1

RESERVED

AFR

Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C. (LEAVE TO

APPEAL) No. - 351 of 2017

Applicant :- Mast Ram Tiwari

Opposite Parties :- State of U.P. & 3 Ors.

Counsel for Applicant :- Rajesh Kumar Singh

Counsel for Opposite Parties :- S.A. Murtaza, A.G.A.

With

Case :- GOVERNMENT APPEAL No. - 6071 of 2017

Appellant :- State of U.P.

Respondents :- Keshav Savita & Anr.

Counsel for Appellant :- S.A. Murtaza, A.G.A.

Hon'ble Dilip B Bhosale, Chief Justice

Hon'ble Shashi Kant Gupta, J

Hon'ble Suneet Kumar, J

(Per Dilip B Bhosale, Chief Justice)

The question referred to this Bench is, whether the limitation for filing

an appeal at the instance of the victim or the first informant is 60 days from

the date of acquittal as laid down under Section 378 (5) of the Code of

Criminal Procedure, 1973 (for short, 'CrPC') or 90 days as reported by the

Stamp Reporter pursuant to the judgment of a coordinate Bench of this

Court in Nanhey Singh @ Dinesh Singh Vs. State of U.P. & Ors.,

Criminal Misc. Application Defective U/S 372 CrPC (Leave to Appeal) No.

83 of 2013, decided on 22.07.2013.

This question has been formulated and referred by a Division Bench,

while dealing with Criminal Misc. Application U/S 372 Cr.P.C. (Leave to

Appeal) No. 351 of 2017. The Criminal Misc Application has been instituted

on behalf of the complainant against the judgment and order dated

01.08.2017 rendered by Additional Sessions Judge, Court No.1, Banda,

whereby the respondents-accused were acquitted of the charges punishable

under Sections 364/376 of Indian Penal Code (for short, 'IPC') read with

Sections 3 and 4 of the Protection of Children from Sexual Offences Act,

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2012 (for short, 'POCSO Act') in Sessions Trial No. 120 of 2014 arising

from Special Criminal Case No. 67 of 2014. The victim in the first case is

one Km 'X' and the first informant is one Mast Ram Tiwari, son of Bachchhi

Ram Tiwari, her grandfather. The alleged incident of kidnapping and rape

occurred in the intervening night of 18

th

and 19

th

May 2014. The FIR was

lodged by the petitioner pursuant to which a crime bearing Crime No. 120 of

2014 came to be registered at Police Station Mataundh, District Banda. The

accused persons were tried before the Additional Sessions Judge, Court

No.1, Banda, who, vide judgment and order dated 01.08.2017, acquitted

them all of the charges punishable under Sections 364, 376 of IPC read with

Sections 3 and 4 of POCSO Act. It is against this judgment and order the

petitioner filed an application seeking leave of this Court to file appeal

against the order of acquittal under Section 372 read with Section 378 (5) of

CrPC. Since the appeal was filed after 60 days from the date of the judgment

of acquittal, the above question has been framed and referred by the Division

Bench vide order dated 03.11.2017. The Division Bench, after referring to

the judgment of another Division Bench of this Court in Nanhey Singh

(supra), expressed its reservation about view taken therein and formulated

the question by making the following observations in the order:

“Proviso to section 372 Cr.P.C. has been added by

the Legislature through the Amending Act No.5 of 2009.

Proviso to section 372 Cr.P.C. does not have the

retrospective effect. There is no period of limitation

prescribed for the filing of an appeal by a victim under

the proviso to Section 372. Thus it is well established that

a reasonable period would have to be inferred from the

statutory provisions. If no period of limitation has been

prescribed, statutory authority must exercise its

jurisdiction within a reasonable period. What shall be the

reasonable period would depend upon the nature of the

statute, rights and liabilities and other relevant factors. In

the absence of any period of limitation it is settled that

every authority is to exercise the power within a

reasonable period. What would be reasonable period

would depend upon the facts of each case.

Thus, from a reading of the above said legal

position it is abundantly clear that the proviso to Section

372 Cr.P.C. must be read along with its main enactment

i.e. Section 372 itself together with sub-section (3) of

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Section 378 Cr.P.C. otherwise the substantive provision

of Section 372 Cr.P.C. will be rendered nugatory, as it

clearly states that no appeal shall lie from any judgment

or order of a criminal court except as provided by Cr.P.C.

Sub-section (3) to section 378 Cr.P.C. provides for

preferring an appeal to the High Court against the order

of acquittal and it is necessary to obtain its leave. It is

well established that the proviso to section 372 Cr.P.C.

must be limited to the subject matter of section 378

Cr.P.C.

During the course of arguments, Sri Syed Ali

Murtaza, learned AGA has also cited a number of

judgments of other Hon'ble High Court and the Apex

Court with regard to computation of limitation in filing

the appeal against acquittal. Learned AGA stressed that

Legislative body has not paid heed towards the

Amending Act No.5 of 2009 by virtue of which period of

limitation has not been prescribed in consonance with

Article 114 (a) Limitation Act which was being followed

under section 417 Cr.P.C.of Old Act 1898 and has now

been re-enacted as Section 378 Cr.P.C.

For the proper exposition of legal stratagem, the

judgments relied by the learned counsel for the appellant

and AGA are delineated as under :

1. Kareemul Hajazi Vs. State of NCT of

Delhi & others (Crl. Appeal No. 740 of 2010)

decided on 7.1.2011.

2. Lalu Prasad Yadav & State of Bihar &

another (Criminal Appeal No. 662 of 2010)

decided on 1st April 2010.

3. M/s Tata Steel Ltd. Vs. Atma Tube

Products & others (FB) CRM 790 of 2010

decided on 18

th

March 2013.

4. State (Delhi Administration) Versus

Dharampal (2001) 10 SCC 372.

