Himachal Pradesh High Court
Reserved On: 27.12.2024 vs Puran Chand And Another on 10 January, 2025
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
2025:HHC:2288 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 1698 of 2024 Reserved on: 27.12.2024 Date of Decision : 10.01.2025 Keshavu Devi ...Petitioner.
Versus Puran Chand and another ...Respondents.
Coram Hon'ble Mr Justice Vivek Singh Thakur, Judge. Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the applicant : Mr. Suresh Singh Saini, Advocate. For the Respondents : Mr. Ashok Kumar Tyagi, Advocate, for respondent No.1.
Mr. Ramakant Sharma, Additional Advocate General, for respondent No.2-State.
Rakesh Kainthla, Judge The victim has filed the present appeal under proviso to Section 372 of Cr.P.C. The Registry has raised an objection that the appeal is barred by 01 year, 04 months and 03 days. The applicant had filed an application under Section 5 of the Limitation Act for condonation of delay in filing the appeal. This application was opposed on behalf of the respondents.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2. We have heard Mr. Suresh Singh Saini, learned Legal Aid Counsel for the applicant, Mr. Ashok Kumar Tyagi, learned counsel for respondent No.1 and Mr. Ramakant Sharma, learned Additional Advocate General, for respondent No.2-State.
3. Mr. Suresh Singh Saini, learned Legal Aid Counsel for the applicant submitted that the Registry has erred in reporting that the appeal is barred by limitation. No limitation period has been provided for an appeal filed by the victim under proviso to Section 372 of Cr.P.C. Such an appeal can be filed at any time. In the alternative, he submitted that if the appeal is held to be barred by limitation, the delay in filing the appeal be condoned.
4. Mr. Ashok Kumar Tyagi, learned counsel for respondent No.1/accused submitted that the appeal, by the victim, can be filed within a reasonable time and it cannot be said that the appeal is not governed by the law of limitation. A reasonable time would be 60/90 days as per the limitation governing the ordinary appeal.
5. Mr. Ramakant Sharma, learned Additional Advocate General for respondent No.2-State supported the submissions of Mr. Ashok Kumar Tyagi, learned counsel for respondent No.1/accused.
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6. We have given considerable thought to the submissions made at the bar and have gone through the records carefully.
7. The legislature introduced the proviso to Section 372 by way of an amendment to the Code of Criminal Procedure by Code of Criminal Procedure (Amendment Act, 2009) (Act no. 5 of 2009); however, no amendment was carried out in the Limitation Act for prescribing a limitation for such an appeal.
8. The question which falls for determination is whether the appeal filed by a victim under proviso of Section 372 of Cr.P.C.
(corresponding to Section 413 of Bhartiya Nagrik Suraksha Sanhita, 2023) is governed by limitation or not and if so what is the period of limitation.
9. The question regarding the applicability of the period of limitation to an appeal filed by the victim has enganged the attention of various High Courts.
10. A Full Bench of Delhi High Court held in Kareemul Hajazi v. State (NCT of Delhi), 2011 SCC OnLine Del 60 that the period of limitation of 60 days provided under Article 114(a) of the Limitation Act will apply to an appeal filed by the victim because this will be a reasonable period. It was observed:-
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"11. From the above discussion, it is clear that appeals have been provided for under Sections 374, 377 and 378 of the Code in respect of appeals against conviction, inadequacy of sentence and acquittals, respectively. Now, with the introduction of the proviso to Section 372, a victim has also been given the right of appeal in respect of an order of acquittal, a conviction for a lesser offence and for inadequacy of compensation. However, while specific periods of limitation have been prescribed for the earlier three kinds of appeals either in the Code itself or by virtue of the Limitation Act, 1963, there is no period of limitation prescribed for the filing of an appeal by a victim under the proviso to Section 372. Therefore, as is well-established, a reasonable period would have to be inferred from the statutory provisions. [See : State of Punjab and Ors. v. Bhatinda District Coop. Milk P. Union Ltd. : %2007 (11) SCC 363 para 17:"It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors" and Government of India v. Citedal Fine Pharmaceuticals, Madras and Ors : %1989 (3) SCC 483 para 6: "In the absence of any period of limitation it is settled that every authority is to exercise the power within a reasonable period. What would be reasonable period would depend upon the facts of each case."]
