# Toofani v. State of U.P. & Ors. 264 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 3 ILRA 263
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-04
- **Bench:** Vivek Kumar Birla, Mohd. Aslam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/toofani-v-state-of-u-p-ors-264-indian-law-reports-allahabad-series-48196
- **Pages:** 7

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 372 - No appeal
to lie unless otherwise provided - appeal
against acquittal - Indian Penal Code,
1860 - Sections 147, 148, 302 & 302/149,
The Limitation Act,1963 - Section 5 -
"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 31-12-2009
irrespective of the date of registration of
FIR or the date of occurrence etc. -
significant date is the date of the order of
acquittal passed by the Trial Court - cause
of action arises in favour of the victim of
an offence only when an order of acquittal
is
passed
-
if
that
happens
after
31.12.2009 victim has a right to challenge
the acquittal, through an appeal - 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. (Para - 8 )

Appeal
against
acquittal
order
-
delay
condonation application - Misc. Application for
granting leave to appeal - Stamp Reporter
reported appeal beyond time by 5172 days -
appeal before Court beyond time by 5173 days -
maintainability - judgment of the year 2002 i.e.
11.01.2002 - proviso to Section 372 CrPC not in
force - enforced w.e.f. 31.12.2009 - after 14
years of impugned judgment - even after 7
years of the amendment having been enforced -
approached Court - with an application for
granting to leave.(Para - 2,3,4,7,9)

HELD:-Present
appeal
dismissed
as
not
maintainable.
Provision
of
Section
5
of
Limitation Act , not available to the appellant .
Appears to be a meaningless attempt on the
part of the appellant to file this appeal by
invoking the provision of Section 5 of Limitation
Act .Grounds narrated in the affidavit filed in
support of delay condonation application under
Section 5 of Limitation Act, are not sufficient to
condone such huge delay.(Para - 9)

Appeal dismissed. (E-7)

List of Cases cited:-

Mallikarjun Kodagali Vs St. of Karn. &ors. ,
(2019) 2 SCC 752 (3 Judges)

## Text

3 All. Toofani Vs. State of U.P. & Ors.
263
cannot form the basis for determination of
irrigated land, keeping in view the specific
provisions of Section 4-A of Act of 1960.
Thus, the Prescribed Authority could not
have made local inspection and the
statement of Lekhpal at best is merely
corroborative.

24. It is also evident from a perusal of
order passed by the Prescribed Authority
that the petitioner had raised a specific plea
that although plot no.369 may be irrigated
but it is not on the same plane as plot
no.347 which is on a higher plane than plot
no.369. Although the Prescribed Authority
had noted such objections in the order but
has not specifically dealt with such a
pleading and has merely rejected the same
on the ground that it is not borne out by the
statement of Lekhpal.

25. The aspect of matter whether a plot
can be held to be irrigated or otherwise under
Section 4-A of Act of 1960 has been dealt with
by a judgment of this Court in State of U.P. v.
District Judge and others reported in 2007 4
AWC 3700 (Allahabad) in which it has been
held that for determination of irrigated land
under Section 4-A of Act of 1960, it is
essential that there must be irrigation facility
and decision regarding irrigation facility and
growing of crops is required to be taken on the
basis of Khasras of 1378 to 1380 Faslis. It is
held that for the aforesaid determination, the
examination of the said Khasras is imperative
since there is a specific column indicating the
source of irrigation.

26. Similar is the view taken in the
decision of this Court in State of U.P. through
Collector v. Mukh Ram Singh and another
reported in 1991 RD 312 whereunder it has
been held that simply because there are two
tube-wells near the disputed plot, it cannot be
held that in view of Section 4-A and clause
thirdly of that Section, to record that it is an
irrigated plot unless and until there is a finding
based on appreciation of evidence including
entries in Khasras that it come within the zone
of command area.

27. While passing the impugned orders,
the authorities have also placed reliance on the
fact that two crops were shown to have been
produced on the plot in question. Much reliance
has been placed on the aforesaid aspect.
However upon reading of Section 4-A of Act of
1960, it is evident that the said factor is also
merely corroborative and has to be seen in
juxtaposition with other aspects of the matters,
particularly with regard to entries made in the
Khasras of the relevant years.

28. In view of the fact that the impugned
orders having been passed against the dictum of
this Court vide judgment dated 20.07.1984 and
the provisions of Section 4-A of Act of 1960,
are clearly vitiated and are therefore set aside
only with regard to findings pertaining to Gata
no.347 situate in Village Indur, P.O. Fakarpur,
Tehsil Kaisharganj, District Bahraich by
issuance of a writ in the nature of Certiorari.

29. The writ petition consequently stands
allowed. Parties to bear their own costs.
----------
(2022)03ILR A263
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.02.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE MOHD. ASLAM, J.

