Patna High Court - Orders
Najra Pravin @ Nazra Praveen vs The State Of Bihar on 16 December, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.643 of 2025
Arising Out of PS. Case No.-609 Year-2023 Thana- SAHARSA SADAR District- Saharsa
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Najra Pravin @ Nazra Praveen W/o- Md. Waliullah Village- Nariyar Millat
Nagar W.No-8, Ps- Saharsa Sadar Dist- Saharsa
... ... Appellant
Versus
1. The State of Bihar
2. Sunit Kumar Srivastav @ Samrat Visvas @ Sunit Kumar Visvas S/o- Ajeet
Narayan Visvas Village- Gautam Nagar Gangjala Ps- Sadar Dist- Saharsa
3. Anita Kumari @ Anita Madam @ Anita Mishra W/o- Pradeep Kumar
Mishra R/o- Koshi Chowk Ps- Sadar Dist- Saharsa
... ... Respondents
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Appearance :
For the Appellant/s : Mr. Ashhar Mustafa, Advocate
Mr. Vikash Kumar Jha, Advocate
Ms. Anita Kumari, Advocate
Mr. Murad Ashraf, Advocate
Mr. Rahil Firdaus, Advocate
For the Respondent/s : Mr. Sujit Kumar Singh, APP
For the Respondent No.2: Ms. Rashmi Jha, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SOURENDRA PANDEY
CAV ORDER
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
5 16-12-2025The instant criminal appeal has been placed before this Court pointing out the Stamp Report defect no. 7. The Office Notes dated 16.10.2015 reads as under:-
"Stamp Report defect no. 7 i.e. Limitation expires on 18.03.2025 and petition filed on 12.05.2025, hence limitation petition wanting for 55 days still stands vide further S.R. dated 04.07.2025 kept at Flag 'A'.
Submitted U/H "For Orders (On Office Notes)"
before Hon'ble D.B. Criminal."
2. This appeal has been preferred by the informant/victim challenging the judgment of acquittal dated 18.12.2024 by which the learned Special Judge (POCSO), Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 2/49 Saharsa has acquitted the respondent nos. 2 and 3 of the charges under Section 376 of the Indian Penal Code (in short 'IPC') and Sections 4 and 8 of the Protection of Children from Sexual Offences (POCSO), Act in connection with Saharsa Sadar P.S. Case No. 609 of 2023. The appellant applied for certified copy of the judgment on 19.12.2024 which was delivered to the appellant on 23.12.2024.
3. Mr. Ashhar Mustafa, learned counsel representing the appellant, placed before this Court a Division Bench Judgment of this Court in the case of Parmeshwar Mandal vs. The State of Bihar and Others reported in (2014) 1 PLJR
377. It is submitted that the Hon'ble Division Bench of this Court has held that the right of a victim to prefer an appeal in terms of proviso to Section 372 is an unqualified right and no leave to appeal or special leave is required to be obtained by him/her for the purpose, as required by the State or the complainant for maintaining an appeal in terms of Section 378 of the Code. It has also been held 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. Hence, in the facts and circumstances of each case, the Court has to determine as to whether the appeal is entertainable, or not, on the ground Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 3/49 of absence of bona fide explanation for delay by the appellant.
4. Learned Counsel for the appellant submitted that in view of the judgment of the Hon'ble Division Bench of this Court in the case of Parmeshwar Mandal (supra), no application seeking condonation of delay is required to be filed.
5. On the other hand, learned Additional Public Prosecutor for the State submits that prior to the judgment in the case of Parmeshwar Mandal (supra), a Division Bench of this Court in the case of Raghunath Yadav vs. State of Bihar and Others (Criminal Appeal (DB) No. 933 of 2010) reported in 2010 (4) PLJR 351 had decided that the period of limitation provided under Article 114 (a) of the Schedule to the Limitation Act for filing an appeal under Section 378 (i) & (ii) of the Code of Criminal Procedure (in short 'CrPC') would be applicable in case of an appeal under proviso to Section 372 by the victim.
6. It is submitted that even as the judgment of an equal strength of the Bench in case of Raghunath Yadav (supra) was brought to the notice of the Hon'ble Division Bench hearing the case of Parmeshwar Mandal (supra), the latter Division Bench held that the observations of the Division Bench of this Court in case of Raghunath Yadav (supra) is per incuriam the settled principles as emanating from the Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 4/49 observations of the Constitution Bench of the Hon'ble Supreme Court in the case of Dadi Jagannadham vs. Jammulu Ramulu and Ors. reported in (2001) 7 SCC 71.
7. It is submitted that the Division Bench in case of Parmeshwar Mandal (supra) could not have held a judgment of another Division Bench of this Court per incuriam by applying a principle of interpretation of law. It is submitted that a judgment may be rendered per incuriam only in certain circumstances. Reliance in this regard has been placed on the judgment of the Hon'ble Supreme Court in the case of State of Bihar vs. Kalika Kuer @ Kalika Singh and Ors. reported in (2003) 5 SCC 448, in which the Supreme Court of India has extensively clarified the doctrine of per incuriam.
8. In the said case, the Patna High Court had declared a previous Full Bench decision in Ramkrit Singh vs. State of Bihar reported in AIR 1979 Pat 250 as per incuriam because it had not considered a specific argument about the limited jurisdiction of consolidation authorities. The Hon'ble Supreme Court held that the High Court had misapplied the doctrine of per incuriam. It has been held in the said judgment that the non- consideration of an additional argument did not invalidate the earlier binding precedent.
Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 5/49
9. It is submitted that different High Courts have taken different views with regard to the period of limitation for filing an appeal under proviso to Section 372 CrPC. He has relied upon an article "Right of Appeal Under Section 372 CrPC, 1973, vis-a-vis Period of Limitation : A conundrum"
written by Ayan Bhattacharya in which a table showing the different views has been provided. It is submitted that while Full Bench of the Hon'ble Allahabad High Court has taken a view that 60 days would be the period of limitation in complaint cases, 90 days shall be the period of limitation in all other cases.
The Division Bench of Calcutta and Delhi High Courts have taken a view that 60 days period of limitation would be available for filing appeal under proviso to Section 372, but Gauhati, Gujarat and Himachal Pradesh High Court have taken a view that it would be a period of 90 days limitation.
10. Learned counsel submits that the Hon'ble Full Bench of Punjab and Haryana High Court held in the case of M/s Tata Steel Limited vs. M/s Atma Tube Products Limited reported in (2013) 2 RCR (Cri) 1005 (FB) that for filing an appeal under proviso to Section 372 CrPC, the period of limitation would be 90 days from the date of knowledge of the judgment of acquittal to the victim, for the High Court and 60 Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 6/49 days for any other court. Similar view has been expressed by the Hon'ble Tripura High Court.