In the aforesaid judgments, the issue with regard to

computation of limitation in the appeal filed against the

acquittal passed by any court other than a High Court by

the Central Government, State and the victim has been

dealt with in extenso which is totally not in consonance

with section 378 (5) Cr.P.C.

Thus the period of limitation enshrined in section

378 (5) Cr.P.C. runs counter to the ratio of coordinate

Bench of this Court in the matter of Nanhey Singh @

Dinesh Singh decided on 22.7.2013.”

The Division Bench, while making reference, also connected another

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appeal filed by the Government, bearing Government Appeal No. 6071 of

2017 (State of U.P. Vs. Keshav Savita & Anr.), observing that quite similar

and debatable question is raised in the said appeal also. It is in this backdrop,

a larger Bench has been constituted for considering the aforementioned

question quoted in the first paragraph of this judgment.

Before we deal with the question, it would be advantageous to refer to

the judgment of this Court in Nanhey Singh (supra), to understand the

divergent view expressed in the reference order. In that case, the appellant

had challenged the correctness of the judgment of acquittal dated

11.10.2006, by which the respondents – accused were acquitted of offence

under Section 302 IPC. The appellant was neither the informant nor was

examined as a witness in the case. He had made a statement on affidavit that

he was cousin of the deceased Jabbar Singh, the son of PW-2 in the case.

While dealing with the application seeking leave to file appeal and the

question of limitation, the Division Bench, after considering the provisions

contained in Sections 372 and 378 of CrPC read with Article 114 of the

Limitation Act, 1963 (for short, 'Limitation Act'), in paras 4 and 5 observed

thus:

“4. We have already noted that provisions of Section

378 Cr P C is related to special categories of cases on

account of very categorization made by that provision.

Thus, we have no hesitation in saying that the

provision of limitations, which are prescribed by

Section 378 Cr P C, could not be attracted to an

appeal, which could have been filed under Section 372

Cr P C by virtue of the Proviso, which was added by

the legislature through the Amending Act No. 5 of

2009. Then, the simple question could be as to how could

the courts be ascertaining as to what should be the

limitation within which an appeal should be preferred by

any person, who is entitled by virtue of proviso to Section

372 Cr P C to bring an appeal before any appellate court.

In our opinion, the provision of Section 378 Cr P C, as we

have already noted, is special in nature, which is attracted

only in cases of appeals, which are likely to be preferred

or which have been filed in three different categories of

cases, which we have already indicated, may be a case

different from that which is spoken of by Section 378 as

in that case even if the right of appeal has been created in

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favour of the complainant, he has to exercise that right

within a particular period by virtue of Section 378 (5) Cr

P C, which situation is not postulated by proviso to

Section 372 Cr P C, as such, in our opinion, the general

provisions of the Limitation Act have to be consulted

for ascertaining the period, which could be attracted

for filing an appeal under Section 372 proviso Cr P C.

5. We refer to Article 114 of the Limitation Act,

which refers to Section 417 (2) of the Cr P C, that, the Cr

P C of 1988 and that is equivalent to present Section 378

Cr P C. In that case the period is prescribed as 90 days,

but the provisions under Section 372 Cr P C being a new

one, which was brought out by virtue of Amending Act

No. 5 of 2009 and on consideration of the very Article

114 of the Limitation Act, we find that it speaks of an

appeal from an order of acquittal and thereafter,

makes categorization of different appeals under

different headings. We have to assume that the

Legislature at the time of the framing Article 114 of

the Limitation Act in absence of the previous proviso

to Section 372 Cr P C, had nothing before it to mention

that particular provision as one of such occasions on

which the law of limitation shall be considered for

computing the period of limitation. But, the provision

speaks of appeals against acquittal and we are of the

opinion that a period of 90 days should be applicable also

to appeals under Section 372 proviso Cr P C.”

(emphasis supplied)

It is against this backdrop, we have heard learned counsel for the

parties and, with their assistance, gone through the reference order, judgment

in Nanhey Singh's case, judgments of the Supreme Court and this Court

relied upon by them and the relevant provisions of CrPC and the Limitation

Act. It is pertinent to note that both, counsel appearing for the State and

counsel appearing for the applicant, submitted that the limitation for filing

an appeal against the judgment of acquittal by the victim/informant under

Section 372 is 90 days, as has been rightly held by the Division Bench of

this Court in Nahney Singh's case. Learned counsel for the State and the

applicant submitted that there is no provision prescribing the period of

limitation for such an appeal filed on behalf of a victim under the proviso to

Section 372 of CrPC. The period of limitation for an appeal by the State

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Government or the Central Government against an order of acquittal is 90

days from the date of order appealed from by virtue of Article 114(A) of the

Limitation Act. It was further contended that the right of appeal against the

order of acquittal by the State and the victim cannot be discriminated. Then

it was submitted that, where no period of limitation is prescribed by the

Statute, the Courts would have to infer a reasonable period of limitation.

Since 90 days' period is provided for the appeal by the State, the period of 90

days, even for the appeal at the instance of victim, therefore, deserves to be

treated as reasonable period of limitation. In support of the submission, we

were taken through, by learned counsel for the parties, the relevant

provisions of CrPC and the judgments of the Supreme Court in State (Delhi

Administration) Vs. Dharampal, AIR 2001 SC 2924; Lalu Prasad Yadav

& Anr. Vs. State of Bihar & Anr., AIR 2010 SC 1561; Satya Pal Singh

Vs. State of M.P. & Ors., [2015 (91) ACC 955]; judgment of the Full

Bench of this Court in Manoj Kumar Singh Vs. State of U.P. & Ors.,

[2016 (97) ACC 861]; judgment of the Full Bench of Punjab and Haryana

High Court in M/s. Tata Steel Ltd. Vs. M/s. Atma Tube Products Ltd. &

Ors., CRM-790-MA-2010 (O&M) , decided on 18.03.2013, and

Parmeshwar Mandal Vs. The State of Bihar & Ors., 2014 CrLJ 1046.

