IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 50 OF 2013
[Arising out of Special Leave
Petition (Crl.) No.6937 of 2011]
SUBHASH CHAND … APPELLANT
Vs.
STATE (DELHI ADMINISTRATION). …
RESPONDENTS
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. This appeal, by special leave, is
directed against judgment and order dated 07/01/2011 passed by the High Court
of Delhi in Criminal Misc. Case No.427 of 2009 whereby the High Court dismissed
the petition filed by the appellant holding that an appeal filed by the State
against an order of acquittal shall lie to the Sessions Court under Section 378(1) of the Code of Criminal Procedure, 1973
(for short, “the Code”) and not under Section 378(4) of the Code to the High
Court.
3. The appellant is the
supplier-cum-manufacturer of the food article namely Sweetened Carbonated
Water. He is carrying on business in the name and style of M/s. Subhash Soda
Water Factory. On 6/6/1989 at about 4.15 p.m., one P.N. Khatri, Food Inspector,
purchased a sample of sweetened carbonated water for analysis from one Daya
Chand Jain, Vendor-cum- Contractor of Canteen at Suraj Cinema, Dhansa Road,
Najafgarh, Delhi. After following the necessary procedure, the sample was sent
to the Public Analyst for analysis. On analysis, the Public Analyst opined that
the sample does not conform to the prescribed standard. After conclusion of the
investigation, the respondent–State through its Local Health Authority - P.K.
Jaiswal filed a Complaint bearing No.64 of 1991 against the appellant and Daya
Chand in the Court of the Metropolitan Magistrate, New Delhi alleging that the
appellant and the said Daya Chand had violated the provisions of Sections 2(ia),
(a), (b), (f), (h), (l), (m), Section 2(ix) (j), (k) and Section 24
of the Prevention of Food Adulteration Act, 1954 (for short, “PFA Act”) and Rule 32,
Rule 42
(zzz)(i) and Rule 47
of the Prevention of Food Adulteration Rules, 1955 (for short, “the Rules”) and committed an offence
punishable under Section 16(1)(1A) read with Section 7
of the PFA Act and the Rules. Since Daya Chand died during the pendency of the
case, the case abated as against him. The appellant was tried and acquitted by
learned Magistrate by order dated 27/2/2007.
4. Being aggrieved by the said order
dated 27/2/2007, the respondent- State preferred Criminal Appeal No.13 of 2008
in the Sessions Court under Section 378(1)(a) of the Code. The appellant raised
a preliminary objection in regard to the maintainability of the said Appeal
before the Sessions Court in view of Section 378(4) of the Code. He contended
that an appeal arising from an order of acquittal in a complaint case shall lie
to the High Court. The said objection was rejected by the Sessions Court by
order dated 4/2/2009.
5. Aggrieved by the said order dated
4/2/2009, the appellant preferred Criminal Misc. Case No.427 of 2009 before the
High Court. By order dated 9/7/2009, the High Court held that the Sessions
Court has no jurisdiction to entertain an appeal filed in a complaint case and
directed that the appeal be transferred to it. Accordingly, Criminal Appeal
No.13 of 2008 pending before the Sessions Court was transferred to the High
Court and re- numbered as Criminal Appeal No.642 of 2009.
6. The respondent-State carried the
said order dated 9/7/2009 to this court by Special Leave Petition (Crl.)
No.9880 of 2009 (Criminal Appeal No.1514 of 2010). By order dated 13/8/2010,
this court remanded the matter to the High Court and directed that the matter
be decided afresh after taking into consideration Sections 378(1) and 378(4) of
the Code and the relevant provisions of the PFA. On remand, the High Court
passed the impugned judgment and order dated 7/1/2011.
7. The short point which arises for
consideration in this appeal is whether in a complaint case, an appeal from an
order of acquittal of the Magistrate would lie to the Sessions Court under
Section 378(1) (a) of the Code or to the High Court under Section 378(4) of the
Code.
8. At our request, Mr. Sidharth
Luthra, learned Additional Solicitor General has assisted us as Amicus Curiae.
We have heard Ms. Meenakshi Lekhi, learned counsel appearing for the petitioner
and Mr. P.P. Malhotra, learned Additional Solicitor General appearing for the
State. Written submissions have been filed by the counsel which we have
carefully perused. Mr. Luthra took us through the relevant excerpts of Law
Commission’s reports. He took us through the Code of Criminal Procedure (Amendment) Bill, 1994 ( Bill No. XXXV of 1994). He also took us through
un-amended and amended Section 378 of the Code. After analyzing the relevant
provisions, Mr. Luthra submitted that no appeal lies against an order of
acquittal in cases instituted upon a complaint to the Sessions Court. Ms. Lekhi
also adopted similar line of reasoning.
