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Judgment
Heard Mr. Somik Deb, learned counsel appearing for the petitioner as well as Mr. S. Sarkar, learned Public Prosecutor appearing for the State and Mr. H.K.Bhowmik, learned counsel appearing for the respondents No. 2, 3 and 4.
This petition seeking leave under Section 378(4) of the Cr.P.C. has been filed by the victim against the judgment and order of acquittal dated 07.11.2016 passed by the Judicial Magistrate 1st Class, Kailashahar, Unakoti Judicial District. The respondents No.2, 3 and 4 were charged of committing offence punishable under Sections 497/109/34 of the IPC. The Judicial Magistrate has extended benefit of doubt and acquitted the accused respondents.
Being aggrieved, the victim namely Sri Bakul Ch. Das filed the appeal under proviso to Section 372 of the Cr.P.C. accompanied by this leave application.
At the threshold, the question of maintainability of the appeal in this High Court has seriously been pressed. As corollary the maintainability of the leave application has emerged paramount. Having situated thus, this Court has examined that aspect before considering whether the leave to appeal can be granted to the petitioner. In this regard, it is to be stated at the beginning that proviso to Section 372 is a substantive provision to regulate the jurisdiction where the appeal preferred by the victim against would lie "any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation", it has been clearly provided under the said proviso that "such appeal shall lie to the Court to which an appeal ordinarily lie against the order of conviction of such Court."
Section 374 of the Cr.P.C. provides where the appeals from conviction can be filed.
In accordance with Section 374 of the Cr.P.C.-
(1) any person convicted on a trial held by a High Court in its extraordinary criminal jurisdiction may appeal to the Supreme Court.
(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than 7 years [has been against him or against any other person convicted at the same trial] may appeal to the High Court.
(3) As provided above, any person convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the 1st Class or of Second Class or sentenced under Section 325, or in respect of whom an order has been made or a sentence has been passed under Section 360 IPC by any Magistrate, may appeal to the Court of Sessions.
Therefore, there is no ambiguity in the provisions that when a Magistrate passed an order convicting a person he may file the appeal to the Court of Sessions under Sections 374(3)(a) subject to the provisions of Section 374(2) of the Cr.P.C. Thus, there cannot be any amount of controversy that the appeal against acquittal by the victim in terms of proviso to Section 372 shall lie to the Sessions Court.
Mr. Deb, learned counsel appearing for the petitioner has submitted that in view of the decision of the Apex Court in Satya Pal Singh Vrs. State of Madhyapradesh & Ors., reported in (2015) 15 SCC 613, no appeal against the order of acquittal can be filed without leave of the Court.
For purpose of reference, the reliance has been placed on the following passage from Satya Pal Singh (supra):
"14. Thus, from a reading of the abovesaid legal position laid down by this Court in the cases referred to supra, it is abundantly clear that the proviso to Section 372 of CrPC must be read along with its main enactment i.e. Section 372 itself and together with sub-section (3) of Section 378 CrPC otherwise the substantive provision of Section 372 CrPC will be rendered nugatory, as it clearly states that no appeal shall lie from any judgment or order of a criminal court except as provided by CrPC.
15.Thus, to conclude on the legal issue:
"whether the appellant herein, being the father of the deceased, has statutory right to prefer an appeal to the High Court against the order of acquittal under proviso to Section 372 of CrPC without obtaining the leave of the High Court as required under sub-Section (3) to Section 378 of CrPC?",
this Court is of the view that the right of questioning the correctness of the judgment and order of acquittal by preferring an appeal to the High Court is conferred upon the victim including the legal heir and others, as defined under Section 2(wa) CrPC, under the proviso to Section 372, but only after obtaining the leave of the High Court as required under sub-section (3) of Section 378 of CrPC. The High Court of M.P. has failed to deal with this important legal aspect of the matter while passing the impugned judgment and order.(Satya Pal Singh v. State of M.P., Criminal Appeal No.547 of 2013, decided on 4-3-2014(MP).
Thus, Mr. Deb, learned counsel has further submitted that since the Apex Court has settled the law by holding that only after obtaining the leave of the High Court as required under sub Section (3) of the Section 378 of the Cr.P.C., the appeal can be filed by the victim against the judgment and order of acquittal. The petitioner has preferred this appeal in this Court with this petition for leave as leave granting power is not available with the Sessions Court.
