We tend to embrace the procedure laid down by Section 365 of the Code in appeals against the acquittal filed under section 372 of the Code also and hold that as soon as an accused or the accused persons are acquitted, the Court of Sessions or Chief Judicial Magistrate or other trying Magistrate shall forward a copy of its or his finding and sentence (if any) to the District Magistrate (Collector) within whose local jurisdiction the trial was held.
31. The reason being that the District Magistrate, after all, has the machinery and all the infrastructure at its disposal to take necessary and required steps so that the victim is informed about the acquittal and should be apprised of his or her right of appeal. An acknowledgment of the said information after having been received by victim from the office of District Magistrate be transmitted to the above said Courts for the purpose of record which will ensure and enable the Appellate Court to ascertain bona fides of appellant.
32. We direct that Courts of Session, Chief Judicial Magistrate and Magistrate, on their part, to maintain a register in this regard incorporating the date of dispatching copy of its or his finding and sentence (if any) to the District Magistrate and further to record the date of delivery of the same. Acknowledgment from the victim so received by District Magistrate and forwarded to the respective Courts shall also be recorded in the said register.
IN THE HIGH COURT OF BOMBAY
Criminal Application No. 380 of 2019 in Criminal Appeal (ST.) No. 390 of 2019
Decided On: 16.07.2020
Ranjana Shantilal Suryawanshi Vs. Jaiprakash Tulsiram Gupta and Ors.
Hon'ble Judges/Coram:
S.S. Shinde and V.G. Bisht, JJ.
Citation: MANU/MH/0761/2020
1. The applicant, namely, Ranjana Shantilal Suryawanshi (original complainant/informant) seeks condonation of delay of 717 days in filing Criminal Appeal (St.) No. 390 of 2019.
2. The applicant is mother of the deceased Sujata, who was married to respondent No. 1 (Jaiprakash Tulsiram Gupta). The applicant claims her right to file an appeal as a victim in terms of the proviso to Section 372 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code'").
3. In the Appeal it is the judgment of learned Additional Sessions Judge, City Civil & Sessions Court, Gr. Bombay dated 13th March, 2014 in Sessions Case No. 201 of 2012 which is under challenge. The learned Additional Sessions Judge acquitted respondent No. 1 of the offence under Section 302 of the Indian Penal Code.
4. Mr. Chavan, learned Senior Counsel, for the applicant submitted that there is no limitation provided for filing of appeal by the victim under Section 372 of the Code and therefore, the law of limitation has no application. The learned Senior Counsel then submitted that the delay occurred as the applicant is an illiterate lady and has very meager means of subsistence. This factor, therefore contributed to the delay. In support of his submission, learned Senior Counsel has placed reliance in Ram Phal v. State & Ors., 2. Balasaheb Rangnath Khade v. The State of Maharashtra & Ors., 3. Kareemul Hajazi v. State of NCT of Delhi & Ors., 4. Yohannan Versus State of Kerala 5. Mohd. Azim Sheikh Ibrahim & Ors. Vs. Mehamuda Anjum Mohd. Azim & Anr. MANU/MH/2572/2013 : 2014 ALL Mr. (Cri.) 991, 6. Amit son of Bhagirath Mishra Versus The State of Maharashtra & Anr.1 and 7. Chobban Mallick Versus State of W. Ben.
5. On the other hand, Mr. Khan, learned Counsel for the accused/respondent No. 1, opposed the delay condonation application contending that for such inordinate delay of 717 days, there is no satisfactory explanation and, therefore, according to him, the application for condonation of delay ought to be rejected and, so too the appeal as being barred by time.
6. We have also heard learned APP Mrs. Deshmukh for the State.
7. Section 372 of the Code was amended on 30.12.2009. With effect from 31.12.2009. Section 372 of the Code, as it stands today, reads as follows:
"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.]"
8. It is manifest that Section 372 of the Code relates to appeal from judgment or order of a Criminal Court. It gives to the victim the right to prefer an appeal against any adverse order passed by the trial Court. This amendment forms a part of the entire scheme under which the definition 'victim' was inserted by way of Section 2(wa) of the Code, so as to allocate an active and constructive role to a victim of an offence in the judicial process arising from an offence.
9. Section 2(wa) of the Code defines the term 'victim' as to mean 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.
10. The applicant herein is not only informant/complainant but the mother of deceased also who was allegedly done to death by respondent No. 1-husband. The victim of crime, taken in the natural and ordinary sense, was the applicant's daughter. However, now that actual crime victim is no more, the question arises as to whether the applicant being her mother can be recorded as a victim.
11. In Ram Phal v. State & Ors. (supra), the full bench of Delhi High Court has held that, where the victim is unable (by reason of trauma, shock or other disability) to make a choice of preferring an appeal, those who are in a position to do so on her or his behalf (and who might also have suffered some proximate harm)-such as relatives, foster children, guardians, fiancé or live-in partners etc., can maintain an appeal under the proviso to Section 372.
