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2016 DIGILAW 1016 (KER)

Sobhanakumari K. v. Santhosh @ Pallan Ciiaji

2016-11-22

B.SUDHEENDRA KUMAR, C.K.ABDUL REHIM

body2016
ORDER : C.K. Abdul Rehim, J. This is an application filed by the mother of the 'victim 1 seeking leave of this court under section 378(3) of the Code of Criminal Procedure (Cr.P.C.) to file an appeal against the acquittal of the 1st respondent in SC No.936/2012 by the Additional Sessions Court, Neyyattinkara. 2. While considering the application for special leave, incidentally the question of limitation In filing the appeal came to notice of this court. The Sessions Court had passed the judgment on 23.5.2016. Going by the certified copy of the judgment produced along with the appeal memorandum which was received by the appellant on 8.6.2016, the appeal filed on 17.11.2016 is beyond the period of limitation stipulated under Article 114 of the Limitation Act, 1963. Learned counsel for the petitioner contended that, the period of limitation stipulated under Article 114 would apply only in respect of appeals filed under section 378(l) and (2) of Crl.P.C. and not with respect to an appeal filed under the proviso to section 372 Cr.P.C. 3. In this regard he placed reliance on a Division Bench decision of this court in Vinod v. State of Kerala, 2016 (1) KLT 680 : 2015 ICO 1511. Since the legal proposition settled was found to be prima facie doubtful, we were prepared to consider the matter elaborately. 4. The proviso to section 372 Cr.P.C. confers right on the 'victim' to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lessor offence or imposing inadequate compensation. The proviso stipulates that such an appeal shall lie to the court to which an appeal ordinarily lies against an order of conviction of such court. The substantive provision under section 372 is that, no appeal shall lie from any judgment or order of a criminal court except as provided for by the Code or by any other law for the time being in force. By virtue of the definition of Victim' introduced through section 2(wa) it is provided that the expression would include a guardian or legal heir of the person who has suffered loss or injury by reason of the act or omission for which the accused has been charged. Section 378 Cr.PC is the general provision dealing with appeals against acquittal. By virtue of the definition of Victim' introduced through section 2(wa) it is provided that the expression would include a guardian or legal heir of the person who has suffered loss or injury by reason of the act or omission for which the accused has been charged. Section 378 Cr.PC is the general provision dealing with appeals against acquittal. Sub section (1) empowers the public prosecutor to present an appeal from an order of acquittal passed by the Magistrate or by any court other than the High Court, either to the Sessions Court or to the High Court, as the case may be. Sub section (2) is an identical provision conferring power on the public prosecutor upon the directions of the Central Government, with respect to cases investigated by the Delhi Special Police establishment or by any other agency empowered to make investigation by virtue of any Central Act. Sub section (3) of section 378 provides that no appeal under sub section (1) or (2) shall be entertained by the High Court, except with leave of the High Court. 5. In a Division Bench decision of this court in Omana Jose v. State of Kerala, 2014 (2) KLT 504 : 2014 (2) KLJ 620 : 2014 ICO 424 while discussing the issue as to whether a complainant in a complaint case has got any right to file an appeal under the proviso to section 372, it was observed that, no special leave to appeal is required in the case of an appeal filed under the proviso to section 372. But in a subsequent decision of the Hon'ble Supreme Court in Satya Pal Singh v. State of MP, Jf 2015 (9) SC 281: 2015 (4) KLT 36 (SC): 2015 ICO 1475 it was observed that, the right to file an appeal under the proviso to section 372 Cr.P.C. is provided to the 'victim' including the legal heir of the 'victim' as defined under section 2(wa) of Cr.P.C. But the general provision contained in section 372 Cr. P.C. stipulates that no appeal shall lie from any judgment or order of a criminal court except as provided for by the Code or by any other law for the time being in force. P.C. stipulates that no appeal shall lie from any judgment or order of a criminal court except as provided for by the Code or by any other law for the time being in force. The Hon'ble Supreme Court observed that, the proviso to section 372 was added only to qualify or to create an exemption to what is in the enactment .Therefore the proviso cannot be interpreted as stated in the general rule. While interpreting a proviso, care must be taken that it is used only to remove special cases from the general enactment and to provide for them separately. Based on the legal proposition as aforementioned it was held by the apex court that, the proviso to section 372 Cr.P.C. must be read along with its enactment of section 372 itself, together with sub section (3) of section 378 Cr.P.C. Otherwise, it is held that the substantive provision of section 372 Cr.P.C. will be rendered nugatory, as it is clearly stated that no appeal shall lie from any judgment or order of a criminal court except as provided for by the Code or by any other law for the time being in force. Therefore the apex court in Satya Pal Singh's case {supra) held that an appeal under the proviso to section 372 can be filed only after obtaining leave of the High Court as required under sub section (3) of section 378 Cr.PC. 6. In Vinod's case (cited supra) the Division Bench of this court considered the dictum contained in Satya Pal Singh's case and found that in view of Satya Pal Singh's case leave of the High Court is required under sub section (3) of section 378 to file an appeal under the proviso to section 372. But it is further observed as follows:- The period of limitation provided under Article 114 is only with respect to an appeal filed under section 378(1) and (2) and not with respect to an appeal filed under the proviso to section 372 Crl.P.C. Where in respect of an appeal under the proviso to Section 372 Cr.