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2017 DIGILAW 1325 (KER)

Sobhanakumari K. v. Santhosh

2017-10-23

A.M.BABU, P.R.RAMACHANDRA MENON, P.UBAID

body2017
ORDER : A.M. Babu, J. 1. Is a period of limitation prescribed for an appeal under the proviso to Section 372 of the Code of Criminal Procedure, 1973 (Cr.P.C for short) by a victim? If not, within what time shall be filed such an appeal? These are the questions to be considered. The Trial Court acquitted the accused of the charge under Section 302 of the Indian Penal Code. The mother of the person murdered sought leave under Section 378(3) of Cr.P.C to appeal against the acquittal. The application seeking the leave came up for consideration before a Division Bench of this Court. The Division Bench noticed that the memorandum of appeal was filed beyond the period of limitation stipulated in Article 114 of the Limitation Act. The Division Bench made an order of reference doubting the correctness of the decision of another Division Bench of this Court in Vinod v. State of Kerala 2016 (1) KHC 674 : 2016 (1) KLD 308 : 2016 (1) KLT 680 . The decision in Vinod's case holds that no period of limitation is prescribed for filing an appeal under the proviso to Section 372 of Cr.P.C. The order of reference refers to the decision of the Apex Court in Satya Pal Singh v. State of M.P. 2015 KHC 4662 : 2015 AIR SCW 6251 : 2015 (5) KHC SN 25 : 2015 (2) KLD 758 : 2015 (10) SCALE 444 : 2015 CriLJ 4929 : (2015) 15 SCC 613 . That decision holds that an appeal under the proviso to Section 372 of Cr.P.C can be filed by a victim only after obtaining the leave of the High Court as required under Section 378(3) of Cr.P.C. The reference order states that the period of limitation prescribed under Article 114 of the Limitation Act for appeals under Section 378(1) and (2) of Cr.P.C shall apply to an appeal under the proviso to Section 372 of Cr.P.C since such an appeal requires the leave of the High Court under Section 378(3) of Cr.P.C as is necessary in the case of appeals under Section 378(1) and (2) of Cr.P.C. Since Vinod's case (supra) holds the contra view, a reference is made to the Full Bench for appropriate decision. 2. Heard Sri. Gopakumar R. Thaliyal, the learned counsel for the petitioner and Sri. Suman Chakravarthy, the learned public prosecutor. Advocate Sri. 2. Heard Sri. Gopakumar R. Thaliyal, the learned counsel for the petitioner and Sri. Suman Chakravarthy, the learned public prosecutor. Advocate Sri. K.A. Salil Narayanan was appointed amicus curiae. We heard the learned amicus curiae also. 3. Section 2(wa) which defines the term 'victim' and the proviso to Section 372 which confers a right of appeal on the victim were inserted in the Cr.P.C by the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009). Those provisions came into effect on 31/12/2009. Section 2(wa) Cr.P.C reads thus: "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir. 4. Section 372 of Cr.P.C 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. 5. The proviso confers a right of appeal on the victim against three kinds of orders. They are (i) an order acquitting the accused, (ii) an order convicting the accused for a lesser offence and (iii) an order imposing inadequate compensation. 6. The learned amicus curiae has submitted that the period of limitation prescribed under clause (b) of Article 115 of the Limitation Act applies to an appeal by the victim against an order convicting the accused for a lesser offence and also to an appeal against an order imposing inadequate compensation. The submission is well founded. Clause (b) of Article 115, Limitation Act, prescribes a period of limitation for an appeal under the Cr.P.C from any order not being an order of acquittal (underscored to supply emphasis). An order convicting the accused for a lesser offence and an order imposing inadequate compensation do come within the purview of 'any order' (not being an order of acquittal) referred to in clause (b) of Article 115 of the Limitation Act. An order convicting the accused for a lesser offence and an order imposing inadequate compensation do come within the purview of 'any order' (not being an order of acquittal) referred to in clause (b) of Article 115 of the Limitation Act. The period of limitation prescribed therein is 60 days from the date of the order if the appeal is to be filed in the High Court. It is 30 days from the date of the order if the appeal lies to any other Court. Therefore the victim should prefer his appeal to the High Court against an order convicting the accused for a lesser offence or against an order imposing inadequate compensation within 60 days from the date of the order. If the appeal lies to any other Court, he should file it before that Court within 30 days from the date of the order impugned. Needless to say that Section 5 of the Limitation Act applies to such appeals filed beyond the prescribed period. 