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2012 DIGILAW 85 (CHH)

BHISAM PRASAD BARETH v. DINESH MAHANT

2012-03-15

G.MINHAJUDDIN, I.M.QUDDUSI

body2012
JUDGMENT As per Hon'ble Dr. I.M. Quddusi, J.:- 1. Heard on LA. No.1, application for condonation of delay in filing the instant appeal as the same has been preferred with a delay of 624 days. 2. For the reasons assigned in the application, we are of the view that the applicant has been able to satisfactorily explain the delay in filing this appeal. Accordingly, the application is allowed and the delay is condoned. 3. Applicant-complainant has filed this acquittal appeal challenging the judgment of acquittal dated 18.3.2009 passed by the learned Additional Sessions Judge, Janjgir, District Janjgir-Champa (CG) in S.T. No.170/08. 4. Facts of the case, in brief, are that the respondents No.1 to 14 have been charge sheeted before the Court below for having committed offence under Sections 147, 148, 149, 506B, 307 read with Section 149 & Section 323 read with Section 149 of the IPC. It was alleged that on 05.03.2008 in Village Rohda the accused persons have formed an unlawful assembly with an intention to commit murder of the complainant and in furtherance of their common object. they assaulted the complainant with stick, club, hockey-stick etc. when he along with others had gone to the village pond to take bath. They have also assaulted the persons who tried to intervene. The trial Court after recording of evidence, found. the accused persons guilty of the offence under Sections 147, 323/149, 323/149, 323/149, 323/149 of the IPC and convicted each of the accused persons vide impugned judgment under Section 147 of the IPC and sentenced them to suffer rigorous imprisonment for six months and pay a fine of Rs.500/-, in default of payment of fine to suffer further rigorous imprisonment of two months. However, the trial Court acquitted the accused persons of the charge under Section 307/149 of the IPC. Therefore, against the impugned judgment the applicant herein had filed Criminal Revision No.662/2010 before this Court and the same has been dismissed vide order dated 27.1.2011 as withdrawn with liberty to file an appeal in terms of proviso to Section 372 of the Cr.P.C. 5. We have heard learned counsel for the parties and perused the record. 6. Since this acquittal appeal has been filed under Section 372 of the Cr.P.C., we deem it proper to reproduce the provisions of this section which reads as under: "372. We have heard learned counsel for the parties and perused the record. 6. Since this acquittal appeal has been filed under Section 372 of the Cr.P.C., we deem it proper to reproduce the provisions of this section which reads as under: "372. No appeal to lie unless otherwise provided.-No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force. Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence, or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court." 7. From the above provision it is evident that the proviso inserted by Section 372 (Act 5 of 2009) with effect from 31-12-2009, gives a limited right to the victim to file an appeal in the High Court against any order of a criminal court acquitting the accused or convicting him for a lesser offence or the: imposition of inadequate compensation. However, the question before us for consideration is whether the victim shall have a right to prefer an appeal against the order/judgment passed by a Court prior to enforcement of the amendment or not? 8. Section 484 of the Cr.P.C. reads thus : 484 Repeal and savings- (1) The Code of Criminal Procedure, 1898 (5 of 1898), is hereby repealed. However, the question before us for consideration is whether the victim shall have a right to prefer an appeal against the order/judgment passed by a Court prior to enforcement of the amendment or not? 8. Section 484 of the Cr.P.C. reads thus : 484 Repeal and savings- (1) The Code of Criminal Procedure, 1898 (5 of 1898), is hereby repealed. (2) Notwithstanding such repeal, (a) if, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1898), as in force immediately before such commencement, (hereinafter referred to as the Old Code), as if this Code had not come into force : Provided that every inquiry under Chapter XVIII of the Old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code; (b) all notifications published, proclamations issued, powers conferred, forms prescribed, local jurisdictions defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrates, made under the Old Code and which are in force immediately before the commencement of this Code, shall be deemed, respectively, to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of this Code; (c) any sanction accorded or consent given under the Old Code in pursuance of which no proceeding was commenced under that Code, shall be deemed to have been accorded or given under the corresponding provisions of this Code and proceedings may be commenced under this Code in pursuance of such sanction or consent; (d) the provisions of the Old Code shall