VINOD Vs. STATE OF KERALA

JUDGEMENT

(1.) The question involved in this case is whether an application to condone the delay in filing the application for leave under Section 378(3) of the Code of Criminal Procedure is required in an appeal filed by the victim under the proviso to Section 372 of the Code of Criminal Procedure.

(2.) The present appeal is filed by the victim challenging the acquittal of accused Nos.2 to 9 in S.C.No.143 of 1998 on the file of the Court of Session, Thalassery. Along with the appeal, an affidavit explaining the delay was filed in the light of the decision of the Division Bench (in which one of us was a member) in Yohannan v. State of Kerala, 2015 3 KerLT 333. The Registry pointed out that in the light of the decision of the Supreme Court in Satya Pal Singh v. State of Madhya Pradesh & Ors., 2015 AIR(SC)(Cri) 1834, an application for leave to appeal is required to be filed under Section 378(3) of the Code of Criminal Procedure in an appeal filed by the victim under the proviso to Section 372 Cri.P.C. An application for leave was accordingly filed. However, no application to condone the delay in filing the application for leave was filed by the appellant. We passed an order dated 22.12.2015 directing the appellant to file an application for condonation of delay. We also observed that the affidavit dated 3rd December, 2015 can be treated as part of the application for condonation of delay. Accordingly, the appellant filed Cri.M.A.No.7508 of 2015.

(3.) When the application came up, the learned counsel for the appellant submitted that the Supreme Court held that an application for leave is required under Section 378(3) Cri.P.C. in an appeal filed by the victim under the proviso to Section 372 of the Code of Criminal Procedure. The counsel submitted that the leave contemplated under Section 378(3) is distinct and different from the Special Leave Petition contemplated under Section 378(4) of the Code of Criminal Procedure in respect of which a period of limitation of 60 days is provided under Section 378(5) Cri.P.C.