None appeared on behalf of the accused.

Before we proceed further, it would be relevant to notice certain

provisions, which are relevant for our purpose, to address the question. The

word 'complaint' and the word 'victim' have been defined by clauses (d) and

(wa) of Section 2 of CrPC, which read thus:

“(d) “complaint” means any allegation made orally

or in writing to a Magistrate, with a view to his taking

action under this Code, that some person, whether known

or unknown, has committed an offence, but does not

include a police report.

Explanation.- A report made by a police officer in a

case which discloses, after investigation, the commission

of a non-cognizable offence shall be deemed to be a

complaint; and the police officer by whom such report is

made shall be deemed to be the complainant;

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(wa) “victim” means 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;”

We are referring to these definitions, in view of the fact that these

words are used in Section 372 and Section 378 of CrPC, around which the

arguments advanced by learned counsel for the parties revolved. Section 372

in Chapter XXIX, which deals appeals, provides that no appeal to lie unless

otherwise provided. This Section was amended by Act 5 of 2009 with effect

from 31.12.2009, whereby a proviso was added, conferring right to the

victim to prefer an appeal against an order of acquittal. It would be

advantageous to reproduce Section 372, which reads thus:

“372. 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.”

Similarly, we are also concerned with Section 378, which provides for

appeal in case of acquittal. The provisions contained in Section 378, read

thus:

“378. Appeal in case of acquittal. – (1) Save as

otherwise provided in sub-section (2), and subject to the

provisions of sub- sections (3) and (5), –

(a) the District Magistrate may, in any

case, direct the Public Prosecutor to present an

appeal to the Court of Session from an order of

acquittal passed by a Magistrate in respect of a

cognizable and non-bailable offence;

(b) the State Government may, in any

case, direct the Public Prosecutor to present

an appeal to the High Court from an original

or appellate order of an acquittal passed by

any Court other than a High Court [not being

an order under clause (a)] or an order of

acquittal passed by the Court of Session in

8

revision.

(2) If such an order of acquittal is passed in any

case in which the offence has been investigated by the

Delhi Special Police Establishment constituted under the

Delhi Special Police Establishment Act, 1946 (25 of

1946) or by any other agency empowered to make

investigation into an offence under any Central Act other

than this Code, the Central Government may, subject to

the provisions of sub-section (3), also direct the Public

Prosecutor to present an appeal –

(a) to the Court of Session, from an order

of acquittal passed by a Magistrate in respect of

a cognizable and non-bailable offence;

(b) to the High Court from an original or

appellate order of an acquittal passed by any

Court other than a High Court [not being an

order under clause (a)] or an order of acquittal

passed by the Court of Session in revision.

(3) No appeal to the High Court under sub-section

(1) or sub-section (2) shall be entertained except with the

leave of the High Court.

(4) If such an order of acquittal is passed in any

case instituted upon complaint and the High Court, on an

application made to it by the complainant in this behalf,

grants special leave to appeal from the order of acquittal,

the complainant may present such an appeal to the High

Court.

(5) No application under sub-section (4) for the

grant of special leave to appeal from an order of acquittal

shall be entertained by the High Court after the expiry of

six months, where the complainant is a public servant,

and sixty days in every other case, computed from the

date of that order of acquittal.

(6) If in any case, the application under sub-section

(4) for the grant of special leave to appeal from an order

of acquittal is refused, no appeal from that order of

acquittal shall lie under sub- section (1) or under sub-

section (2).”

Though, the question that fell for consideration of the Supreme Court

in Dharampal (supra) was not the same as falls for our consideration, the

Supreme Court had an occasion to deal with Section 378 in depth. The

Supreme Court in that case, considered the question whether appeals were

barred by limitation as they were not filed within a period of 60 days as

provided by sub-section (5) of Section 378 of CrPC. This question arose

9

while dealing with the judgment of the Delhi High Court dismissing the

appeal filed on behalf of the State (Delhi Administration) and arising from

the complaint lodged by the Food Inspector under the provisions of the

Prevention of Food Adulteration Act (37 of 1954). The accused were

convicted against which, in appeal, the Sessions Court acquitted them all.

Against the judgment of the Sessions Court, the appeal was preferred before

the High Court. To understand what is the period of limitation under Section

378 of CrPC, the Supreme Court made reference to Section 417, as it stood

in the Criminal Procedure Code, 1898 (for short, “old CrPC”) and, after

reproducing the said Section, in paragraph 20, observed thus:

“Thus it is to be seen that, under Section 417 of the

Criminal Procedure Code, 1808, an appeal against

acquittal could be filed by the State Government or by

the Central Government. An appeal against acquittal

could in cases instituted upon complaint, be filed by the

complainant provided the complainant obtained special

leave to appeal from the High Court. Under Section

417(4) no application for grant of special leave could be

entertained by the High Court after an expiry of 60 days

from the order of acquittal. Thus, under Section 417 an

application for special leave to appeal had to be made

only by the complainant. If the State Government or the

Central Government filed an appeal then no application

for special leave to appeal had to be made.”

Then, the Supreme Court, after reproducing Section 378 of CrPC, in

paragraphs 25 observed thus:

“25. A comparison of Section 378 with the old

Section 417 shows that, whilst under the old Section

no application for leave to appeal had to be made by

the State Government or the Central Government,

now by virtue of Section 378(3) the State Government

or the Central Government have to obtain leave of the

High Court before their appeal could be entertained.

Sub-Section (4) of Section 378 is identical to sub-Section

(3) of Section 417. Thus a complainant desirous of filing

an appeal against acquittal must still obtain special leave.

