case may be, are fully covered within
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the ambit of the expressions "any other sentence" or "any order" mentioned in
Clause (b) of Article 115 of the Limitation Act, which is to the following effect:-
Description of appeal Period of Time from
Limitation which period
begins to run
115. Under the Code of Criminal Procedure, 1898 (5 of 1898)
(b) from any other sentence or any order not being an order of acquittal -
i) to the High Court. sixty The date of the
days sentence or order.
(ii) to any other court Thirty The date of the
days sentence or order.
(135)The legislature has not chosen to provide different period(s)of limitation for
the purpose of appeals maintainable at the instance of a 'victim' under proviso
toSection 372. It has also not carried out any corresponding amendment in the
provisions of theLimitation Act. Since Article 115(b) thereof does not draw any
distinction between the appeals preferable by the State, the 'victim' or the
accused, the period of limitation for an appeal preferred by the State, the 'victim'
against an order other than that of acquittal or by the accused, shall therefore be
governed by Article 115(b) of the Limitation Act.
(136). The Supreme Court in Japani Sahoo vs. Chander Shekhar Mohanty, (2007)
7 SCC 374, observed that mere delay in approaching the court of law would not
by itself afford a ground for dismissing the case though it may be a relevant
circumstance in reaching the final verdict. There is no gainsaying that 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.
(137). The Legislative intentment behind Articles 114 & 115(b) of the Limitation
Act in prescribing the period of limitation for appeals to the High Court or to the
Court of Session against different type of orders, is the best guiding factor to
determine reasonableness of the period of limitation for an appeal preferable at
the instance of a 'victim' also. It would, therefore, be reasonable to view that for
appeal against acquittal filed by a 'victim' to the High Court the period of
limitation would be 90 days and where such appeal lies to the Sessions Court
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such period shall be 60 days. For appeal against any other order, the reasonable
period would be 60 days to the High Court and 30 days for appeals to the
Sessions Court from the orders passed by the Magistrate, as the case may be. To
be more specific, the period of limitation for the purpose of filing appeal(s) by a
victim shall be as under:-
(a) In case of acquittal -
(i) Where appeal 90 days Date of order
CRM-790-MA-2010 final - 81 -
lies to the High appealed
Court against
(ii) Where appeal 60 days Date of order
lies to any appealed
other Court against
b) Any other sentence or order -
(i) to the High Court 60 days The date of
sentence or
order
ii) to any other court 30 days The date of
sentence or
order
(138). The limitation period of ninety, sixty and thirty days, as the case may be,
prescribed above for the maintainability of an appeal by a victim, in our considered
view, ought to be counted from the date such 'victim' acquires knowledge of the order
appealable under proviso to Section 372. We say so for the reason that in most of the
State cases, the 'victim' has no participatory role at the trial stage and the possibility of
his/her remaining in the dark about the adverse order cannot be lightly brushed aside.
The above rule of limitation, therefore, cannot be mechanically enforced even if the
victim had no informed knowledge regarding culmination of the trial proceedings as it
might cause serious prejudice to his/her rights, close to the extent of snatching away the
right to appeal earned by the victims after a long drawn battle.
(139) or the reasons assigned above, we sum up our conclusions and answer the
questions as formulated in para 6 of this order, in the following terms:-
Question - (A) -----------------------------------------
Question - (B) -----------------------------------------
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Question - (C) ------------------------------------------
Question - (D) --------------------------------------
Question - (E) -------------------------------------------
Question - (F) ---------------------------------------------
Question- (G) (ix) Subject to the exception carved out in para-138 of this order,
the period of limitation for an appeal by a 'victim' under proviso to Section 372 of
the Code shall be as under:-
In case of acquittal -
(i) Where appeal lies 90 days Date of order
to the High Court appealed against
ii) Where appeal lies 60 days Date of order
to any other appealed against
Court
b) Any other sentence or order -
i) to the High Court 60 days The date of
sentence or order
ii) to any other 30 days The date of
court sentence or order
15. However, according to Mr. PK Tiwari, such approach in prescribing the
period of limitation in respect of appeal against the acquittal etc by the victim of
crime is unwarranted and in support of such contention, the learned Senior
Counsel has drawn our attention to the decision of Patna High Court in the case
of Parmeshwar Mandal Vs. State of Bihar and Ors. reported in 2014 0 CrLJ
1046.
16. It may be stated here that in Parmeshwar Mandal (supra), Patna High
Court also considered the ratio laid down in M/s Tata Steel Ltd. Vs. Atma Tube
Products Ltd. & Ors., CRM-790-MA-2010 (O&M) and disapproved the law, laid
11
down by the Punjab and Haryana High Court, prescribing the period of limitation
on holding that the prescribing the period of limitation for enforcement of right
created by a statute is a legislative function and court should not /must not assume
such responsibilities.