7. What next is whether any period of limitation is prescribed for a victim's appeal from an order of acquittal. The learned counsel for the petitioner, the learned public prosecutor and the learned amicus curiae in one voice have submitted that an appeal by a victim against an order of acquittal is not barred by any length of time. We shall consider the submissions and refer to the judicial pronouncements placed before us. 8. A Full Bench of the Gujarat High Court has held that although not covered by any of the Articles of the Limitation Act, the period of limitation for an appeal by the victim under the proviso to Section 372 of Cr.P.C shall be a reasonable period. The decision is Bhavuben Dineshbhai Makwana v. State of Gujarat 2013 KHC 3484 : 2013 CriLJ 4225 : 2013 (4) KLT SN 68, it is also held that the period of 90 days as provided in clause (a) of Article 114 of the Limitation Act shall be the reasonable period as the said period is the longest period of limitation for filing an appeal against an order of acquittal prescribed by the Legislature. 9. 9. Referring to Article 114(a) of the Limitation Act, a Full Bench of the Punjab and Haryana High Court holds that the period of limitation for an appeal by a victim under the proviso to Section 372 of Cr.P.C shall be 90 days from the date of the order where the appeal lies to the High Court and 60 days from the date of the order where it lies to any other Court. The decision of the Punjab and Haryana High Court is M/s. Tata Steel Ltd. v. M/s. Atma Tube Products Ltd. 10. A Division Bench of the Bombay High Court considered the same question in Amit Bhagirath Mishra v. State of Maharashtra 2016 KHC 2821 : 2016 CriLJ 1418. It is held therein that no period of limitation is provided for filing an appeal against an order of acquittal by a victim, but he shall file it within a reasonable time. The Bombay High Court holds further that the legislative intent behind Articles 114 and 115(b) of the Limitation Act in prescribing the period of limitation for appeals to the High Court or to the Court of Session against different types of orders is the best guiding factor to determine the reasonableness of the period of limitation for an appeal to be filed by a victim also. According to the Bombay High Court, the period of 90 days or 60 days should be counted from the date of knowledge of the victim about the impugned order. 11. Fixing 90 days or, as the case may be, 60 days as the 'period of limitation' or as the reasonable period was not acceptable to the Patna High Court. A Division Bench of the said High Court considered the question in Parmeshwar Mandal v. State of Bihar 2014 KHC 2393 : 2014 CriLJ 1046 : 2014 (2) KLT SN 16. The Division Bench states that the victim has been put on a much higher pedestal by the Legislature than the state or Central Government or a complainant in the matter of preferring appeal against acquittal. The Division Bench states that the victim has been put on a much higher pedestal by the Legislature than the state or Central Government or a complainant in the matter of preferring appeal against acquittal. Therefore, according to the Patna High Court, prescribing the same limitation for preferring appeal by a victim as applicable in the case of an appeal by the State Government or the Central Government or a complainant will amount to putting fetters and circumscribing the right of the victim which is not intended and prescribed by the Legislature. It was ultimately held that it would be best to leave it to the prudence of the Court concerned to determine, in the facts and circumstances of a particular case, as to whether the appeal of the victim was entertain-able or not on the ground of absence of bona fide explanation for the delay. 12. Kalimuthu v. State of Kerala, 2014 KHC 3 : 2014 (4) KHC SN 22 : 2014 (2) KLD 970 : 2014 (4) KLT 909, Yohannan v. State of Kerala, 2015 KHC 3695 : 2015 (3) KLT 333 : 2015 (3) KLJ 461 and Vinod v. State of Kerala, 2016 (1) KHC 674 : 2016 (1) KLD 308 : 2016 (1) KLT 680 . These are the decisions of this Court placed before us. A learned Single Judge of this Court has stated in Kalimuthu's case (supra) that long delay may occur in filing appeal by victim as he has no role in a criminal trial other than that of a witness, as he is not informed of the result of the criminal trial and as he may even be under an impression that the prosecution did file appeal promptly. It is therefore held that the Appellate Courts should be lenient in the matter of condoning the delay in filing appeals by victims. 13. A Division Bench of this Court in Yohannan's case (supra) considered various limitations of victims who include the guardian or heir of the person who actually suffered loss or injury. The limitations as noticed by the Division Bench are (i) the victim is not a party to the criminal case, (ii) he need not even be a witness in the case, (iii) he may not be aware of the proceedings before the Criminal Court and (iv) he is not informed of the result of the trial. The limitations as noticed by the Division Bench are (i) the victim is not a party to the criminal case, (ii) he need not even be a witness in the case, (iii) he may not be aware of the proceedings before the Criminal Court and (iv) he is not informed of the result of the trial. In view of these limitations of the victim, according to the Division Bench, the law makers deliberately omitted to fix a period of limitation for appeals filed under the proviso to Section 372 of Cr.P.C. When that be so, it is held, the High Court cannot fix a period of limitation. The conclusion has been that when an appeal is filed beyond 90 days from the date of the judgment, the appellant shall file an affidavit explaining why the appeal could not be filed earlier. 