[S. 372 CrPC] Victim Has No Right To Prefer Appeal Against Acquittal Order Passed Before Dec 31, 2009: Allahabad HC

The Allahabad High Court has observed that a Victim/Informant under Section 372 of CrPC can't prefer an appeal against an acquittal/lesser offence/inadequate compensation order passed before December 31, 2009 (the day on which a proviso was added to Section 372 CrPC).

It may be noted that the proviso to Section 372 CrPC says that a victim/informant has 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.

The Bench of Justice Vivek Kumar Birla and Justice Mohd. Aslam however clarified that such an appeal can be filed only if the order in question has been passed after the enforcement of the proviso to Section 372 CrPC.

The case in brief 

The Court was dealing with an appeal filed by the informant, after a delay of 5173 days, against the acquittal order dated January 11, 2002, passed by Additional Sessions Judge, Deoria in under Sections 147, 148, 302, 302/149 IPC. The appeal was filed along with a delay condonation application filed under Section 5 of the Limitation Act.

Justifying the delay, the counsel for the applicant submitted that the delay was for the reason that in the year 2002, the appellant was suffering from poor health and he could not approach his local counsel, and when he approached his counsel, then he got information that a State appeal would be filed by the State.

Thereafter, the appellant went outside of the house for earning a livelihood and when he came to Allahabad in march, 2016 for his personal work, then he got the information that the State appeal was not filed, and therefore, it was prayed that the delay in filing an appeal be condoned.

Court's observations 

At the outset, the Court noted that the impugned judgment is of the year 2002 and therefore, a question was to be decided as to whether an appeal can be moved against an acquittal order which had been passed way before December 31, 2009, when the proviso to Section 372 came into force.

Taking into account the proviso to Section 372, the Court observed thus:

"The statutory right in favor of the victim was granted by way of amendment under Section 372 CrPC w.e.f. 31.12.2009 and prior to that amendment, in State case only the State Government could have filed the appeal that too along with an application for granting leave to appeal. The appellant at the time of passing of the impugned judgment could have at the most challenged the order by filing criminal revision which right was admittedly not exercised by the appellant."

Against this backdrop, the Court opined that there is no specific provision that proviso to Section 372 CrPC is retrospective in nature, and therefore, the Court added, the instant appeal would not be maintainable and accordingly, the same was dismissed as not maintainable.

The Court also averred that since there was no right available to the informant after the passing of the acquittal order to move an appeal against the same, therefore, the grounds narrated in the affidavit filed in support of delay condonation application under Section 5 of Limitation Act need not be looked into.

Case title - ­ Toofani v. State Of U.P. And 13 Others
Case Citation: 2022 LiveLaw (AB) 52

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