The relevant part of the judgment is reproduced below:-
26. Here we must also consider a Full Bench judgment of Punjab and Haryana High
Court delivered on 18 th March, 2013 in M/s Tata Steel Ltd. Vs. M/s Atma Tube
Products Ltd. & Ors, [2013(1) ILR 719 (P & H)]. On reference, the Full Bench
formulated the following questions for consideration :
A. What is the true import and meaning of the expression „victim‟ as defined
underSection 2(wa) read with proviso to Section 372 Cr.P.C. ?
B. Whether "complainant" in a private complaint-case, who is also the "victim‟ and
the "victim‟ other than the "complainant" in such cases are entitled to present
appeal against the order of acquittal under proviso to Patna High Court CR. APP
(DB) No.1078 of 2012 dt.26-11-2013 Section 372 or have to seek "special leave" to
appeal from the High Court under Section 378(4) Cr.P.C. ?
C. Whether the "rights" of a victim under the amended Cr.P.C. are accessory and
auxiliary to those perceived to be the exclusive domain of the "State" ?
D. Whether presentation of appeal against acquittal is a "right" or an "obligation"
of the "State" stemming from the Constitution ?
E. Where would the appeal of a "victim" preferred under proviso to Section 372 lie
when the State also prefers appeal against that order of acquittal under Cloause (a)
of Section 378(1) CrPC ?
F. Whether proviso to Section 372 CrPC inserted w.e.f.December 31, 2009 is
prospective or retrospective in nature and whether a revision petition pending
against an order of acquittal before the insertion of the said proviso, can be
converted into an appeal and transferred to the Court of competent jurisdiction ?
G. What would be the period of limitation for a „victim‟ to prefer an appeal under
proviso to Section 372 CrPC?
...............................................................................................................................
............................................................................................................................... .....................................................
1247. In answer to Question (G), the Full Bench has found that no period of limitation emerges for filing of an appeal by the victim under the said proviso to Section 372 of the Code from the interpretation of the provisions of the Code. Hence, taking recourse to Article 114 and 115(B) of the Schedule of the Limitation Act, 1963 read with Section 378 of the Code, Full Bench has laid down limitation for preferring appeal by a victim in terms of the said proviso to Section 372 of the Code. With all humility, this Court finds that, since limitation has been prescribed by the Full Bench by a judicial fiat, and has not been read into the provisions of the Code itself, or in theLimitation Act, 1963, the same operates only within the territorial jurisdiction of Punjab and Haryana High Court and is not applicable beyond that. Moreover, this Court has already pointed out above that the „victim‟ has been put on much higher pedestal than the State or the Central Government or a complainant, in the matter of preferring appeal against acquittal by a criminal court. Hence, prescribing the same limitation for preferring appeal by a victim, as applicable in the case of an appeal by the State Government or the Central Government or a complainant, will amount to putting fetters and circumscribing the right of a victim, not intended and prescribed by the Legislature. Judicial discipline requires from Patna High Court CR. APP (DB) No.1078 of 2012 dt.26-11-2013 courts to refrain from supplying any casus omissus in the legislation, for it is duty of the court to interpret, and not to legislate. A Constitution Bench of the Apex Court in the case of Dadi Jagannadham vs. Jammulu Ramulu [(2001) 7 SCC 71] has enunciated the principles to be followed by the courts in this regard, in the following manner:-
49. In the circumstances, after consideration of the entire matter, conclusions of this Court are as follows:-
(1) .........................................
(2) - .....................................................
(3) - 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. Hence, in the fact 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 bonafide explanation for delay by the appellant. The limitation laid down by the Full Bench of Punjab and Haryana High Court is a judicial fiat and not based on interpretation of the provisions of the Code or the Limitation Act, 1963. Hence the same is applicable only within the territorial jurisdiction of that High Court and not beyond.
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1317. Now, let us see how far such an argument, according to Mr. Tiwari, carries conviction. In that context, we are to see if victim of crime has been bestowed with special privileges as far as his right to prefer appeal against the order of acquittal etc is concerned as contended by the learned counsel for the applicant. In that connection, we feel it necessary to make a comparative study of proviso to Section 372 CrPC on one side and Sections 377/378 CrPC on other side.
18. It may be stated here that while Sections 377/378 CrPC deals with the right of the State/ its instrumentality / complainant to prefer an appeal against the order of acquittal / inadequacy of sentence, proviso to Section 372 CrPC, as stated above, gives right to the victim of crime to prefer appeal against order of acquittal, order imposing inadequate punishment as well as conviction for lesser offence. For ready reference, the proviso to Section 372 as well Section 377/378 CrPC are reproduced below :
"Section 372 CrPC -- 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 in adequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court".