14. Subsequent to the decision in Yohannan's case (supra) came the decision in Satya Pal Singh v. State of M.P., 2015 KHC 4662 : 2015 AIR SCW 6251 : 2015 (5) KHC SN 25 : 2015 (2) KLD 758 : 2015 (10) SCALE 444 : 2015 CriLJ 4929 : (2015) 15 SCC 613 . It was held in Satya Pal Singh (supra) that an appeal could be filed by the victim under the proviso to Section 372 of Cr.P.C against an order of acquittal only after obtaining the leave of the High Court under Section 378(3) of Cr.P.C. As leave under Section 378(3) of Cr.P.C was held necessary for a victim to appeal to the High Court under the proviso to Section 372 Cr.P.C against acquittal, a question arose whether the victim should file an application under Section 5 of the Limitation Act to get the delay in filing the appeal condoned. This question was considered and decided by a Division Bench of this Court in Vinod's case (supra). It was held that the period of limitation provided under Article 114 of the Limitation Act was only with respect to an appeal filed under Section 378(1) or (2) of Cr.P.C and not with respect to an appeal filed under the proviso to Section 372 Cr.P.C. It was reiterated that no period of limitation was provided for an appeal under the proviso to Section 372 Cr.P.C. The Division Bench held that no application to condone the delay was to be filed in the absence of a prescribed period. In short, the dictum in Yohannan (supra) was reiterated in Vinod (supra). 15. As already stated, the reference was made doubting the correctness of the dictum in Vinod (supra). According to the Division Bench which made the reference, the period of limitation prescribed under Article 114 of the Limitation Act shall apply to an appeal under the proviso to Section 372 of Cr.P.C as well since such an appeal requires the leave under Section 378(3) of Cr.P.C as in the case of an appeal under Section 378(1) or (2) of Cr.P.C. 16. Article 114 of the Limitation Act stipulates the period of limitation for certain appeals under the Code of Criminal Procedure, 1898 (hereinafter referred to as the 'old Code'). The provisions mentioned in clause (a) of Article 114 are subsections (1) and (2) of Section 417 of the old Code. Sub-section (3) of Section 417 of the old Code is mentioned in clause (b) of Article 114. Sub-sections (1) to (3) of Section 417 of the old Code correspond to sub-sections (1), (2) and (4) respectively of Section 378 of the present Cr.P.C. The aforesaid provisions in the old Code and in the present Cr.P.C are substantially the same. There are of course some differences when sub-sections (1) and (2) of Section 417 of the old Code and sub-sections (1) and (2) of Section 378 of the present Cr.P.C are compared. For example, the new provisions permit an appeal to the Court of Session from an order of acquittal passed by a magistrate if the offence is cognizable and non-bailable. Where the General Clauses Act, or any Central Act or Regulation made after the commencement of the General Clauses Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted (vide Section 8 of the General Clauses Act). In view of Section 8 of the General Clauses Act, the references in Article 114 of the Limitation Act to sub-sections (1) to (3) of Section 417 of the old Code shall be construed as references to sub-sections (1), (2) and (4) of Section 378 of the present Cr.P.C. Clause (b) of Article 114 of the Limitation Act and sub-section (4) of Section 378 of Cr.P.C are not relevant for answering the question under reference. 17. The period of limitation prescribed under clause (a) of Article 114 of the Limitation Act for an appeal under sub-section (1) or sub-section (2) of Section 378 of Cr.P.C from an order of acquittal is 90 days. The time begins to run from the date of the order appealed from. An appeal under Section 378(1) or (2) of Cr.P.C against an order of acquittal can be filed only by the public prosecutor concerned if he is so directed by the District Magistrate, the State Government or the Central Government, as the case may be. A victim's appeal against acquittal does not come under Section 378(1) or (2) of Cr.P.C. Therefore the period of limitation of 90 days prescribed under clause (a) of Article 114 of the Limitation Act applies only to appeals filed by public prosecutors against orders of acquittal. It does not apply to an appeal filed under the proviso to Section 372 of Cr.P.C by a victim against acquittal. It is not possible to hold from a reading of clause (a) of Article 114 of the Limitation Act that it applies to an appeal of a victim filed under the proviso to Section 372 of Cr.P.C. 18. The decision in Satya Pal Singh (supra) holds that a victim can file an appeal before the High Court under the proviso to