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2018 DIGILAW 1604 (ALL)

Mohd. Malik v. State of U. P

2018-07-20

MAHENDRA DAYAL, RITU RAJ AWASTHI

body2018
JUDGMENT : 1. Heard Mr. Manoj Kumar Misra, learned counsel for appellant, as well as Ms. Ruhi Siddiqui and Mr. Umesh Verma, learned Additional Government Advocates on behalf of State and perused the record. 2. This appeal along with application for leave to appeal has been filed under Section 372 Cr.P.C. against the judgment and order dated 28.3.2018 passed by the learned Additional Sessions Judge, Court No. 06, Raebareli in Sessions Trial No. 351 of 2002 arising out of case Crime No. 145 of 2002, under Sections 307 and 302 IPC, Police Station Mohanganj, District Raebareli whereby the respondents no. 2 and 3 have been acquitted. 3. The appeal has been filed challenging the acquittal of respondents no. 2 and 3. 4. A preliminary objection has been taken by Mr. Umesh Verma, learned Additional Government Advocate regarding maintainability of the appeal on the ground that the date of occurrence and institution of the proceedings are prior to the amendment in Section 372 Cr.P.C. which has come into effect on 31.12.2009, as such, the appeal under Section 372 Cr.P.C. would not be maintainable on behalf of appellant. In support of his submissions, he has relied on the Constitution Bench judgment of the Apex Court in the case of Garikapati Veeraya vs. N. Subbiah Choudhry and others; AIR 1957 SC 540 which has been followed in the case of Transmission Corporation of A.P. vs. Ch. Prabhakar and others; 2004 (5) SCC 551 . 5. Mr. Manoj Kumar Misra, learned counsel for appellant has submitted that since the cause of action to file the appeal has accrued on the basis of the impugned judgment dated 28.3.2018 which is after amendment in Section 372 Cr.P.C. and, as such, he has a right to file appeal under Section 372 Cr.P.C. 6. We have considered the submissions made by the parties' counsel. 7. It is to be observed that the Apex Court in the case of National Commission for Women vs. State of Delhi and others; 2010 (12) SCC 599 has held has 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 authorizes an appeal. 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 authorizes an appeal. The proviso inserted by Section 372 (Act 5 of 2009) w.e.f. 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." 8. In the Constitution Bench judgment of the Apex Court in the case of Garikapati Veeraya (supra), the law has been summarized as under: "(23) From the decisions cited above the following principles clearly emerge: (i) The legal pursuit of a remedy, suit appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding; (ii) the right of appeal is not a mere matter of procedure but is a substantive right; (iii) the institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the carrier of the suit; (iv) the right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of filing of appeal; (v) this vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary intendment and not otherwise. (24) In the case before us the suit was instituted on April 22, 1949 and on the principle established by the decisions referred to above the right of appeal vested in the parties thereto at that date and is to be governed by the law as it prevailed on that date, that is to say, on that date the parties acquired the right, if unsuccessful, to go up on appeal from the sub-court to the High Court and from the High Court to the Federal Court under the Federal Court (Enlargement of Jurisdiction) Act, 1947 read with Cl. 39 of the Letters Patent and Ss. 109 and 110 of the Code of Civil Procedure provided the conditions thereof were satisfied. The question for our consideration is whether that right has been taken away expressly or by necessary intendment by any subsequent enactment. That respondents to the application maintain that it has been so taken away by the provisions of our Constitution." 9. In the case of Transmission Corporation of A.P. (supra), the Apex Court considering the Constitution Bench judgment as noted above has held that if the right of appeal is a substantive right which is really a step in a series of proceedings all connected by an intrinsic unity and is to be regarded as one legal proceeding and further being a vested right such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences. Relevant paragraph 18 of the judgment is reproduced below: "18. The main problem will arise where the Special Court itself tries the case of the type described in Sub-section (1) of Section 49-E of the Amended Act in view of the bar created by Sub-section (2) of the said section whereby finality is attached to the decision of the Special Court. The appeal is the right of entering a superior Court and invoking its aid and interposition to redress an error of the court below. Though procedure does surround an appeal the central idea is a right. The right of appeal has been recognised by judicial decisions as a right which vests in a suitor at the time of institution of original proceedings. 10. S.R. Das, CJ. Though procedure does surround an appeal the central idea is a right. The right of appeal has been recognised by judicial decisions as a right which vests in a suitor at the time of institution of original proceedings. 10. S.R. Das, CJ. in Garikapati Veeraya v. Subbiah Choudhary; AIR 1957 SC 540 , following the decision of the Privy Council in Colonial Sugar Refining Company v. Irving 1905 AC 369 and on a review of earlier authorities deduced the following five propositions regarding an appeal, viz. -(i) The legal pursuit of a remedy, suit appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding; (ii) the right of appeal is not a mere matter of procedure but is a substantive right; (iii) the institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the carrier of the suit; (iv) the right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of filing of appeal; (v) this vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary intendment and not otherwise. Therefore if the right of appeal is a substantive right which is really a step in series of proceedings all connected by an intrinsic unity and is to be regarded as one legal proceeding and further being a vested right such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences then Sub-section (2) of Section 49-E insofar as it makes the decisions of the Special Court final and also makes no provision of appeal clearly causes prejudice and substantial injury to the accused. " 11. " 11. In the present case, the date of occurrence of the offence is 10.7.2002 and, as such, the lis between the parties is to be treated from the date of occurrence. 12. Since the same is prior to amendment in Section 372 Cr.P.C. which has come into effect on 31.12.2009, we are of the considered view that the appeal, in the given facts, on behalf of Mohd. Malik under Section 372 Cr.P.C. would not be maintainable. It is accordingly dismissed. 13. At this stage, Mr. Manoj Kumar Misra, learned counsel for appellant has submitted that he may be given liberty to file criminal revision. 14. It is needless to observe that liberty is always there with the appellant to approach the appropriate Forum in case the law so permits.