Section 377 CrPC. Appeal by the State Government against sentence----
(1) Save as otherwise provided in sub- section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.
(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ) or by any other agency empowered to make investigation into an offence under any Central Actother than this Code, 1 the Central Government may also direct] the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.14
(3) When an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence.
Section 378 CrPC - Appeal in case of acquittal - (1) Save as otherwise provided in sub- section (2) and subject to the provisions of sub-sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court 2[ or an order of acquittal passed by the Court of Session in revision].
(2) if such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (24 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present appeal, subject to the provisions of sub-section (3) , to the High Court from the order of acquittal.
(3) No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.
(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
(6) If, in any case, the application under sub-section (40 for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2)."
19. A careful comparative study of those provisions reveals that proviso to Section 372 CrPC has unquestionably conferred upon the victim of crime a very special right to prefer an appeal against the order of acquittal/conviction for lesser offence/inadequate sentence thereby giving the victim of crime a pedestal much more higher than the pedestal, offered to State/its instrumentalist/ complainant in matter of preferring an appeal against order of acquittal etc. 15
20. The presence of a non-obstante clause in main Section 372 CrPC and conspicuous absence such a clause in proviso to Section 372 CrPC as well as the use of word 'may" in Section 377/378 CrPC as against the word "shall' used in proviso to Section 372 together with the fact that the victim of crime has also been allowed to prefer an appeal against conviction for lesser offence make such a position abundantly clear.
21. Now, the question what are the benefits attached to such a special privileges, conferred on victims of crime in preferring an appeal against an order of acquittal etc. Does such special privilege break free the victims of crime from all the limitations that bind the State/ its instrumentality/ complainant in preferring an appeal against an order of acquittal/ inadequate sentence on invoking the provisions of section 377/378 CrPC.
22. On a very careful perusal of section 378 (3) of the CrPC, we have found that when the State or Its instrumentality choose to prefer an appeal under section 378 (1) & (2) of the CrPC, it must obtain "Leave" of the High court before preferring such an appeal. Section 378 (4) of the CrPC further shows that when the complainant wants to prefer an appeal against the order of an acquittal, he is to obtain "Special leave "from the High Court before preferring such an appeal.
23. Sub-Section 378 (5) of the CrPC again ordains that the High Court cannot entertain an application for Special Leave to prefer an appeal against the order of acquittal if such application is not filed within 6 months from the date of order appealed against, if the complainant is a public servant and within sixty days from the date of such an order, in other cases.
24. But then, it has, now, been settled by catena of decisions of several High Courts including our own High Court that in preferring an appeal by a victim of crime on invoking the right conferred on him/her under proviso to section 372 CrPC, he or she, as the case may be, is not required to obtain any prior leave, much less , special leave of the High court, as is necessary in case of complainant 16 u/s 378(4) and (5) of the CrPC. But then, the privileges conferred on the victim of crime extend that far and no further.
25. But why ? We have found that such a question is closely interlinked with some other questions. They are: -
o Whether the right which the legislature had conferred on the victim of crime under proviso to section 372 CrPC had ever been conferred before on any other person(s) / authority (ies), if so, o Who are those person(s) / authority (ies) on whom the rights which are very similar to the rights conferred on the victim of crime under proviso to section 372 of the CrPC.? , if so, o Whether any period of limitation(s) is/ is prescribed for enforcement such right(s).
26. In order to answer this queries, we find it necessary to compare the right, conferred on the victims of the crime, under the proviso to section 372 CrPC with the right, conferred on the State/its instrumentality/ complainant under section 377/378 CrPC. On making such a comparison, we have found that while under section 378 CrPC, State/its instrumentality/complainant are allowed to prefer any appeal against an order of acquittal under section 377 CrPC, State Government/Central Government are allowed to prefer an appeal against the inadequacy of sentences.
27. We have already found that under proviso to section 372 CrPC, a victim of crime is allowed to prefer an appeal not only against the order of acquittal as well as inadequacy of sentence but the victim of crime is also allowed to prefer an order against an order for lesser offence, a right which has not been expressly conferred on the State/its instrumentality/ complainant.
28. But then, we have found that by and large, all the rights which are conferred on the victim of crime under proviso to Section 372 of the CrPC have already been granted to the State/its instrumentality/complainant in the form of provisions incorporated in section 377/378 of the Code of 1974. Being so, the query No 1 and 2 above are answered in affirmative.