continue to apply in relation to every prosecution against a Ruler within the meaning of Article 363 of the Constitution. (3) Where the period prescribed for an application or other proceeding under the Old Code had expired on or before the commencement of this Code, nothing in this Code shall be construed as enabling any such application to be made or proceeding to be commenced under this Code by reason only of the fact that a longer period therefor is prescribed by this Code or provisions are made in this Code for the extension of time." 9. A plain reading of Section 484 says that the Old Code shall apply to appeals, application, trials, inquiry or investigation pending immediately before the date on which the New Code came into force. It does not save the Old Code for the purpose of appeals or revision to be filed after the commencement of the New Code against the order passed in those proceedings. 10. In the matter of Hirlal Nansa Bhavsar & another Vs. The State of Gujarat 1976 Cri.L.J. 84 the full Bench of the Gujarat High Court while answering a reference made to it has held thus; "The right of appeal is a substantive right which crystallizes at the date of institution of action and this right includes right to go in appeal to the superior Court. The forum to file the appeal is also thus determined as soon as the action is instituted. Till the case is instituted no litigant has any right to the forum in which the case can be instituted. In a criminal case this right of appeal and the right-to file the appeal in the forum prescribed by law would precipitate at the date when the Court takes cognizance of an offence against the accused. It is perfectly competent for the legislature to affect this vested right retrospectively. The legislature may do so by making express provision to that effect or by the disclosure of such an intention by necessary intendment. It is also competent to the legislature to save pending proceedings from operation of the new Act." 11. In the matter of National Commission for Women Vs. State of Delhi (2010) 12 SCC 599 in an appeal filed by private party against the reduction of sentence of rape convict by the High Court, Hon'ble Supreme Court dismissing the appeal held as under: "8. Chapter XXIX of the Code of Criminal Procedure deals with "Appeal(s)". In the matter of National Commission for Women Vs. State of Delhi (2010) 12 SCC 599 in an appeal filed by private party against the reduction of sentence of rape convict by the High Court, Hon'ble Supreme Court dismissing the appeal held as under: "8. Chapter XXIX of the Code of Criminal Procedure deals with "Appeal(s)". Section 372 specifically provides that no appeal shall lie from a judgment or order of a criminal court except as provided by the Code or by any other law which authorises an appeal. The proviso inserted by Section 372 (Act 5 of 2009) with effect from 31-12-2009, gives a limited right to the victim to file an appeal in the High Court against any order of a criminal court acquitting the accused or convicting him for a lesser offence or the imposition of inadequate compensation. The proviso may not thus be applicable as it came in the year 2009 (long after the present incident) and, in any case, would confer a right only on a victim and also does not envisage an appeal against an inadequate sentence. An appeal would thus be maintainable only under Section 377 to the High Court as it is effectively challenging the quantum of sentence." 12. In the present case also, the impugned judgment has been passed on 18.3.2009, whereas the proviso to Section 372 of the Cr.P.C. was inserted on 31.12.2009, that is to say, long after date of incident i.e. 05.03.2008, and therefore, the proviso to Section 372 of the Cr.P.C. may not thus be applicable in the present case. This is so also, because the right of appeal is a substantive right and not a procedural right and such right vests from the day of the commencement of the proceedings and an appeal is nothing but a continuation of the proceedings. The forum to file an appeal is also determined as soon as the action is instituted. 13. On the basis of above, we are of the opinion that the acquittal appeal on behalf of the complainant/victim would not be maintainable in the instant case and only remedy before the applicant is to file a criminal revision, which was infact rightly filed by the applicant. 14. In the result, this acquittal appeal stands dismissed as not maintainable. 13. On the basis of above, we are of the opinion that the acquittal appeal on behalf of the complainant/victim would not be maintainable in the instant case and only remedy before the applicant is to file a criminal revision, which was infact rightly filed by the applicant. 14. In the result, this acquittal appeal stands dismissed as not maintainable. The applicant is given liberty to move suitable application before the concerned Division Bench for recall of the order dated 27.01.2011 passed in Criminal Revision No.662/2010 (Bhisam Prasad Bareth Vs. Dinesh Mahant & others). Appeal Dismissed.