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2015 DIGILAW 1717 (KER)

Vinod v. State of Kerala

2015-12-23

K.T.SANKARAN, RAJA VIJAYARAGHAVAN V.

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ORDER : 1. The question involved in this case is whether an application to condone the delay in filing the application for leave under S. 378(3) of the Code of Criminal Procedure is required in an appeal filed by the victim under the proviso to S. 372 of the Code of Criminal Procedure. The present appeal is filed by the victim challenging the acquittal of accused Nos. 2 to 9 in S.C. No. 143 of 1998 on the file of the Court of Session, Thalassery. Along with the appeal, an affidavit explaining the delay was filed in the light of the decision of the Division Bench (in which one of us was a member) in Yohannan vs. State of Kerala, 2015 (3) KLT 333 . The Registry pointed out that in the light of the decision of the Supreme Court in Satya Pal Singh vs. State of Madhya Pradesh & Others, 2015 (4) KLT Suppl. 36 (SC) : AIR 2015 SC (Cri.) 1834, an application for leave to appeal is required to be filed under S. 378(3) of the Code of Criminal Procedure in an appeal filed by the victim under the proviso to S. 372 Crl. P.C. An application for leave was accordingly filed. However, no application to condone the delay in filing the application for leave was filed by the appellant. We passed an order dated 22.12.2015 directing the appellant to file an application for condonation of delay. We also observed that the affidavit dated 3rd December, 2015 can be treated as part of the application for condonation of delay. Accordingly, the appellant filed Crl. M.A. No. 7508 of 2015. 2. When the application came up, the learned counsel for the appellant submitted that the Supreme Court held that an application for leave is required under S. 378(3) Crl. P.C. in an appeal filed by the victim under the proviso to S. 372 of the Code of Criminal Procedure. The counsel submitted that the leave contemplated under S. 378(3) is distinct and different from the Special Leave Petition contemplated under S. 378(4) of the Code of Criminal Procedure in respect of which a period of limitation of 60 days is provided under S. 378(5) Crl. P.C. 3. The proviso to S. 372 Crl. The counsel submitted that the leave contemplated under S. 378(3) is distinct and different from the Special Leave Petition contemplated under S. 378(4) of the Code of Criminal Procedure in respect of which a period of limitation of 60 days is provided under S. 378(5) Crl. P.C. 3. The proviso to S. 372 Crl. P.C. says 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. 4. In Yohannan vs. State of Kerala, 2015 (3) KLT 333 , the question considered was whether there is any period of limitation for filing an appeal by the victim challenging the acquittal of the accused and if so, what is the period of limitation. The Division Bench held thus: "22. A new right is conferred on the victim by the insertion of the proviso to S. 372, by defining the term "victim" and by the introduction of S. 357A of the Code of Criminal Procedure (Victim Compensation Scheme). No fetter of limitation is placed by the Legislature on the exercise of the right of the victim to file an appeal under the proviso to S. 372 of the Code of Criminal Procedure. The Court cannot make a provision prescribing a period of limitation for an appeal for which either the Code of Criminal Procedure or the Limitation Act does not provide for a period of limitation. The victim would be entitled to file an appeal and if the Appellate Court finds that the appeal is designedly or deliberately delayed, the Appellate Court need not entertain the appeal on that ground. It would be sufficient if the appellant explains the circumstances under which he could not file the appeal within a reasonable time after the impugned judgment was passed. The Court would be entitled to consider the same and arrive at a conclusion as to the reasonableness or otherwise. Every case has to be decided on the facts and circumstances of that case and no hard and fast formula can be prescribed with respect to the time within which the appeal is to be filed by the victim. The Court would be entitled to consider the same and arrive at a conclusion as to the reasonableness or otherwise. Every case has to be decided on the facts and circumstances of that case and no hard and fast formula can be prescribed with respect to the time within which the appeal is to be filed by the victim. So long as the victim is not a party to the proceedings before the court below, he cannot be imputed with the knowledge of the proceedings unless it is shown otherwise. Needless to say that the appellant has to file appeal within a reasonable time after the date of knowledge of the judgment impugned in the appeal. 23. We are of the view that the practical situation can be tackled by issuing a direction that in all cases where the appeals are filed beyond ninety days from the date of judgment, the appellant shall file an affidavit stating the circumstances under which the appeal could not be filed earlier. The Court will consider such affidavit at the time of admission taking into account the facts and circumstances of each case." 5. Subsequently, the Supreme Court in Satya Pal Singh vs. State of Madhya Pradesh & Others, 2015 (4) KLT Suppl. 