Mr. Deb, learned counsel has also placed reliance on a decision of the Apex Court in Subhas Chand V. State (Delhi Administration), reported in (2013) 2 SCC 17 where the Apex Court had occasion to consider the question whether an appeal filed by the State against an order of acquittal shall lie to the Sessions Court under Section 378(1) of the Cr.P.C. The Apex Court having discussed the object and reasons of engrafting Section 378 of the Cr.P.C., where the classes of appeals against the order of acquittal are provided, the Apex Court had occasion to observe as under:
"17. At the outset, it must be noted that as per Section 378(3) appeals against orders of acquittal which have to be filed in the High Court under Section 378(1)(b) and 378(2)(b) of the Code cannot be entertained except with the leave of the High Court. Section 378(1)(a) provides that, in any case, if an order of acquittal is passed by a Magistrate in respect of a cognizable and non-bailable offence the District Magistrate may direct the Public Prosecutor to present an appeal to the court of Sessions. Sub- Section (1)(b) of Section 378 provides that, in any case, the State Government may direct the Public Prosecutor to file an appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision. Sub-Section(2) of Section 378 refers to orders of acquittal passed in any case investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 or by any other agency empowered to make investigation into an offence under any Central Act other than the Code. This provision is similar to sub- section (1) except that here the words "State Government" are substituted by the words "Central Government".
If we analyze Sections 378(1)(a) & (b), it is clear that the State Government cannot direct the Public Prosecutor to file an appeal against an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence because of the categorical bar created by Section 378(1)(b). Such appeals, that is appeals against orders of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence can only be filed in the Sessions Court at the instance of the Public Prosecutor as directed by the District Magistrate. Section 378(1)(b) uses the words "in any case" but leaves out orders of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence from the control of the State Government. Therefore, in all other cases where orders of acquittal are passed appeals can be filed by the Public Prosecutor as directed by the State Government to the High Court.
Sub-Section (4) of Section 378 makes provision for appeal against an order of acquittal passed in case instituted upon complaint. It states that in such case if the complainant makes an application to the High Court and the High Court grants special leave to appeal, the complainant may present such an appeal to the High Court. This sub- section speaks of "special leave" as against sub- section (3) relating to other appeals which speaks of "leave". Thus, the complainant's appeal against an order of acquittal is a category by itself. The complainant could be a private person or a public servant. This is evident from sub-section (5) which refers to application filed for "special leave" by the complainant. It grants six months' period of limitation to a complainant who is a public servant and sixty days in every other case for filing application. Sub- section (6) is important. It states that if in any case complainant's application for "special leave" under sub-Section (4) is refused no appeal from the order of acquittal shall lie under sub-section (1) or under sub- section (2). Thus, if "special leave" is not granted to the complainant to appeal against an order of acquittal the matter must end there. Neither the District Magistrate not the State Government can appeal against that order of acquittal. The idea appears to be to accord quietus to the case in such a situation.
Since the words "police report" are dropped from Section 378(1) (a) despite the Law Commission's recommendation, it is not necessary to dwell on it. A "police report" is defined under Section 2(r) of the Code to mean a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173 of the Code. It is a culmination of investigation by the police into an offence after receiving information of a cognizable or a non- cognizable offence. Section 2(d) defines a "complaint" to mean any allegation made orally or in writing to a Magistrate with a view to his taking action under the Code, that some person, whether known or unknown has committed an offence, but does not include a police report. The Explanation to Section 2(d) states that a report made by a police officer in a case which discloses after investigation, the commission of a non- cognizable offence, shall be deemed to be a complaint, and the police officer by whom such report is made shall be deemed to be the complainant. Sometimes investigation into cognizable offence conducted under Section 154 of the Code may culminate into a complaint case (cases under the Drugs & Cosmetics Act, 1940). Under the PFA Act, cases are instituted on filing of a complaint before the Court of Metropolitan Magistrate as specified in Section 20 of the PFA Act and offences under the PFA Act are both cognizable and non-cognizable. Thus, whether a case is a case instituted on a complaint depends on the legal provisions relating to the offence involved therein. But once it is a case instituted on a complaint and an order of acquittal is passed, whether the offence be bailable or non- bailable, cognizable or non-cognizable, the complainant can file an application under Section 378(4) for special leave to appeal against it in the High Court. Section 378(4) places no restriction on the complainant. So far as the State is concerned, as per Section 378(1)(b), it can in any case, that is even in a case instituted on a complaint, direct the Public Prosecutor to file an appeal to the High Court from an original or appellate order of acquittal passed by any court other than High Court. But there is, as stated by us hereinabove, an important inbuilt and categorical restriction on the State's power. It cannot direct the Public Prosecutor to present an appeal from an order of acquittal passed by a Magistrate in respect of a cognizable and non-cognizable offence. In such a case the District Magistrate may under Section 378(1)(a) direct the Public Prosecutor to file an appeal to the Session Court. This appears to be the right approach and correct interpretation of Section 378 of the Code."