12. In the present case, we tend to agree with the submissions made by the learned counsel for the respondents 2 to 4 that the reasonable period of limitation for filing of an appeal by a victim ought to be regarded as 60 days from the date of order appealed from. We say this because under Section 374 read with Article 115(b)(i) of the Limitation Act, the convict's right of appeal to the High Court bears a limitation period of 60 days. Similarly, even the State's appeal with regard to inadequacy of sentence under Section 377 read with Article 115(b) of the Limitation Act in respect of an appeal to the High Court is required to be filed within 60 days. Furthermore, the application seeking special leave to appeal by the complainant under 5 2025:HHC:2288 Section 378(4) read with Section 378(5) has to be filed within 60 days in all cases where the complainant is not a public servant. Of course, the period of limitation where the complainant is a public servant is much longer, i.e., six months. Furthermore, the limitation for an appeal by the State Government or by the Central Government under Section 378(1) and (2) is 90 days as pointed out above. It is clearly discernible from the above that the period of limitation, which has been prescribed for public servants and/or the State Government and the Central Government is greater than the period of limitation, which has been prescribed in respect of convicts and complainants. Therefore, since the victim is in a similar position to that of a complainant and is a private individual, a lesser period of limitation than that provided to the State Government/ Central Government ought to be considered as reasonable. It is in this background that we accept the views of the learned counsel for the respondents 2 to 4 that the reasonable period of limitation for a victim's appeal should be 60 days from the date of the order appealed from."
11. It was held by a Full Bench of Punjab & Haryana High Court in Tata Steel Ltd. v. Atma Tube Products Ltd., 2013 SCC OnLine P&H 5834, that the victim can file an appeal before the High Court within 90 days and before any other court within sixty days. It was observed:-
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:--
(a) In case of acquittal--
(i) Where appeal lies to the High 90 days Date of order
Court appealed
against
(ii) Where appeal lies to any 60 days Date of order
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
6
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12. Allahabad High Court took a similar view in Mast Ram Tiwari v. State of U.P., 2018 SCC OnLine All 6589, wherein it was observed:
"30. Thus, we are satisfied that the limitation for preferring an appeal against the order of acquittal by the victim would be 90 days in all cases, other than the cases instituted upon complaint, and 60 days for any case instituted upon a complaint against the order of acquittal after the High Court grants special leave to appeal."
13. Gauhati High Court also took a similar view in Paye Mosing v. Naba Bora, 2015 SCC OnLine Gau 505, wherein it was held:-
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."7
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14. A Full Bench of Kerala High Court held in Sobhanakumari K. vs. Santhosh (23.10.2017 - KERHC) : MANU/ KE/ 2167/2017, that the victim can file an appeal under proviso to Section 372 of CrPC within a reasonable period. It was observed:-
"27. The reference is answered thus:
(i) Clause (b) of Article 115 of the Limitation Act ap-
plies to an appeal under the proviso to Section 372 of Cr.P.C by a victim against an order convicting the ac- cused for a lesser offence or against an order impos- ing inadequate compensation. If such an appeal lies only to the High Court, it shall be filed within 60 days from the date of the order appealed against. If it lies to the Court of Session, It shall be filed within 30 days from the date of the order appealed from.
(ii) No period of limitation is prescribed for an appeal by a victim under the said proviso from an order of acquittal. Article 114 of the Limitation Act does not apply to such an appeal. But the victim shall bring his appeal within a reasonable period of 90 days from the date of the order, whether it is to be filed in the High Court or in the Court of Session. If such appeal is filed beyond the reasonable period, the victim shall file an affidavit explaining why he could not file it within the reasonable period. The decisions in Yohannan's case (supra) and Vinod's case (supra) holding so hold the correct law.
15. A Division Bench of Calcutta High Court held in Chobban Mallick v. State of W. Ben., 2013 SCC OnLine Cal 13569, that the appeal under proviso to section 372 can be filed within 60 days. It was observed:-
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13. We are conscious of the provisions of Article 137 of the Limitation Act, 1963 which provides that in the matter of any application for which no time limit is provided, the period of limitation would be three years. In our opinion, the period of three years, if granted to the "Victim" would be highly discriminatory because in a complaint case, the time limit granted for preferring an appeal against acquittal is sixty days and in the case where the appeal is by a public servant, it is six months. In a complaint case, the State conducts the prosecution on behalf of the complainant and therefore, if they have been given the benefit of sixty days or six months then, in our opinion, the "Victim" in a case initiated on the basis of an FIR should also be placed on the same category as a normal Complainant/Informant. Therefore, in our opinion, the period of sixty days should be taken as a reasonable period for preferring an appeal under the provisions of the proviso appended to section 372 of the Code. In other words, we hold that there shall be a period of limitation in all Appeals against acquittal filed under the provisions of the proviso appended to section 372 and that period of limitation shall be sixty days.
