Mukherjee's case (supra) read as under :- "Considering the question on principle, an appeal is a proceeding by which the correctness of the decision of an inferior court is challenged before a superior court. A right of appeal therefore can arise by its very nature only when a decision by which a litigant is aggrieved is given, and it sounds paradoxical to say that it arises even before judgment in the case is pronounced." In view of above, there is no doubt that right to appeal is a substantive right. It is prospective in nature and shall commence from the date of judgment as before delivery of the judgment this right will only be imaginary.Proviso to Section 372 of the Code of Criminal Procedure was added on 31-12-2009, which vest right in the victim to file an appeal.Apex Court in National Commission for Women v. State of Delhi, has already held that the amendment is not applicable to cases where the incident has taken place prior to amendment.
Kolkata High Court (Appellete Side)
Sri Basu Appearing For The vs State Of Delhi on 11 February, 2013
This court on 10th January, 2013 had passed the following order :-
"Father of the petitioner was allegedly murdered by Respondent Nos.2 to 5. They have been acquitted vide the impugned judgment.
Proviso to Section 372 of the Code of Criminal Procedure was added on 31-12-2009, which vest right in the victim to file an appeal.
Shri Basu submits that right of appeal cannot accrue to the petitioner, as his father was murdered before the amendment.
During the course of argument, following question for consideration of the Court has arisen. The right of appeal, being a substantive right, whether shall accrue from the date of incident or from the date of the impugned judgment, after enactment of the amendment in the statue.
I have called Shri Basu and all members of the Bar to 2
assist this Court to answer the said question. Shri Bikash Ranjan Bhattacharjee, Senior Advocate, is appointed as Amicus Curiae to advance his dispassionate views in this matter.
List for argument on 4th February, 2013." Sri Basu appearing for the petitioner has relied upon the case National Commission for Women Vs. State of Delhi & Anr. reported in (2010) 12 SCC 599 to say that right of appeal has to relate back to date of incident.
In support of his contention reliance has been placed on para 8 of the above said judgment and the same read as under :- "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 authorises an appeal. The proviso inserted by Section 372 (Act 5 of 2009) with effect from 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 3
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." A perusal of the observation made by Supreme Court will reveal that it was not determined that from which date right of appeal shall accrue. A passing reference was made and petitioner therein was non-suited on the ground that appeal has not been filed by the victim and consequently no appeal was also provided against an inadequate sentence.
Further reliance has been placed in the case of Bhisam Prasad Bareth Vs. Dinesh Mahanta & Ors. reported in 2012 Crl. L. J. 2157 where relying on para 8 of National Commission for Women (supra), it was held that the right will vest from the date of the commencement of the proceedings and appeal is nothing but a continuation of proceedings.
Further reliance has been placed in the case of Hitendra Vishnu Thakur & Ors. Vs. State of Maharashtra & Ors. reported in 1994 SCC (Cri.) 1087 wherein it was held as under :- "The Designated Court has held that the amendment would operate retrospectively and would apply to the pending cases in which investigation was not complete on the date on 4
which the Amendment Act came into force and the challan had not till then been filed in the court. From the law settled by this Court in various cases the illustrative though not exhaustive principles which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows :
(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits. (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature. (iii) Every litigant has a vested right in 5
substantive law but no such right exists in procedural law.
(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.
(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication."
Hitendra Vishnu Thakur's case specifically states that substantive right is to be prospective in operation. When this prospective right will commence is an issue upon which this court has to ponder.
Sri Bikash Ranjan Bhattacharyya as what is the date from which prospective right of the parties shall commence to assist this court has referred to Rekha Mukherjee Vs. Ashis Kumar Das & Ors. reported in (2005) 3 SCC 427 wherein reliance has been placed upon in the case of Garikapatti Veeraya Vs. N. Subbiah Choudhury reported in AIR 1957 SC 540, para 33 of Rekha 6
Mukherjee's case (supra) read as under :- "Considering the question on principle, an appeal is a proceeding by which the correctness of the decision of an inferior court is challenged before a superior court. A right of appeal therefore can arise by its very nature only when a decision by which a litigant is aggrieved is given, and it sounds paradoxical to say that it arises even before judgment in the case is pronounced." In view of above, there is no doubt that right to appeal is a substantive right. It is prospective in nature and shall commence from the date of judgment as before delivery of the judgment this right will only be imaginary.
Consequently, present revision petition is dismissed being not maintainable.
Liberty is granted to the petitioner to pursue his right of appeal.
Department is directed to return the certified copies of the judgment/documents after furnishing attested photocopy to enable the petitioner to avail his right of appeal. (Kanwaljit Singh Ahluwalia, J.)
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