[Emphasis added]
Mr. Deb, learned counsel has thereafter embarked or taken the course to give a purposive interpretation of the word 'ordinarily' as is appearing in the proviso to Section 372 of the Cr.P.C. According to him the meaning of 'ordinarily' leaves out other process also. In this regard, he has drawn the attention of this Court to a decision of the Apex Court in State of A.P. vrs V. Sarma Rao & Ors., reported in (2007) 2 SCC 159 where the 'ordinarily' has been explained vis-a-vis Section 195 of the Cr.P.C. It has been held that the expression "ordinarily" may mean "normally", as has been held by the Apex Court in Kailash Chandra v. Union of India [AIR 1961 SC 1346] and Krishan Gopal v. Prakashchandra [ (1974) 1 SCC 128 ]. It has been also stated that the said expression "ordinarily" must be understood in the context in which it has been used. "Ordinarily" may not mean "solely" or "in the name", and thus, it was held in that case that under no circumstances an appeal would lie to the Principal District Judge. When in common parlance, the expression "ordinarily" is used, there may be an option. There may be cases where an exception can be made out. It is never used in reference to a case where there is no exception. It never means "primarily". In Kailash Chandra v. Union of India (supra) it has been observed as under:
"This intention is made even more clear and beyond doubt by the use of the word 'ordinarily'. 'Ordinarily' means 'in the large majority of cases but not invariably."
Mr. Deb, learned counsel has made a robust attempt to impress this Court that since 'ordinarily' does not mean invariably the jurisdiction of the High Court is not excluded. Therefore, the appellate jurisdiction is concurrent, when an appeal is to be preferred against the judgment and order of acquittal passed by the Magistrate. Under this legal basis, he has submitted that the High Court has got the jurisdiction and as such the prayer for leave is by all counts, maintainable.
From the other side, Mr. S. Sarkar, learned Public Prosecutor has submitted that if the interpretation as extended by Mr. Deb is accepted, the statutory provision would be made otiose and it is well settled by interpretation no statute or part thereof can be made otiose. He has submitted that the decision in Satya Pal Singh (supra) has to be understood in the context of that case. In that Case, the judgment and order of acquittal was passed by the Sessions Judge and as such, the appeal could be preferred to the High Court. The High Court, however, decided not on that aspect but decided whether leave to appeal as provided under Section 378(3) of the Cr.P.C. would be required or not. Satya Pal Singh (Supra) has answered that leave to file an appeal under proviso to Section 372 of Cr.P.C. is required.
Mr.Sarkar, learned Public Prosecutor has further submitted that the Apex Court has made a significant observation in Roopendra Singh Vs. State of Tripura & Ors. reported in AIR 2017 SC 1801 where it has been observed that "though the High Court observed that no such leave was necessary, the matter now assumes different complexion in the light of the decision in Satya Pal Singh. However, since there was already an application on behalf of the victim to treat the appeal Under Section 372 read with Section 378 Code of Criminal Procedure, in our considered view the leave ought to be granted, which we presently do. The pending appeal shall now be considered on merit by the High Court."
In Roopendra Singh (supra), Mr. Sarkar has pointed out, the judgment and order of acquittal was passed by the Court of Sessions. Mr. Sarkar, Learned Public Prosecutor has submitted that jurisdiction relating to the appeal is decided by the statute.
Calcutta High Court in Nirmal Kumar Batabyal Vrs. The State of West Bengal & Anr. reported in (2016) CriLJ 3527 having confronted with the similar situation has clearly held as under:
"a) A victim in a police case may prefer an appeal before the Court of Sessions against an order of acquittal passed by the learned Magistrate in terms of proviso to section 372 Cr.P.C. provided an appeal against an order of conviction in such cases lay before the Sessions Court. No opinion is expressed in respect of a victim in a complaint case as the factual matrix of this case does not require me to dwell on such controversy.
b) In the event, the victim prefers an appeal to the Court of Sessions in terms of the proviso to Section 372 of the Code of Criminal Procedure, no leave is required to be granted by the High Court in terms of sub-section (3) of section 378 Cr.P.C. as amended by Act 25 of 2005 which restricts such leave only to appeals preferred before the High Court and not before any other forum."
