# Triyugi Nath Tiwari v. State of U.P. & Ors

- **Citation:** (2022) 8 ILRA 595
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-21
- **Case number:** Criminal Appeal Defective No. 10 of 2022
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/triyugi-nath-tiwari-v-state-of-u-p-ors-48921
- **Pages:** 5

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302 & 34-Appeal against acquittalafter
delay
of
21
years-challenging
the
judgment passed much prior to the amendment
in 2009-not maintainable.

Appeal dismissed. (E-9)

List of Cases cited:

## Text

8 All. Triyugi Nath Tiwari Vs. State of U.P. & Ors.
595

16. As far as the other ground is
concerned regarding condoning the delay
during which limitation of six months'
period is to be exempted on the ground of
the
impact
of
pandemic
Covid-19
throughout the Nation in general and in
State of Uttar Pradesh in particular, I find
substance in the argument as well.
However, since I am not able to uphold the
order of the Tribunal on the very first
ground alone, I need not go in detail into
the second argument.

17. In view of the above, the order
dated 18th April, 2022 passed by the Motor
Accidents Claim Tribunal is hereby set
aside.

18. The petitioner is directed to
represent the petition again before the
Tribunal within a period of three weeks
from today and in the event if the same is
presented within the period of three weeks,
it shall be considered as such and the same
shall be decided within a further period of
three months as per procedure prescribed
for.

19. Learned counsel for the petitioner
has apprised the Court that Claims Tribunal
in the State are refusing those claim
petitions that have been preferred beyond
the period of six months even in respect of
claims of accident that occurred prior to 1st
April, 2022. Learned Court for the
Insurance Company could not dispute the
above statement made at the bar.

20. Accordingly, I direct the Registrar
General/ Compliance to send a copy of this
order to every Motor Accident Claims
Tribunal in the State immediately.
----------
(2022) 8 ILRA 595
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.07.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal Defective No. 10 of 2022
(U/S 372 Cr.P. C.)

Triyugi Nath Tiwari ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Yogesh Dutta Mishra, Sri Manjulesh
Kumar Shukla

Counsel for the Opposite Parties:
Govt. Advocate, Sri Prakash Dwivedi

Criminal Law - Indian Penal Code, 1860 -
Sections 302 & 34-Appeal against acquittalafter
delay
of
21
years-challenging
the
judgment passed much prior to the amendment
in 2009-not maintainable.

Appeal dismissed. (E-9)

List of Cases cited:

1. Prithvi Singh Vs St. of U.P. & ors, Criminal
Appeal no. 329/2012

2. Mallikarjun Kodagali (dead) represented
through Legal representatives Vs St. of Kar. &
ors.

3. Hitendra Vishnu Thakur & ors. Vs St. of Mah.
& ors. (1994) 4 SCC 602

4. Ramesh Kumar Soni Vs St. of M.P., (2013) 14
SCC 696

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Vikas Budhwar, J.)

Re: Order on Criminal Appeal
596 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri Yogesh Dutta Mishra,
learned counsel for the appellant and Mr.
Shri Prakash Dwivedi, learned counsel
appearing for the accused-respondents.

2. This is an appeal u/s 372 of the
Code of Criminal Procedure (CrPC)
seeking to challenge the judgement and
order dated 2.12.2004 passed by the
Sessions Judge, Mirzapur in S.T. No. 157
of 2003 (State vs. Devi Shankar Chaubey
and
others)
whereby
the
accusedrespondents were acquitted from the
offences under Section 302/34 IPC, P.S.
Lalganj, District Mirzapur, arising out of
Case Crime No. 118 of 203.

3. The Stamp Reporter has reported
delay of 6228 days in filing the present
appeal. Apart from such huge delay, we
find
that
the
appeal
itself
is
not
maintainable.

4. Present appeal has been filed by the
appellant under the Proviso to Section 372
Cr.P.C. The judgement under challenge is
dated 2.12.2004 passed in S.T. No. 157 of
2003 (State vs. Devi Shankar Chaubey and
others) whereby the accused-respondents
were acquitted from the offences under
Section 302/34 IPC.

