Right Of Appeal Under Section 372 CrPC, 1973 Vis-à-Vis Period Of Limitation: A Conundrum

Ayan Bhattacherjee
23 Aug 2020 8:23 AM GMT
Right Of Appeal Under Section 372 CrPC, 1973 Vis-à-Vis Period Of Limitation: A Conundrum
Your free access to Live Law has expired
To read the article, get a premium account.
    Your Subscription Supports Independent Journalism
Subscription starts from
(For 6 Months)
Premium account gives you:
  • Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.
  • Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.
Already a subscriber?

Seminal Issue:

What should be the period of limitation for filing an appeal under Section 372 of the Code of Criminal Procedure, 1973 (in short 'Cr P C') is a contentious issue on which there is apparently a judicial split of opinion amongst various High Courts in India as there is no pronouncement by the Hon'ble Supreme Court of India as yet.

Section 372 Proviso:

Vide the Code of Criminal Procedure (Amendment Act), 2008 (in short 'the Amendment Act) a new proviso has been inserted under Section 372 Cr P C which is as follows:

"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."

The Amendment Act forms part of the scheme of Cr P C under which the definition of "victim" was inserted by way of Section 2(wa) of Cr P C in order to confer a right of active participation upon a victim of an offence in a judicial process. The proviso gives right to a victim to prefer an appeal against an order in the following eventualities:

  • Against an order of acquittal;
  • Against an order of conviction for a lesser offence; and
  • Against an order of imposition of inadequate compensation.

Split of opinion:

The proviso to Section 372 of Cr P C and its various ramifications including the period of limitation fell for decision before different High Courts throughout the territory of India. Applying various parameters of interpretation, different High Courts formulated different time frame as period of limitation under Section 372 Cr P C. A table to that effect is extracted herein below:

Sl. No.

High Courts

Particulars and Citations


Strength of Bench



2018 Cri LJ 1283

Mast Ram Tiwari


State of U.P.

60 days (In complaint Cases)

90 days (In all other cases)

Full Bench



2016 Cri LJ 1418

Amit Bhagirath Mishra


State of Maharashtra

Reasonable Period

Division Bench



(2013) 3 Cal Cri LR 428

Chobhan Mallick


The State of West Bengal

60 days

Division Bench



2011 (2) AD (Delhi) 210

Kareemul Hajazi v. State of NCT of Delhi

60 days

Division Bench



2015 (44) RCR Cri 497

Paye Mosing


Naba Bora

90 days

Division Bench



2013 Cri LJ 4225

Bhavuben Dineshbhai Makwana


State of Gujarat & Others

90 days

Full Bench


Himachal Pradesh

2013 (2) RCR (Cri) 60

Joginder Singh v. State of Himachal Pradesh

90 days

Division Bench



2014 Cri LJ 1046

Parmeshwar Mandal


State of Bihar

Reasonable Period

Division Bench


Punjab & Haryana

2013 (2) RCR Cri 1005

M/s Tata Steel ltd.


M/s Atma Tube Products Ltd.

90 days (High Court)

60 days (Any Other Court)

Full Bench



2015 (4) Gau L T 508

Biplab Bhowmik v. Sabitri Banik (Bhowmik)

90 days (High Court)

60 days (Any Other Court)

Single Bench

It is therefore, evident that period of limitation as per different High Courts vary from 60 days to any reasonable period of time.

Limitation Act, 1963

Under Articles 114 and 115 of the Limitation Act, 1963 (in short 'the Limitation Act') the period of limitation for preferring an appeal against acquittal (after grant of special leave) and against an order of conviction have been mentioned. It is noteworthy that in the Schedule of the Limitation Act, the period of limitation has been prescribed in respect of the provisions of the Code of Criminal Procedure, 1898 (in short 'Old Cr P C'). As under the Old Cr PC there was no provision of substantive appeal in case of an acquittal unlike the proviso to Section 372 of Cr P C, the Legislature in its wisdom did not conceptualize in its contemplation any period of limitation for filing an appeal against an order of acquittal. Since with the Amendment Act, there was no corresponding amendment in the Limitation Act, the issue of limitation for preferring an appeal under Section 372 of Cr PC assumes significance and becomes a matter of debate. In absence of any provision under Article 114 of the Limitation Act, what should therefore be the period of limitation? Will it be of any specific period ? Will it be on case to case basis?

Appeal, interpretation:

Before delving into the aforesaid issue, it cannot be lost sight of the fact that since the right of appeal is created by the edict of legislature, therefore, the courts will be loath to extrapolate the scope and ambit of such right. The courts will equally be reluctant to add any condition with such right as well. [vide Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520 & M/s. Arcot Textile Mills Ltd. v. Regional Provident Fund Commissioner, AIR 2014 SC 295]

Absence of limitation:

It is trite law, nevertheless fundamental that in absence of any period of limitation, a provision cannot be invoked randomly at the sweet will of a litigant. Although in some statute, there may not be any prescription of period of limitation, yet the same do not connote that the power can be exercised at any time. If no period of limitation has been prescribed, statutory authority can exercise its jurisdiction within a reasonable period of time depending upon the nature of the statute, rights and liabilities conferred there under and other relevant factors. (Vide State of Punjab & Ors. v. Bhatinda District Cooperative Milk Producers Union Ltd. reported in (2007)11 SCC 363 & Joint Collector Ranga Reddy District & Anr. v. D. Narsing Rao & Ors. reported in (2015) 3 SCC 695).