Thus, Section 378 makes a distinction between an appeal

filed by the State Government or the Central

Government, who only need to obtain "leave", and an

appeal by a complainant who needs to obtain "special

leave". The limitation provided in sub-section (5) is only

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in respect of applications under sub-section (4) i.e.

application for special leave to appeal by a complainant.

A complainant may be either a public servant or a private

party. If the complainant is a public servant then the

period of limitation for an application for special leave is

6 months. If the complainant is a private party then

the period of limitation for an application for special

leave is 60 days. The periods of 6 months and/or 60

days do not apply to appeals by the State Government

under sub-section (1) or the Central Government

under sub-section (2). Appeals by the State

Government or the Central Government continue to

be governed by Article 114(a) of the Limitation Act. In

other words, those appeals must be filed within 90

days from the date of the order appealed from.

Needless to state if there is a delay in filing an appeal

by the State Government or Central Government it

would be open to them to file an application under

Section 5 of the Limitation Act for condonation of

such delay. That period can be extended if the court is

satisfied that there was sufficient cause for not preferring

the appeal within the period of 90 days. The High Court

was thus wrong in concluding that the appeals had to be

filed within 60 days as provided in Section 378(5).”

(emphasis supplied)

In Lalu Prasad Yadav (supra), maintainability of the appeal against

the order of acquittal, fell for consideration of the Supreme Court. To be

more precise, the question that was formulated by the Supreme Court for

consideration was, whether the State Government (of Bihar) had competence

to file an appeal from the judgment dated 18 December 2006 passed by the

Special Judge, CBI (AHD), Patna, acquitting the accused persons, when the

case had been investigated by the Delhi Special Police Establishment (CBI).

After considering the provisions contained in Section 417 of the Code of

Criminal Procedure, 1898 and Section 378, in concluding paragraph 40

observed thus:

“40. In our opinion, the Legislature has maintained

a mutually exclusive division in the matter of appeal

from an order of acquittal inasmuch as the competent

authority to appeal from an order of acquittal in two

types of cases referred to in sub-section (2) is the Central

Government and the authority of the State Government in

11

relation to such cases has been excluded. As a necessary

corollary, it has to be held, and we hold, that the State

Government (of Bihar) is not competent to direct its

public prosecutor to present appeal from the judgment

dated December 18, 2006 passed by the Special Judge,

CBI (AHD), Patna.”

Section 372 of CrPC was amended by Act No. 5 of 2009, whereby a

proviso was added, conferring a statutory right upon the victim, as defined

under Section 2(wa), to prefer an appeal against an order passed by the trial

Court, either acquitting the accused or convicting him for a lesser offence or

imposing inadequate compensation. The proviso, for the first time, created

right in favour of a victim as defined under Section 2(wa) to file appeal

against an order of acquittal or against the order imposing lesser punishment

or inadequate compensation. Prior to the introduction of the proviso to

Section 372 of CrPC, the victim did not have any statutory right of appeal.

Section 374 of CrPC had provided for a right of appeal against conviction to

an accused. Section 377 enabled the State Government or the Central

Government to file an appeal with regard to inadequacy of sentence. This

provision, however, was conditional upon the fact that there could be no

enhancement without an opportunity to the accused and that, in case, such an

appeal was preferred, the accused had a right to plead for acquittal and/or for

reduction in sentence in that very appeal. We are not concerned with the

provisions contained in Sections 374 and 377 in the present case and, hence,

further reference to these provisions is not necessary.

The amendment to the provisions of Section 372 of CrPC was

prompted by the 154

th

Law Commission Report. The Parliament, on the

basis of the Report of the Law Commission, which is victim-oriented in

approach, amended certain provisions of CrPC and added proviso to Section

372 of CrPC, conferring statutory right upon the victim to prefer an appeal

before the High Court against an order of acquittal, or an order convicting

the accused for the lesser offence or against the order imposing inadequate

compensation, as observed earlier. In the light of the legislative history, it

appears to us that the right to prefer an appeal conferred upon the victim or

12

relatives of the victim by virtue of the proviso to Section 372 is an

independent statutory right.

The Supreme Court in Satya Pal Singh (supra), in the backdrop of

the legislative history and the language employed in Section 372 and Section

378 of CrPC, considered the question whether there is a need for the victim,

in terms of definition under Section 2(wa), to seek the leave of the High

Court, as required under sub-section (3) of Section 378 of CrPC, to prefer an

appeal under the proviso to Section 372.

A Full Bench of the High Court of Delhi in Ram Phal Vs. State &

Ors, 221 (2015) DLT 1, after examining the relevant provisions under

Section 2(wa) and proviso to Section 372 of CrPC in the light of their

legislative history, has held that the right to prefer an appeal conferred upon

the victim or relatives of the victim by virtue of proviso to Section 372 is an

independent statutory right. Therefore, it has held that there is no need for

the victim, in terms of definition under Section 2(wa) to seek the leave of the

High Court as required under sub-section (3) of Section 378 of CrPC to

prefer an appeal under the proviso to Section 372 of CrPC. This view of the

Delhi High Court in Ram Phal was held to be not legally correct by the

Supreme Court in Satya Pal Singh. It would be relevant to notice the

observation made by the Supreme Court in Satya Pal Singh while dealing

with the question, which read thus:

“...the substantive provision of Section 372 of

Cr.P.C. clearly provides that no appeal shall lie from any

judgment and order of a Criminal Court except as

provided for by Cr.P.C. Further, sub-Section (3) to Section

378 of Cr.P.C. provides that for preferring an appeal to the

High Court against an order of acquittal it is necessary to

obtain its leave. We have to refer to the rules of

interpretation of statutes to find out what is the effect

of the proviso to Section 372 of Cr.P.C., it is well

established that the proviso of a statute must be given

an interpretation limited to the subject-matter of the

enacting provision. Reliance is placed on the decision of

this Court rendered by four Judge Bench in Dwarka

Prasad v. Dwarka Das Saraf, (1976) 1 SCC 128, the

relevant para 18 of which reads thus:

13

“18. … A proviso must be limited to the

subject-matter of the enacting clause. It is a

settled rule of construction that a proviso must

prima facie be read and considered in relation

to the principal matter to which it is a proviso.