1729. This bring us to the third query where we are to see if the legislature had ever prescribed any period of limitation(s) in respect of enforcement of rights conferred on the State/its instrumentality/ complainant under section 377/378 of the CrPC. On a perusal of the law of limitation, we have found that the Second Division of the schedule, attached to the Limitation Act, 1963, deals with appeals.
30. Whereas the Article 114 therein deals with appeals from an order of acquittal including an appeal preferred by complainant, the Article 115 deals with appeals from sentence of death and other sentences or order not being an order of acquittal. In order to understand clearly the periods of limitation, prescribed under Article 114 and 115, we find it necessary to reproduce Article 114 and 115, contained in the schedule above.
They are as follows:
"114. Appeal from an order of acquittal---
under sub-section (1) or sub-section (2) of section 417 of the Code of Criminal Procedure, 1898 (5 of 1898).
(b).....................................................
115. Under the Code of Criminal Procedure, 1898 (5 of 1898) from a sentence of death passed by a Court of session or by a High Court in the exercise of its original criminal jurisdiction.
from any other sentence or any order not being an order of acquittal---- to the High Court - Sixty days. The date of the sentence or order.
(ii) to any other Court -Thirty days . The date of the sentence or order."
31. Since the Article 114 speaks of Section 417 of the Code of Criminal Procedure, 1898 and Article 115 talks about the Code of Criminal Procedure, 1898 and since Section 417 of the Code of Criminal Procedure, 1898 is the earlier version of Section 378 CrPC, 1974, therefore, in order to appreciate the controversy before us, for ready reference Section 417 of the Code of 1898, is also reproduced below:
"417 (1) Subject to the provisions of sub-section (5) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the 18 High Court from an original or appellate order of acquittal passed by any court other than a High Court.
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, the Central Govt may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal.
(3) If such an order of acquittal is passed in any case instituted upon complaint and the High Court on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(4) No application under sub-section (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal.
(5) If, in any case, the application under sub-section (3) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1)".
32. Here, it needs to be stated that Section 378 of the Code of 1973 has brought about some significant changes to Section 417 of the CrPC, 1898. The prominent, amongst them, which have bearing on this proceeding, are as under: ----------
"Under old Code only the State was allowed to prefer any an appeal against an order of acquittal. But under the new Code, the District Magistrates are allowed to take step in matter of preferring an appeal against an order of acquittal provided such acquittal is rendered in a case involving cognizable and non- bailable offence, Under old Code, only the High Courts were allowed to entertain the appeal against an order of acquittal. But under new Code, Sessions Judge are allowed to entertain appeal in certain cases, An appeal by the Government cannot be entertained except with the leave of the High Court and The time limit for obtaining special leave in case public servant complainant has been extended to six months ."
33. Whatever the changes that have brought about by the Section 378 of the CrPC 1973 to Section 417 of the CrPC of 1898, fact remains that the Limitation Act has made no significant change vis-à-vis the periods of limitation in respect of appeals, preferred by the State/its instrumentality/complainant against the order of 19 acquittal/order imposing inadequate sentence. A perusal of Article 114/115 of the schedule aforesaid makes it clear.
34. It is worth noting that while Article 114(a) speaks of an appeal against order of acquittal by the State, Article 114(b) talks about appeal against the order of acquittal preferred by complainant. On the other hand, Article 115(b) talks about any other sentence or any other order not being an order of acquittal.
35. Being so, in our considered opinion, the Legislature have already conferred on the State /its instrumentality/complainant, the rights which are very similar to the rights conferred under victim of crime under proviso to section 372 CrPC. More importantly, the legislature has also prescribed the periods of limitation for enforcement of such rights.
36. Now, the question is when the Legislature had created a right in favor of a particular class/ classes of persons/legal entities and when the Legislature had already prescribed period/periods of limitation for enforcement of such right, whether on conferment of identical right in favour of new class/classes of persons/legal entities subsequently, is it necessary for the Legislature to specify afresh a period of limitation for enforcement of such right conferred on new class/classes of persons/legal entities subsequently.
37. In our considered opinion, when a very new right is created in favour of particular class / classes of person/ persons, the Legislature has to prescribe the period within which such right is to be enforced. Otherwise, enforcement of such right may lead to chaotic conditions. However, when there exists very identical right in favour of class/classes of persons/legal entities for enforcement of which the Legislature have also prescribed period of limitation, on extension of such right to other class /classes of persons, in our considered opinion, it is not necessary for the legislature to state specifically that the period/periods of limitation, prescribed for enforcement of right, granted to earlier class/classes of persons/legal entities shall also be applicable to the class/classes of persons to whom such right has subsequently been extended.