It was held that absence of limitation is an assurance to exercise the power with caution and in order to miscarriage justice or for violation of the provision of the Act. Length of time depends on the factual scenario in a given case. The Hon'ble Supreme Court of India has not allowed the exercise of power by the statutory authority after inordinate delay. (vide State of Orissa & Ors. v. Brundaban Sharma & Anr. reported in (1995)Suppl. 3 SCC 249).

Retreating the same principle the Hon'ble Supreme Court of India has frowned upon a litigant who suddenly woke up after 13 years to claim their land.(vide B.S. Sheshagiri Setty & Ors. v. State of Karnataka & Ors. reported in (2016) 2 SCC 123)

The Hon'ble Supreme Court of India in 'Chhedi Lal Yadav & Others Vs. Hari Kishore Yadav(D) reported in (2018) 12 SCC 527' has held that merely because an Act is a beneficial piece of legislation and there is no corresponding period of limitation, rights accrued in favor of a party cannot be ignored lightly. The Court refused to condone inordinate and unexpected delay in filing application for restoration of land after a period of 24 years.

In the aforesaid premise, it can safely be said that even in absence of any period of limitation, the litigants are not entitled to invoke the respective statuary provision waking up from slumber. In any case a litigant has to invoke a provision at a relatively reasonable period of time. Now, the crux is what would be 'a reasonable period of time'? Will it be of a fixed tenure akin to the period engrafted under the Limitation Act or would it be adjudged on the touchstone of delay and laches?

It is also too well settled that in absence of any period of limitation in one statute, limitation of another statute cannot be made applicable by way of juridical interpretation ( vide: Ishar Singh v. Financial Commissioner & Ors. reported in (1984) 4 SCC 17).

The Hon'ble Supreme Court of India in Bithika Mazumdar & Anr. v. Sagar Pal & Ors. reported in (2017) 2 SCC 748 set aside the judgment of the High Court on the ground that in absence of any period of limitation being prescribed by the legislature, in an application under Article 227 of the Constitution of India, the High Court could not prescribe a specific period to be the period of limitation.

It has been held by the Judicial Committee that in construing the provision of limitation, the provisions of equitable consideration are out of place and strict grammatical meaning of the word is the only safe guide.(Vide; Nagendra Nath Dey & Another And Suresh Chandra Dey & Others., AIR 1932 PC 165).

It is a settled position of law that the statutory provisions may cause hardship or inconvenience to a party but court has no choice but to enforce it by giving full effect to the same. It is time honoured principle that the law is hard but nevertheless it is the law. In construing a statutory provision, inconvenience is not a decisive factor. 'A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to reveal what it consider a distress resulting from its operation'.(Vide The Martin Burn Ltd. Vs. The Corporation of Calcutta, AIR 66 SC 529).

It has also been held that when there is no period of limit mentioned in a statute, delay becomes inconsequential. (Vide Jasmer Singh Vs State of Haryana & Another; (2015) 4 SCC 458)

It is profitable to draw inspiration from the authoritative asseveration of the Supreme Court of India as made in Commissioner of Slaes Tax, U.P., Lucknow Vs Parson Tools And Plants, Kanpur reported in (1975) 4 SCC 22:

"15. …An enactment being the will of the legislature, the paramount rule of interpretation, which overrides all others, is that a statute is to be expounded "according to the intent of them that made it". "The will of the legislature is the supreme law of the land, and demands perfect obedience".(See Maxwell on interpretation of Statutes, 11th Edn., pp. 1, 2 and 251.) "Judicial power is never exercised", said Marshall C. J. of the United States, "for the purpose of giving effect to the will of the Judges : always for the purpose of giving effect to the will of the Legislature; or in other words, to the will of the law".

"16. If the legislature wilfully, omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation by analogy or implication, something what it thinks to be a general principle of justice and equity. "To do so" - (at p. 65 in Prem Nath L. Ganesh v. Prem Nath L. Ram Nath, AIR 1963 Punjab 62. Per Tek Chand J.) "would be entrenching upon the preserves of Legislature", the primary function of a court of law being jus dicere and not jus dare."