11. It is submitted that in the case of Durga Shankar Mehta vs. Raghuraj Singh & Ors. reported in (1954) 2 SCC 20 and M/s Arcot Textile Mills Ltd. vs. Regional Provident Fund Commissioner reported in AIR 2014 SC 295, it has been held that the right of appeal is created by the edict of legislature, hence the courts will be loath to extrapolate the scope and ambit of such right and the courts will equally be reluctant to add any condition with such right as well.
12. It is submitted that in the case of State of Punjab & Ors. v. Bhatinda District Cooperative Milk Producers Union Ltd. reported in (2007) 11 SCC 363 and Joint Collector Ranga Reddy District & Anr. vs. D. Narsing Rao & Ors. reported in (2015) 3 SCC 695 it has been held that if no period of limitation has been prescribed, the statutory authority can exercise its jurisdiction within a reasonable period of time, depending upon the nature of the statute, rights and liabilities conferred thereunder and other relevant factors. In the case of State of Orissa & Ors. vs. Brundaban Sharma & Anr. reported in (1995) Suppl. 3 SCC 249 it has been held that absence of limitation is an assurance to exercise the power with Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 7/49 caution and in order to miscarriage justice or for violation of the provision of the Act. Length of time depends on the factual scenario in a given case. The Hon'ble Supreme Court of India did not allow the exercise of power by the statutory authority after inordinate delay.
13. It is submitted that in absence of any period of limitation in one statute, limitation of another statute cannot be made applicable by way of judicial interpretation (Ishar Singh vs. Financial Commissioner & Ors. reported in (1984) 4 SCC
17). Referring to the diversed views, it is pointed out that there is a line of judicial decision tending to articulate fixed time frame by way of interpretation in absence of any legislative interdict. In the case of Kshetra Mohon Giri & others Vs. Darpanarain Giri & Others reported in AIR 1917 Cal 849, the Division Bench of Hon'ble Calcutta High Court applied the doctrine of practice of Court to be the law of the court in interpreting the period of limitation for a revisional application in a criminal case and stipulated 60 clear days for preferring a revision petition.
Analysis of Law
14. At this stage, we briefly take note of the scheme of Chapter XXIX CrPC. Section 372 states that no appeal to lie Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 8/49 unless otherwise provided. According to this provision, 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. Vide Act No. 5 of 2009, a proviso was inserted into Section 372 CrPC which reads as under:-
"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."
15. It is evident that prior to insertion of the proviso, the legislatures were silent as to the right of a victim to prefer an appeal. The mandate of Section 372 is that 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. Under Chapter XXIX CrPC, Section 378 was providing for an appeal in case of acquittal. We will reproduce Section 378 CrPC hereinafter:-
378. Appeal in case of acquittal.--5[(1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5),--
(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
5. Substituted by Act 25 of 2005, S. 32, for sub-S. (1) (w.e.f. 23-6-2006). Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 9/49
(b) 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 [not being an order under clause (a)] 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 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, 6[the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal--
(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision].
(3) 1[No appeal to the High Court] 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.
6. Substituted by Act 25 of 2005, S. 32, for "the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3), to the High Court from the order of acquittal" (w.e.f 23-6-2006).
1. Substituted by Act 25 of 2005, S. 32, for "No appeal" (w.e.f. 23-6-2006) Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 10/49 (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 (4) 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).
Amendment Act, 2005. - In order to guard against the arbitrary exercise of power and to reduce reckless acquittals, section 378 is being amended to provide that an appeal against an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence filed on a police report would lie to the Court of Session, and the District Magistrate will be authorised to direct the Public Prosecutor to file such appeals. In respect of all other cases filed on a police report, an appeal against an order of acquittal passed by any Court other than the High Court should lie only to the High Court and the authority to direct the Public Prosecutor to present an appeal shall continue to be with the State Government.
(Note of Clause).
16. On a bare reading of the scheme of Section 378 CrPC, it would appear that the District Magistrate was empowered to direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence. The State Government could have issued direction to the Public Prosecutor to present an appeal to the High Court from an Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 11/49 original or appellate order of an acquittal passed by any court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision. Sub-section (3) was substituted by Act 25 of 2005 and the substituted provision reads as under:-
"1[No appeal to the High Court] under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court."
17. Then there was another provision under sub- section (4) of Section 378 which conferred a right to present an appeal by the 'complainant' against an order of acquittal passed in any case instituted upon complaint. In this case also, the complainant was required to obtain special leave to appeal from the High Court by filing an application. The word 'complainant' has been defined under Section 2(d) CrPC as under:-
"(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
Explanation.--A report made by a police officer in a case which discloses, after investigation, the commission of a non-
cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;"
1. Substituted by Act 25 of 2005, S. 32, for "No appeal" (w.e.f. 23-6-2006) Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 12/49
18. It is evident from a complete reading of Section 378 that under this Section only three kind of appeals against acquittal could have been filed. The District Magistrate, the State Government and the complainant in a complaint case could have preferred an appeal against an order of acquittal. There was no provision for filing an appeal against acquittal by a victim. The word 'victim' was not having any place either under the definition section or under Chapter XXIX of the Code. For the first time vide Amendment Act 5 of 2009, s. 29 (w.e.f. 31-12-2009), a proviso to Section 372 was inserted by which a victim of crime has been given statutory right to prefer appeal against acquittal. This right is limited as the victim has still no right to appeal against lesser sentence. The Legislatures in their wisdom while providing a right to appeal to the victim also inserted Clause (wa) under Section 2 CrPC to define the word "victim". Clause wa under Section 2 reads as under:-
"1[(wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir;"
19. It is evident that the word "victim" is a word of wider connotation. While under sub-section (4) of Section 378, right to file an appeal against the order of acquittal was confined
1. Inserted by Act 5 of 2009, S. 2 (w.e.f. 31-12-2009). Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 13/49 to the complainant, by inserting proviso to Section 372 CrPC and then defining the word "victim", the Legislatures broadened the scope for filing an appeal against acquittal by not only the complainant but also any other person who may be covered under the definition of the word "victim". We, therefore, find that by inserting the proviso to Section 372, the Legislatures conferred right to appeal upon the "victims". The victim may be complainant or any other person covered under Clause 'wa' of Section 2 of the CrPC.