16. A Full Bench of Gujarat High Court held in Bhavuben Dineshbhai Makwana v. State of Gujarat, 2012 SCC OnLine Guj 5764, that the appeal under proviso to section 372 CrPC can be filed within a reasonable period of 90 days. It was held:-
28....(2) However, if in a given situation, the victim is not the Complainant, the Appeal is although against the Order of Acquittal, he would not be required to follow the procedure of Section 378 as that Section requires filing of leave or special leave, as the case may be, only if the Appellant comes within the purview of the relevant sub-
sections mentioned therein. A victim, who is not a Complainant, will not consequently fall within any of the sub-sections of Section 378. It appears that the legislature was quite conscious of the necessity of the taking leave and 9 2025:HHC:2288 special leave as provided in Section 378; nevertheless, it decided not to make any amendment of Section 378 while conferring right of Appeal against acquittal to the victims who are not Complainant requiring them the necessity of taking special leave from this Court. The period of limitation in such a case, although is not covered by any of the Articles of the Limitation Act, should be a reasonable period and in such a situation, in our opinion the period of 90 days as provided in Article 114(a) of the Limitation Act should be the reasonable period as the said period is the longest period of limitation for filing an Appeal against the order of acquittal prescribed by the legislature.
17. A Division Bench of this Court held similarly in Joginder Singh vs. State of Himachal Pradesh and Ors. (14.06.2012 -
HPHC) : MANU/HP/1740/2012, that the victim can file an appeal within 90 days. It was observed:-
"20. The second division of the Schedule to the Limitation Act deals with appeals. Article 114 deals with appeals against acquittal and Article 115 deals with appeal against conviction. It is obvious that only Article 114, if at all, can apply. Article 114 deals with two types of appeals and the maximum limitation to file an appeal is 90 days. This has also been held by the Apex Court in State (Delhi Administration) v. Dharampal, MANU/SC/0671/2001 : 2001 (10) SCC 372. Therefore, even if we have to hold that Article 114 applies then the limitation would be 90 days."
18. Patna High Court held in Parmeshwar Mandal v. State of Bihar, 2013 SCC OnLine Pat 602 that since there is no period of limitation, hence the appeal has to be filed within a reasonable time. It was observed:-
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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.
19. A Division Bench of Bombay High Court also took similar view in Amit vs. The State of Maharashtra and Ors.
(05.05.2015-BOMHC): MANU/MH/0993/2015 and held as under:-
13. ...In our humble opinion, and with respect to the Full Bench of the Punjab & Haryana High Court providing for the limitation for filing of an appeal against acquittal does not fall within the realm of the judicial function. It is for the Legislature to provide for limitation under Article 114 when the occasion has arisen as a result of insertion of proviso to Section 372 with effect from December 31, 2009. Till then, the settled principle that such appeals must be filed within a reasonable time should hold the field.
In that view of the matter, the only way out for us is to make a recommendation to the Law Commission through the Ministry of Law & Justice to consider amendment to Article 114 of the Limitation Act for providing for limitation in relation to the appeals to be filed under the proviso to Section 372, Criminal Procedure Code. Further, the appellate Court has always a power to consider the reason about the date of knowledge of the order appealable by the victim as sufficient cause for condoning the delay in filing the 11 2025:HHC:2288 appeal. With respect, it would not be be appropriate to hold that the limitation should be counted from the date of knowledge acquired by the victim without the same being projected as a reason to condone the delay.
