Kameshwar Tiwary vs The State of Jharkhand and Others

H.C. Mishra

Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is aggrieved by order dated 6.6.2012 passed by learned Session Judge, Dhanbad, in Cr. Appeal No. 182 of 2012, whereby the appeal filed by the petitioner has been dismissed being barred by limitation.

It may be stated that the appeal was filed by the informant-petitioner against the acquittal of the accused persons in trial. Prior to filing the appeal, the informant-petitioner had preferred Criminal Revision No. 684 of 2011 before this Court, which was dismissed as withdrawn, as the petitioner intended to prefer the appeal before the learned Sessions Judge. The petitioner thereafter preferred the appeal in the Court below, but the Court below taking into consideration Sections 5 and 3 of the Limitation Act has rejected the Appeal filed by the petitioner, to be barred by limitation. The order appears to have been passed without even noticing the acquitted accused persons.

Earlier criminal revisions used to be filed against the such judgments of acquittal, but in view of the amendment in Section 372 of the Cr.P.C., which came into force with effect from 31.12.2009, the appeal as a substantive right was given to the victim to prefer for appeal against any order of acquittal passed by the Court. The petitioner had earlier preferred the Cr. Revision, but in view of the amendment in Section 372 of the Cr.P.C., the said revision was withdrawn submitting that the petitioner would like to prefer the appeal against the Judgment of acquittal and the revision was permitted to be withdrawn.

In the back drop of these facts, I am of the considered view that the petitioner had sufficient cause for not preferring the appeal in the Court below within the prescribed time and the Court below ought to have considered the limitation application filed by the petitioner excluding the period taken in preferring the revision before this Court. Section 5 of the Limitation Act provides for admission of the appeal even after the period of limitation in case the appellant satisfies the Court that he had sufficient cause for not preferring the appeal in the Court below within the prescribed time. I am of the considered view that since this fact has not been considered by the Court below, the impugned order cannot be sustained in the eyes of law. It also goes without saying that the appeal is the substantive right of the appellant and the limitation petition filed by the appellant concerned should be considered liberally by the Courts. In view of the aforementioned discussions, the order dated 6.6.2012 passed by the learned Sessions Judge, Dhanbad, in Cr. Appeal No. 182 of 2012 is hereby, set-aside, and the Court below is directed to pass the order afresh on the limitation petition of the petitioner, in accordance with law after noticing the acquitted accused persons. This application is, accordingly, allowed.