It is not a separate or independent enactment.

“Words are dependent on the principal

enacting words to which they are tacked as a

proviso. They cannot be read as divorced from

their context” (Thompson v. Dibdin, 1912 AC

533). If the rule of construction is that prima

facie a proviso should be limited in its

operation to the subject-matter of the enacting

clause, the stand we have taken is sound. To

expand the enacting clause, inflated by the

proviso, sins against the fundamental rule of

construction that a proviso must be considered

in relation to the principal matter to which it

stands as a proviso. A proviso ordinarily is but

a proviso, although the golden rule is to read

the whole section, inclusive of the proviso, in

such manner that they mutually throw light on

each other and result in a harmonious

construction.”

(emphasis supplied)

Then, the Supreme Court, after considering its 3-Judge Bench in S.

Sundaram Pillai Vs. V.R. Pattabiraman, (1985) 1 SCC 591; Ishverlal

Thakorelal Almaula Vs. Motibhai Nagjibhai, AIR 1966 SC 459, and

Shah Bhojraj Kuverji Oil Mills and Ginning Factory Vs. Subhash

Chandra Yograj Sinha, AIR 1961 SC 1596, wherein the question of

interpretation of the proviso was considered, observed thus:

“Thus, from a reading of the above said legal

position laid down by this Court in the cases referred

to supra, it is abundantly clear that the proviso to

section 372 of Cr.P.C. must be read alongwith its main

enactment i.e., section 372 itself and together with sub-

section (3) to section 378 of Cr.P.C. otherwise the

substantive provision of section 372 of Cr.P.C. will be

rendered nugatory, as it clearly states that no appeal

shall lie from any judgment or order of a Criminal

Court except as provided by Cr.P.C.”

(emphasis supplied)

14

Then, the Supreme Court recorded its conclusions in paragraph 13, which

read thus:

“13. Thus, to conclude on the legal issue:

“whether the appellant herein, being the father of

the deceased, has statutory right to prefer an appeal to

the High Court against the order of acquittal under

proviso to Section 372 of Cr.P.C. without obtaining the

leave of the High Court as required under sub-Section

(3) to Section 378 of Cr.P.C.”, this Court is of the view

that the right of questioning the correctness of the

judgment and order of acquittal by preferring an

appeal to the High Court is conferred upon the victim

including the legal heir and others, as defined under

Section 2(wa) of Cr.P.C., under proviso to Section

372, but only after obtaining the leave of the High

Court as required under sub-Section (3) to Section

378 of Cr.P.C. The High Court of M.P. has failed to

deal with this important legal aspect of the matter

while passing the impugned judgment and order.”

(emphasis supplied)

Having regard to the observations made by the Supreme Court and the

language employed in Section 372, in particular the proviso added thereto, it

is clear that while creating a substantive right to the victim to prefer an

appeal against any order passed by the Court acquitting the accused or

convicting for a lesser offence, or imposing inadequate compensation, no

limitation was provided. The opening expression in Section 372 provides

that no appeal shall lie from any judgment or order of a Criminal Court

except as provided for by CrPC or any other law for the time being in force.

Meaning thereby, the appeal shall lie from any judgment as provided for by

CrPC and, in view thereof, the Supreme Court, while considering the

question regarding leave to file appeal as contemplated under sub-section (3)

of Section 378 of CrPC, held that even for a victim to maintain appeal

against the order of acquittal, he requires to take leave of the High Court to

file appeal against the order of acquittal.

At this stage, we would like to have a close look at Section 378.

Section 378 is divided into six sub-sections. Sub-section (1) provides that

15

the State Government may direct the public prosecutor to present an appeal

to the High Court from an original or appellate order of acquittal passed by

any court other than High Court or an order of acquittal passed by the Court

of Session in revision. It opens with the words "save as otherwise provided

in sub-section (2)" followed by the words "and subject to the provisions of

sub-sections (3) and (5)". Sub-section (2) refers to two class of cases,

namely, (i) those cases where the offence has been investigated by the Delhi

Special Police Establishment constituted under 1946 Act and (ii) those cases

where the offence has been investigated by any other agency empowered to

make investigation into an offence under any Central Act other than 1973

Code and provides that the Central Government may also direct the public

prosecutor to present an appeal to the High Court from an order of acquittal.

Such an appeal by the Central Government in the aforesaid two types of

cases is subject to the provisions contained in sub-section (3). Sub-section

(3) provides that an appeal under sub-sections (1) and (2) shall not be

entertained without leave of the High Court. Where the order of acquittal has

been passed in a case instituted upon complaint, sub-section (4) provides

that the complainant may apply for special leave to appeal from the order of

acquittal and if such leave is granted, an appeal be presented by him to the

High Court. The limitation is prescribed in sub-section (5). Insofar as the

cases covered by sub-section (4) are concerned, where the complainant is a

public servant, limitation prescribed is six months from the date of an order

of acquittal and in all other cases, including the cases covered by sub-

sections (1) and (2), a period of sixty days from the date of the order of

acquittal. Sub-section (6) makes a provision that if an application under sub-

section (4) for the grant of special leave to appeal from an order of acquittal

is refused, no appeal from that order of acquittal shall lie under sub-section

(1) or under sub-section (2). We have surveyed Section 378 in its entirety to

have complete conspectus of the provision.