In interpreting the provision under Section 28 of the Hindu Marriage Act, 1955, even after holding the period of limitation prescribed for filing appeal under Section 28(4) of the Hindu Marriage Act, 1955 to be inadequate one, the Apex Court has not tinkered with the Legislative wisdom decision and only sent a recommendation to the Legislature. (vide: Savitri Pandey Vs. Prem Chandra Pandey reported in (2002) 2 SCC 73)

However there is a line of judicial decision tending to articulate fixed time frame by way of interpretation in absence of any legislative interdict. Way back in 1916 the Division Bench of the Hon'ble Calcutta High Court has applied the doctrine of practice of Court to be the law of the court in interpreting the period of limitation for a revisional application in a criminal case and stipulated 60 clear days for preferring a revision petition. (Vide: Kshetra Mohon Giri & others Vs. Darpanarain Giri & Others, AIR 1917 Cal 849).

When there was no period of limitation prescribed under the Limitation Act for moving an application for criminal revision under the old law, it was construed to be 60 days from the date of the order as per the law of limitation provided for an appeal.(Vide Sher Ali @ sk. Sher Ali Vs. Sk. Masud & Others, 1959 Cr L J 835)

In the same line, the Hon'ble Supreme Court of India in State of Punjab v. Bhatinda District Coop. Milk P. Union Ltd., (2007)11 SCC 363 has constructed a fixed tenure as the period of limitation by way of judicial interpretation. It was observed:

"18. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors."

"19. Revisional jurisdiction, in our opinion, should ordinarily be exercised within a period of three years having regard to the purport in terms of the said Act. In any event, the same should not exceed the period of five years. The view of the High Court, thus, cannot be said to be unreasonable. Reasonable period, keeping in view the discussions made hereinbefore, must be found out from the statutory scheme. As indicated hereinbefore, maximum period of limitation provided for in sub-section (6) of Section 11 of the Act is five years."

Some stray thoughts:

Being vexed with the aforesaid dichotomy and regard being had to the various principles of interpretation, it becomes intriguing as to whether any specific time period can be or should be formulated as the period of limitation by a Court of law by judicial legislation in absence of any statutory formulation to that effect.

Coming to the issue at hand, we cannot be unmindful of the position of law that a victim in a criminal trial is neither a necessary nor a proper party and therefore, has no right of audience (Vide Rekha Murarka v. The State of West Bengal & Another reported in 2019 (17) SCALE 76). Since a victim is stepped outside the corridor of the criminal courts during most of the time in an inquiry and/or trial (especially in Sessions Trial), saddling a victim with a fixed time frame for filing an appeal, in deserving cases, may tantamount to denial of such right. In the aforesaid anvil, delay in preferring an appeal by a victim may be addressed on the benchmark of the equitable principle of delay and laches.

Besides that, in a criminal case there can be more than one victim. Even in death of the victim (that is the injured), his heir or legal guardian becomes a victim (vide Section 2(wa) Cr P C). Since more often, the injured may have more than one guardian or several legal heirs therefore, there can be more than one victim. In view of such peculiar situation, once an accused is acquitted of the charges, such victim who had never been on board when the trial was in progress, cannot be expected to wake up and to file an appeal within a stipulated period. Such an interpretation in absence of legislative wisdom decision will definitely tinker with its right to fair trial enshrined under Article 21 of Constitution of India.

There is another way of looking at the issue. Limitation is an essential function of legislature. Legislature therefore, cannot abdicate its essential legislative function to an executive authority and/or judicial body. In case any specific time frame, be it of 60 days or of 90 days, is construed to be the "Laxman Rekha" for preferring an appeal by way of judicial interpretation, such interpretation may fall in the teeth of the time honoured principle that the Legislature can't abdicate its essential legislative actions [Vide Oil and Natural Gas Corporation Limited v. Gujarat Energy Transmission Corporation Limited & Ors. reported in (2017) 5 SCC 42].

It can further be said that since the period of limitation being a Legislative wisdom decision, it can only be stipulated by the Legislature through a legislative document. The provision of condonation of delay being an essential concomitant factor of period of limitation can only be provided by Legislature itself. In absence of any statutory prescription the power of condonation of delay can neither be invoked for principle of equity nor automatically [Vide Lachhman Das Arora Vs Ganesh Lal and Others,(1999) 8 SCC 532 and Sneh Gupta Vs Devi Sarup and Others, (2009) 6 SCC 194].

As the power to condone the delay can't be attributed to a statutory authority by way of judicial engineering, the court cannot interpret the law in such a manner in order to read into the act an inherent power of condoning the delay by invoking section 5 of the Limitation Act so as to supplement the provision of the said act. (Vide Patel Brothers Vs State of Assam and Others reported in (2017) 2 SCC 350).

It is therefore evident that once a specific period of limitation is judicially read into an Act, the power of condonation of delay has to be provided by the judiciary only by way of interpretation. Such interpretation may come into conflict with the tests mentioned hereinabove.

In the aforesaid background it is therefore evident that considering a strict period of time to be a time for preferring an appeal under Section 372 Cr P C may fall foul of the jurisprudence of limitation as indicated herein above. On the other hand, 'the reasonable period' may depend on case to case basis on the principle of delay and laches. However, the time will tell us which of the aforesaid views is best suited to the ends of justice after balancing the conflicting interests of a victim and an accused.
Views are personal only.
(Author is an Advocate at Calcutta High Court)

Next Story