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 section 372 Cr.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 v. State of Kerala, 2015 (3) KLT 333 : 2015 (3) KLJ 461 : 2015 ICO 640 would apply in the case of an application for leave under section 378 (3) for an appeal under the proviso to section 372 Cr.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," 7. First of all it is to be taken note of that the period of limitation prescribed in Article 114 of the Limitation Act, 1963 is not with respect to filing of the application for special leave, but it is for the appeal under Section 378 (1) and (2). Article 114 deals only with respect to an appeal filed under section 378(1) and (2) and not with respect to an appeal filed under the proviso to section 372 Cr.P.C. But the findings of the Hon'ble Supreme Court in Satya Pal Singh's case (supra) assumes importance. The Hon'ble Supreme Court had reversed the view taken by the High Court of Madhya Pradesh that there is no need for the 'victim' to seek the leave of the High Court as required under section (3) of section 378 to prefer an appeal under the proviso to section 372 Cr.P.C. The reason mentioned therein is that, the substantive provision of section 372 clearly provides that no appeal shall lie from any judgment or order of a criminal court except as provided for by the Code or by any other law for the time being in force. The settled rule of interpretation of statutes was employed by the apex court to find out the effect of the proviso to section 372. It was observed that, it is well established that the proviso of a statute must be given an interpretation limited to the subject matter of the enacting provision. The settled rule of interpretation of statutes was employed by the apex court to find out the effect of the proviso to section 372. It was observed that, it is well established that the proviso of a statute must be given an interpretation limited to the subject matter of the enacting provision. Reliance in this regard was placed on an earlier decision of the Hon'ble Supreme Court in Dumrka Prasad v. Divarka Das Saraf, 1976 (1) SCC 128 : 1975 ICO 172 as well as in S. Sundaram Pillai v. V.R. Pattabiraman, 1985 (1) SCC 591 : 1985 ICO 192 and in some other cases. Based on the legal propositions settled in those cases, the Hon'ble Supreme Court found that it is patently clear that the proviso to section 372 Cr.P.C. must be read along with the main enactment i.e. Section 372 itself and together with sub section (3) of section 378 of Cr.P.C; Otherwise the substantive provision of section 372 will be nugatory, as it clearly provides that no appeal shall lie from any judgment or order of a criminal court except as provided for by the Code or by any other law for the time being in force. The apex court observed that, 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 section 2 (wa) of Cr.P.C, under proviso to section 372, but only after obtaining leave of the High Court as required under sub section (3) to section 378 of Cr.P.C." 8. Taking note of the above quoted observations we are of the opinion that, the exemption carved out through the proviso from the substantive enactment of section 372, by itself does not provide a right of appeal on the victim. But it only exempts the 'victim' from the bar under the enactment of Section 372. Since it is held by the Hon'ble Supreme Court that the section must be read together with sub section (3) of section 378 Cr.P.C, it can only be interpreted that the right to file an appeal under the proviso to section 372 arises under the enabling provisions of Section 378 (1) & (2) which provides for appeals against acquittal. Since it is held by the Hon'ble Supreme Court that the section must be read together with sub section (3) of section 378 Cr.P.C, it can only be interpreted that the right to file an appeal under the proviso to section 372 arises under the enabling provisions of Section 378 (1) & (2) which provides for appeals against acquittal. When Article 114 of the Limitation Act stipulates a period of limitation with respect to the appeals under sub sections (1) and (2) of section 378, we are of the view that the limitation prescribed for those appeals would apply equally to the appeals under the proviso to section 372; especially because such an appeal require: special leave of this court under sub section (3) of section 378 as in the case of any appeal under sub section (1) and (2) of section 378. 9. However, being a court of coherent jurisdiction with the court which rendered the judgment in Vinod's case (supra) judicial propriety refrain us from arriving at any finding against the dictum contained in the said case. Therefore we are inclined to refer the question for an appropriate decision by a Fuji Bench. 10. Under the above mentioned circumstances the case is referred for decision by a Full Bench on the question of applicability of the provisions of Article 114 in the case of an appeal filed under the proviso to Section 372 Cr.P.C. The Registry will place the matter before the Hon'ble Chief Justice for appropriate orders.