It further held if "injury" denotes harm caused to one's mind, then a 'victim' by this definition, must encompass not only the 'victim' in the natural and ordinary sense of the term, but also those near and dear to him or her, because they experience 'harm to the mind' or mental anguish by virtue of the harm to 'body, mind, reputation or property' suffered by a loved one. Consequently, the spouse, parents, children, and siblings of a deceased victim of a crime must automatically also fall within the definition in Section 2(wa), for having suffered "injury" by reason of the act or omission of the accused.
12. In the present case, admittedly the applicant is mother of deceased daughter. There is no serious challenge to the capacity and character of applicant to initiate appeal proceedings. Even if there is slightest of murmur and dissent, the fact remains that the applicant has suffered emotional harm due to death of daughter and hence 'victim' within the definition of Section 2(wa).
13. As per proviso to Section 372, an appeal by victim shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. That is to say appeal shall lie either before the Sessions Court or before the High Court, depending upon the Court which tried the case. No such statutory right existed prior to the amendment except under Section 378(4) of the Code. Under Section 378(4), a private party can challenge an acquittal by way of appeal only after getting special leave to appeal under Sub-Section (5) of Section 378 within six months if the complainant is a public servant, and within 60 days in every other case.
14. We notice, however, that no period of limitation has been prescribed for the victim to prefer appeal against the judgment of acquittal in terms of proviso to Section 372 of the Code.
15. In Mohd. Azim Sheikh Ibrahim & Ors. (supra), the learned Single Judge of this Court and in Amit son of Bhagirath Mishra (supra), our Division Bench held that there is no provision of limitation for filing of an appeal by the victim under proviso to Section 372 of the Code.
16. The aspect of limitation for filing of an appeal against acquittal is governed by Article 114 of the Limitation Act. Interestingly, the question of limitation also fell for consideration before the Full Bench of Punjab and Haryana High Court in the case of M/s. Tata Steel Ltd. versus Atma Tube Products Ltd. & others (decided on 18.03.2013). Some of the paragraphs viz. 129, 130, 137, 138 and question (G) and answers thereto were quoted by our Division Bench in Amit son of Bhagirath Mishra, which are as follows:
"129. One of the well-recognized principles of criminal jurisprudence is that 'crime never dies'. The maxim 'nullum tempus qut locus occurrit regi' [lapse of time is no bar to Crown in proceedings against offenders] is an age-old rule embedded in criminal justice delivery system. The public policy behind this rule is that a criminal offence is considered as a wrong committed against the State and the Society though it is committed against an individual. The aforesaid rule of prudence has been duly acknowledged by the Parliament as it has prescribed no period of limitation for filing an appeal under proviso to Section 372 of the Code against an order of acquittal.
130. Article 114 of the Schedule to the Limitation Act, 1963, however, prescribes period of limitation for State's appeal against order of acquittal and it reads as under:-
Description of appeal Period of limitation Time from which period begins to run
114. Appeal From an order of acquittal
(a) Under sub-section
(1) or sub-section
(2) of Section 417
of the Code of
Criminal Procedure, 1998
(5) to 1898)
Ninety Days
The date of the order appealed from.
(b) Under sub-Section
(3) of Section 417
of the Code
Thirty Days
The date of the
grant of special
leave.
137. The Legislative intendment behind Articles 114 & 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 type of orders, is the best guiding factor to determine reasonableness of the period of limitation for an appeal preferable at the instant of a 'victim' also. It would, therefore, be reasonable to view that for appeal against acquittal filed by a 'victim' to the High Court the period of limitation would be 90 days and where such appeal lies to the Sessions Court such period shall be 60 days. For appeal against any other order, the reasonable period would be 60 days to the High Court and 30 days for appeals to the Sessions Court from the orders passed by the Magistrate, as the case may be. To be more specific, the period of limitation for the purpose of filing appeal (s) by a victim shall be as under:-
"138. The limitation period of ninety sixty and thirty days, as the case may be, prescribed above for the maintainability of an appeal by a victim, in our considered view, ought to be counted from the date such 'victim' acquires knowledge of the order appealable under proviso to Section 372. We say so for the reason that in most of the State cases, the 'victim' has no participatory role at the trial stage and the possibility of his/her remaining in the dark about the adverse order cannot be lightly brushed aside. The above rule of limitation, therefore, cannot be mechanically enforced even if the victim had no informed knowledge regarding culmination of the trial proceedings as it might cause serious prejudice to his/her rights, close to the extent of snatching away the right to appeal earned by the victims after a long drawn battle."