Criminal Misc. Appl. Defective u/s 372 Cr.P.C.
(Leave To Appeal) No. 14 of 2016

Toofani ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties
264 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Baijant Kumar Mishra

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 372 - No appeal
to lie unless otherwise provided - appeal
against acquittal - Indian Penal Code,
1860 - Sections 147, 148, 302 & 302/149,
The Limitation Act,1963 - Section 5 -
"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 31-12-2009
irrespective of the date of registration of
FIR or the date of occurrence etc. -
significant date is the date of the order of
acquittal passed by the Trial Court - cause
of action arises in favour of the victim of
an offence only when an order of acquittal
is
passed
-
if
that
happens
after
31.12.2009 victim has a right to challenge
the acquittal, through an appeal - 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. (Para - 8 )

Appeal
against
acquittal
order
-
delay
condonation application - Misc. Application for
granting leave to appeal - Stamp Reporter
reported appeal beyond time by 5172 days -
appeal before Court beyond time by 5173 days -
maintainability - judgment of the year 2002 i.e.
11.01.2002 - proviso to Section 372 CrPC not in
force - enforced w.e.f. 31.12.2009 - after 14
years of impugned judgment - even after 7
years of the amendment having been enforced -
approached Court - with an application for
granting to leave.(Para - 2,3,4,7,9)

HELD:-Present
appeal
dismissed
as
not
maintainable.
Provision
of
Section
5
of
Limitation Act , not available to the appellant .
Appears to be a meaningless attempt on the
part of the appellant to file this appeal by
invoking the provision of Section 5 of Limitation
Act .Grounds narrated in the affidavit filed in
support of delay condonation application under
Section 5 of Limitation Act, are not sufficient to
condone such huge delay.(Para - 9)

Appeal dismissed. (E-7)

List of Cases cited:-

Mallikarjun Kodagali Vs St. of Karn. &ors. ,
(2019) 2 SCC 752 (3 Judges)

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Mohd. Aslam, J.)

1. Heard Sri Baijant Kumar Mishra,
learned counsel for the appellant and
learned A.G.A. Sri Ratan Singh through
video conferencing.

2. The present appeal has been filed
against the acquittal order dated 11.01.2002
passed by Additional Sessions Judge, Court
No.7, Deoria in Sessions Trial No.94 of
1992 (State vs. Yogendra and others)
arising out of Case Crime No.150 of 1991,
under Sections 147, 148, 302, 302/149 IPC
P.S. Vishunpura District Doeria now
Kushinagar.

3. The present appeal has been filed
along with delay condonation application
filed under Section 5 of Limitation Act as
well as along with a Misc. Application for
granting leave to appeal under Section 372
CrPC.

4. The Stamp Reporter has reported
this appeal beyond time by 5172 days and
on the date of presenting this appeal before
this Court which was beyond time by 5173
days.

5. Learned counsel for the appellant
has submitted that appeal filed at the
instance of the informant would be
maintainable under Section 372 CrPC in
3 All. Toofani Vs. State of U.P. & Ors.
265
view of the amendment inserted by Act
No.5 of 2009 w.e.f. 31.12.2009. Learned
counsel for the appellant has drawn the
attention of this Court towards Section 372
CrPC which is quoted as under:-

"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."

6. Learned counsel for the appellant
has submitted that the delay was for the
reason that in the year 2002 the appellant
was suffering from poor health and he
could not approach his local counsel, when
he was feeling quite well he approached his
counsel, then he got information that a
State appeal will be filed by the State.
Thereafter, the appellant went outside of
house for earning livelihood and when he
came to Allahabad in the march, 2016 for
his personal work, then he got information
that State appeal was not filed and
therefore, there is a delay in filing the
present appeal.

7. We have asked the learned counsel
for the appellant as to how this appeal
would be maintainable as the judgment is
of the year 2002 i.e. 11.01.2002, when the
proviso to Section 372 CrPC, quoted
above, was not in force which was enforced
w.e.f. 31.12.2009. It is submitted by
learned counsel for the appellant that the
appellant is the informant and therefore, he
could
have
challenged
the
aforesaid
judgment in view of the aforesaid proviso.

