Appeal Filed By Victim Under Proviso To Section 372 CrPC Cannot Be Dismissed For Default: Kerala High Court
The Kerala High Court clarified a significant legal issue related to the dismissal of appeals filed by victims under Section 372 of the Code of Criminal Procedure (CrPC). The Court held that an appeal filed by a victim under the proviso to Section 372 of the CrPC cannot be dismissed for default merely due to lack of representation. In this case, the revision petitioner, who is a victim of a crime, filed an appeal under Section 372 of the Code of Criminal Procedure (CrPC) against an order of acquittal. The issue before the Court was, “Can an appeal filed by a victim under the proviso to Sec.372 of the Code of Criminal Procedure (Code, in brief) be dismissed for default ?”
A Bench of Justice C.S. Dias held that, “On an overall consideration of the materials on record, the law and taking into consideration the fact that the appeal was dismissed for want of representation, I am of the definite view that the impugned orders are erroneous, improper and irregular.”
The appeal was initially dismissed by the Appellate Court for default because there was no representation for the revision petitioner.
Advocate D. Kishore appeared for the Appellant and Advocate J.R. Prem Navaz J.R appeared for the Respoondents.
The Court referred to the case of Sobhanakumari K. vs. Santhosh @ Pallan Shaji, [2018 (1) KHC 195], which clarified that there is no specific time period stipulated under the Limitation Act for victims to file an appeal under the proviso to Section 372 of the CrPC. If the appeal is filed beyond the time period of 30/60 days, the victim must provide an affidavit explaining the reason for the delay.
The Court also noted that appeals filed under various sections of the CrPC, including Section 372, should be dealt with by the Court of Session. If the appeal is not summarily dismissed, it should be proceeded with and decided on its merits. The Court said, “Appeals filed under Secs. 372, 373, 374, 377, 378, 379 and 380 of the Code are to be dealt with by the Court of Session under Secs.381 to 383 of the Code. If the appeal is not summarily dismissed under Sec.384 of the Code, then the same is to proceed to the next stage under Sec.385 and be decided under Sec.393 of the Code.”
Referring to the Supreme Court's decision in Bani Singh v. State of U.P., [1996(2) KLT 424 SC] the Court emphasized that the CrPC does not contemplate the dismissal of an appeal for non-prosecution but expects the Appellate Court to dispose of the appeal on its merits after perusal and scrutiny of the record.
The Court cited recent Supreme Court decisions, such as K. Muruganandam & Ors vs. Deputy Superintendent of Police, [2021 (5) KHC 363] and Dhananjay Rai @ Guddu Rai vs. State of Bihar, [2022 KHC 6710] which reiterate that appeals should not be dismissed for default or non-prosecution; instead, they should be disposed of on their merits after reviewing the records.
The Court allowed the revision petition, set aside the orders dismissing the appeal, and directed the Appellate Court to hear and decide the appeal expeditiously while ensuring that both the revision petitioner and the second respondent have the opportunity to be heard.
Cause Title: Jyothi v. Stata of Kerala & Anr., [2023:KER:61149]
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