5. Significantly, the incident had
allegedly taken place on 1.5.2003 and the
impugned judgement and order was passed
on 2.12.2004. Proviso to Section 372
Cr.P.C. was added by way of amendment
inserted by Act 5 of 2019 with effect from
31.12.2009 on the appointed date as
notified by the Central Government by
Notification No. SO 3313 (E) dated
30.12.2009. The Proviso to Section 372
Cr.P.C. is quoted as under:

The Code of Criminal Procedure, 1973

"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.] (added by Act No. 5 of 2009)

6. Right to appeal has been
considered by this Court in Prithvi Singh
vs. State of UP and others passed in
Criminal Misc. Application u/s 372 Cr.P.C.
(Leave To Appeal) No. 329 of 2012 on
21.4.2022, paragraphs 23, 24, 27, 28 and 29
whereof are quoted as under:

"23. Insofar as the statutes
regulating appeal are concerned, the law is
well established that the right to file an
appeal is a statutory right and it can be
circumscribed by the conditions of the
statute granting it. As was observed in
Government of Andhra Pradesh vs. P.
Laxmi Devi, (2008) 4 SCC 720 and Super
Cassettes Industries Ltd. vs. State of U.P.,
(2009) 10 SCC 531, it is not a natural or
inherent right and cannot be assumed to
exist, unless provided by a statute.

24. Therefore, the scheme of right
of appeal under Chapter XXXIX of the
Criminal Procedure Code, which provides
the
right
to
file
appeals
including
abatement of appeals, has to be understood
on the basis of the above golden rules of
statutory interpretation.
8 All. Triyugi Nath Tiwari Vs. State of U.P. & Ors.
597

27.
Now
on
a
comparison
between Section 404 of Cr.P.C. 1898 and
Section 372 of Cr.P.C. 1973, it is clear that
the main provision is intact, insofar it
provides that no appeal shall lie from any
judgment or order of a criminal court,
except as provided by this Code or by any
other law for the time being in force. The
significant development that has taken
place in this provision is that a ''proviso'
was added by the Amending Act No. 5 of
2009, which provides 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 passed
by such Court'.

28. Therefore, by the aforesaid
provision a right has been created in
favour of the victim, which was not existing
earlier in the Code, that a victim shall have
right to prefer an appeal against any order
by the court acquitting the accused or
convicting for a lesser offence or imposing
inadequate compensation. If we have a
glance over the statement of objects and
reasons in paragraph 2, it is very much
clear that while dealing with the right of
the victims it has been noted that at
present, the victims are the worst sufferers
in a crime and they don't have much role in
the court proceedings. They need to be
given certain "rights" and compensation,
so that there is no distortion of the criminal
justice system. This, by itself, is clear that
the object of adding this proviso is to
create a right in favour of the victim to
prefer an appeal as a matter of right. It not
only extends to challenge the order of
acquittal but such appeal can also be filed
by the victim if the accused is convicted for
a lessor offence or if the inadequate
compensation has been imposed.

29. It is, therefore, clear that as
per the golden rule of interpretation, this
''proviso' is a substantive enactment and it
is not merely excepting something out of, or
qualifying what was excepting or goes
before. Therefore, by adding the ''proviso'
in Section 372 of Cr.P.C. 1973 by this
amendment, a right has been created in
favour of the victim."

(Emphasis supplied)

7. The Hon'ble Apex Court in the case
of
Mallikarjun
Kodagali
(Dead)
represented
through
Legal
Representatives vs. State of Karnataka
and others, (2019) 2 SCC 752, after
discussing the judgements of Hon'ble
Division Bench and Hon'ble Full Bench of
various High Courts, in paragraph 72,
observed as under:

"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 not 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
598 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

(Emphasis supplied)

8. In Hitendra Vishnu Thakur and
others vs. State of Maharashtra and
others, (1994) 4 SCC 602, the Hon'ble
Supreme Court has considered the ambit
and scope of an amending Act, paragraph
26 whereof is quoted as under:

"26. The Designated Court has
held that the amendment would operate
retrospectively and would apply to the
pending cases in which investigation was
not complete on the date on which the
Amendment Act came into force and the
challan had not till then been filed in the
Court. From the law settled by this Court in
various cases the illustrative though not
exhaustive principle which emerge with
regard to the ambit and scope of an
Amending
Act
and
its
retrospective
operation may be culled out as follows:

(i)
A
statute
which
affects
substantive rights is presumed to be
prospective in operation unless made
retrospective,
either
expressly
or
by
necessary intendment, whereas a statute
which merely affects procedure, unless
such a construction is textually impossible,
is presumed to be retrospective in its
application, should not be given an
extended meaning and should be strictly
confined to its clearly defined limits.

