Sabitri Bhunya  

vs.  

The State of West Bengal and Others  

Mr. Sabir Ahmed, Adv.  

Mr. Mujibar Ali Naskar, Adv.  

Mr. Shraman Sarkar, Adv.  

Mr. Apan Saha, Adv.  

Mr. Taslim Ahmed, Adv. … for the Appellant.  

Mr. Navanil De, Adv.  

Ms. Rajeshwar Chakraborty, Adv.  

Mr. Subhrajit Dey, Adv.  

Ms. Ayantika Roy, Adv.  

 … for the Respondent No. 2 to 5.  Mr. N. P.Agarwal, Adv.  

Mr. P. Bose, Adv.  

 … for the State.  

In Re: CRAN No. 1 of 2020 

Learned lawyer for the appellant/applicant submits that  

there is a delay of over 1000 days in preferring the appeal.  Reason for the delay is attributed to the penurious condition of  the appellant/applicant. It is further submitted she was  unaware of her right to get free legal assistance through Legal  Service authorities. Only upon being made aware of such right,  she filed the appeal. It is also submitted that she is an injured  eyewitness and the victim in the present case.  

Mr. De, learned advocate appearing for the respondent  

Nos.2 to 5/acquitted accused persons submits the delay has  not been adequately explained. He also draws our attention to 

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the fact that the explanation of the delay as set out in  Paragraph 10 of the application has not been affirmed as true  to the knowledge of the appellant/applicant.  

We have considered the materials on record.  Appellant/applicant is the injured eye-witness. Hence, she is a  ‘victim’ as defined under Section 2(wa) of the Code of Criminal  Procedure. No doubt, there is a substantial delay of over three  years in taking out the petition of appeal. However, it appears  the appellant was in a penurious state and being unaware with  regard to her right to receive free legal aid through the Legal  Service Authorities was unable to prefer the appeal within  time. Notwithstanding passage of over four decades since the  promulgation of the Legal Services Act, 1987, litigants, like the  appellant/applicant remain unaware of their right to legal aid  for access to justice. Purpose of rendering free legal aid to  indigent persons is to ensure that the right to access to justice  comes to fruition and does not remain a dead letter of law.  Since the amendment in 2005 to the Code of Criminal  Procedure, a victim has a statutory right to appeal against an  order of acquittal which is on par with the right of a convict to  appeal against an order of conviction and sentence. To ensure  the fullest enjoyment of such right, the victim ought to make  aware of her right to appeal with legal aid, if necessary, a  judgment of acquittal is passed. In Chobban Mallick Vs.  State of West Bengal1 a Division Bench of this Court directed  

1 (2013) 3 CHN (CAL) 704 

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that every copy of judgment of acquittal be forwarded to the  District Magistrate concerned for due intimation of victim  about the result of the case and limitation shall run from the  date of such communication. Having gone through the  judgment of acquittal we find the said judgment had not been  forwarded to the District Magistrate for due intimation.  

 Moreover, the victim was also not made aware of her  right to avail free legal aid for instituting and prosecuting such  appeal.  

To communicate this right to a victim, it is essential that  at the foot of every judgment of acquittal an endorsement be  made that the victim has a right to prefer appeal and, if  necessary, she may avail free legal aid for such prayer. Failure  to do so infracts the fundamental right to know and access to  justice of the victim as enshrined under Article 19/21 of the  Constitution.  

In the present case when the failure to prefer the appeal  within time was due to non-communication of her right to  prefer appeal by availing legal aid, we are of the view the delay  albeit of a protracted period ought to be condoned in the  interest of justice. Delay in preferring the appeal is, therefore,  condoned.  

Before parting we take judicial notice of the fact that in  none of the judgments of acquittal delivered by the Trial Courts  there is an endorsement at the foot of the judgment that the  victim has a right to prefer appeal under the proviso to Section 

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372 Cr.P.C. against the said judgment and if required may  seek free legal assistance from the appropriate legal service  authority to institute and prosecute to such appeal. Such  endorsement, in our opinion, is imperative as communication  of the right to appeal to a victim is the first step towards its  effective enjoyment. In order to remedy such an anomaly and  further the cause of free and effective access to justice, we  direct as follows:  

(a) Copy of the judgment of acquittal be forwarded to the  District Magistrate and DLSA concerned for due  intimation to the victim as defined under section  2(wa) of the Code of Criminal Procedure.  

(b) In every copy of the judgment which ends in acquittal,  the trial court shall at the foot of the judgment  endorse the right of the victim to prefer an appeal  under proviso to Section 372 of the Code of Criminal  Procedure and if necessary, to avail free legal  assistance through the legal services authorities  concerned to prefer and prosecute such appeal.  

(c) Necessary steps be taken to amend the Criminal  Rules and Orders and incorporate such requirement  in the aforesaid Rules.  

Registrar General shall communicate these directions to  all the judges in the State as well as Andaman & Nicobar  Islands and to place the matter before the appropriate 

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authority for amendment of the criminal rules and orders, as  aforesaid.  

Compliance report be filed four weeks hence.  

With these directions, the application being CRAN 1 of  2020 is allowed.  

CRA 266 OF 2020 

Learned lawyer for the appellant/applicant submits that  the trial court failed to consider the evidence of injured eye  witness P.W.1 which is corroborated by medical evidence and  other materials on record.  

In view of the aforesaid submission, we are of the opinion  appellant has made an arguable case in appeal. Hence, appeal is  admitted.  

Call for the lower court records.  

As the respondents are represented before us, issuance  of notice of appeal upon respondent Nos. 2 to 5 herein is  dispensed with.  

 The respondent Nos. 2 to 5 shall appear before the  learned trial court within a fortnight from date and upon their  appearance shall be released on bail subject to the satisfaction  of the said court till disposal of the appeal. In the event, they  fail to do so, the learned trial court, shall issue appropriate  processes to ensure their attendance in accordance with law.  

(Bivas Pattanayak, J.) (Joymalya Bagchi, J.)   

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