2038. In other words, on extension of existing right (for enforcement of which the period of limitation has already prescribed under the law) to a new class/classes of persons, such existing law of limitation, applicable to the old class/classes of persons/legal entities shall automatically be applicable to the class/classes of persons/legal entities in whose favour such right/ rights has/ have subsequently been extended.
39. However, if the Legislature for one reason or other, find it fit that the earlier law of limitation for enforcement of right already conferred on a class/classes of persons should not be made applicable to new class/classes of persons to whom such right is subsequently extended, in that event, the Legislature may prescribe different period/periods of limitation applicable to the subsequent class/ classes of people/ institutions.
40. The above conclusion of us draws support if we view the matter under consideration from a different angle. It is worth noting here that the Law of limitation, like any other branches of laws, develops on the basis of experiences that humanity gathered over a long period of time, may be close to century or may be more than such period, covering wide range of the subjects and the experiences, so gathered, were then given shape of Rules/Laws.
41. Even thereafter, such Rules/Laws undergo several trials and errors before settling to guide the society for some definite period of time. Therefore, such laws are expected to hold the field in question, unless the legislature representing the people find that such Rules /Laws are not in a position to address the situation for which they exist and in that event, the Legislature may make necessary amendment to such Laws/Rules.
42. Since while extending the right of appeal against the order of acquittal etc, in favour of victims of crime (which was already conferred on the State/its instrumentality/complainant), the Legislature did not prescribe any period of limitation for enforcement of such right, it needs to be concluded that the periods of limitation already prescribed for enforcement of such rights by the State/its 21 instrumentality/complainant shall also govern the appeals against the order of acquittal etc preferred by the victims of crime as well.
43. Situation being such, in our very considered opinion, Article 114(a)/114(b) of the schedule attached to the Law of Limitation, 1963 shall govern the appeal against the acquittal preferred by the victims of crime whereas Article 115(b) of the schedule shall govern the appeal preferred by such person against conviction for lesser offence or inadequate sentences.
44. In view of our forgoing discussion, we have found reason to differ respectfully with the decisions of the Patna High Court that in absence of any prescription of law in regard to period of limitation in respect of appeal preferred by the victim of the crime against the order of acquittal etc, the Court is to decide such question case-wise on the basis of facts and circumstances presented in a particular case.
45. It may be noticed here that section 5 of the Limitation Act has taken care of extension of prescribed period of limitation in certain cases. It says that an appeal/any application other than the application under the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908) may be admitted even after the prescribed period of limitation if the appellant or the applicant satisfy the court that he had sufficient cause for not preferring the appeal or making application within the time fixed by law of limitation.
46. We are aware of the fact that in Indian setting of dispensation of criminal justice, in most of the cases, the victims play minimal roles and as such, he or she may not be knowing in time as to the fate of the case he/she initiated once. But then, those victims, who are not aware of the outcome of the cases within the time, specified by law, may approach the court even beyond the period of limitation and may make necessary applications etc, in terms of Section 5 of the Limitation Act, 1963 seeking condonation of delay in preferring such appeal.
47. In view of above, we are of considered opinion that subject to section 5 of the of Limitation Act, 1963, the periods of limitation, prescribed under Article 22 114(a)/114 (b) and 115(b) of the Schedule, attached to the Law of Limitation, 1963 shall also govern the appeals under proviso to section 372 CrPC.
48. It may be noted here that under proviso to Section 372 CrPC, appeals under such proviso shall lie to the Court to whom an appeal ordinarily lies against the order of conviction meaning thereby that arrangements, made for preferring appeals from conviction would also be applicable to the appeals under proviso to section 372 CrPC.
49. Keeping the above provisions in mind, a chart showing the periods of limitation for enforcement of right, conferred on the victims of crime, under proviso to Section 372 is prepared in the following manner ---
Subject to the exception carved out in Section 5 of the Limitation Act, the periods of limitation for an appeal by a "victim" under-proviso to Section 372 of the Code shall be as follows:-
In cases of acquittal-
(i)Where appeal lies to the High Court : 90 days from the date of order appealed against
(ii) Where appeal lies to any other Court : 30 days from the date of order appealed against
(b) Any other sentence or order-
(i) Where appeal lies to the High Court: 60 days from the date of sentence or order
(ii) Where appeal to any other Court: 30 days from the date of sentence or order".
50. Since the appellant has preferred the appeal within 90 days from the date of judgment, impugned, such appeal is found to have preferred well within the period of limitation and as such, the Registry is directed to register the appeal and then list it for admission on 19/11/2015.
51. In the result, the misc case is disposed of as indicated above.
JUDGE JUDGE
23
arup