Scope and ambit of the right to appeal
20. So far as the scope and ambit of proviso to Section 372 CrPC is concerned, it is no longer a res integra. In the case of Mallikarjun Kodagali (Dead) Represented vs. State of Karnataka and Others reported in (2019) 2 SCC 752, a three- Judges Bench, having examined the said provision and the judgments of the Full Bench rendered by a few High Courts in India, held in paragraph '73' to '75' as under:-
"73. In our opinion, the proviso to Section 372 CrPC must also be given a meaning that is realistic, liberal, progressive and beneficial to the victim of an offence. There is a historical reason for this, beginning with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly of the United Nations in the 96th Plenary Session on 29-11-1985. The Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 14/49 Declaration is sometimes referred to as the Magna Carta of the rights of victims. One of the significant declarations made was in relation to access to justice for the victim of an offence through the justice delivery mechanisms, both formal and informal. In the Declaration it was stated as follows:
"4. Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.
5. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.
6. The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:
(a) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information;
(b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system;
(c) Providing proper assistance to victims throughout the legal process;
(d) Taking measures to minimise inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;
(e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.
7. Informal mechanisms for the resolution of disputes, including mediation, arbitration and Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 15/49 customary justice or indigenous practices, should be utilised, where appropriate, to facilitate conciliation and redress for victims."
74. Putting the Declaration to practice, it is quite obvious that the victim of an offence is entitled to a variety of rights. Access to mechanisms of justice and redress through formal procedures as provided for in national legislation, must include the right to file an appeal against an order of acquittal in a case such as the one that we are presently concerned with. Considered in this light, there is no doubt that the proviso to Section 372 CrPC must be given life, to benefit the victim of an offence.
75. Under the circumstances, on the basis of the plain language of the law and also as interpreted by several High Courts and in addition the resolution of the General Assembly of the United Nations, it is quite clear to us that a victim as defined in Section 2(wa) CrPC would be entitled to file an appeal before the Court to which an appeal ordinarily lies against the order of conviction. It must follow from this that the appeal filed by Kodagali before the High Court was maintainable and ought to have been considered on its own merits."
21. The Hon'ble Supreme Court traced the legislative history behind incorporation of proviso to Section 372 CrPC. It has been found that there were at least four reports which dealt with the rights of victims of the crime and remedies available to them. The first report is the 154 th Report of Law Commission of India of August 1996. The second report is the March 2003 Report of the Committee on Reforms of Criminal Justice System, commonly known as the Report of Justice Malimath Committee. This report recommended that the victim or his representative who is a party to the trial should have a right to Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 16/49 prefer an appeal against any adverse order passed by the trial court. The third report is the July 2007 Report of the Committee on the Draft National Policy on Criminal Justice also known as the Professor Madhava Menon Committee. This Committee suggested that victims be impleaded in the trial proceedings. Thus, the victim's right to participation in course of trial and a right to file an appeal against an adverse order, particularly an order of acquittal, would flow from the report of this Committee. The fourth report is the 221 st Report of the Law Commission of India submitted in April, 2009. The Law Commission recommended that as the law stands, an aggrieved person cannot file an appeal against an order of acquittal. However, a revision petition can be filed. The powers of a revisional courts are limited and the process involved is cumbersome and it also involves wastage of money and time. It was, therefore, recommended by the Law Commission that against an order of acquittal passed by a Magistrate, a victim should be entitled to file an appeal before the revisional court. It was also recommended that in the complaint cases an appeal should be provided in the Sessions Court instead of the High Court. In all such cases, the aggrieved person or the complainant should have the right to prefer an appeal, though with the leave Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 17/49 of the appellate court. In view of all these reports, Section 372 CrPC was amended on 30.12.2009 with effect from 31.12.2009.
22. In Mallikarjun Kodagali (supra), the Hon'ble Supreme Court was also considering as to whether a victim can file an appeal in the High Court without seeking leave to appeal in terms of Section 378 (3) CrPC. In this regard, the majority view led by Hon'ble Mr. Justice Madan B. Lokur (as his Lordship then was) held that there was no need to seek leave to appeal in terms of Section 378 (3) CrPC. Hon'ble Mr. Justice Deepak Gupta partly concurred with the views expressed by the majority but recorded his inability to agree with the majority view that a victim can file an appeal in the High Court without seeking leave to appeal in terms of Section 378 (3) CrPC. Relying upon the judgment of the Hon'ble Supreme Court in the case of Satya Pal Singh vs. State of Madhya Pradesh and Ors. reported in (2015) 15 SCC 613, Hon'ble Mr. Justice Deepak Gupta, observed inter alia in paragraph '86' to '90' of the judgment as under:-
"86. Dealing with the issue, as to whether a victim should seek leave to appeal, one must first understand the concept behind introducing the concept of leave to appeal, especially when the appeals are filed in the High Courts. The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial court. Probably, for this reason, the lawmakers Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 18/49 felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. Therefore, the High Court would at the initial stage of deciding whether the leave is to be granted or not go into the merits of the case. Only if arguable points are involved, the High Court normally grants leave to appeal. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court.
87. At this stage, it would also be pertinent to mention that under Section 378 CrPC an appeal against the order of acquittal passed by a Magistrate in respect of cognizable and non- bailable offences lies to the Sessions Court and no leave to appeal is required. From the Court of Magistrate it is only appeals in respect of offences which are non-cognizable and bailable i.e. less serious offences which would lie to the High Court. In such cases, leave to appeal is a prerequisite. This was done with a view to ensure that the persons who had faced trial for relatively lesser offences should not have to bear the expenses of an appeal in the High Court. The other appeals which lie to the High Court are appeals from the Court of Sessions. These are serious criminal matters and relate to much graver offences. Here the concept of leave to appeal was probably introduced because these cases are decided by relatively Senior Judges i.e. Sessions Judges. The legislature felt that in such cases also the appeals against acquittals must be scrutinised with greater care.
88. As pointed out above, even a complainant when he files an appeal against an order of acquittal in a case instituted upon a complaint is required to obtain special leave to appeal. It is true that the proviso to Section 372 CrPC does not indicate that a victim while filing an appeal in the High Court must file a petition for leave Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 19/49 to appeal before his appeal can be entertained.
89. I am of the considered view that though the proviso to Section 372 CrPC does give a right to the victim to file an appeal, this proviso cannot be read in isolation. It has to be given a meaning which fulfils the intention of the legislature. The proviso to Section 372 CrPC does not lay down the procedure as to how, in what manner, and within which time the appeal has to be filed. An appeal, being a creature of the statute, it is also necessary to prescribe the limitation and procedure for filing the appeal.
