NANHEY SINGH Vs. STATE OF U P

JUDGEMENT

(1.) We have heard Sri Ashutosh, Advocate appearing on behalf of the appellant Nanhey Singh @ Dinesh Singh, challenging the correctness of judgment of acquittal dated 11.10.2006, passed by learned Additional Sessions Judge, Court No. 3, Bijnor in Sessions Trials No. 356 of 2005 and 160 of 2006, by which respondents Kuldip Singh and Nagendra Pal were acquitted of offence under Section 302 IPC, who is neither the informant of the case nor was examined as a witness. He has made a statement in his affidavit that he was the cousin brother of the deceased Jabbar Singh, who was the son of informant Babu Ram, examined as PW-2 in the Court below. The "party interested" or "a victim" could have a locus standi of preferring an appeal and we for that reason, while referring to the provisions of Section 372 Cr.P.C., recall the judgment of the Supreme Court in Baghwant Singh v. Commissioner of Police,1983 AIR(Del) 826 as also Janta Dal v. H.S. Chowdhary and others, 1993 AIR(SC) 892 There is no doubt in our mind that the appellant is a busy-bee, he is an inter-meddler, who has pecked his nose unnecessarily to waste the Court's time. This is one aspect of the case as regards the locus standi of a person to prefer an appeal under Section 372 Cr.P.C.

(2.) The other aspect which deters us from applying our jurisdiction under Section 372 Cr.P.C., is the Law of limitation, which has intervened by virtue of 2400 reported days of delay in filing the present appeal. Section 372 Cr.P.C. does not provide for any period in which the appeal under that particular provision should be filed, though the other provision under Section 378 Cr.P.C., which speaks of filing of an appeal against acquittal in three different categories of cases does so. The first category could be of such cases, which have been investigated into by Delhi Special Police Establishment Act, i.e., by the Central Bureau of Investigation, the other category of cases are those which could have been investigated into by the State Police through its investigating wing and the third category of cases would be of those appeals, which could be arising out of judgments of acquittal based on trials, the prosecution in which had been lodged by virtue of filing a complaint petition as defined under Section 2(d) of the Cr.P.C., i.e., by the complainant. In case, a complaint has been filed by a public servant, the period of limitation, set down by Section 378(5) Cr.P.C., is of 6 months, whereas in other cases the appeal has to be preferred and filed within 60 days.

(3.) We have already noted that provisions of Section 378 Cr.P.C. is related to special categories of cases on account of very categorisation made by that provision. Thus, we have no hesitation in saying that the provision of limitations, which are prescribed by Section 378 Cr.P.C., could not be attracted to an appeal, which could have been filed under Section 372 Cr.P.C. by virtue of the Proviso, which was added by the legislature through the Amending Act No. 5 of 2009. Then, the simple question could be as to how could the Courts be ascertaining as to what should be the limitation within which an appeal should be preferred by any person, who is entitled by virtue of proviso to Section 372 Cr.P.C. to bring an appeal before any appellate Court. In our opinion, the provision of Section 378 Cr.P.C., as we have already noted, is special in nature, which is attracted only in cases of appeals, which are likely to be preferred or which have been filed in three different categories of cases, which we have already indicated, may be a case different from that which is spoken of by Section 378 as in that case even if the right of appeal has been created in favour of the complainant, he has to exercise that right within a particular period by virtue of Section 378(5) Cr.P.C., which situation is not postulated by proviso to Section 372 Cr.P.C., as such, in our opinion, the general provisions of the Limitation Act have to be consulted for ascertaining the period, which could be attracted for filing an appeal under Section 372 proviso Cr.P.C.