- (1.) This Court on 10th January, 2013 had passed the following order :- "Father of the petitioner was allegedly murdered by Respondent Nos. 2 to 5. They have been acquitted vide the impugned judgment. Proviso to Section 372 of the Code of Criminal Procedure was added on 31.12.2009, which vest right in the victim to file an appeal. Shri Basu submits that right of appeal cannot accrue to the petitioner, as his father was murdered before the amendment. During the course of argument, following question for consideration of the Court has arisen. The right of appeal, being a substantive right, whether shall accrue from the date of incident or from the date of the impugned judgment, after enactment of the amendment in the statue. I have called Shri Basu and all members of the Bar to assist this Court to answer the said question. Shri Bikash Ranjan Bhattacharjee, Senior Advocate, is appointed as Amicus Curiae to advance his dispassionate views in this matter. List for argument on 4th February, 2013."
(2.) Sri Basu appearing for the petitioner has relied upon the case National Commission for Women v. State of Delhi & Anr., 2010 12 SCC 599 to say that right of appeal has to relate back to date of incident. In support of his contention reliance has been placed on para 8 of the above said judgment and the same read as under :- "Chapter XXIX of the Code of Criminal Procedure deals with "Appeal(s)". Section 372 specifically provides that no appeal shall lie from a judgment or order of a criminal Court except as provided by the Code or by any other law which authorises an appeal. The proviso inserted by Section 372 (Act 5 of 2009) with effect from 31.12.2009, gives a limited right to the victim to file an appeal in the High Court against any order of a criminal Court acquitting the accused or convicting him for a lesser offence or the imposition of inadequate compensation. The proviso may not thus be applicable as it came in the year 2009 (long after the present incident) and, in any case, would confer a right only on a victim and also does not envisage an appeal against an inadequate sentence. An appeal would thus be maintainable only under Section 377 to the High Court as it is effectively challenging the quantum of sentence."
(3.) A perusal of the observation made by Supreme Court will reveal that it was not determined that from which date right of appeal shall accrue. A passing reference was made and petitioner therein was non-suited on the ground that appeal has not been filed by the victim and consequently no appeal was also provided against an inadequate sentence.;