A perusal of the decisions to which the attention was
drawn and so also the decisions referred in the said case in terms
supports the submission canvased by learned counsel for the
petitioner that no period of limitation is prescribed for preferring an
appeal provisio of Section 372 of the Code of Criminal Procedure
either in the provisions of the Code or by any other provision, as
otherwise erroneously assumed by the learned Additional Sessions
Judge. Though it is true that period of limitation has been prescribed
for State for making an application for seeking leave against the
judgment and order of acquittal under the provisions of Section 378
(5) of Cr.P.C., no such a provision has been found incorporated
either in the proviso or otherwise in the code.
The learned APP
appearing in the matter has also fairly submitted of no such period
of limitation has been prescribed for preferring such an appeal, now
allowed to be preferred by the victims of crime.
8.
Having
regard
to
the
position
regarding
period
of
petitioner was clearly superfluous.
limitation for such an appeal, the application preferred by the
However, merely because of
preferring of such a superfluous application cannot deprive the
petitioner consideration of appeal presented by him before the Court
of Sessions.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Writ Petition No.257/2012
Shri Sudam s/o Bhaduji Talmale,
.. Versus ..
..
Shri Ambadas s/o Babarao
Nirmal,
CORAM : P.D.KODE, J.
DATED : JULY 19, 2013
Citation;2013 ALL M R(cri)3397 bombay
2. Rule. Rule made returnable forthwith. Heard by consent
of parties.
The petitioner
first informant and also the victim within
3.
the meaning of Clause 2 (wa )of the Code of Criminal Procedure has
preferred present petition for quashing and setting aside the order
dated 01.02.2012 passed by Additional Sessions Judge-17, Nagpur,
dismissing the application for condonation of delay allegedly
occurred in preferring an appeal against order of acquittal recorded
Considering the short controversy involved in the matter,
4.
by Additional Chief Judicial Magistrate, Nagpur.
it is wholly unnecessary to narrate the details except stating that
upon the report lodged by first informant, Ajni Police Station
registered the crime for offence under Section 447 of Indian Penal
against
respondent
Code
no.1.
After
the
investigation,
the
respondent no.1 was charge sheeted by said Police Station for
commission of such offence and was ultimately tried by the Court of
The said case ended
Additional Chief Judicial Magistrate, Nagpur.
into the acquittal of the respondent no.1. The petitioner intended to
prefer an appeal against the said judgment and order of acquittal
dated 17.03.2010 in Summary Case No.10/1990 by Additional Chief
Judicial
Magistrate,
Nagpur.
However,
under
an
erroneous
impression that period of limitation for preferring such an appeal is
prescribed
under
the
law,
he
presented
an
application
condonation of delay occurred in preferring the said appeal.
for
The
said application was registered as Misc. Criminal Application No.
1873 of 2008.
The learned Additional Sessions Judge-17, Nagpur
dismissed said application for reason recorded in order dated
5.
The
learned
counsel
for
01.02.2012.
the petitioner
by drawing
attention to the decision delivered by Principal Seat at Mumbai in
Criminal Appeal No.991 of 2011 with Criminal Appeal No.992
of 2011
decided on 21.09.2011 (Mr. Balasaheb Rangnath
Khade .vs. The State of Maharashtra) and particularly the
matters stated in para 20, 23 and 26 therein and so also by laying
finger upon the earlier decisions in Criminal Appeal (Stamp) No.978
of 2010 and Criminal Appeal No.241 of 2011, submitted that said
decisions reveal that no period of limitation is prescribed for
preferring such an appeal for enforcing the right conferred upon
petitioner by proviso of Section 372 of the Code of Criminal
Procedure as amended on 31.12.2009. It is submitted that in such
circumstances the application preferred for condonation of delay
was superfluous and the learned Additional Sessions Judge ought to
have disposed it accordingly and dealt with the appeal presented in
accordance with the law. It is submitted that instead of doing so,
the learned Additional Sessions Judge dismissing the application
made for condonation of delay, has resulted in negativing the right
conferred upon the petition by proviso of Section 372 of the Cr.P.C.
The learned counsel urged that dismissal of said application being
on erroneous footing that period of limitation is prescribed for
preferring an appeal under section 372 of the Code, it cannot be
legally sustained and as such liable to be quashed and set aside. It
is urged that for enabling the petitioner to enforce the right
conferred upon him, the order be quashed and set aside and proper
directions be given to the learned Additional Sessions Judge, Nagpur
for considering the appeal presented by him in accordance with law.
6.
Mr. Kshirsagar, the learned counsel for the respondent no.
1 after considering the decisions pointed out, submitted for passing
7.
the orders as deem fit and proper by the Court.
A perusal of the decisions to which the attention was
drawn and so also the decisions referred in the said case in terms
supports the submission canvased by learned counsel for the
petitioner that no period of limitation is prescribed for preferring an
appeal provisio of Section 372 of the Code of Criminal Procedure
either in the provisions of the Code or by any other provision, as
otherwise erroneously assumed by the learned Additional Sessions
Judge. Though it is true that period of limitation has been prescribed
for State for making an application for seeking leave against the
judgment and order of acquittal under the provisions of Section 378
(5) of Cr.P.C., no such a provision has been found incorporated
either in the proviso or otherwise in the code.
The learned APP
appearing in the matter has also fairly submitted of no such period
of limitation has been prescribed for preferring such an appeal, now
allowed to be preferred by the victims of crime.
8.
Having
regard
to
the
position
regarding
period
of
petitioner was clearly superfluous.
limitation for such an appeal, the application preferred by the
However, merely because of
preferring of such a superfluous application cannot deprive the
petitioner consideration of appeal presented by him before the Court
of Sessions.
The perusal of the order impugned in the petition
reveals that the same had been passed upon erroneous footing of
period of limitation being prescribed for such an appeal.
The
matters in the said order on the contrary also reveal that since the
beginning the petitioner was attempting to take the proceedings for
redressal of his grievance. The foundation on which the order was
passed being erroneous, the same cannot be legally sustained.
Hence the order impugned is liable to be quashed and set aside.
Resultantly the order dated 01.02.2012 passed by learned
9.
Additional Sessions Judge-17, Nagpur in Misc. Criminal Application
No.1873 of 2011 is hereby quashed and set aside, maintaining the
dismissal of the said application due to the application being
superfluous, with a direction to the said Court to consider the
appeal, in accordance with law.
10.
Rule made absolute in the aforesaid terms.
(P.D. Kode,J.)
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