(ii) Law relating to forum and
limitation is procedural in nature, whereas
law relating to right of action and right of
appeal even though remedial is substantive
in nature.

(iii) Every litigant has a vested
right in substantive law but no such right
exists in procedural law.

(iv) A procedural statute should
not
generally
speaking
be
applied
retrospectively where the result would be to
create new disabilities or obligations or to
impose
new
duties
in
respect
of
transactions already accomplished.

(v) A statute which not only
changes the procedure but also creates new
rights and liabilities shall be construed to
be
prospective
in
operation,
unless
otherwise provided, either expressly or by
necessary implication."

(Emphasis supplied)

9. In Ramesh Kumar Soni vs. State
of Madhya Pradesh, (2013) 14 SCC 696,
the Hon'ble Supreme Court reiterated the
aforesaid principle with approval.

10. In view of the aforesaid, it is very
much clear that the amendments so made in
Section 372 CrPC by adding a proviso in
the year 2009 creating substantive right of
appeal is not retrospective in nature. It is,
therefore, clear that in the year 2004 when
the impugned judgement under challenge
was passed, the appellant herein who
claims to be the victim had no right to
challenge
the
impugned
order
dated
2.12.2004 by way of filing the appeal.

11. It is, therefore, held that the
present appeal, which was filed after a
delay of about more than 21 years
challenging the impugned judgement dated
2.12.2004 passed much prior to the
8 All. Netrapal Vs. State of U.P. & Ors.
599
amendment (adding the proviso in the year
2009 with effect from 31.12.2009) is
clearly not maintainable.

12. Present appeal is accordingly
dismissed as not maintainable.

Re:
Order
on
Delay
Condonation Application

13. Since the appeal itself is not
maintainable, the question of consideration
of delay condonation application, which
was filed with delay of 6228 days, does not
arise.

14. Delay condonation application is
accordingly rejected.

15.

Resultantly,
appeal
stands
dismissed as not maintainable.
----------
(2022) 8 ILRA 599
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.07.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal No. 67 of 2022
(U/S 372 Cr.P. C.)

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

Counsel for the Appellant:
Sri Garun Pal Singh, Sri Vikas Sharma

Counsel for the Opposite Parties:
Govt. Advocate

Criminal Law - Criminal Procedure Code,
1973 - Section 372 - Indian Penal Code,
1860 - Sec 302 -The chain to link the accusedthoroughly missing and the evidences adduced
are weak. Nonetheless presumption of double
innocence is already attached to the accused -
acquittal is liable to be affirmed.

Appeal dismissed. (E-9)

List of Cases cited:

1. Guru Dutt Pathak Vs St. of U.P. (2021) 6
Supreme Court Cases 116

2. Babu Vs St. of Ker. SCC pp. 196-199

3. Sheo Swarup Vs King Emperor (SCC OnLine
PC : IA p. 404)

(Delivered by Hon'ble Vikas Budhwar, J.)

1. Occasioning dissatisfaction the
present criminal appeal purported to be
under Section 372 of
the
Criminal
Procedure Code, 1973 (Cr.P.C.) has been
instituted
by
the
appellant-informant
against the judgment and order dated
6.1.2018 passed by Additional District &
Sessions Judge, Court No.3, Hathras in
Session Trial No.615 of 2005, (State Vs.
Lekhraj & others) in Case Crime No.254 of
2004, P.S. Sikandarau, District Hathras
purported to be under Section 302 IPC
acquitting the accused herein, who are four
in number.

2. The present appeal was presented
before this Court on 4.4.2018 and on
6.4.2018 the records were summoned.

3.

On
23.5.2018,
8.11.2021,
31.1.2022, 7.2.2022 and 11.2.2022, this
Court passed the following orders:-

On 23.5.2018

"Passed over on the illness slip of
Sri Garun Pal Singh, learned counsel for
the applicant.