Prasobha Devi v. State of Kerala and others

Crl.R.P.No.755 of 2020 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942** **Crl.Rev.Pet.No.755 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CRA 40/2020 DATED 28-10-2020 OF II ADDITIONAL DISTRICT COURT,TRIVANDRUM** **AGAINST THE ORDER/JUDGMENT IN CC 564/2011 DATED 25-10-2019 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE ,TRIVANDRUM** **CRIME NO.786/2010 OF Poojappura Police Station , Thiruvananthapuram** ## **REVISION PETITIONER/APPELLANT/ DEFACTO COMPLAINANT (VICTIM)** **PRASOBHA DEVI AGED 51 YEARS D/O.DEVAKI AMMA, DEVI KRISHNAN, DREAM VILLAS, KUDAPPANAKUNNU P.O., THIRUVANANTHAPURAM DISTRICT.** **BY ADVS. SRI.BRIJESH MOHAN SMT.RESMI G. NAIR SRI.SHAJIN S.HAMEED** ## **RESPONDENTS/RESPONDENTS/STATE AND A1 TO A3** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2 SUNIL KUMAR S/O.KRISHNANKUTTY NAIR, MANJIMA HOUSE, T.C.7/1377(3), VETTAMUKKU, PANGODE, SASTHAMANGALAM P.O., THIRUVANANTHAPURAM DISTRICT, PINCODE - 695 010.** **3 MEENA D/O.JANAKI AMMA, MITHUNAM HOUSE, TC.6/1923(2), ILIPPODE, VATTIYOORKAVU P.O., THIRUVANANTHAPURAM DISTRICT, PIN CODE- 695 013.** Crl.R.P.No.755 of 2020 2 **4 MANJU D/O.JANAKI AMMA, MITHUNAM HOUSE, TC 6/1923(2), ILIPPODE, VATTIYOORKAVU P.O., THIRUVANANTHAPURAM DISTRICT, PIN CODE -695 013.** **R2-4 BY ADV. SMT.SINDHU SANTHALINGAM R2-4 BY ADV. SRI.A.D.SHAJAN** ## **OTHER PRESENT:** ## **SR.PP C.N PRABAKARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.R.P.No.755 of 2020 3 ## ORDER The revision petitioner is the defacto complainant in C.C.No.564/2011 on the file of the Additional Chief Judicial Magistrate Court, Thiruvananthapuram. The case registered against the respondents herein was under Section 498(A), 323, 324, 506 (ii) read with Section 34 of the Indian Penal Code. The trial court after trial acquitted all the respondents/accused as they were found not guilty for the offences charged against them. The said judgment has been challenged before the Sessions Court by filing an appeal. But the appeal was not admitted as there was delay in filing the appeal. The petition filed along with the appeal to condone the delay was dismissed by the learned Additional Sessions Judge II, Thiruvanathapuram by an order dated 28.10.2020 **.** The said order is under challenge in this revision petition. 2. Heard the learned counsel for the revision petitioner as well the learned counsel for the respondents. Crl.R.P.No.755 of 2020 4 3. C.C.No.564/2011 was disposed of by the learned Additional Chief Judicial Magistrate by a judgment dated 25.10.2019. As per the judgment all the accused/respondents were found not guilty and they were acquitted. The petitioner who is the defacto complainant aggrieved by the said judgment preferred the appeal before the learned Sessions Judge with a delay of 78 days as stated in the petition. Whether the dismissal of the petition filed by the petitioner herein is legally correct or not is the question to be considered in this revision petition. The revision petitioner is the defacto complainant in that case. 4. The learned counsel for the respondents vehemently contended that the attempt of this petitioner is to delay and prolong the DNA test of the minor child and is only an abuse of the process of the court and this petition without any merits, is liable to be dismissed. 5. Section 372 of the Code of Criminal Procedure is the relevant provision by which a right of appeal is conferred on the victim. It is reiterated for easy reference. - “372. No appeal to lie unless otherwise provided:- No appeal Crl.R.P.No.755 of 2020 5 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] 6. The petitioner is the victim/defacto complainant and she has preferred the appeal under the proviso to Section 372 of the Code of Criminal Procedure. Admittedly she has preferred the appeal with a petition to condone the delay of 78 days in filing the appeal. 7. The learned counsel for the petitioner relying on the decision of Full Bench of this Court in **Sobhanakumari v. Santhosh @ Pallan Shaji [2018 (1) KHC 195]** would argue that as no period of limitation is prescribed for filing the appeal by the victim under the proviso to Section 372 of the Code of Criminal Procedure, Article 114 of the Limitation will not apply in the case. 8. Article 114 of the Limitation Act prescribes the period of Crl.R.P.No.755 of 2020 6 limitation for filing the appeal from an order of acquittal. Article 114(a) says that under sub-section (1) or sub- section (2) of Section 417 of the Code of Criminal Procedure, 1898 the appeal has to be filed within a period of 90 days from the date of order appealed from and under sub-section (3) of 417 it is to be filed within 30 days. In _**Shobana kumari'**_ s case the Full Bench has observed that a victim who could not file his appeal