The following observations made by the Supreme Court in Lalu

Prasad Yadav, though are not directly connected with the question for our

consideration, would help us to understand the provisions of Section 378

16

below. The relevant observations read thus:

“The opening words – "save as otherwise provided

in sub-section (2)" – are in the nature of exception

intended to exclude the class of cases mentioned in sub-

section (2) out of operation of the body of sub-section

(1). These words have no other meaning in the context

but to qualify the operation of sub-section (1) and take

out of its purview two types of cases referred in sub-

section (2), namely, (i) the cases in which offence has

been investigated by the Delhi Special Police

Establishment constituted under 1946 Act and (ii) the

cases in which the offence has been investigated by any

other agency empowered to make investigation into an

offence under any Central Act other than 1973 Code. By

construing Section 378 in a manner that permits appeal

from an order of acquittal by the State Government in

every case, except two class of cases mentioned in sub-

section (2), full effect would be given to the exception

(clause) articulated in the opening words. As noticed

above, the words – "save as otherwise provided in sub-

section (2)" – were added in 1973 Code; Section 417 of

1898 Code did not have these words. It is familiar rule of

construction that all changes in wording and phrasing

may be presumed to have been deliberate and with the

purpose to limit, qualify or enlarge the pre-existing law

as the changes of the words employ. Any construction

that makes exception (clause) with which section opens

unnecessary and redundant should be avoided. If we give

to Section 378, sub-sections (1) and (2), the interpretation

which the State Government claims; we would have to

say that no matter that complaint was not lodged by the

State Government or its officers; that investigation was

not done by its police establishment; that prosecution was

neither commenced nor continued by the State

Government; that public prosecutor was not appointed by

the State Government; that the State Government had

nothing to do with the criminal case; that all steps from

launching of prosecution until its logical end were taken

by the Delhi Police Special Establishment and yet the

State Government may file an appeal from an order of

acquittal under Section 378(1). That would be rendering

the exception (clause) reflected in the opening words –

"save as otherwise provided in sub-section (2)" –

redundant, meaningless and unnecessary. If the

Legislature had intended to give the right of appeal under

Section 378 (1) to the State Government in all cases of

acquittal including the class of cases referred to in sub-

17

section (2), it would not have been necessary to

incorporate the exception (clause) in the opening words.

This objective could have been achieved without use of

these words as erstwhile Section 417 of 1898 Code

enabled the State Government to appeal from all cases of

acquittal while in two types of cases mentioned in sub-

section (2) thereof, appeal from the order of acquittal

could be filed under the direction of Central Government

as well.”

It is clear from the observations made by the Supreme Court in Lalu

Prasad Yadav, that though sub-sections (1) and (2) of Section 378 deal with

appeal in case of acquittal by the State Government or the Central

Government for which leave of the High Court is made mandatory under

sub-section (3), having regard to the language employed in Section 372 in

particular, the opening sentence, i.e. “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.” The Supreme Court in Satya Pal

Singh observed that even a victim when desires to challenge the order of

acquittal in exercise of his rights conferred under the proviso to Section 372,

leave of the High Court as contemplated under sub-section (3) is necessary.

Thus, it appears that the proviso added to Section 372 requires to be read

with the provisions contained in Section 378.

Having regard thereto, we would like to further examine the word

'victim' as defined under Section 2 (wa). A bare perusal of the definition of

the term 'victim' reveals that 'victim' means a person who has suffered any

loss or injury caused by reason of the act or omission of the offender, and

further it includes his or her guardian or legal heir. If we read the definition

of 'victim' as defined under Section 2(wa) and with the definition if we read

proviso added to Section 372, it appears to us that the definition of 'victim'

does not make any distinction between the 'victim' in a police case and a

private case. In other words, the provision does not make any distinction

between a victim in the case instituted upon a complaint and a victim in a

State prosecution. Therefore, while reading, the proviso added to Section

372 will have to be read to mean that the right is conferred on the victim not

18

only in State prosecution but also in a private complaint. Though, we are not

called upon, in the present case, to consider the scope of the word 'victim',

what appears to us from its plain reading, is that it is classified in two

categories - (i) a person who has suffered any loss or injury caused by the

reason of the act or omission attributed to the accused; and (ii) the guardian

or legal heirs of such 'victim'. The expression 'guardian' or 'legal heir' used in

the definition clause under Section 2 (wa), in our opinion, deserves to be

construed in the broad and general sense, so as to include all those on whom

the estate of the deceased dwells. In other words, every heir, who, in law, is

entitled to succeed to the estate of a deceased (victim) in one or the other

eventuality, shall fall within the ambit of Section 2(wa) of CrPC, even if the

estate of such deceased victim is devolved upon the legal heirs as per the

order of preference prescribed under the personal law of such victim. The

Full Bench of Punjab & Haryana High Court in Tata Steel Ltd. (supra)

considered the word 'victim' in depth and in paragraph 70, recorded its

conclusion with which we do not find any reason to differ. The conclusions

recorded in paragraph 70, in our opinion, would be relevant to reproduce so

as to understand the purport of the word 'victim' and with which we entirely

agree:

“70. It thus finally emerges that the Legislature,

before and after amendment of the Code vide Act No.5 of

2009, has recognized and conferred one right or the other

on the following categories of persons:-

(i) a 'victim' as defined in Section 2 (wa) which

includes his/her 'legal heirs' can be permitted by

the Court under Section 24(8) to engage an

Advocate of his/her choice to assist the

prosecution and if he/she is aggrieved at the

acquittal of an accused (except acquittal in a

case instituted on a complaint), the conviction

of the accused for a lesser offence or the

imposition of inadequate compensation on such

accused, such 'victim' (including his/her legal

heirs) have got a right under proviso to Section

372 to prefer an appeal to the Court to which an

appeal ordinarily lies against the order of

conviction of such Court;

(ii) the legal heirs comprising the wife, husband,

19

parent and child of a deceased 'victim' only are

entitled to the payment of compensation under

Section 357(1)(c) of the Code;

(iii) in the case of death of a 'victim', only those

of his/her dependants who have suffered loss or

injury as a result of the crime and who require

rehabilitation, are eligible to seek compensation

in terms of the scheme formulated under

Section 357-A of the Code;

(iv) While the persons falling within the

categories at Sr. No. (ii) & (iii) above shall

necessarily include and form part of the persons

falling in category No.(i), however, vice versa

may not always be true.