[Emphasis added]
Having appreciated the submission of the learned counsel for the petitioner and with due regard to the proviso to Section 372 of the Cr.P.C., this Court is of the view that Satya Pal Singh has not laid down the law in respect of appeal by the victim against the judgment and order of acquittal passed by the Magistrate.
In terms of the provisions made for appeal by the said proviso read with Section 374 of the Cr.P.C., the appeal would lie ordinarily to the Court of Sessions.
In State of Orissa Vrs. Sudhansu Sekhar Misra, reported in AIR 1968 SC 647, the Apex Court has held that-a judgment is an authority for the proposition which actually it decides and not what logically follows therefrom. Further, this Court is of the opinion that no right of appeal is vested in the victim under Section 378 of the Cr.P.C. save and except when the victim is also the complainant. Clear intendment of the proviso to lay down the forum of appeal cannot be rendered otiose or nugatory by referring to Section 378 of the Cr.P.C. It is the settled principal of interpretation that all the provisions of the Act are to be read harmoniously and an interpretation ought not to be resorted to which would render a part of a provision otiose.
In Dwarka Prasad Vrs. Dwarka Das Saraf reported in (1976) 1 SCC 128 as referred in Satya Pal (supra), it was held that the whole section including the proviso has to be read in a harmonious manner throwing light on each other. The clear and unequivocal words as engrafted in the proviso to section 372 Cr.P.C. alone creates a right as well as forum for appeal of the victim. However, if the victim is a complainant within the meaning of Section 2(d) of the Cr.P.C., then of course the victim has a right to file an appeal under Section 378(4) of the Cr.P.C.
Thus, this Court is persuaded to hold that ordinarily this appeal is not maintainable in the High Court and the word 'ordinarily' as has been provided in the proviso is for leaving out accommodation for appeals under Section 378(4) of the Cr.P.C.
Thus, the leave application cannot be maintained. The discussion as made above clearly leads to inference that no leave can be granted by the High Court for its lack of jurisdiction when the appeal lies in the Court of the Sessions by the victim against the judgment and order of acquittal passed by the Magistrate. In such circumstances the high court evoke its power to grant leave under sub Section (3) of Section 378 of the Cr.P.C. In view of Satya Pal Singh (supra) the leave would only be required for the appeals to be filed in the High Court against the judgment and order of acquittal. The appeal by the petitioner would statutorily be in the Court of Sessions. Having regard to the jurisprudential restricts when this Court is inclined to dismiss the leave petition, in the similar mode but it will not shot down the appeal. The appeal is sent to its appropriate jurisdiction i.e. the Court of the Sessions Judge, Unokoti Judicial District, Tripura for deciding the same in accordance with law.
The Registry is directed to send an authenticated copy of the memorandum of appeal to the Court of the Sessions Judge, Unakoti Judicial District, Kailashahar after putting a certificate on the body of it that the appeal was filed before this High Court on 11.01.2017.
If it is found that the appeal is not filed within the period of limitation i.e. 60 days in terms of Article 115 of the Limitation Act, 1963 as is applicable for this class of appeals, in view of the decision of this Court in Biplab Bhowmik & Ors. Vrs. Sabitri Banik(Bhowmik) & Ors., reported in 2015 (4) GLT (TR) 508, the victim-appellant may file an appropriate petition for condonation of delay to the Court of Sessions, Unakoti Judicial District, Kailashahar.
The Sessions Judge, Unakoti Judicial District, Kailashahar shall issue notice to the appellant and the State through the Public Prosecutor on receipt of the copy of the order/judgment along with authenticated copy of the memorandum of appeal.
The usual notice would go to the respondent Nos. 2, 3 and 4, the accused who have been acquitted from the charge by the impugned judgment.
At the time of transmitting records, the Registry shall keep a photocopy of the impugned judgment and order and the said photocopy shall be attached with the memorandum of appeal that will be preserved by this Court. The original certificate be sent to the court of the Sessions Judge, Unokoti Judicial District with the memorandum of appeal.
A copy of the judgment and order be supplied to the learned counsel appearing for the parties.
The Leave application is thus disposed of.