Section 372 of Cr.P.C against an order of acquittal only after obtaining the leave of the High Court under Section 378(3) of Cr.P.C. The Apex Court has stated in the said decision that the substantive provision of Section 372 of Cr.P.C clearly provides that no appeal shall lie from any judgment or order of a Criminal Court except as provided by the Cr.P.C. It is also stated that Section 378(3) of Cr.P.C insists on the leave of the High Court to appeal to the High Court against an order of acquittal. The Apex Court has then referred to the rules of interpretation of Statutes to find out as to what is the effect of the proviso to Section 372 of Cr.P.C. It is held that the proviso of a Statute must be given an interpretation limited to the subject-matter of the enacting provision. In order to hold so the Supreme Court relied on its earlier decisions in Dwarka Prasad v. Dwarka Das Saraf 1976 KHC 589: (1976)1 SCC 128 : AIR 1975 SC 1758 : 1976 (1) SCR 277 and Sundaram Pillai v. Pattabiraman 1985 KHC 551 : (1985) 1 SCC 591 : AIR 1985 SC 582 . The question under consideration was concluded in Satya Pal Singh (supra) as under: Thus, from a reading of the above said legal position laid down by this Court in the cases referred to supra, it is abundantly clear that the proviso to Section 372 of Cr.P.C must be read along with its main enactment i.e.. Section 372 itself and together with sub-section (3) to section 378 of Cr.P.C, otherwise the substantive provision of Section 372 of Cr.P.C will be rendered nugatory, as it clearly states that no appeal shall lie from any judgment or order of a Criminal Court except as provided by Cr.P.C. Thus, the only question which came up for consideration in Satya Pal Singh (supra) and considered by the Supreme Court was whether leave of the High Court under Section 378(3) of Cr.P.C should be obtained to prefer an appeal to the High Court by a victim under the proviso to Section 372 of Cr.P.C. No question relating to the law of limitation was dealt with in the said decision. Clause (a) of Article 114 of the Limitation Act cannot be held applicable to an appeal under the proviso to Section 372 of Cr.P.C simply because the leave of the High Court is required to be obtained under Section 378(3) of Cr.P.C to file such an appeal before the High Court. 19. We may view it from another angle. Sub-section (1) and (2) of Section 378 of Cr.P.C in their present shape permit the public prosecutor to file appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence. 19. We may view it from another angle. Sub-section (1) and (2) of Section 378 of Cr.P.C in their present shape permit the public prosecutor to file appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence. Those sub-sections were amended as per the Code of Criminal Procedure (Amendment) Act, 2005 (Act 25/2005) to provide an Appellate Forum, namely, the Court of Session, for appeals against acquittal in certain cases. The very same Act (Act 25/2005) amended sub-section (3) of Section 378 too. Sub-section (3) before it was amended read as follows: No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court. The amended sub-section (3) reads as follows: 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. By the said amendment the Legislature made it clear that leave under subsection (3) shall be obtained only to appeal to the High Court from an order of acquittal. No leave is required to be obtained to appeal to the Court of Session under sub-section (1) or sub-section (2) of Section 378 of Cr.P.C. What Satya Pal Singh (supra) holds is also that the victim should obtain leave of the High Court under sub-section (3) of Section 378 to appeal to the High Court. The proviso to Section 372 of Cr.P.C contemplates filing of appeal to a Court of Session as well since the proviso states that such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. If Article 114(a) of the Limitation Act applies to appeals under the proviso to Section 372 of Cr.P.C for the reason that leave under Section 378(3) of Cr.P.C is to be obtained to file such an appeal, it may have to be held that a period of limitation is prescribed for such an appeal filed before the High Court, but no such period of limitation is prescribed for such an appeal filed before the Court of Session. It cannot be held so since that cannot be the law. The obligation to obtain the leave of the High Court under Section 378(3) of Cr.P.C has nothing to do with the law of limitation. 20. It cannot be held so since that cannot be the law. The obligation to obtain the leave of the High Court under Section 378(3) of Cr.P.C has nothing to do with the law of limitation. 