20. It was held by this Court in Parcy Chauhan vs. State of HP 1979 Shim. LC 103 = 1979 ILR (HP) 35 that when no limitation is provided, action has to be taken within a reasonable time. It was observed:
"33. Similarly, we find that though no period of limitation is prescribed by these Rules, for invoking review and revisional jurisdiction suo motot the said jurisdiction should be exercised within a reasonable time in view of the fact that the grant is presumed to have been made after full and detailed enquiry and also in view of the fact that the grantee would obviously go on making commitments to implement the purpose for which he has obtained the grant. The grantee's tenure is always governed by the terms of the Patta issued under rule 18, and hence the said tenure should not be made highly precarious by the suo moto exercise of review and revisional jurisdiction after an unreasonable length of time.
It is now well established that in cases where a period of limitation is not prescribed for the exercise of a particular power, it is open to the Court to restrict the exercise of that power within a reasonable period of time. A question similar to this was considered by the Supreme Court in State of Gujarat v. Patel Raghav Natha, AIR 1969 SC 1297. The Supreme Court in that case considered the provisions of section 211 of Bombay Land Revenue Code which gives the State Government and every Revenue Officer not inferior to the rank of an Assistant or Deputy Collector power to call for record of an enquiry or proceeding of any subordinate Revenue Officer for the purpose of satisfying itself or himself as to the legality or propriety of any decision or order passed and as to the regularity of the proceedings of 12 2025:HHC:2288 such enquiry. The section doss not provide for any period of limitation for the exercise of this power. Facts of that case were that a private party moved the Collector for a permission to use agricultural land for non-agricultural purposes under section 65 of the Bombay Land Revenue Code. Section 65 of that Code provides that if the Collector does not inform the applicant of his decision within a period of three months the permission applied for shall be deemed to have been granted. Reading this section along with section 211 of the Code, the Supreme Court held that three months period was considered by the Legislature for the purpose of giving permission for non agricultural use as reasonable. However, the Supreme Court subscribed to the principle that power contemplated by section 211 of the Bombay Land Revenue Code must be exercised within reasonable time, and on the question as to what would be the reasonable time, the Supreme Court observed that that question must be determined with reference to the facts of the case concerned and the nature of the order which was sought to be revised. We find that this decision has been subsequently followed by the Gujarat High Court in H. N. v. State, 11 GLR 307 and thereafter in Bhagwanji Bawanji Patel v. State, AIR 1971 Guj 64. In this latter case, the High Court of Gujarat held that in view of the period of limitation prescribed in Article 14 of the First Schedule of the Indian Limitation Act, 1908 which is equivalent to Article 103 of the Limitation Act of 1963, the maximum period which should be considered reasonable for taking an action to revise the order concerned would be one year. In Purshotam Lal Dhawan v. Diwan Chaman Lal, AIR 1961 SC 1371, the Supreme Court had an occasion to construe the period of time within which the Custodian General may call for the record of any proceedings in which any Custodian has passed an order. These powers of the Custodian General are prescribed in section 27 of the Administration of Evacuee Properties Act, 1950. The section provides that the power can be invoked by the Custodian General "at any time". The Supreme Court found that rule 31 (5) framed under section 56 of the Evacuee Property Act, 1950 provided chat petition for 13 2025:HHC:2288 revision should ordinarily be made to the Custodian General within sixty days. Ex facie, this rule went against the provision of section 27 of that Act which empowered the Custodian General to exercise his revisional powers "at any time". But the Supreme Court held that rule 31 (5) did not prescribe any inflexible period of limitation of sixty days, because it used the word 'ordinarily'. Thus, the Supreme Court harmonised the rule with the provisions of section 27 but observed that whenever power is required to be exercised "at any time", the same should be exercised within a reasonable period of time. The High Court of Punjab also shared this view in Smt. Balwant Kaur v. Settlement Commissioner, AIR 1964 Punj 33.
34. In view of this position we conclude that the power of review contemplated by rule 29, and of revision contemplated by rule 30, could be exercised only within a reasonable time. What is a reasonable time is a question of fact depending upon the peculiar facts and circumstances of each case. If a land is given for agriculture or horticulture or for constructing water-mill or water channel, we think that ordinarily a period of one year to exercise the power of review or revision may be considered reasonable in view of the fact that the fruits of these operations could be reaped within one year. However, if the Nautor land is granted for other purposes, such as construction of building for residence or construction of Dharmsala, etc., then having regard to the facts of the case the period of time would be even less.
21. This judgment was clarified by the Full Bench of this Court in Mangheru Vs. State of H.P. AIR 1982 HP (1) and it was held that period of three years would be a reasonable time.