36 (SC) : AIR 2015 SC (Crl.) 1834 held thus: "13. Thus, to conclude on the legal issue: "Whether the appellant herein, being the father of the deceased, has statutory right to prefer an appeal to the High Court against the order of acquittal under proviso to S. 372 of Cr. P.C. without obtaining the leave of the High Court as required under sub-section (3) to S. 378 of Cr. P.C." this Court is of the view that the right of questioning the correctness of the judgment and order of acquittal by preferring an appeal to the High Court is conferred upon the victim including the legal heir and others, as defined under S. 2(wa) of Cr. P.C. under proviso to S. 372, but only after obtaining the leave of the High Court as required under sub-section (3) to S. 378 of Cr. P.C." 6. Section 378(3) provides that 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. S. 378 Crl. P.C. provides for appeal in the case of acquittal. Sub-section (1) of S. 378 Crl. P.C." 6. Section 378(3) provides that 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. S. 378 Crl. P.C. provides for appeal in the case of acquittal. Sub-section (1) of S. 378 Crl. P.C. deals with appeals filed by the Public Prosecutor before the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence as well as appeals filed by the Public Prosecutor to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court. Sub-section (2) of S. 378 deals with the appeals filed by the Public Prosecutor before the Court of Session as well as High Court in cases in which the offence has been investigated by Delhi Special Police establishment or by any other agency empowered to make investigation into an offence under any Central Act other than the Code of Criminal Procedure. Thus it is clear that the appeal dealt with under sub-section (3) of S. 378 is only an appeal coming under either sub-section (1) or (2) of S. 378 Crl. P.C. No such appeal shall be entertained except with the leave of the High Court as provided under sub-section (3) of S. 378 Crl. P.C. 7. Sub-section (4) of S. 378 provides for an appeal from the order of acquittal in any case instituted upon complaint. Sub-section (4) provides that the complainant may present such an appeal to the High Court on granting special leave to appeal on an application made by the complainant. Sub-section (5) of S. 378 provides that 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. The period of limitation for filing an application for grant of special leave to appeal under sub-section (4) of S. 378 Crl. P.C. is fixed under sub-section (5) of S. 378 Crl. P.C. In view of the decision of Satya Pal Singh vs. State of Madhya Pradesh and Others, 2015 (4) KLT Suppl. The period of limitation for filing an application for grant of special leave to appeal under sub-section (4) of S. 378 Crl. P.C. is fixed under sub-section (5) of S. 378 Crl. P.C. In view of the decision of Satya Pal Singh vs. State of Madhya Pradesh and Others, 2015 (4) KLT Suppl. 36 (SC) : AIR 2015 SC (Criminal) 1834, leave of the High Court is required under sub-section (3) of S.378 of the Code of Criminal Procedure to file an appeal under the proviso to S. 372. The period of limitation provided under Art. 114 is only with respect to an appeal filed under Ss. 378(1) and (2) and not with respect to an appeal filed under the proviso to S. 372Crl. P.C. Where in respect of an appeal under the proviso to S. 372 Crl. P.C. no period of limitation is prescribed, a period of limitation cannot be prescribed by an interpretational process. If no period of limitation is prescribed for filing an appeal under the proviso to S.372 Crl. P.C. it cannot be held that there is a period of limitation for filing an application for leave to appeal in such a case. Therefore, we are of the view that the principles laid down in Yohannan vs. State of Kerala, 2015 (3) KLT 333 would apply in the case of an application for leave under S. 378(3) for an appeal under the proviso to S. 372 Crl. P.C. If so, no application to condone the delay is required to be filed along with an application for leave to appeal in such cases. For the reasons stated above, it is not necessary to file an application for condonation of delay. In Crl. M.A. No. 7508 of 2015, no orders are required. Crl. M.A. No. 7188 of 2015 This is an application for leave to appeal against the acquittal of accused Nos. 2 to 9 in S.C. No. 143 of 1998 on the file of the Court of Session, Thalassery. The application for leave to appeal is not filed within 90 days. The delay is sought to be explained in the affidavit. The appeal is filed by the victim. The deponent of the affidavit filed in support of the appeal stated that she was not aware of the disposal of the case. The application for leave to appeal is not filed within 90 days. The delay is sought to be explained in the affidavit. The appeal is filed by the victim. The deponent of the affidavit filed in support of the appeal stated that she was not aware of the disposal of the case. Immediately after coming to know of the disposal of the case, steps were taken to prefer an appeal. Due to financial constraints, she could not engage a counsel. We are of the view that in the facts and circumstances of the case, reasons for the delay are acceptable. Leave applied for is granted. In view of the detailed order passed by us today in Crl. M.A. No. 7508 of 2015, the order dated 22.12.2015 is recalled. Crl. Appeal (V) No. 1293 of 2015 Public Prosecutor takes notice for the first respondent. Issue notice to respondents 2 to 9. The question of maintainability of the appeal will be decided after service of notice on the respondents.