20. Simultaneous with the incorporation of the proviso to Section 372 of Cr.P.C, or even subsequent to such incorporation, no provision was inserted either in the Limitation Act or in the Cr.P.C specifying any period of limitation for filing an appeal by a victim under the said proviso. It could be a deliberate omission on the part of the Legislature as indicated by the Division Bench in Yohannan's case (supra) considering the limitations of a victim which were considered by the Division Bench in the said case. The only possible conclusion is that no period of limitation is prescribed for filing an appeal by a victim under the proviso to Section 372 of Cr.P.C challenging an order of acquittal. We hold so. 21. But that does not mean that the victim can bring his appeal against acquittal at any time he wishes. He shall bring it within a reasonable time. We may refer to two decisions. The decisions are (i) Sharada Devi v. State of Bihar 2003 KHC 894 : (2003) 3 SCC 128 : AIR 2003 SC 942 : JT 2003 (1) SC 18 : 2003 (2) ILD 46 and Moideen Koya v. Kunhammed Haji 1999 KHC 397 : 1999 (2) KLT 646 : 1999 (2) KLJ 69 : ILR 1999 (3) Ker. 54 : AIR 1999 Ker. 324 . The Apex Court states in Sharada Devi's case (supra) that though no limitation is prescribed for making a reference under Section 30 of the Land Acquisition Act, needless to say where no period of limitation for the exercise of any statutory power is prescribed, the power can nevertheless be exercised only within a reasonable period. It is also held that what is the reasonable period in a given case shall depend on the facts and circumstances of each case. Moideen Koya (supra) is a decision of the Full Bench of this Court. The Full Bench holds that no period of limitation is prescribed for preferring a revision under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, but the petitioner should explain by affidavit the delay in preferring the revision. That means the revision should be filed within a reasonable time. The Full Bench holds that no period of limitation is prescribed for preferring a revision under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, but the petitioner should explain by affidavit the delay in preferring the revision. That means the revision should be filed within a reasonable time. We hold that a victim who proposes to file an appeal against an order of acquittal should file it within a reasonable period. 22. What shall be the reasonable period within which shall the victim file his appeal? There must be a uniform pattern. That not, different Courts will take different periods as reasonable. 23. The Punjab and Haryana High Court in M/s. Tata Steel Limited (supra) has held that the period of limitation for an appeal filed by a victim under the proviso to Section 372 of Cr.P.C shall be 90 days from the date of the order appealed against where the appeal lies to the High Court and that it shall be 30 days if the appeal lies to any other Court. We respectfully disagree with the Punjab and Haryana High Court which used the words "the period of limitation for an appeal by a victim". It is already seen that no period of limitation is prescribed for an appeal by a victim against an order of acquittal. Courts cannot fix or prescribe a period of limitation which the Legislature did not choose to. 24. The decision in Yohannan's case (supra) holds that the practical situation can be tackled by issuing a direction that in all cases where the appeals are filed beyond 90 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 Gujarat High Court in Bhavuben Dineshbhai Makwana (supra) has taken the period of 90 days as the reasonable period as it is the longest period of limitation prescribed by the Legislature for filing an appeal against an order of acquittal. We are of the considered opinion that 90 days can be considered the reasonable period within which the victim shall file his appeal against acquittal, whether it lies to the High Court or the Court of Session. We hold further that the reasonable period of 90 days should be counted from the date of the order appealed against. We are of the considered opinion that 90 days can be considered the reasonable period within which the victim shall file his appeal against acquittal, whether it lies to the High Court or the Court of Session. We hold further that the reasonable period of 90 days should be counted from the date of the order appealed against. If the victim really comes to know of the acquittal only later, that itself can be considered a good ground explaining the delay. 25. A victim who could not file his appeal within the reasonable time need not file an application under Section 5 of the Limitation Act. Rather, he cannot file such an application. Section 5 has application only in respect of appeals or applications filed after the prescribed period. In the absence of such a prescribed period to file an appeal by the victim against an order of acquittal, he only needs to file an affidavit explaining the delay. If he has no proper explanation, he is not entitled to the leave of the High Court under Section 378(3) of Cr.P.C. 26. We acknowledge the services rendered by the learned amicus curiae. 27. The reference is answered thus: (i) Clause (b) of Article 115 of the Limitation Act applies to an appeal under the proviso to Section 372 of Cr.P.C by a victim against an order convicting the accused for a lesser offence or against an order imposing 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. 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. The registry will place the application for leave before the Division Bench as per roster.