Application For Condonation Of Delay Not Required When Victim Appeals Against Acquittal, Affidavit Explaining Delay Sufficient: Kerala High Court

The Kerala High Court on Tuesday held that when a victim belatedly files an appeal against a judgement of acquittal, it is not essential to file an application for condonation of delay and that an affidavit explaining the delay would suffice.

The court also held that it is not necessary for the appellate court to pass a specific order in relation to the delay.

A single bench of Justice Bechu Kurian Thomas observed

“A delay condonation petition is not required to be filed by a victim who prefers an appeal even after a delay of more than 90 days. The only requirement is to file an affidavit explaining the delay. If the Appellate Court is satisfied with the explanations offered, the court is entitled to proceed to consider admission of the appeal.”

The petitioners in the matter at hand approached the court aggrieved by the order of the Judicial First Class Magistrate's Court admitting the appeal filed by the victim after a delay of over 3 years. The victim had filed an affidavit stating specific reasons for the delay in filing the appeal. The victim did not file a separate application to condone the delay and the court while admitting the appeal did not pass any order condoning the delay.

Petitioners contended that the court below did not issue notice to them — the respondents in the matter pending in the lower court. The grievance of the petitioners was that they were not given an opportunity to object the delay and that the affidavit explaining the delay was accepted mechanically by the court without going into the veracity of the averments.

Adv. Srinath Girish appeared for the petitioners, Adv. Subal J. Paul appeared for the respondent and Public Prosecutor V Sreeja appeared for the State.

The court referred to the decision of a full bench of the Kerala High Court in Sobhanakumari K. v. Santhosh @ Pallan Shaji [2018 (1) KHC 195] where it was observed that under the Code of Criminal Procedure Amendment Act, 2008, the victim can appeal against an order of acquittal or an order convicting the accused for a lesser offence, and no period of limitation has been prescribed for filing the appeal.

Even though there is no period of limitation for filing such an appeal, it must be filed within a reasonable period of 90 days, the court had observed. If there is an inordinate delay then grounds for such delay must be explained in an affidavit.

The court also relied on the decision of the Supreme Court in Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others [2018 (5) KHC 362] to arrive at the conclusion that an affidavit explaining the delay would suffice when a victim files an appeal:

“On consideration of the above two judgments, the following propositions emerge:-

(i) A victim has a right to appeal against a judgment of acquittal or a judgment imposing a lesser sentence.
(ii) No leave petition is required to be filed nor is leave required to be obtained for filing an appeal by the victim and the rights of the victim under the amended Code are substantive in nature.
(iii) An affidavit explaining the delay is sufficient while a petition to condone the delay is not required.
(iv) Since a petition to condone the delay cannot be filed, a corresponding order is also not contemplated.”

The court observed that as the court below was satisfied with the explanation offered by the victim and since the petitioners would be afforded an opportunity to contest the appeal on merits, no prejudice was caused to them and no interference was warranted. The court refused to set aside the order of the sessions court and also directed the court below to take up the matter on a priority basis as the victim is "quite aged".

Case Title: T Peethambaran V State of Kerala

Citation: 2023 LiveLaw (Ker) 152

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