within a reasonable time need not file an application under Section 5 of the Limitation Act. Section 5 applies only in respect of appeals or applications filed after a prescribed period and in the absence of such a prescribed period, to file an appeal by the victim against the order of acquittal, the victim needs to file only an affidavit explaining the delay. If he has no proper explanation he is not entitled to the leave of the High Court under Section 378 (3) of the Cr.P.C. Then it was further held as follows: 28) “(I) Clause (b) of Art.115 of the Limitation Act applies to an appeal under the proviso to S.372 of Cr.P.C by a victim against an order convicting the accused for a lesser offence or against an order imposing inadequate compensation. If such an appeal lies only to the High Court, it shall be filed within 60 days from the date of the order appealed against. If it lies to the Court of Session, it shall be filed within 30 days from the date of the order appealed from. Crl.R.P.No.755 of 2020 7 (ii) No period of limitation is prescribed for an appeal by a victim under the said proviso from an order of acquittal. Art. 114 of the Limitation Act does not apply to such an appeal. But the victim shall bring his appeal within a reasonable period of 90 days from the date of the order, whether it is to be filed in the High Court on in the Court of Session. If such appeal is filed beyond the reasonable period, the victim shall file an affidavit explaining why he could not file it within the reasonable period. The decisions in Yohannan's case (supra) and Vinod's case (supra) holding so hold the correct law. ## Article 114 of the Limitation Acts reads as follows: Description of suit Period of limitation Time from which period begins to run 114. Appeal from an order of acquittal a) under sub-section (1) The date of the order or sub-section (2) of Ninety days appealed from. Section 417 of the Code of Criminal Procedure, 1898 b) under sub-section (3) The date of the grant of of Section 417 of that Thirty days Code. special leave. 9. Here the petitioner has approached the appellate court Crl.R.P.No.755 of 2020 8 challenging the order of acquittal in case in which she is the victim. Therefore, Article 114 of the Limitation Act does not apply to such an appeal. But when the victim can challenge the order of appeal within a reasonable period of 90 days as held in Shobana Kumari's case, the question to be looked into is whether she could explain the reason for not filing it within the reasonable period of 90 days from the date of the order. 10. Here it is to be noted that the trial court acquitted the respondents/accused on 25.10.2019. That be so, the appeal ought to have been filed before 25.1.2020. But the appeal was preferred by the defacto complainant/victim only on 10.2.2020. If the revision petitioner is able to explain the reason for the delay in filing the appeal on 10.2.2020 through an affidavit as held in **Shobana Kumari's** case, she is entitled to challenge the order of appeal before the Sessions Court. Here a perusal of the order of the learned Sessions Judge in Crl.M.P No.332/2020 in Crl.Appeal 40/2020 would show that there was a delay of 78 days in preferring the appeal. But that is not correct as the judgment was pronounced only on 25.10.2019 and 90 days will be over only by 25.1.2020. Crl.R.P.No.755 of 2020 9 11. The ultimate aim of the court should be to impart justice to the parties. If the petitioner is able to explain satisfactorily before the appellate court the reasons for not preferring the appeal within a period of 90 days from the date of the judgment of the court below (25.10.2019), she will get an opportunity to challenge the judgment. Therefore, in the interests of justice, I think that an opportunity should be given to the defacto complainant/the victim to challenge the judgment before the appellate court as she is much aggrieved with the judgment of acquittal passed in favour of the respondents. 12. Therefore, the petitioner is given an opportunity to appear before the appellate court with an application accompanied by an affidavit stating the reasons for the delay in preferring the appeal after 90 days. If the learned Additional Sessions Judge is convinced with the reasons stated by the petitioner, the said application can be allowed and the appeal can be taken on file and dispose of the same on merits. So the petitioner is directed to appear before the court below with a proper application within a period of three weeks from today. 13. If an application is filed by her with an affidavit explaining Crl.R.P.No.755 of 2020 10 the reason for not filing the appeal within the reasonable period of 90 days, on or before 08.04.2021 the court below shall hear both sides and dispose of the same. Sd/- SHIRCY V JUDGE 19.03.2021. smm