The Allahabad High Court in Triyugi Nath Tiwari v. State Of U.P. observed that the amendments made in Section 372 CrPC by adding a proviso in the year 2009, creating a substantive right of appeal for the 'victim' is not retrospective in nature.
Section 372 CrPC states that:
“372. No appeal to lie unless otherwise provided--No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:
[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.] (added by Act No. 5 of 2009)”
The Court relied upon Prithvi Singh vs. State of UP and others wherein the right to appeal has been considered by this Court. It was held:-
23. Insofar as the statutes regulating appeal are concerned, the law is well established that the right to file an appeal is a statutory right and it can be circumscribed by the conditions of the statute granting it. As was observed in Government of Andhra Pradesh vs. P. Laxmi Devi, and Super Cassettes Industries Ltd. vs. State of U.P., it is not a natural or inherent right and cannot be assumed to exist, unless provided by a statute.
24. Therefore, the scheme of right to appeal under Chapter XXXIX of the Criminal Procedure Code, which provides the right to file appeals including abatement of appeals, has to be understood on the basis of the above golden rules of statutory interpretation.
27……. The significant development that has taken place in this provision is that a 'proviso' was added by the Amending Act No. 5 of 2009, which provides 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 passed by such Court'.
The Court also referred to Hitendra Vishnu Thakur and others vs. State of Maharashtra and others, wherein it has been held that:
“....(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.
(v) A statute which not only changes the procedure but also creates new rights and
liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.”
Therefore, the Court held that it is very much clear the amendments made in Section 372 CrPC by adding a proviso in the year 2009 creating substantive right of appeal is not retrospective in nature. Hence, it is clear that in the year 2004 when the impugned judgement under challenge was passed, the appellant herein who claims to be the victim had no right to challenge the impugned order dated 2.12.2004 by way of filing the appeal.