90. Adverting to sub-section (4) of Section 378 CrPC, if an order of acquittal is passed on a case instituted upon a complaint then the High Court before entertaining an appeal by the complainant must grant special leave to appeal. The expression "special leave to appeal" has no different meaning than the expression "leave to appeal" and it appears to me that the word "special" has been added only to distinguish "leave to appeal" sought by the complainant from the "leave to appeal" sought by the State. Thus, in a complaint case where the complainant has set the wheels of the Court in motion even if the complainant files the appeal he must obtain special leave to appeal. This again gives rise to an interesting question--Can the victim be placed on a higher pedestal than the complainant? More often than not, the victim and the complainant are likely to be one and the same person."
Relevant date for applicability of the proviso to Section 372 CrPC
23. An another issue which cropped up for adjudication in the case of Mallikarjun Kodagali (supra) was with respect to the relevant date for determining the applicability of proviso to Section 372 CrPC. With regard to the effective/relevant date for determining the applicability of the Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 20/49 proviso to Section 372 CrPC, the Hon'ble Supreme Court in the case of Mallikarjun Kodagali (supra) held in paragraph '65' as under:-
"65. An analysis of the decisions rendered by various High Courts indicates that the overwhelming view is that the date of the judgment and order passed by the trial court is the relevant date for determining the applicability of the proviso to Section 372 CrPC and if, as in the present case, the judgment and order is post 31-12- 2009 then the victim can prefer an appeal to the High Court."
Issue of Limitation
24. It would, however, appear that in Mallikarjun Kodagali (supra), the Hon'ble Supreme Court was not considering the issue of limitation in filing of an appeal against acquittal by a victim under proviso to Section 372 CrPC.
25. A Division Bench of the Hon'ble Patna High Court in the case of Raghunath Yadav (supra) while dealing with an office objection regarding limitation in filing appeal by the informant under proviso to Section 372 CrPC held that the period of limitation for filing an appeal against acquittal under Section 378 CrPC is 90 days and it will be presumed that till date no other period of limitation has been provided for filing an appeal under Section 372 by the victim, the same period of limitation will be applicable which is provided under Article 114 of the Limitation Act for filing an appeal under Section 378 Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 21/49 CrPC. The Division Bench judgment of Patna High Court came on 04.08.2010.
26. Thereafter, a Full Bench of the Hon'ble Gujarat High Court considered the scope of appeal by victim as provided under Section 372 proviso and whether victim filing an appeal under Section 372 proviso is required to take leave of the court. In the case of Bhavuben Dineshbhai Makwana vs. State of Gujarat and Others reported in 2012 SCC OnLine Guj 5764 : (2013) 54 (2) GLR 1415 (FB), the Full Bench of the Hon'ble Gujarat High Court held that appeal by victim is maintainable and if the victim also happens to be the complainant and the appeal is against acquittal, he is required to take leave as provided in Section 378 of the CrPC but if he is not the complainant, he is not required to apply for or obtain any leave. For the appeal against inadequacy of compensation or punishment for a lesser offence, no leave is necessary at the instance of a victim, whether he is the complainant or not. However, the distinction made by the Hon'ble Gujarat High Court between the 'victim' and the 'complainant' has not been approved by the Hon'ble Supreme Court in the case of Mallikarjun Kodagali (supra). In paragraph '35' of its judgment, the Hon'ble Supreme Court held that the Gujarat Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 22/49 High Court made an artificial and unnecessary distinction between a victim as a victim and a victim as a complainant in respect of filing an appeal against an order of acquittal. The proviso to Section 372 CrPC does not introduce or incorporate any such distinction.
27. The Hon'ble Full Bench of Gujarat High Court held that a period of 90 days would be a reasonable period for the victim to file an appeal as the said period is the longest period of limitation for filing of an appeal prescribed by the legislatures.
28. Then came the judgment of the Full Bench of the Hon'ble Punjab and Haryana High Court in the case of M/s. Tata Steel (supra). In this case, the Hon'ble Full Bench specifically considered under issue no. (G) as to what would be the period of limitation for a victim to prefer an appeal under proviso to Section 372 CrPC. The Full Bench took note of the Division Bench judgment of Patna High Court in Raghunath Yadav (supra) and the Full Bench judgment of the Hon'ble Gujarat High Court in Bhavuben Dineshbhai Makwana (supra). The Hon'ble Full Bench further referred the judgment of the Hon'ble Delhi High Court in Kareemul Hajazi vs. State of NCT of Delhi & Ors. reported in 2011 (2) AD (Delhi) 210 Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 23/49 wherein the Hon'ble Delhi High Court thought differently and held that "in the absence of prescription of the limitation period, the statutory authority must exercise its jurisdiction within a reasonable period". The Delhi High Court 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 60 days as prescribed under Section 374 of the Code read with Article 115(b)(i) of the Limitation Act, the period of limitation for the appeal of a victim shall also be the same. The Court referred Article 114 of the Schedule to the Limitation Act, 1963 which prescribed period of limitation for State's appeal against order of acquittal and also Article 115(b) of the Schedule to the Limitation Act which prescribes the period of limitation for appeal against the orders other than that of acquittal. In paragraph '132' of its judgment, the Hon'ble Full Bench held as under:-
"(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 Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 24/49 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."
29. The reasonings and rationale provided by the Hon'ble Full Bench of Punjab and Haryana High Court to arrive on its conclusion may be found in paragraph '136' to '138', which we reproduce hereunder:-
"(136) The Supreme Court in Japani Sahoo v.
Chander Shekhar Mohanty(48), 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
48. (2007) 7 SCC 394 Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 25/49 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 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 lies 90 days Date of order
to the High Court appealed against
(ii) Where appeal lies 60 days Date of order to any other Court appealed 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."
30. It is worth mentioning that in Mallikarjun Kodagali (supra), the Hon'ble Supreme Court has been pleased Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 26/49 to confine its consideration only with respect to the two issues, as discussed in paragraph '42' of the judgment. The Hon'ble Supreme Court has not gone into the issue of limitation as discussed in the Full Bench judgment of Punjab and Haryana High Court.
Judgment of Division Bench in Parmeshwar Mandal
31. In the aforementioned background, when an another Hon'ble Division Bench of the Patna High Court was considering the case of Parmeshwar Mandal (supra), on the question of limitation, the Hon'ble Division Bench of this Court held that the Full Bench of Punjab and Haryana High Court prescribed limitation by a judicial fiat, which has not been read into the provisions of the Code itself or in the Limitation Act, 1963. It has been further observed that the judgment of the Punjab and Haryana High Court operates only within the territorial jurisdiction of the Punjab and Haryana High Court and is not applicable beyond that.
