# Salil Kumar Verma First Informant/ v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 1040
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-23
- **Case number:** Crl. Misc. Application (Leave To Appeal) (Defective) No. 58 of 2018
- **Bench:** Mohd. Naheed Ara Moonis, Anil Kumar-Ix
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/salil-kumar-verma-first-informant-v-state-of-u-p-ors-44550
- **Pages:** 3

## Headnote

A. Code of Criminal Procedure, 1973:-
Section 372 - Appeal against acquittal -
complainant has preferred the instant
appeal after lapse of more than 14 years -
When the judgment of acquittal was
pronounced, the proviso of Section 372
Cr.P.C. was not in existence. It was
incorporated by the legislature only on
31.12.2009 giving right to victim to prefer
an appeal against the acquittal of the
accused or conviction for a lesser offence or
imposing inadequate punishment - Since
the amendment has come into force on
31.12.2009,
it
cannot
have
any
retrospective effect to allow the victim to
prefer the appeal against acquittal which
was passed by learned trial court against
the accused respondents by order dated
21.10.2004. (Para 6, 9, 11, 12 & 13)

Crl. Misc. Application (Leave to Appeal)
dismissed (E-6)

Precedent followed: -

## Text

1040 INDIAN LAW REPORTS ALLAHABAD SERIES
(2019)10ILR A 1040

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.09.2019

BEFORE

THE HON'BLE MOHD. NAHEED ARA
MOONIS, J.
THE HON'BLE ANIL KUMAR-IX, J.

Crl. Misc. Application (Leave To Appeal)
(Defective) No. 58 of 2018

Salil Kumar Verma
 ...First Informant/Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Jai Nath Patel

Counsel for the Opposite Parties:
G.A., Sri Apul Misra, Sri Nrapendra Kumar
Chaturvedi, Sri Upendra Kumar Pandey

A. Code of Criminal Procedure, 1973:-
Section 372 - Appeal against acquittal -
complainant has preferred the instant
appeal after lapse of more than 14 years -
When the judgment of acquittal was
pronounced, the proviso of Section 372
Cr.P.C. was not in existence. It was
incorporated by the legislature only on
31.12.2009 giving right to victim to prefer
an appeal against the acquittal of the
accused or conviction for a lesser offence or
imposing inadequate punishment - Since
the amendment has come into force on
31.12.2009,
it
cannot
have
any
retrospective effect to allow the victim to
prefer the appeal against acquittal which
was passed by learned trial court against
the accused respondents by order dated
21.10.2004. (Para 6, 9, 11, 12 & 13)

Crl. Misc. Application (Leave to Appeal)
dismissed (E-6)

Precedent followed: -
1. Mallikarjun Kodagali (Dead) through L.R. Vs
St. of Kar. & ors. (2018) 2 S.C.Cr.R. 1310.

(Delivered by Hon'ble Naheed Ara
Moonis, J. & Hon'ble Anil Kumar-IX, J.)

1. No one is present on behalf of
appellant to address the Court, however,
Shri Nripendra Kumar Chaturvedi and
Shri Apul Misra learned counsel for
complainant are present on behalf of the
opposite parties.

2. On the last occasion this Court
has passed the following order which is
being reproduced hereunder:-

"No one is present on behalf of
the appellant, even case is called out in
the revised list.

Sri
Nrapendra
Kumar
Chaturvedi as well as Sri Apul Misra are
present on behalf of the opposite parties.

Pursuant to the order dated
31.05.2018 the notice was issued to the
opposite party to file objection to the
delay condonation application.

Learned counsel appearing for
the accused/respondents submits that he has
prepared the counter affidavit to the delay
condonation application filed on behalf of
the appellant in respect of inordinate delay
of about 14 years in filing the appeal. The
appellant's counsel is seeking adjournment
on one pretext or the other as such he has
not been able to contact him to serve the
copy of the objection.

Considering
the
submission
advanced by learned counsel for the opposite
party and perused the order sheet, it transpires
that learned counsel for the appellant is
seeking adjournment on one round or the other
as such we are taking on record the counter
affidavit filed by learned counsel appearing on
behalf
of
opposite
party.
2 All. Salil Kumar Verma Vs State of U.P. & Ors.
1041

Let the case be listed in the next
cause list.

On the next date of listing if the
learned counsel for the appellant fails to
appear the court shall proceed to decide
application itself."