"Question (G) (ix) Subject to the exception carved out in para 138 of this order, the period of limitation for an appeal by a 'victim' under proviso to Section 372 of the Code shall be as under:-
Upon perusal of the reasons above, recorded by the Full Bench of Punjab & Haryana High Court, we respectfully agree with the above reasons, except for the reasons in paras 137 and 138 read with answer to Question [G] as above.
13. As is clear from the above discussion, there is no provision of limitation for filing of an appeal by the victim under proviso to Section 372 of the Code and Article 114 is silent. In other words, simultaneously, there is no amendment made to Article 114 of the Limitation Act for providing limitation to such appeals under Section 372, Criminal Procedure Code. But then the Full Bench of the Punjab & Haryana High Court has prescribed the limitation as provided in Article 114 of the Limitation Act in para 138, and has also further held that the date of acquisition of knowledge by the victim of the order of acquittal which could be a disputed question to be appealed against should be the commencement of limitation.
In our humble opinion, and with respect to the Full Bench of the Punjab & Haryana High Court providing for the limitation for filing of an appeal against acquittal does not fall within the realm of the judicial function. It is for the Legislature to provide for limitation under Article 114 when the occasion has arisen as a result of insertion of proviso to Section 372 with effect from December 31, 2009. Till then, the settled principle that such appeals must be filed within a reasonable time should hold the field. In that view of the matter, the only way out for us is to make a recommendation to the Law Commission through the Ministry of Law & Justice to consider amendment to Article 114 of the Limitation Act for providing for limitation in relation to the appeals to be filed under the proviso to Section 372, Criminal Procedure Code. Further, the appellate Court has always a power to consider the reason about the date of knowledge of the order appealable by the victim as sufficient cause for condoning the delay in filing the appeal. With respect, it would not be appropriate to hold that the limitation should be counted from the date of knowledge acquired by the victim without the same being projected as a reason to condone the delay".
17. The Patna High Court in Parmeshwar Mandal v. The State of Bihar MANU/BH/0654/2013 : 2014 Crl. L.J. 1046 also did not agree with the view taken by Punjab and Haryana High Court and held:
"18. ...Hence, 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 a victim, not intended and prescribed by the Legislature. Judicial discipline requires from courts to refrain from supplying any casus omissus in the legislation, for it is duty of the court to interpret, and not to legislate No limitation of time has been provided by the Legislature for exercise of such a right of appeal by the "victim" in terms of the said Proviso. Hence, in the fact and circumstances of each case, the Court has to determine as to whether the appeal was entertainable, or not, on the ground of absence of bona fide explanation for delay by the appellant..."
18. We are in respectful agreement with the view taken by Division Bench of our High Court in Amit son of Bhagirath Mishra's case.
19. We also would like to examine the issue in the light of provision of Section 5 of the Limitation Act, 1963. It provides that any appeal or application other than those provided in Order XXI of the Code of Civil Procedure, may be admitted after the prescribed period, if the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.
20. Strictly speaking, this Section will come into play where the act is not done within the period of limitation prescribed for the same. In order that, the delay may be condoned, there must be 'sufficient cause' for condonation of delay under Section 5 of the Limitation Act.
21. In the present case, we have already concluded that statute does not provide period of limitation vis-a-vis Section 372 of the Code. However, we are concerned with the expression 'sufficient cause' appearing in the Section 5 of the Limitation Act. 'Sufficient cause' is a concept in law depending on fact and circumstances of each case. It has always been understood to be a cause which is beyond control of person concerned and is bona fide. There are plethora of judgments which time and again have spared judicial attention and interpreted the term 'sufficient cause'.
22. Glance at number of days occurring in present case may give semblance of huge delay but we cannot be oblivious of applicant's social status and financial condition. Here we would hasten to add that our approach should be in conformity with the well recognize principles evolved over the years on the basis of judicial pronouncements. Some of such pronouncement, to which we propose to refer are the following:
(a) In case of Babu Ganesh Deshmukh Versus Sitaram Martand Deshmukh AIR 1960 Bom. 153, the Division Bench of this Court observed that the question whether sufficient cause is in the circumstances disclosed is primarily a question of discretion;
(b) In G. Ramegowda Major & others Versus Special Land Acquisition Officer MANU/SC/0161/1988 : AIR 1988 SC 142 the Hon'ble Apex Court held that the expression 'sufficient cause' within the meaning of Section 5 of the Limitation Act must be given a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay;
(c) In N. Balakrishnan Versus M. Krishnamurthy MANU/SC/0573/1998 : AIR 1988 SC 3222, the Hon'ble Apex Court held that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the Court has to go in the position of the person concerned and to find out if the delay can be said to have resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient;
(d) In State of Nagaland Versus Lipok AO and others, MANU/SC/0250/2005 : AIR 2005 SC 2191, it has been held by the Hon'ble Apex Court that a pragmatic approach has to be adopted and when substantial justice and technical approach are pitted against each other the former has to be preferred.