32. The Division Bench of this Court further relied upon a Constitution Bench judgment of the Hon'ble Apex Court in the case of Dadi Jagannadham (supra) which has enunciated the principles to be followed by the courts with regard to interpretation of statute. Having discussed the Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 27/49 principles enunciated by the Hon'ble Supreme Court, the Division Bench of this Court held that the answer to the question by the Full Bench of Punjab and Haryana High Court and the observation of a Division Bench of this Court in the case of Raghunath Yadav (supra), which has been referred to by the said Full Bench, are per incuriam the settled principle as emanating from the observations of the Constitution Bench. For a better appreciation of what have been observed by the Division Bench of this Court in the case of Parmeshwar Mandal (supra), we reproduce paragraph '47' and '48' of the judgment hereunder for a ready reference:-
"47. 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 the Limitation 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 Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 28/49 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 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 v. Jammulu Ramulu [(2001) 7 SCC 71] has enunciated the principles to be followed by the courts in this regard, in the following manner : -
"13. We have considered the submissions made by the parties. The settled principles of interpretation are that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The Court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly if there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The Court cannot aid the legislature's defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there."
48. In the circumstances, the answer to the question by the Full Bench of Punjab and Haryana High Court, and the observation of a Division Bench of this Court in the case of Raghunath Yadav v. State of Bihar [2010 (4) PLJR 351], made on an office objection, and referred to by the said Full Bench, are per incuriam the settled principle, as emanating from the observations of the said Constitution Bench reproduced above. Even the liberal view, flowing from the observations of Lord Denning, L.J. [in (1949) 2 All ER 155] ... A judge must not alter the material of which the Act is woven, but he can and should Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 29/49 iron out the creases ... does not justify the said approach of the Full Bench. Hence, in the opinion of this Court, it is best to leave it to the prudence of the Court concerned to determine, in the facts and circumstances of a particular case, as to whether the appeal of the victim was entertainable, or not, on the ground of absence of a bonafide explanation for delay."
33. In the concluding part of its judgment in Parmeshwar Mandal (supra) the Hon'ble Division Bench held in paragraph '49' as under:-
"49. In the circumstances, after consideration of the entire matter, conclusions of this Court are as follows : -
(1) - By virtue of the Proviso, as inserted in section 372 of the Code of Criminal Procedure, 1973 by the Criminal Procedure Code (Amendment) Act, 2008 (Act 5 of 2009), a 'victim' has been put at a higher pedestal, than a prosecuting agency or a complainant, in the matter of preferring an appeal against any order of a criminal court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. This Proviso gives an unqualified 'right' to a 'victim' to prefer an appeal in its terms, as against the enabling sections 377 and 378, which only give liberty to a District Magistrate, the State Government, the Central Government and the complainant, as the case may be, to prefer an appeal against an order of sentence on the ground of its inadequacy or against an order of acquittal.
(2) - The right of a 'victim' to prefer an appeal in terms of the said proviso to Section 372 is an unqualified right and no 'leave to appeal' or 'special leave' is required to be obtained by him/her for the purpose, as required by the State or the complainant for maintaining an appeal in terms of Section 378 of the Code.
Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 30/49 (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.
(4) - However, in view of the legal presumption of innocence in favour of the accused, the yardsticks laid down by judicial pronouncements for consideration of appeals under Section 378 shall be applicable in case of an appeal under he said proviso to Section 372. (5) - The expression - long after the present incident - used under brackets by the Apex Court in paragraph 5 of its judgment in case of National Commission for Women v. State of Delhi [AIR 2011 SC (sup.) 392] : [(2010) 12 SCC 599] is only an obiter dictum of the Court and it does not lay down a law in terms of Article 141 of the Constitution of India.
(6) - Proviso to section 372 of the Code came into operation w.e.f. December 31, 2009. Hence, in absence of any legislative intent to the contrary, in all cases, in which a judgment and order has been passed by a criminal court on and after that date, a right accrues to the 'victim' to prefer appeal in terms of the said Proviso, irrespective of the date of occurrence and any subsequent event in the case prior to such judgment and order. (7) - If the subject of the crime is dead or incapacitated to the extent or suffers from such a disability that he/she cannot take steps Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 31/49 to exercise his/her right under the Proviso to Section 372, any of his/her next of kin, who can establish before the Court, to its satisfaction, that the crime had caused 'loss' or 'injury' to him/her also, besides to the subject of the crime, can maintain an appeal under the said proviso.
(8) - The 'loss' and 'injury' to an appellant before it (if he/she is other than the de-facto sufferer) has to be assessed by the Court in each and every case in the backdrop of definition of 'injury' provided in section 44 of the Indian Penal Code, and not beyond it, before entertaining the appeal, in terms of the proviso to Section 372 on merits.
(9) - If any person prefers an appeal in terms of the proviso to Section 372, solely on the basis of his status as a 'guardian' or a 'legal heir', he/she will have to establish the legal basis of his/her such status in reference to the law, as may be applicable in the matter, with all its limitations and qualifications, or otherwise also (e.g. judicial order).
(10) - Once an appeal preferred in terms of the said proviso to Section 372, against an order is entertained by an appellate court on merits, to whatever result, no fresh/second appeal by any party/person can/should be entertained against the same order.
(11) - No distinction can be made between a case instituted by a complainant/informant with the police and by a complainant before the Court directly, and an absolute right of a victim (a complainant or not) to file an appeal under Proviso to Section 372 does not get fettered by any other section of the Code contained in Chapter XXIX, which includes Section 378."
(underline is mine)
34. On going through the judgment of the Division Bench in case of Parmeshwar Mandal (supra), we respectfully differ with the views expressed therein as regards the earlier Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 32/49 judgment of this Court of a Bench of co-equal strength rendered in the case of Raghunath Yadav and also the views expressed with regard to the answer to question (G) by the Hon'ble Full Bench of Punjab and Haryana High Court.
35. In Parmeshwar Mandal (supra), the Hon'ble Division Bench has relied upon a judgment of the Hon'ble Constitution Bench of the Apex Court in case of Dadi Jagannadham (supra) rendered in the year 2001. This is not a judgment dealing with the issue of limitation in filing of an appeal by a victim under proviso to Section 372 CrPC. As has been found hereinabove, the proviso was inserted into Section 372 CrPC only with effect from 31.12.2009. Paragraph '13' of the judgment of the Constitution Bench has been quoted by the Division Bench of this Court to demonstrate that there is a principle of interpretation that the court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The Court, as far as possible, adopt a construction which will carry out the obvious intention of the legislature.