(B) Whether 'complainant' in a private

complaint-case, who is also the 'victim' and the

'victim' other than the 'complainant' complainant

in such cases are entitled to present appeal

against the order of acquittal under proviso to

Section 372 or have to seek 'special leave' to

appeal from the High Court under Section

378(4) CrPC?”

Leave it at that, we now turn to the question that falls for our

consideration. Section 378, does not use the word 'victim'. Sub-sections (4)

and (5) thereof, deal with a right of appeal against the order of acquittal on

behalf of the complainant and, that too, on an application made to the High

Court seeking special leave to appeal and once the leave is granted, the

complainant can present the appeal to the High Court. The application

seeking leave, as provided for under sub-section (5), insofar as the

complainant as defined under Section 2(d), has to be filed within a period of

60 days from the date of the order of acquittal. Sub-sections (1), (2) and (3)

of Section 378, as we have seen earlier, speak only about the right of the

State Government or the Central Government to file an appeal against the

order of acquittal, with the leave of the High Court. Thus, it is clear that

Section 378, though directly does not confer any right on the victim, the

Supreme Court in Satya Pal Singh, held, in view of the peculiar language

employed in Section 372, that even if the victim, when files appeal against

the order of acquittal in State prosecution case, requires to make an

20

application to seek the leave of the High Court to file an appeal. Similarly,

since it is not in dispute that the State can file an appeal with the leave of the

High Court against the order of acquittal within a period of 90 days, the

same limitation would apply in case of appeal by the victim arising from

State prosecution, obviously taking recourse to Article 114 of the Limitation

Act.

Thus, from the scheme of the provisions of Section 378, it is clear that

two streams of appeals against acquittals are provided. The first stream of

appeals is against the order of acquittals to be preferred by the State

Government/Central Government and the same would be under sub-sections

(1) and (2) of Section 378 and before such an appeal is entertained, a leave

of the High Court requires to be taken, as provided for under sub-section (3)

of Section 378. The other stream of appeals is against the order acquittals in

the complaint case, wherein, by virtue of Section 378 (4), the complainant

has to seek special leave to appeal from the High Court under sub-section

(5). Further, the application for grant of special leave to appeal must be filed

if the complainant is a public servant within 6 months from the date of order

of acquittal and in all other cases, within 60 days from the date of order of

acquittal. For the first stream of appeals under sub-sections (1) and (2) read

with sub-section (3) of Section 378, no limitation is provided under Section

378 or any other Section of CrPC and, hence, the period of limitation for

filing the appeal under Section 378(1) and (2) of CrPC is 90 days from the

date of the order appealed from, as provided for in Article 114(a) of the

Limitation Act. Though it is with reference to Section 417 of the Code of

Criminal Procedure, 1898, that equally applies to Section 378 (1) and (2), as

has been held by the Supreme Court in Dharam Pal Singh's case. In that

case, the Supreme Court observed that appeals by the State Government or

the Central Government continue to be governed by Article 114 (a) of the

Limitation Act. In other words, those appeals must be filed within 90 days

from the date of the order appealed from. It is needless to state that if there is

a delay in filing an appeal by the State Government or the Central

Government, it would be open to them to file an application under Section 5

21

of the Limitation Act for condonation of such delay. Thus, that period can be

extended if the Court is satisfied that there was sufficient cause for not

preferring the appeal within a period of 90 days. In this backdrop, when we

have a close look at the provisions contained in Section 372, it leaves no

manner of doubt and we would not hesitate in observing that the limitation

as provided for the State Government/Central Government appeals under

Section 114(a) of the Limitation Act would apply for filing of an appeal by

the victim. In any case, the limitation provided under sub-section (5) of

Section 378 has no application when the appeal is filed by the victim being

his substantive right after the proviso came to be added to Section 372 by

Act 5 of 2009 with effect from 31.12.2009. Sub-section (4) and sub-section

(5) do not deal with the right of the victim in a State prosecution.

As observed earlier, the word 'victim' as defined under Section 2(wa)

does not make any distinction between the victim in a complaint case and

the victim in a police case ( State prosecution) and if, for taking recourse to

proviso to Section 372, if the victim in a complaint case opts to file appeal

against the order of acquittal, he would be governed by sub-section (5)

insofar as the limitation is concerned. In other words, a limitation for filing

an appeal by the victim in a complaint case against the order of acquittal

would be 60 days as provided for under sub-section (5) by seeking leave to

appeal from the High Court. In this connection, it would be relevant to

reproduce the observations made by the Punjab & Haryana High Court in

Tata Steel Ltd. The relevant observations in paragraph 126 to 130 read thus:

“ (126). Since right to appeal is a substantive right and it

cannot be inferred by implication unless the Statute

expressly provides so, the only inescapable conclusion

would be to hold that the right to appeal given to a 'victim'

under proviso to Section 372 of the Code is prospective

and has become enforceable w.e.f. December 31, 2009

only. A 'victim' is entitled to prefer appeal in respect of any

type of order referred to in the proviso to Section 372 if

such order has been passed on or after December 31, 2009

irrespective of the date of registration of FIR or the date of

occurrence etc. To be more specific, it is clarified that it is

the date of passing of the order to be appealed from and

not any other fact situation, which shall determine the right

22

to appeal of a 'victim'. As a corollary thereto, it is held that

the remedy availed by a 'victim' including revision petition

against acquittal of the accused by an order passed before

December 31, 2009, cannot be converted into an appeal

under proviso to Section 372 and it shall have to be dealt

with in accordance with the parameters settled for

exercising revisional jurisdiction by a superior Court.