3. The instant Criminal Appeal U/S
372 Cr.P.C. along with an application for
Leave to Appeal has been preferred by the
appellant against the judgment and order
dated 21.10.2004 passed in Sessions Trial
No. 03/2003 (State Vs. Deepak Kumar
Verma and others) arising out of Case
Crime No. 473/2001 under Sections
498A, 304B I.P.C. and 3/4 D.P. Act,
Police Station Uttar, District- Firozabad
whereby the accused respondents have
been acquitted by the learned Additional
Sessions Judge, Court No. 1 Firozabad.

4. As there is a report of stamp
reporter that the appeal has been filed
beyond time by 4868 days, hence notice
was issued to the respondents vide order
dated
31.05.2018
to
the
delay
condonation application filed by the
appellant to condone the delay in filing
the appeal.

5. Learned counsel appearing on
behalf of accused respondents has made
serious objections with regard to the
maintainability of the appeal itself.

6. The submission of learned
counsel is that against the order of
acquittal passed by learned trial court by
judgment and order dated 21.10.2004,
complainant has preferred the instant
appeal on 31.05.2018 after lapse of more
than 14 years. When the judgment of
acquittal was pronounced, the proviso of
Section 372 Cr.P.C. was not in existence
which was incorporated by the legislature
only on 31.12.2009 giving right to victim
to prefer an appeal against the acquittal of
the accused or conviction for a lessor
offence
or
imposing
inadequate
compensation. Since the amendment has
came into force on 31.12.2009, it cannot
have any retrospective effect to allow the
victim to prefer the appeal against
acquittal which was passed by learned
trial court against the accused respondents
by order dated 21.10.2004. The present
appeal itself is not maintainable and
deserves to be dismissed with cost on this
count alone.

7. It is further submitted by the
learned counsel that the filing of this
appeal with inordinate delay which is not
at all maintainable has caused immense
mental
harassment
to
the
accused
respondents who have already been
acquitted by the trial court.

8.

We
have
considered
the
arguments advanced by the learned
counsel for the accused respondents. The
provision of Section 372 Cr.P.C. has been
amended by adding the proviso by virtue
of the amendment which has came into
force w.e.f. 31.12.2009 Act No. 5 of 2009
which reads thus:-

9. Section 372 Cr.P.C.:-

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
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
ordinarily lies against the order of
conviction of such Court."

10. The above proviso is prospective
not retrospective as held by the Hon'ble
Apex Court recently in the judgment of
Mallikarjun
Kodagali
(Dead)
represented
through
Legal
Representatives Vs. State of Karnataka
& Ors. reported in 2018 (2) S.C.Cr.R.
1310.

11. In paragraph 74 of the aforesaid
citation, Hon'ble Apex Court has held as
follows:-

"74. What is significant is that
several High Courts have taken a consistent
view to the effect that the victim of an offence
has a right of appeal under the proviso to
Section 372 of the Cr.P.C. This view is in
consonance with the plain language of the
proviso. But what is more important is that
several High Courts have also taken the view
that the date of the alleged offence has no
relevance to the right of appeal. It has been
held, and we have referred to those decisions
above, that the significant date is the date of
the order of acquittal passed by the Trial
Court. In a sense, the cause of action arises in
favour of the victim of an offence only when
an order of acquittal is passed and if that
happens after 31st December, 2009 the victim
has a right to challenge the acquittal, through
an appeal. Indeed, the right not only extends
to challenging the order of acquittal but also
challenging the conviction of the accused for
a lesser offence or imposing inadequate
compensation. The language of the proviso is
quite explicit, and we should not read nuances
that do not exist in the proviso."

12. The right to appeal is a
substantive right. The right to appeal
given to victim would be prospective and
enforceable
with
effect
from
31st
December 2009 only (Act No. 5 of 2009).
The proviso under Section 372 Cr.P.C.
has not conferred right to the victim
retrospectively as such no right accrue to
the complainant to derive any benefit.

13. Since the issue is not res integra as
such we have not find any merit to entertain
this appeal which is not maintainable as the
judgement of acquittal has been pronounced
prior to the amendment came into force under
Section 372 Cr.P.C. giving right to the victim
to prefer an appeal against the acquittal. The
delay condonation application as well as the
appeal sans any merit are hereby dismissed.
----------

(2019)10ILR A 1042

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.07.2019

BEFORE

THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

U/S 407 of Cr.P.C. No. 5 of 2019

Ved Prakash ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri
Nadeem
Murtaza,
Sri
Shubham
Tripathi

Counsel for the Opposite Parties:
Govt. Advocate, Sri Vijay Kumar Tripathi

A. Indian Penal Code, 1860 - Sections
364/511, 504, 506 & Code of Criminal
Procedure, 1973 - Section 407-Transfer
application
has
been
moved
by
the
applicant- application - rejection - the
principles governing the transfer of criminal
cases from one District to another District -