36. The Division Bench in Parmeshwar Mandal has not noticed that the Hon'ble Full Bench of Punjab and Haryana High Court, besides taking note of the scheme of Section 378 Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 33/49 CrPC and Article 114(a) and 115(b) of the Limitation Act, further went into legislative intentment behind Article 114 and 115(b) of the Schedule to the Limitation Act in prescribing the period of limitation. In such circumstances, the Division Bench in case of Parmeshwar Mandal (supra) could not have held that the answer to the question by the Full Bench of Punjab and Haryana High Court is per incuriam the settled principle. Similarly, the Division Bench in Parmeshwar Mandal (supra) being a Bench of co-equal strength, could not have rendered the Division Bench judgment in case of Raghunath Yadav (supra) per incuriam only on the ground that the principle of law discussed by the Hon'ble Supreme Court in case of Dadi Jagannadham (supra) was not applied by the earlier Division Bench.
37. At this stage, we would briefly take note of the Constitution Bench judgment of the Hon'ble Supreme Court in the case of Dadi Jagannadham (supra). In the said case, Order 21, Rule 89 and 92(2) of the Code of Civil Procedure (in short 'CPC') and Article 127 of the Limitation Act were under consideration. Order 21, Rule 89 provided for a remedy for setting aside a sale on deposit. Order 21, Rule 92(2) as existed at the relevant time read as under:-
Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 34/49 "92(2) Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by the rule is made within thirty days from the date of sale, 1 [or in cases where the amount deposited under rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale]:
Provided that no order shall be made unless notice of the application has been given to all persons affected thereby."
38. In 1976, the Code of Civil Procedure (Amendment) Act amended Article 127 of the Limitation Act. Order 21 Rule 89 CPC prescribed no period either for making the application or for making the deposit as required under Rule 89 CPC. The Limitation Act prescribed no period for making a deposit but Article 127 of the Limitation Act prescribed a period within which an application to set aside a sale should be made. Prior to 1976 amendment, it was 30 days, then it was enhanced to 60 days. The Hon'ble Supreme Court in case of Dadi Jagannadham (supra) took a view that unless there was a period prescribed for making a deposit, the time to make the deposit would be the same as that for making the application. The Hon'ble Supreme Court opined "... this is so because if an application is made beyond the period of limitation, then a
1. Subs. by Act 104 of 1976.
Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 35/49 deposit made at that time or after that period would be of no use." The Hon'ble Supreme Court held that Order 21 Rule 92(2) CPC is only taking away discretion of the court to refuse to set aside the sale where an application is made and allowed and the deposit has been made within 30 days from the date of sale. It was held that Order 21 Rule 92(2) CPC was not prescribing any period of a limitation within which a deposit has to be made. In the kind of question arising for consideration before the Hon'ble Supreme Court, the Hon'ble Supreme Court held as under:-
".....Thus, an application can be made within the period prescribed under Article 127 of the Limitation Act. As an application can be made within 60 days and, as stated above, no period for making a deposit is prescribed under Order 21 Rule 92(2) the deposit can also be made within 60 days....".
The Hon'ble Supreme Court held that the view expressed in P.K. Unni vs. Nirmala Industries reported in (1990) 2 SCC 378 that Order 21 Rule 92(2) CPC prescribes a period of limitation for making a deposit is not correct.
39. We, therefore, find that in Dadi Jagannadham (supra), the Hon'ble Supreme Court has held the P.K. Unni (supra) case judgment not correct for the reason that in the said case, the Hon'ble Supreme Court held that the limitation period for making deposit in an application for setting aside the sale under Order 21 Rule 89 is 30 days from the date of sale as Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 36/49 prescribed under Order 21 Rule 92(2). The Constitution Bench, however, found that Order 21 Rule 92 only shows that the court could either dismiss an application or allow an application. It was held that Order 21, Rule 92(2) CPC was not prescribing any period of limitation. It is in this context that the Hon'ble Supreme Court made observations in paragraph '13' of its judgment in Dadi Jagannadham (supra) which we have quoted hereinabove. In the case of P.K. Unni, the Court had added something to the words to statute and read words into it which were not there, therefore, the Hon'ble Constitution Bench did not approve the judgment in P.K. Unni case. It is paragraph '14' of the said judgment in Dadi Jagannadham (supra) which is required to be taken note of. We reproduce the same hereunder for a ready reference:-
"14. If the rationale in P.K. Unni case3 is accepted, there is a manifest contradiction. As seen, the object and intention in amending Article 127 of the Limitation Act was to extend time to make deposit. This will not have been achieved if the rationale in P.K. Unni case3 is accepted. If Order 21 Rule 92(2) CPC and Article 127 of the Limitation Act operate in different fields then it would imply that the legislature had undergone a useless formality in extending the period of limitation to file an application. Order 21 Rule 89 CPC provides that an application to set aside sale can be made if the amounts mentioned therein are deposited. Thus the deposit has to precede or be made at the same time as the application. There would thus be no purpose in permitting filing of an application after 30 days if the deposit had to be made within 30 days and the legislature would have undertaken a useless formality."
3. (1990) 2 SCC 378 Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 37/49
40. A complete reading of the judgment in Dadi Jagannadham (supra) would show that even as the Hon'ble Supreme Court held that Order 21, Rule 92(2) was not prescribing a period of limitation for deposit as required under Order 21, Rule 89 but finding that Article 127 of the Limitation Act was providing 60 days for filing an application under Order 21, Rule 89, the Hon'ble Supreme Court held that same period of limitation will be there for purpose of deposit. To this Court it appears that the ratio of the judgment in Dadi Jagannadham helps the judgment in Raghunath Yadav and M/s Tata Steel.
41. The Hon'ble Full Bench of Punjab and Haryana High Court has, in our considered opinion, followed the principles of interpretation of statute flowing from the judgment of the Hon'ble Supreme Court in Dadi Jagannadham (supra) case. The courts are unanimous that the right to appeal against acquittal granted to a victim under proviso to Section 372 is an absolute right free from any fetter. The Full Bench of Gujarat High Court as well as the Punjab and Haryana High Court are on the same page with respect to the period of limitation. No specific period of limitation for filing an appeal against acquittal by a victim under proviso to Section 372 CrPC has been provided. In such circumstance, the legislative intentment is Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 38/49 required to be looked into. The Full Bench of Punjab and Haryana High Court has discussed the various provisions under Chapter XXIX CrPC and Article 114 and 115 of the Schedule to the Limitation Act. It has been held in paragraph '132' of the judgment of Punjab and Haryana High Court that "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." In paragraph '135' of its judgment, the Hon'ble Punjab and Haryana High Court has recorded as under:-
"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 to Section 372. It has also not carried out any corresponding amendment in the provisions of the Limitation 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."
