Section 372 CrPC Proviso Providing Substantive Right Of Appeal To 'Victim' Isn't Retrospective In Nature: Allahabad High Court

The Allahabad High Court has observed that the amendments made in Section 372 CrPC by adding a proviso in the year 2009, creating a substantive right of appeal for the 'victim' is not retrospective in nature.

Meaning thereby, a 'victim' [as defined under Section 2w (wa) of CrPC] has no right to prefer an appeal against an order passed before December 31, 2009, acquitting the accused/punishing him for a lesser offence/imposing inadequate compensation.

It may be noted that December 31, 2009, is the decisive date for determining whether a 'victim' has a right to prefer an appeal under Section 372 CrPC as the proviso, providing the right to appeal was added to Section 372 CrPC came into effect on December 31, 2009.

This proviso provides a right 'victim' [as defined under Section 2w (wa) of the Cr.P.C.] to move an appeal on three grounds namely

The case before the Court

The bench of Justice Vivek Kumar Birl and Justice Vikas Budhwar was hearing an appeal filed by the 'victim' u/s 372 of the CrPC seeking to challenge the judgement and order of the year 2004 passed by the Sessions Judge, Mirzapur whereby the accused-respondents were acquitted of the offences under Section 302/34 IPC.

At the outset, the Court noted that apart from the fact that the Stamp Reporter had reported a delay of 6228 days in filing the appeal, the appeal itself was not maintainable as when the acquittal order was passed by the Court below, there was no proviso to Section 372 CrPC giving a right to the victim to file an appeal against such acquittal order.

"...it is very much clear that the amendments so made in Section 372 CrPC by adding a proviso in the year 2009 creating a substantive right of appeal is not retrospective in nature. It is, therefore, clear that in the year 2004 when the impugned judgement under challenge was passed, the appellant herein who claims to be the victim had no right to challenge the impugned order dated 2.12.2004 by way of filing the appeal," the Court remarked.

Therefore, it was held that the appeal, which was filed after a delay of about more than 21 years challenging a 2004 Judgment which was passed much prior to the amendment (adding the proviso in the year 2009 with effect from 31.12.2009) was not maintainable.

The appeal was accordingly dismissed as not maintainable.

Case title - Triyugi Nath Tiwari v. State Of U.P. And 2 Others [CRIMINAL APPEAL DEFECTIVE U/S 372 CR.P.C. No.- 10 of 2022]

Case citation: 2022 LiveLaw (AB) 371

Click Here To Read/Download Order