8. Before proceeding further it would
be relevant to take note of the judgment of
Supreme Court in Mallikarjun Kodagali
vs. State of Karnataka and others, (2019)
2 SCC 752 (3 Judges), paragraphs 9, 24,
26, 27, 45, 46, 47, 48, 50, 51 and 72
whereof are quoted as under:-

"9. With this background, we
need to consider the questions that arise
before us consequent to the introduction of
the proviso to Section 372 CrPC with effect
from
31-12-2009.
The
questions
are
somewhat limited: Whether a "victim" as
defined in CrPC has a right of appeal in
view of the proviso to Section 372 CrPC
against an order of acquittal in a case
where the alleged offence took place prior
to 31-12-2009 but the order of acquittal
was passed by the Trial Court after 31-122009? Our answer to this question is in the
affirmative. The next question is: Whether
the "victim" must apply for leave to appeal
against the order of acquittal? Our answer
to this question is in the negative.

x x x x x

24. Feeling aggrieved by the
decision of the High Court, the National
Commission
for
Women preferred
a
petition for special leave to appeal
admittedly invoking the inherent powers of
this Court. In that context this Court held
that in view of Section 372 CrPC no appeal
shall lie from a judgment or order by a
criminal court except as provided by CrPC
or by any other law which authorises an
appeal. The proviso to Section 372 CrPC
gives a limited right to the victim to file an
266 INDIAN LAW REPORTS ALLAHABAD SERIES
appeal in the High Court against any order
of a criminal Court acquitting the accused
or convicting him for a lesser offence or the
imposition of inadequate compensation.
This
Court
then
observed
as
follows:(National Commission for Women
v. State (NCT of Delhi), (2010) 12 SCC 599
p.603, para 8)

"8. ...The proviso may not thus be
applicable as it came in the year 2009
(long after the present incident) and, in any
case, would confer a right only on a victim
and also does not envisage an appeal
against an inadequate sentence."

x x x x x

26. The thrust of the decision of this
Court,
which
appears
to
have
been
misunderstood by the High Court, is with
regard to entertaining a petition under Article
136 of the Constitution by a third party. As far
as criminal matters are concerned, this Court
undoubtedly held that permitting a third party
to prefer a petition under Article 136 of the
Constitution would be dangerous and would
cause confusion. The reasoning of this Court
was not directed towards the proviso to Section
372 CrPC. It is only in passing that this Court
observed that on the facts of the case, the
proviso to Section 372 CrPC might not be
applicable since it came into the statute book
after the incident.

27. The decision of this Court in
National Commission for Women is quite
clearly distinguishable and reliance on this
decision by the High Court is inapposite.

x x x x x

45. With regard to the second
question, the High Court concluded that the
right to appeal is a substantive right.
Consequently, the inescapable conclusion
would be that the right to appeal given to a
victim
would
be
prospective
and
enforceable with effect from 31-12-2009
only. This would be irrespective of the date
of registration of the FIR or the date of the
occurrence. The High Court held as
follows:(Tata Steel v. Atma Tube Products
Ltd., 2013 SCC OnLine P & H 5834 para
126)

"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. 31-122009 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 3112-2009 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". 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 31-12-2009, 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."

46. The Full Bench of the Delhi High Court
also considered this issue in Ram Phal v.
State 2015 SCC OnLine Del 9802. The
3 All. Toofani Vs. State of U.P. & Ors.
267
question considered by the Delhi High
Court was: SCC Online Del para 3)

"3.(b) Whether the appellate
remedy under the proviso to Section 372
CrPC is available with respect to only such
offences which were committed as on the
date
when
the
appellate
right
was
conferred by law or the appellate right
would be available with respect to the date
of the decision or the appellate remedy is
without any reference to the two points of
time i.e. the date when the offence was
committed or when the appellate right was
conferred by law, (Act No.5 of 2009 with
effect from 31.12.2009)?"

47. While answering the question,
the Delhi High Court referred to Tata Steel
decided by the Punjab & Haryana High
Court. The Delhi High Court referred to
the conclusion that: (Ram Phal case para
56)

"56. ...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 31-12-2009 irrespective of the date of
registration of FIR or the date of
occurrence etc."

48. Reference was also made to
the Division Bench of the Patna High Court
in Parmeshwar Mandal v. State of Bihar,
2013 SCC Online Pat 602 and parts of the
following passages were referred to and
relied upon. It was said in Parmeshwar
Mandal:

"23. Proviso to Section 372 of
the Code is in two parts. First clause of
the said proviso begins with ''provided
that'
and
ends
with
''Inadequate
compensation' and creates a right in the
victim to prefer appeal against any order
passed by a court either (i) acquitting the
accused or (ii) convicting for a lesser
offence or (iii) imposing inadequate
compensation. Thereafter, by inserting
conjunction ''and', another clause has
been added in the same sentence by
which forum for preferring such appeal
has been identified, which relates to
procedural part of law. Thus, 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
substantive
part
of
law
operates
prospectively, unless made retrospective,
and the procedural part is presumed to
be retrospective within its defined limits.

x x x x x

25. ...The Central Government,
by Notification No. S.O. 3313(E) dated 3012-2009, appointed 31st day of December
2009, as the date for the Act. 5 of 2009 to
come into force, which was published in
Gazette of India, Ext., Pt.II, S.3(ii), dated
30-12-2009. Hence, in absence of any
express intention notified by the Legislature
to the contrary, 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
268 INDIAN LAW REPORTS ALLAHABAD SERIES
the date of occurrence, institution of the
case, cognizance or commitment."

