1. Heard learned counsel for the revisionist and learned AGA for the State.
2. This revision has been filed against the judgment and order dated 19.01.2016, whereby Additional Sessions Judge II, Hardoi has acquitted accused persons under Sections 147, 302/149 & 201 IPC. Revisionist is informant and his father was murdered.
3. Question is whether a victim can file revision against the judgment of acquittal or an appeal will be maintainable in view of Section 372 of Cr.P.C. (as amended), irrespective of date of occurrence.
4. Submission of learned counsel for the revisionist is that since occurrence is of the year 2007 and proviso to Section 372 Cr.P.C. has come into place in the year 2009, as such, right to appeal given to victim by the amendment in Cr.P.C. is not available. Consequently, he has filed revision.
5. He has placed before this Court an order of Division Bench of this Court in Criminal Appeal no. 1481 of 2014 (Ram Jas Dixit vs. The State of U.P. & Ors.), which is being reproduced hereinafter:-
"Learned AGA submits that this appeal is not maintainable in view of pronouncement of Hon'ble the Apex Court in the case of National Commission of Woman v. State of Delhi reported in 2011 Cr.L.J. 962 because the incident of this case pertains to the year 1997 i.e. much prior to amendment in Section 372 Cr.P.C.
Learned counsel for the appellant submits that he may be permitted to withdraw this appeal with liberty to seek remedy in accordance with law.
Accordingly, the appeal is dismissed as withdrawn with liberty as aforesaid."
6. In the case of Sri Munivenkatappa vs. Sri Naveen and Ors. (Crl. Appeal no. 1391 of 2012), Hon'ble High Court of Karnataka at Bangalore has held that "In the instant case, the proviso to Section 372 of Cr.P.C came into force on 31.12.2009 whereas the incident in the instant case occurred on 08.05.2008 i.e. prior to the amendment of Section 372 of Cr.P.C. Therefore, the Criminal Appeal is not maintainable".
7. He has also placed decision of Andhra Pradesh High Court in the case of D.Sudhakar vs. Panapu Sreenivasulu @ Evone Water Sreenivasulu and Ors., relevant para of which is being quoted below:-
"21. The second issue that falls for our consideration is that the incident has taken place on 07.12.2007 and the amendment to Sectio 372 Cr.P.C. has come into force w.e.f. 31.12.2009, where the victim can prefer an appeal against acquittal. This issue will not hold us for long, in view of the fact that the Apex Court in National Commission for Women vs. State of Delhi, has already held that the amendment is not applicable to cases where the incident has taken place prior to amendment. Therefore, even on this count, the appellant fails, and as such, the appeal is liable to be dismissed as not maintainable".
8. Sri Rishad Murtaza, learned Government Advocate, opposing the contention, submitted that appeal will lie in this case and not revision. He has cited following decisions.
9. The Punjab and Haryana High Court in the case of Tata Steel v. Atma Tube Projects [(2014) 1 PLR 1, CRM-790-MA-2010] has held as under :-
"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 to appeal of a 'victim'."
10. Patna High Court in the case of Parmeshwar Mandal v. The State of Bihar [2014(1) PLJR 377] in Crl. A. No. 1708 of 2012, has held as under:-
"... the said proviso contains both substantive part, creating right in the victim to prefer an appeal, and procedural part, by identifying the forum for filing such an appeal. It is not in dispute that the substantivse part of law operates prospectively... it has to be concluded that the right of victim, to prefer an appeal in terms of said proviso to Section 372, became available to the victim(s) of all cases in which orders were passed by any criminal court acquitting the accused or convicting him for a lesser offence or imposing inadequate compensation, on or after 31st of December, 2009. In other words, date of judgment of a criminal court has to be necessarily treated as the relevant date for applying the test of maintainability of appeal by the victim under three contingencies laid down under the proviso to Section 372 of the Code, irrespective of the date of occurrence, institution of the case, cognizance or commitment."
11. Full Bench of Delhi High Court in the case of Ram Phal vs. State & Anr. (passed in CRL. A. 1415/2012) has also endorsed the view taken by Punjab and Haryana High Court as well as Patna High Court.
12. Right to appeal to the victim has been provided by the amendment in Section 372 Cr.P.C. w.e.f. 31.12.2009. Victim also needs protection while protecting the rights of accused. Need to recognize the rights of victim is being emphasized by the courts. Reference may be made to the cases of NHRC v. State of Gujarat, [(2004) 8 SCC 610] & Mohd. Kaleem v. State of U.P. [Criminal Appeal No. 1726 of 2012].
13. Cause of action to file appeal or revision would arise only when person feels aggrieved with the orders sought to be impugned in the appeal or revision. This right is available only when one feels aggrieved with the order. Therefore, this right cannot operate retrospectively and has to work prospectively.
14. Right of accused to file appeal has not been disturbed. Accused's right of participation in the trial has not been touched. Now restricting victim from exercising right of appeal on the ground that on the date of occurrence amended provision was not available, would be a travesty of justice and is bound to frustrate the legislative mandate.
15. In the case of National Commission for Women vs. State of Delhi, victim had not approached the Supreme Court. Apex Court did not deal with this question and a casual reference has been made in the order.
16. Division Bench of Allahabad High Court too has not decided this question. It merely mentions submission of learned AGA and then permits appellant to withdraw the appeal.
17. Decision of trial court will give rise to cause of action to file appeal and not the date of occurrence, arrest or registration of offence. Moreover, appeal or revision are creation of statute. If appeal is maintainable, the revision is manifestly prohibited.
18. In view of above, this Court is of the view that if cause of action to file appeal arises after the date of amendment i.e. if judgment acquitting, convicting for a lesser offence or imposing inadequate compensation has been given after 31.12.2009, victim has a remedy of appeal in the exigencies provided in the proviso to Section 372 Cr.P.C. and revision would not be maintainable.
19. Accordingly, this Court is of the view that even if occurrence has taken place before the amendment of 2009 i.e. 31.12.2009, remedy of appeal is available if victim feels aggrieved with the order of acquittal or inadequate compensation etc. passed after 31.12.2009. in 2016, there is no need to discuss the scope of time barred appeals.
20. Consequently, this revision is dismissed as not maintainable.
21. Learned counsel submits that this Court may permit counsel to convert this revision into appeal.
22. Consequently exercising powers under Section 401 (5) Cr.P.C., I direct revisionist's counsel to convert this revision into appeal and make necessary amendment.
23. Put up along with report of stamp reporter before appropriate Bench.
24. Copy of this order be sent to Stamp reporter, High Court of Allahabad and Lucknow.
Order Date :- 2.5.2016 Nitesh