23. Therefore, keeping in view the legal position as highlighted above and the facts and circumstances of the present case, we are of the view that the cause shown by the applicant for condoning the delay must be held to be sufficient in the circumstances of the case.
24. Contextually, it would be apt and apposite to touch Section 365 of the Code. It says that in cases tried by the Court of Sessions or Chief Judicial Magistrate, the Court or such Magistrate, as case may be, shall forward a copy of its or his finding and sentence (if any) to the District Magistrate within whose local jurisdiction the trial was held.
25. Notably, Section 365 is silent about any other Magistrate. A victim who is entitled to file an appeal against acquittal could be a victim in a case tried by any other Magistrate. Sub-Section 5 of Section 363 of the Code provides for supplying of copy of the judgment or order or any deposition or other part of the record to any person affected by the judgment or order passed by a Criminal Court on his application, the proviso therein also provides issuance of copy free of cost, if the Court thinks it fit for special reasons.
26. Surprisingly, there is no provision in the Code to give notice to the victim about the date of judgment.
27. In Kalimuthu v. State of Kerala MANU/KE/1415/2013 : (2014) 4 KLT 909., a learned Single Judge considered the question of delay in filing an appeal by the victim and held thus:
"4. But it is pertinent to note that though the amendment was brought up, even now there is no provision in the Code of Criminal Procedure to inform the victim, regarding the-fate or end of the trial i.e., whether the accused was convicted or acquitted. In a case instituted on the police report, after giving information to the police, the victim goes under-an eclipse and he comes to the court only for giving evidence as a victim. Thereafter he will not be informed of whether the prosecution ended in conviction or acquittal. That apart in a case instituted on the police report, the State is the master of the prosecution and victim has no role at all, except the role of a witness. So long as there is no procedure to inform the victim after the acquittal or conviction in the case, the victim may get information as regards the fate of the case, after a long lapse of time. In such a situation, I am of the opinion that long lapse of time may occur in filing the appeal under S. 372 of the Cr.P.C. by the victim in the absence of the appeal by the State. Normally, the victim may think that the State, being the master of prosecution, would have preferred appeal promptly within the time. In such a situation, victim cannot be accused of the delay even if it is long, as it cannot be a culpable negligence. Normally an aggrieved victim may not cause delay deliberately at his own risk. Therefore, the Appellate Court is liable to take a lenient view in condoning the delay in filing the appeal by the victim under S. 372 of the Cr.P.C.".
28. It is common experience that in most of the cases informants are not so well educated or come from strata of society, lacking awareness and nuances involved in the proceedings. The semblance given to him/her is that every care is taken by state machinery. This being so, he or she may not even know the outcome of the proceedings. Is it the duty of Public Prosecutor to ensure that the informant is informed about the judgment acquitting accused against whom he/she had instituted the case?
29. Here we again revert back to Section 365 of the Code which casts an obligation upon the Court of Sessions or Chief Judicial Magistrate or other trying Magistrate to forward a copy of its or his finding and sentence (if any) to the District Magistrate within those local jurisdiction the trial was held.
30. We tend to embrace the procedure laid down by Section 365 of the Code in appeals against the acquittal filed under section 372 of the Code also and hold that as soon as an accused or the accused persons are acquitted, the Court of Sessions or Chief Judicial Magistrate or other trying Magistrate shall forward a copy of its or his finding and sentence (if any) to the District Magistrate (Collector) within whose local jurisdiction the trial was held.
31. The reason being that the District Magistrate, after all, has the machinery and all the infrastructure at its disposal to take necessary and required steps so that the victim is informed about the acquittal and should be apprised of his or her right of appeal. An acknowledgment of the said information after having been received by victim from the office of District Magistrate be transmitted to the above said Courts for the purpose of record which will ensure and enable the Appellate Court to ascertain bona fides of appellant.
32. We direct that Courts of Session, Chief Judicial Magistrate and Magistrate, on their part, to maintain a register in this regard incorporating the date of dispatching copy of its or his finding and sentence (if any) to the District Magistrate and further to record the date of delivery of the same. Acknowledgment from the victim so received by District Magistrate and forwarded to the respective Courts shall also be recorded in the said register.
33. We direct that a copy of this judgment be sent to the Registrar (Judicial-I) for circulation to all Courts and sub-ordinate to the High Court for a strict compliance hereafter. We further direct that the Registrar General of this Court to co-ordinate so that the Registrar (Judicial-1) takes immediate steps as directed.
34. In the result, the application is allowed and the delay in filing the accompanying appeal stands condoned.
1 Criminal Appeal No. 25 of 2015 decided on 05.05.2015 by Division Bench of Bombay High Court Bench at Nagpur.
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