42. In the case of Sharda Devi vs. State of Bihar reported in AIR 2003 SC 942, the Hon'ble Supreme Court was considering Section 18 and 30 of the Land Acquisition Act (1 of 1894). It was held that Section 18 and 30 operate in independent fields and the provisions do not overlap. Differences between reference under Section 18 and reference under Section 30 by reference to locus, disputes were referable, the nature of power Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 39/49 and limitation have been discussed by the Hon'ble Supreme Court in paragraph '27' to '30' of the judgment. It was held in paragraph '29' as under:-
" By reference to limitation
29. Under Section 18 the written application requiring the matter to be referred by the Collector for the determination of the court shall be filed within six weeks from the date of the Collector's award if the person making it was present or represented before the Collector at the time when he made his award or within six weeks of the notice from the Collector under Section 12(2) or within six months from the date of the Collector's award, whichever period shall first expire. There is no such limitation prescribed under Section 30 of the Act. The Collector may at any time, not bound by the period of limitation, exercise his power to make the reference. The expression "the person present or represented" before the Collector at the time when he made his award would include within its meaning a person who shall be deemed to be present or represented before the Collector at the time when the award is made. No one can extend the period of limitation by taking advantage of his own wrong. Though no limitation is provided for making a reference under Section 30 of the Act, needless to say, where no period of limitation for exercise of any statutory power is prescribed, the power can nevertheless be exercised only within a reasonable period; what is a reasonable period in a given case shall depend on the facts and circumstances of each case."
43. We are of the opinion that though the victim has been conferred with an absolute right to prefer an appeal against the judgment of acquittal and there is no fetter to that right to appeal, by no stretch of imagination, it can be allowed to be Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 40/49 contended that the period of limitation for availing the remedy would be beyond the maximum period i.e. 90 days provided under Article 114(a) and Article 115(b) of the Schedule to the Limitation Act. Even otherwise, a period of 90 days from the date of knowledge of the judgment of acquittal would be a reasonable period. If the victim prefers an appeal against the judgment of acquittal beyond a period of 90 days from the date of knowledge of the judgment under appeal, it is always open to the victim to file an application seeking condonation of delay. The victim may satisfy the Court with the reasons which should be cogent and sufficient for condonation of delay.
44. The Division Bench in Parmeshwar Mandal has instead of taking a concrete view as to what would be the period of limitation for filing an appeal against acquittal by a victim, went on to say that the Court has to determine whether the appeal was entertainable or not on the ground of bonafide explanation for delay by the appellant.
45. This Court finds that Parmeshwar Mandal talks of bonafide explanation for delay as a ground of entertainability but unless a period of limitation is held governing an appeal against acquittal by a victim, how the victim would be able to explain the delay. The word 'delay' presupposes that there was a Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 41/49 deadline within which the remedy was required to be applied for. Any period beyond the deadline would only be required to be explained.
46. At this stage, we take note of the observations of the Hon'ble Supreme Court in case of Japani Sahoo vs. Chandra Sekhar Mohanty reported in (2007) 7 SCC 394 in paragraph '16' and '17' of its judgment as under:-
"16. At the same time, however, ground reality also cannot be ignored. Mere delay may not bar the right of the "Crown" in prosecuting "criminals". But it also cannot be overlooked that no person can be kept under continuous apprehension that he can be prosecuted at "any time" for "any crime" irrespective of the nature or seriousness of the offence. "People will have no peace of mind if there is no period of limitation even for petty offences".
17. The Law Commission considered the question in the light of legal systems in other countries and favoured to prescribe period of limitation for initiating criminal proceedings of certain offences."
47. We can, therefore, safely say that by saying that no period of limitation may be kept for filing an appeal against judgment of acquittal by a victim, we would only be overlooking the another aspect that an accused who has been acquitted of the charges and has earned a double presumption of innocence cannot be kept in continuous apprehension that he can be prosecuted at any time for any crime. In our opinion, the judgment of Hon'ble Full Bench of Punjab and Haryana High Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 42/49 Court in M/s Tata Steel and that of this Court in Raghunath Yadav are laying down the correct statement of law.
Per incuriam judgment
48. The Hon'ble Division Bench in Parmeshwar Mandal (supra) has held the Full Bench judgment of the Hon'ble Punjab and Haryana High Court and Division Bench judgment of this Court in case of Raghunath Yadav (supra) per incuriam on the ground that they have not applied the principles of interpretation of statute as enunciated by the Constitution Bench of the Hon'ble Supreme Court in the case of Dadi Jagannadham (supra). We have already shown hereinabove that the Hon'ble Full Bench of Punjab and Haryana High Court has in fact, applied the said principle to reach at a conclusion that a period of 90 days from the date of knowledge would be the period of limitation. A question arises as to whether a judgment rendered by a bench of co-equal strength in case of Raghunath Yadav (supra) may be held per incuriam for the reasons stated in the judgment in case of Parmeshwar Mandal (supra).
49. What is a per incuriam decision has been considered by the Hon'ble Supreme Court in the case of State of Bihar vs Kalika Kuer @ Kalika Singh & Ors reported in Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 43/49 (2003) 5 SCC 448. In the said case, the Hon'ble Full Bench of Patna High Court held that another Full Bench decision in case of Ramkrit Singh (supra) was per incuriam. The Hon'ble Supreme Court held that Ramkrit Singh (supra) was held per incuriam for the reason that it did not consider the question as to whether the consolidation authorities are courts of limited jurisdiction or not. The Hon'ble Supreme Court held that "... Whatever has been held or observed in the case of Ramkrit Singh (supra) may not appear to be correct or may seem to be against the provisions of the Act but that would not be a valid ground to hold that the earlier judgment was rendered per incuriam or that decision would not be binding on the Bench of a coordinate jurisdiction..." The Hon'ble Supreme Court examined the case laws on the subject and recorded in paragraph '5' to '9' as under:-
"5. At this juncture we may examine as to in what circumstances a decision can be considered to have been rendered per incuriam. In Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297-98, para 578) we find it observed about per incuriam as follows:
"A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow2; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a
2. Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at
300. In Huddersfield Police Authority v. Watson, 1947 KB 842 : (1947) 2 All ER 193. Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 44/49 statute or rule having statutory force3. A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties4, or because the court had not the benefit of the best argument5, and, as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority6. Even if a decision of the Court of Appeal has misinterpreted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House of Lords to rectify the mistake."7 Lord Godard, C.J. in Huddersfield Police Authorities case2 observed that where a case or statute had not been brought to the court's attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam."