(G) What would be the period of limitation for a

'victim' to prefer an appeal under proviso to Section 372

CrPC?

(127). Various High Courts have experienced

difficulty in determining the period of limitation for an

appeal preferable by a victim under proviso to Section

372 of the Code. A Division Bench of Patna High Court

in Raghunath Yadav Vs. State of Bihar, 2011 (6) RCR

(Crl.) 133, has viewed that since the period of limitation

for filing an appeal against the acquittal under Section

378 is ninety days and no period of limitation has been

provided for filing an appeal under Section 372 by a

'victim', the same period of limitation as provided under

Article 114 of the Limitation Act will be applicable for

filing an appeal under Section 372 of the Code also. The

Full Bench of Gujarat High Court in Bhavuben

Dineshbhai Makwana's case (supra) too, with reference to

Article 114(a) of the Limitation Act, has held that the

period of ninety days should be the reasonable period for

a 'victim' to file an appeal as the said period is the longest

period of limitation for filing an appeal against an order

of acquittal prescribed by the Legislature.

(128). The Delhi High Court in Kareemul Hajazi's

case (supra), however, thought differently and after

referring to certain precedents laying down that 'in the

absence of prescription of the limitation period, the

statutory authority must exercise its jurisdiction within a

reasonable period', it decided to bring the 'victim' at par

with the 'accused' for the purpose of period of limitation

to prefer appeal and held that since an accused is required

to prefer appeal to the High Court within sixty days as

prescribed under Section 374 of the Code read with

Article 115(b)(i) of the Limitation Act, the period of

limitation for the appeal of a 'victim' shall also be the

same i.e. sixty days.

(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

23

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 appealPeriod of

limitation

Time from

which period

begins to run

114Appeal from an order of acquittal-

(a)Under sub-section

(1) or sub Section

(2) of Section 417

of the Code of

Criminal Procedure,

1898 (5 to 1898)

Ninety daysThe date of the

order appealed

from

(b)Under sub-Section

(3) of Section 417

of the Code

Thirty daysThe date of the

grant of special

leave.

The observations made in paragraphs 132 and 133 are also relevant for our

purpose, which read thus:

“(132). From the combined reading of the above-

reproduced provisions, it is clear that the State could

present its appeal to the High Court within 90 days from

the date of passing of the order of acquittal. Similarly,

sub-Section (4) of Section 417 provided 60 days' period

of limitation to apply for grant of special leave to appeal

to the High Court against the order of acquittal passed in

a complaint case. The appeal against acquittal in such

cases can be filed within 30 days of the date of grant of

special leave to appeal as provided under Clause (b) of

Article 114 of the Limitation Act. The Hon'ble Supreme

Court in Dharam Pal's case compared the provisions of

old Code with Section 378 of the new Code and held that

appeals against acquittal preferred by the State

Government or the Central Government continue to be

governed by Article 114(a) of the Limitation Act. In other

words, those appeals must be filed within 90 days from

the date of order appealed from. A 'victim' therefore is

24

also entitled to the said maximum period of limitation i.e.

90 days to prefer his/her appeal against an order of

acquittal.

(133). Under Section 378(5) of the Code, an

application for the grant of special leave to appeal from

an order of acquittal moved by the complainant who is a

public servant, can be entertained by the High Court

within a period of six months and within sixty days in

every other case, from the date of the order of acquittal.

However, the State or Central Governments are not

entitled to take benefit of six months' period given to the

complainant-public servant for the purpose of their appeal

against an order of acquittal which is required to be

preferred within ninety days as per Article 114 of the

Limitation Act. The grey area in this regard, if any, also

stands clarified by the Supreme Court in Dharampal's

case (supra).”

The Division Bench of Patna High Court in Parmeshwar Mandal

(supra), has taken a contrary view to that of Punjab & Haryana High Court

holding that 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 proviso to

Section 372. Hence, in the facts and circumstances, in each case, the Court

has to determine as to whether the time was entertainable, or not. The right

of a 'victim' to prefer an appeal in terms of the said proviso to Section 372 is

an unqualified right and no 'leave to appeal' or 'special leave' is required to

be obtained by him/her for the purpose, as required by the State or the

complainant for maintaining an appeal in terms of Section 378 of CrPC.

View of the Patna High Court, in our respectful opinion, is not legally

correct in light of the observation of the Supreme Court in Satya Pal Singh.

The right to appeal conferred upon the victim by adding proviso to the

substantive provision of Section 372 of CrPC, clearly provides that no

appeal shall lie from any judgment and order to a Court except as provided

for by the CrPC. The right of the victim, therefore, is subject to the

limitation and leave of the Court provided under Section 378 against

acquittal.

Thus, we are satisfied that the limitation for preferring an appeal

25

against the order of acquittal by the victim would be 90 days in all cases,

other than the cases instituted upon complaint, and 60 days for any case

instituted upon complaint against the order of acquittal after the High Court

grants special leave to appeal.

The question formulated in the first paragraph of the judgment, thus,

stands answered in terms of this judgment.

Registry is directed to place these matters before the appropriate

Bench to consider and deal with the same in the light of this judgment.

January 19, 2018

AHA

(Dilip B Bhosale, CJ)

(S K Gupta, J)

(Suneet Kumar, J)