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2013 DIGILAW 964 (KER)

Kalimuthu v. State of Kerala

2013-11-07

K.HARILAL

body2013
ORDER K. Harilal, J. 1. The Revision Petitioner is the de facto complainant in C.C. No.494 of 2010 on the files the of Judicial First Class Magistrate, Mannarkkad. The Respondents 2 to 15 are the accused in the above case. The allegation against the respondents is that they formed themselves into an unlawful assembly and in prosecution of that unlawful assembly, attacked the de facto complainant and caused damages to him. Thus the offence alleged against them are punishable under Sections 143,148,448,427, 506(iii) read with 34 IPC. On the complaint, the police registered a crime for the said offence and filed the final report charging the respondents for the said offence. After trial, the learned Magistrate acquitted the respondents; but the State has not preferred an appeal against the acquittal. In that context, the Revision petitioner preferred an appeal under Section 372 of the Cr.P.C before the Sessions Court with a petition to condone delay of 725 days in filing the appeal as Crl.M.P. No. 1647 of 2012. After considering the grounds raised in the said petition, the learned Sessions Judge dismissed the petition to condone delay. Consequently, the appeal also was dismissed. Both orders are under challenge in this Revision Petition. 2. The learned counsel for the Revision Petitioner submits that the Revision Petitioner is a 'victim' coming under 2(wa) of the Code of Criminal Procedure. Therefore he has the right to file an appeal against the acquittal. But there was a delay of 725 days. The delay happened on the sole reason that, he came to know the acquittal of the accused after 725 days from the date of the order only. When he came to know the acquittal of the accused, he obtained the copy of the judgment and immediately filed an appeal before Sessions Court. But, the learned Sessions Judge has not appreciated the cause of delay stated in the said application in its correct perspective. The learned counsel for the Revision Petitioner drew my attention to the impugned order and submitted that the learned Sessions Judge has not applied his mind on the grounds raised in the petition, which is evident from the factually erroneous finding that the appeal was filed against the acquittal in a proceeding under Section 138 of the N.I.Act. It shows that the learned Sessions Judge has not applied his mind over the facts of the case. It shows that the learned Sessions Judge has not applied his mind over the facts of the case. Per contra, the learned Counsel for the respondent submits that there is a delay of 725 days and the delay was not properly explained in the petition. In the absence of proper explanation, the learned Sessions Judge can be justified in dismissing the petition in limine. 3. The short point that arises for consideration in this Revision Petition is, whether there is any illegality or impropriety in the impugned order dismissing the petition to condone delay in filing appeal, which is under challenge in this revision. Going by the order passed in Crl.M.P.No. 1647 of 2012, it is seen that the appeal was filed with delay of 725 days and learned Sessions Judge observed that the delay was not explained properly with cogent reasons. It is the case of the Revision Petitioner that, he came to know the acquittal of the accused after a long lapse of time. 4. At this stage it is profitable to analyse the legal aspects pertaining to granting of right to file an appeal to the victim by amending Section 372 of Cr.P.C. by Act 5 of 2009. The rights of 'victims' got recognition recently, by the development of 'victimology' in criminal jurisprudence and administration of criminal justice by the passage of time and the amendment was brought up in the Code of Criminal Procedure to give a right of appeal to the victims who remained remediless and at the mercy of the state or District Magistrate. But it is pertinent to note that though the amendment was brought up, even now there is no provision in the code of Criminal Procedure to inform the victim regarding the fate or end of the trial. ie. whether the accused was convicted or acquitted. In a case instituted on the police report, after giving information to the police, the victim goes under an eclipse and he comes to the court only for giving evidence as a victim. Thereafter he will not be informed of whether the prosecution ended in conviction or acquittal. That apart, in a case instituted on the police report, the State is the master of the prosecution and victim has no role at all, except the role of a witness. Thereafter he will not be informed of whether the prosecution ended in conviction or acquittal. That apart, in a case instituted on the police report, the State is the master of the prosecution and victim has no role at all, except the role of a witness. So long as there is no procedure to inform the victim after the acquittal or conviction the case, the victim may get information as regards the fate of the case, after a long lapse of time. In such a situation, I am of the opinion that long lapse of time may occur in filing the appeal under Section 372 of the Cr.P.C. by the victim in the absence of the appeal by the state. Normally, the victim may think that the State, being the master of prosecution, would have preferred appeal promptly within the time. In such a situation, victim cannot be accused of the delay even if it is long, as it cannot be a culpable negligence. Normally an aggrieved victim may not cause delay deliberately at this own risk. Therefore, the Appellate Court is liable to take a lenient view in condoning the delay in filing the appeal by the victim under Section 372 of the Cr.P.C. Therefore, I am inclined to condone the delay and set aside the impugned order and judgment under challenge passed in Criminal M.P. No. 1647 of 2012 and Criminal Appeal No.243 of 2012 respectively on the files of the Court of Sessions Palakkad Division and I do so. The Criminal M.P. No.1647 of 2012 will stand allowed and the learned Sessions Judge is directed to restore the Criminal Appeal No.243 of 2012 on the files and proceed in accordance with law.