50. The Full Bench of the
Rajasthan High Court in Baldev Sharma v.
Gopal 2017 SCC Online Raj 3005
considered (amongst others) the following
two questions:

"1. (i) Whether the proviso to
Section
372
as
introduced
by
the
amending Act No. 5 of 2009 which has
been brought into effect on 31.12.2009
can be given effect to in cases where the
offence occurred prior to 31.12.2009 and
thereby given the right of appeal to the
victim in the event; (a) whether the court
below has acquitted the accused or (b)
has convicted the accused for a lesser
offence or (c) has imposed inadequate
compensation. Though the judgment in
such cases may have been passed by the
court below after 31.12.2009.

(ii) Whether the appeal by the
victim under proviso to Section 372 is also
required to be dealt with in the same
manner as an appeal filed by the State
under Section 378 Cr.P.C. and the
provisions of Section 378 are required to
be read into the provisions of Section 372
Cr.P.C. with regard to appeals filed by the
victims."

51. It was held, relying upon the
same
passages
in
Tata
Steel
and
Parmeshwar
Mandal
that
"judgments
passed on or after the said date 31-12-2009
are
the
ones
in
respect
whereto,
irrespective of the date of the offence, the
victim can avail the right to file an
application seeking leave to appeal."

x x x x x

72. 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 CrPC. 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
31.12.2009 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."

9. It is not in dispute that the
impugned judgment is of the year 2002.
We are not satisfied with the argument of
the learned counsel for the appellant as the
amendment has brought into force and
statutory right in favour of the victim was
granted by way of amendment under
Section 372 CrPC w.e.f. 31.12.2009 and
prior to that amendment, in State case only
the State Government could have filed the
appeal that too along with an application
for granting leave to appeal. The appellant
at the time of passing of the impugned
judgment
could
have
at
the
most
challenged the order by filing criminal
revision which right was admittedly not
exercised by the appellant. It is after 14
years of the impugned judgment and even
3 All. Shriniwas Vs. State of U.P. & Ors.
269
after 7 years of the amendment having been
enforced, he approached this Court by
filing delay condonation application along
with an application for granting to leave. It
is not in dispute that in view of the
judgment of the Hon'ble Apex Court in
Mallikarjun Kodagali (supra), the appeal
can be filed in the light of proviso to
Section 372 CrPC and there is no
requirement to file an application to grant
leave to appeal. However, this provision
was not in force in the year 2002 as there is
no specific provision that this amendment
is retrospective in nature. Therefore, in the
opinion of the Court, the present appeal
would not be maintainable and accordingly,
the same is dismissed as not maintainable.
We find that provision of Section 5 of
Limitation Act is, therefore, not available
to the appellant and in fact, this appears to
be a meaningless attempt on the part of the
appellant to file this appeal by invoking the
provision of Section 5 of Limitation Act.
As we find that the appeal itself is not
maintainable and the grounds narrated in
the affidavit filed in support of delay
condonation application under Section 5 of
Limitation Act need not be looked into,
which, in any case, are not sufficient to
condone such huge delay.

10. Accordingly, the appeal stands
dismissed as not maintainable.
----------
(2022)03ILR A269
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.02.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. Appl. u/s 372 Cr.P.C.
(Leave To Appeal) No. 150 of 2014

Shriniwas ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Bharat Singh

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 384 - Summary
dismissal of appeal - Section 378 (3) - No
appeal to the High Court under subsection (1) or sub section (2) shall be
entertained except with the leave of the
High court , Section 372 - No appeal to lie
unless
otherwise
provided
-
appeal
against acquittal - Indian Penal Code,
1860 - Sections 302, 34 - circumstantial
evidence - if two views are possible, the
High Court ought not to interference with
the trial court's judgment - there is no bar
High
Court's
power
to
reappreciate
evidence in an appeal against acquittal -
leave application filed under Section
378(3) Cr.P.C. is not required in the
appeal filed by the victim under Section
372 Cr.P.C. .(Para - 2,11)

(B) Criminal Law - The Code of criminal
procedure, 1973 - while dealing with a
judgment of acquittal, appellate court has
to consider the entire evidence on record,
so as to arrive at a finding as to whether
the views of the trial Court were perverse
or otherwise unsustainable - Appellate
court is entitled to consider whether in
arriving at a finding of fact, trial Court
had failed to take into consideration
admissible evidence and/or had taken into
consideration the evidence brought on
record contrary to law.(Para - 10)

Appeal against order of acquittal - deceased
(practising doctor) went on daily routine - not
returned home on time - son and brother
(deceased) went on searching - found dead
body in filed - FIR reggistered against unknown
person - judgement of acqittal - grounds -
witnesses of fact - not seen the incident -
darati, the weapon used in the incident -