22. It was laid down by Hon'ble Supreme Court in North Eastern Chemicals Industries (P) Ltd. v. Ashok Paper Mill (Assam) Ltd., 2023 SCC OnLine SC 1649 that where no period of limitation 14 2025:HHC:2288 has been provided, the appeal has to be filed within a reasonable time. It was observed:-
46. This dispute concerns the exercise of a statutory right.
The issue of no express limitation being provided in regard to the exercise of a right to assail the order has captured the attention of this Court, earlier, on certain occasions. We may refer to some decisions hereinbelow:--
47. In State of Punjab v. Bhatinda District Cooperative Milk Producers Union (2007) 11 SCC 363 this Court observed that-
"18. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors."
48. The principle stands reiterated in Securities and Exchange Board of India v. Sunil Krishna Khaitan (2023) 2 SCC 643
49. In Jagdish v. State of Karnataka (2021) 12 SCC 812, this Court referred to a number of decisions to reiterate that where the statute in question does not prescribe a limitation, the rights conferred therein must be exercised within reasonable time.
50. This aspect of reasonable time was recently discussed by this Court in Madras Aluminium Co Ltd v. Tamil Nadu State Electricity Board (2023) 8 SCC 240, having referred a three-Judge Bench decision in SEBI v. Bhavesh Pabari (2019) 5 SCC 90 stating that the concept is to be applied and judged in each case per its own peculiar facts.
51. We further refer to observations made in Ajaib Singh v. Sirhind Coop. Marketing-cum-Processing Service Society Ltd. (1999) 6 SCC 82 to the effect that Courts should be wary of prescribing specific period of limitation in cases where the legislature has refrained from doing so. It was further observed that where the defence of delay is employed in a situation where no limitation is prescribed vide statute, the exact prejudice or loss suffered by the 15 2025:HHC:2288 party if such a delay is condoned, must be shown on facts. In other words, in the absence of a specific limitation it would be improper for courts to dismiss a plea is solely on the ground of delay without having examined the nature of laws order prejudice caused to the other party in the facts and circumstances of the case at hand. The holding in Ajaib Singh (supra) was affirmed by a three-Judge Bench of this court in Purohit & Co. v. Khatoonbee (2017) 4 SCC 783
52. In light of above discussion, it is clear that when a Court is seized of a situation where no limitation stands provided either by specific applicability of the Limitation Act or the special statute governing the dispute, the Court must undertake a holistic assessment of the facts and circumstances of the case to examine the possibility of delay causing prejudice to a party. When no limitation stands prescribed it would be inappropriate for a Court to supplant the legislature' s wisdom by its own and provide a limitation, more so in accordance with what it believes to be the appropriate period. A court should, in such a situation consider in the facts and circumstances of the case at hand, the conduct of the parties, the nature of the proceeding, the length of delay, the possibility of prejudice being caused, and the scheme of the statute in question. It may be underscored here that when a party to a dispute raises a plea of delay despite no specific period being prescribed in the statute, such a party also bears the burden of demonstrating how the delay in itself would cause the party additional prejudice or loss as opposed to, the claim subject matter of dispute, being raised at an earlier point in time.
23. Thus, the majority of the High Courts have taken a view that the appeal has to be filed within 90/60 days and some High Court have held that the appeal has to be filed within a reasonable time. Even if it is held that the appeal has to be filed within a reasonable time, the reasonable time cannot be 16 2025:HHC:2288 indefinite and keeping in view the fact that period of 60/90 days has been provided under Article 114(a) of the Limitation Act, we deem it appropriate that the said period of 90 days itself will apply to the appeal filed by the victim under proviso to Section 370 being a reasonable time. This is also as per the judgment of this Court in Joginder Singh (supra).
24. In view of the above, we answer the question formulated above that the appeal filed by the victim under proviso to Section 372 Cr.P.C. (corresponding to Section 413 of Bhartiya Nagrik Suraksha Sanhita, 2023) is governed by a period of limitation of 90 days.
25. Thus, the submission that the appeal is barred by limitation is upheld and the submission that the appeal is not governed by any period of limitation is rejected.
26. Be listed for consideration of the application after winter vacations.
(Vivek Singh Thakur) Judge (Rakesh Kainthla) Judge 10th January, 2025 (Chander)