Rajasthan High Court - Jaipur
Smt Sunita vs State Of Rajasthan on 21 March, 2012
Author: Dalip Singh
Bench: Dalip Singh
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER D.B.Criminal Appeal No.938/2011. Smt.Sunita @ Santoshi. VERSUS State of Raj. & Ors. 21.03.2012 HON'BLE MR.JUSTICE DALIP SINGH HON'BLE MR.JUSTICE S.S.KOTHARI Mr.M.Iqbal Khan, for the appellant. Mr.J.R.Bijarniya, Public Prosecutor.
***** This appeal has come up from defect side as it is pointed out that there is a delay of 889 days in filing the appeal.
Learned counsel submitted that initially the petitioner had preferred D.B.Criminal Revision Petition against the impugned judgment of acquittal dated 23.10.2008 passed by the learned Additional Sessions Judge (Fast Track), Hindaun City, District Karauli but subsquently, in view of the proviso to Section 372 Cr.P.C., the petitioner sought leave of the court to withdraw the revision petition (D.B.Criminal Revision Petition No.460/2011) and also sought leave to prefer the present appeal. Accordingly, the revision petition was permitted to be withdrawn vide order dated 02.05.2011.
The present appeal, as stated above, has been preferred against the judgment dated 23.10.2008 passed by the learned trial court whereas the amendment to Section 372 Cr.P.C. by which proviso has been introduced to the aforesaid provision enabling the victim to prefer an appeal was brought into effect vide amending Act No.5 of 2009 w.e.f. 31.12.2009 i.e. much after the judgment was delivered by the learned trial court on 23.10.2008. The amending Act No.5 of 2009 does not provide that the aforesaid proviso has any retrospective operation.
In that view of the matter, the present appeal against the judgment dated 23.10.2008 cannot be maintained by virtue of the amendment to Section 372 Cr.P.C. by insertion of the proviso which has come into effect on 31.12.2009. We may also add that the Hon'ble Supreme Court in the case of National Commission for Women Vs. State of Delhi and Another reported in (2010) 12 SCC 599 in para 8 has observed in the aforesaid judgment which arose out of the judgment of the trial court dated 21.04.2008 and against which the appeal was preferred before the High Court which came to be decided by the High Court on 09.02.2009 i.e. before the amendment was brought into force on 31.12.2009 and the Hon'ble Supreme Court in para 8 of the report while dealing with the aforesaid provision has observed .....The proviso may not thus be applicable as it came in the year 2009 (long after the present incident)......
In that view of the matter since the amending Act No.5 of 2009 has not specifically provided for retrospective operation of the proviso to Section 372 Cr.P.C. and also taking into consideration the observations made by the Hon'ble Supreme Court in the case of National Commission for Women (supra), we are of the view that the present appeal against the impugned judgment dated 23.10.2008 cannot be maintained by the complainant (victim) as defined under Section 3 clause (wa) Cr.P.C.
Accordingly, we hold that this appeal is not maintainable. The appeal and the application under Section 5 of the Limitation Act accordingly stand disposed of. The Registry is directed to return the certified copy of the impugned judgment to the appellant after retaining a photostat copy of the same on record.
Learned counsel for the appellant prayed that since the appellant had on a misconception of the amendment sought leave of the court to withdraw the D.B.Criminal Revision Petition No.460/2011, the appellant may be permitted to move an application for revival of the same.
So far as the aforesaid prayer is concerned, it is open for the appellant to move the application for revival of the revision petition which shall be decided in accordance with law.
Accordingly, this appeal as well as the application under Section 5 of the Limitation Act, stand disposed of.
(S.S.KOTHARI),J. (DALIP SINGH),J. All corrections made in judgment/order have been incorporated in the judgment/order being emailed. Solanki DS, P.A.