6. In a decision of this Court reported in Govt. of A.P. v. B. Satyanarayana Rao8 it has been held as follows: (SCC pp. 264-65, para 8) "The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue. ...We, therefore, find that the rule of per incuriam cannot be invoked in the present case. Moreover, a case
3. Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300. see also Lancaster Motor Co. (London) Ltd. v. Bremith Ltd., (1941) 1 KB 675 : (1941) 2 All ER 11. For a Divisional Court decision disregarded by that court as being per incuriam, see Nicholas v. Penny, (1950) 2 KB 466 : (1950) 2 All ER 89.
4. Morelle Ltd. v. Wakeling, (1955) 2 QB 379 : (1955) 1 All ER 708 (CA) 5 .Bryers v. Canadian Pacific Steamships Ltd., (1957) 1 QB 134 : (1956) 3 All ER 560 (CA) Per Singleton, L.J., affirmed in Canadian Pacific Steamships Ltd. v. Bryers1958 AC 485 : (1957) 3 All ER 572.
6. A. and J. Mucklow Ltd. v. IRC, 1954 Ch 615 : (1954) 2 All ER 508 (CA), Morelle Ltd. v. Wakeling, (1955) 2 QB 379 : (1955) 1 All ER 708 (CA), see also Bonsor v. Musicians' Union, 1954 Ch 479 : (1954) 1 All ER 822 (CA), where the per incuriam contention was rejected and, on appeal to the House of Lords although the House overruled the case which bound the Court of Appeal, the House agreed that that court had been bound by it; see Bonsor v. Musicians' Union, 1956 AC 104 : (1955) 3 All ER 518 (HL).
7. Williams v. Glasbrook Bros. Ltd., (1947) 2 All ER 884 (CA)
8. (2000) 4 SCC 262 : 2000 SCC (L&S) 486 Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 45/49 cannot be referred to a larger Bench on mere asking of a party. A decision by two Judges has a binding effect on another coordinate Bench of two Judges, unless it is demonstrated that the said decision by any subsequent change in law or decision ceases to laying down a correct law."
7.According to the above decision, a decision of the coordinate Bench may be said to have ceased to be good law only if it is shown that it is due to any subsequent change in law.
8. In State of U.P. v. Synthetics and Chemicals Ltd.9 this Court observed: (SCC pp. 162-63, para
40) "40. 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplane Co. Ltd.)2 Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law."
9. In Fuerst Day Lawson Ltd. v. Jindal Exports Ltd.10 this Court observed: (SCC pp. 367 & 368, paras 19 & 23) A prior decision of the Supreme Court on identical facts and law binds the Court on the same points of law in a later case. In exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, the principle of per incuriam may apply. Unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of judgment 'per incuriam'. It has to be shown that some part of the decision was based on a reasoning which was demonstrably wrong, for applying the principle of per incuriam.
9. (1991) 4 SCC 139
10. (2001) 6 SCC 356 Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 46/49
50. The Hon'ble Division Bench dealing with Parmeshwar Mandal (supra) has not pointed out that the judgment of the Hon'ble Full Bench of Punjab and Haryana High Court in M/s Tata Steel and the Division Bench judgment of this Court in Raghunath Yadav have been passed in ignorance of any provision of the statute or judicial authority of a binding nature. What would be a judicial authority of binding nature may also be found from the quotations taken from the judgment in the case of Fuerst Day Lawson Ltd. It is evident that the judgment in the case of Dadi Jagannadham (supra) is not a decision of the Supreme Court on identical facts and law. The ratio of the said judgment rather supports the line of interpretation done in these two judgments. We have already shown the same hereinabove.
51. In the case of State Through Central Bureau of Investigation vs. Hemendhra Reddy and Anr. reported in (2023) 16 SCC 779, the Hon'ble Supreme Court has taken note of the disturbing part of the litigation. In paragraph '89' of its judgment, the Hon'ble Supreme Court has observed as under:-
"89. We would like to extend a word of caution over here. While it is open to a learned Judge to differ with a view of a Co-ordinate Bench the sequitur is to make a reference to a larger Bench on papers being placed before the learned Chief Justice. The learned Judge cannot simply say "with due respect, I do not agree to the ratio..." or Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 47/49 "the decision is per incuriam as a binding judgment of the Supreme Court has not been considered...." and proceed to take a contrary view as done in the impugned order. Such an approach would result in conflicting opinions of the Co-ordinate Benches, resulting in judicial chaos and is, thus, improper. This is something atrocious and unacceptable."
52. Recently in the case of Confederation of Real Estate Developers of India (CREDAI) vs. Vanashakti and Anr. reported in 2025 SCC OnLine SC 2474, once again the Hon'ble Supreme Court has recorded with distress that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. We reproduce paragraph '81' of the judgment in Vanashakti (supra) hereinabove:-
"81. This Court in the case of Official Liquidator v. Dayanand 33 has observed thus:
"89. It is interesting to note that in Coir Board v. Indira Devi P.S. [(1998) 3 SCC 259 : 1998 SCC (L&S) 806], a two-Judge Bench doubted the correctness of the seven-Judge Bench judgment in Bangalore Water Supply & Sewerage Board v. A. Rajappa [(1978) 2 SCC 213 :1978 SCC (L&S) 215] and directed the matter to be placed before Hon'ble the Chief Justice of India for constituting a larger Bench. However, a three- Judge Bench headed by Dr. A.S. Anand, C.J., refused to entertain the reference and observed that the two-Judge Bench is bound by the judgment of the larger Bench--Coir Board v. Indira Devai P.S. [(2000) 1 SCC 224 : 2000 SCC (L&S) 120]
90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases
33. (2008) 10 SCC 1 Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 48/49 involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed.
91. We may add that in our constitutional set-up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law."
Patna High Court CR. APP (DB) No.643 of 2025(5) dt.16-12-2025 49/49
53. In our considered opinion, only a larger bench could have prevailed upon the views of the Hon'ble Division Bench in case of Raghunath Yadav (supra). Parmeshwar Mandal (supra) was required to be referred to a larger Bench if at all the correctness of the decision of a Bench of equal strength in case of Raghunath Yadav (supra) was being doubted.
54. In the light of the discussions made hereinabove, we are of the opinion that in view of the divergent views of the Hon'ble Division Bench in case of Raghunath Yadav (supra) and Parmeshwar Mandal (supra), this issue is to be referred to a larger Bench. We, accordingly do so.
55. Let the records be placed before the Hon'ble Chief Justice for orders in the Administrative side.
(Rajeev Ranjan Prasad, J) (Sourendra Pandey, J) Rishi/-
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