No Time Limit Stipulated Under Limitation Act For Victim Filing Appeal Against Conviction U/S 372 CrPC: Kerala High Court

The Kerala High Court has reiterated that the Limitation Act does not prescribe any statutory period for the victim to prefer an appeal against conviction under the proviso to Section 372 CrPC.

Justice C.S. Dias relied upon the Division Bench decision in Sobhanakumari K. vs. Santhosh @ Pallan Shaji (2018) and observed thus:

“In Sobhanakumari K. vs. Santhosh @ Pallan Shaji [2018 (1) KHC 195], a Division Bench of this Court has held that there is no time period stipulated under the Limitation Act to file an appeal by a victim under the proviso to Section 372 of the Code. If at all an appeal is filed beyond the time period of 30/60 days, only an affidavit explaining the reason for the delay is to be filed by the victim with the appeal.”

The Court also relied upon the Apex Court decision in K.Muruganandam & Ors vs. Deputy Superintendent of Police and Anr. (2021) to state that an appeal cannot be dismissed merely because of non-representation and the Court has an obligation to appoint an Amicus Curiae before hearing the case.

The revision petitioner was the wife of the second respondent who was a habitual drunkard. She was allegedly assaulted by the second respondent and a case was registered against him by the police u/s 498A of IPC (husband or relative of husband of a woman subjecting her to cruelty). After investigation, final report was submitted before the Judicial Magistrate of First Class -V, Thiruvananthapuram. The second respondent was acquitted and against the acquittal, the wife approached the Session Court, Thiruvananthapuram. She filed the appeal along with the delay condonation application. The Sessions Court dismissed the delay condonation application and also dismissed the appeal for non-representation for the revision petitioner. Against this, the wife has approached the High Court u/s 372 of CrPC.

The Court examined Section 372 of CrPC and its proviso. It also examined the term victim defined u/s 2 (wa) of the CrPC. The proviso to Section 372 provides that the victim shall have the 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.

The Court held that Section 372 CrPC read with Section 2 (wa) states that a victim has a right to prefer an appeal against an order of acquittal.

The Court relying upon Sobhanakumari (supra) stated that the revision petitioner need not have filed a delay condonation application and that the appeal was validly instituted within time. It relied upon the decisions in Dhananjay Rai @ Guddu Rai vs. State of Bihar (2022) and Muhammed E.Alias Kunhalan vs. Sub Inspector of Police (2022) to state that it was improper to dismiss an appeal for default or non-prosecution. The Court further stated that an appeal should be heard and disposed on its merits after perusal of the records.

On the above observations, the Court found that the dismissal of appeal for want of representation was erroneous, improper and irregular. Thus, the Court allowed the revision petition and restored the appeal.

“The Court of Session, Thiruvananthapuram is directed to dispose of Crl.A.No.254/2013 in accordance with law and as expeditiously as possible, after affording both sides an opportunity of being heard.”

Counsel for the Petitioner: Advocate D Kishore and Mini Gopinath

Counsel for the respondents: Advocate J.R. Prem Navaz

Citation: 2023 LiveLaw (Ker) 560

Case title: Jyothi v State of Kerala

Case number: Crl.Rev.Pet No. 1703 Of 2013

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