9. Mr. Malhotra learned Additional
Solicitor General adopted a different line of argument and therefore, it is
necessary to note his submissions in detail. Counsel pointed out how the law
relating to appeals against orders of acquittal has evolved over the years.
Counsel submitted that under the Code of Criminal Procedure, 1861 no appeal
against an order of acquittal could be filed. The Code of Criminal Procedure,
1872 permitted only the State Government to file an appeal against acquittal
order. Section 417 of the Criminal Procedure Code, 1898 permitted only the
State to file an appeal against acquittal order. In 1955 it was amended so as
to permit the complainant to file an appeal against acquittal order. Under the
Code of Criminal Procedure, 1973, Section 417 was substituted by Section 378.
Counsel pointed out that under Section 378(4) a complainant could prefer appeal
against order of acquittal, if special leave was granted by the High Court.
However, in all cases the State could present appeal against order of
acquittal. Counsel then referred to Section 378 of the Code as amended by Act
No. 25 of 2005 and submitted that the only change in sub-section (1) is adding
clauses (a) and (b) to it. Counsel described this change as minor and submitted
that the State’s right to file appeal against orders of acquittal remains
intact and is not taken away. Counsel relied on the words ‘State Government
may, in any case’ and submitted that these words preserve the State’s right to
file appeal against acquittal orders of all types. There is no limitation on
this right whatsoever. This right is preserved according to the counsel because
the State is the protector of people. Safety and security of the community is
its concern. Even if a complainant does not file an appeal against an order of
acquittal, the State Government can in public interest file it. Counsel also
addressed us on the question of plurality of appeals. That issue is not before
us. It is, therefore, not necessary to refer to that submission. In support of
his submissions counsel placed reliance on Khemraj v. State of Madhya
Pradesh[1], State (Delhi Adminsitration) v. Dharampal[2], Akalu Ahir & Ors.
v. Ramdeo Ram[3], State v. Ram Babu & Ors.[4], Food Inspector v. Moidoo[5],
Prasannachary v. Chikkapinachari & Anr.[6], State of Maharashtra v. Limbaji
Sayaji Mhaske, Sarpanch Gram Panchayat[7], State of Punjab & Anr. v. Jagan
Nath[8] and State of Orissa v. Sapneswar Thappa[9].
10. To understand the controversy,
it is necessary to have a look at Section 378 of the Code prior to its
amendment by Act 25 of 2005 and Section 378 amended thereby.
11. Section 378 of the Code prior to
its amendment by Act 25 of 2005 read as under:
“Appeal in case of acquittal.
378. Appeal in case of acquittal.
(1) Save as otherwise provided in sub-section (2) and subject to the provisions
of sub-sections (3) and (5), the State Government may, in any case, direct the
Public Prosecutor to present an appeal to the High Court from an original or
appellate order of acquittal passed by any Court other than a High Court 2*[or
an order of acquittal passed by the Court of Session in revision.]
(2) If such an order of acquittal is
passed in any case in which the offence has been investigated by the Delhi
Special Police Establishment constituted under the Delhi Special Police
Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make
investigation into an offence under any Central Act other than this Code, the
Central Government may also direct the Public Prosecutor to present an appeal,
subject to the provisions of sub-section (3), to the High Court from the order
of acquittal.
(3) No appeal under sub-section (1)
or sub-section (2) shall be entertained except with the leave of the High
Court.
(4) If such an order of acquittal is
passed in any case instituted upon complaint and the High Court, on an
application made to it by the complainant in this behalf, grants special leave
to appeal from the order of acquittal, the complainant may present such an
appeal to the High Court.
(5) No application under sub-section
(4) for the grant of special leave to appeal from an order of acquittal shall
be entertained by the High Court after the expiry of six months, where the complainant
is a public servant, and sixty days in every other case, computed from the date
of that order of acquittal.
(6) If in any case, the application
under sub-section (4) for the grant of special leave to appeal from an order of
acquittal is refused, no appeal from that order of acquittal shall lie under
sub- section (1) or under sub-section (2).”
Thus, under earlier Section 378(1)
of the Code, the State Government could, in any case, direct the Public
Prosecutor to present an appeal to the High Court from an original or appellate
order of acquittal passed by any court other than a High Court or an order of
acquittal passed by the Court of Session in revision. Section 378(2) covered
cases where order of acquittal was passed in any case in which the offence had
been 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. In such cases, the Central Government could also direct the
Public Prosecutor to present an appeal to the High Court from an order of
acquittal. Section 378(3) stated that appeals under sub-sections (1) and (2) of
Section 378 of the Code could not be entertained except with the leave of the
High Court. Sub-section (4) of Section 378 of the Code provided for orders of
acquittal passed in any case instituted upon complaint. According to this
provision, if on an application made to it by the complainant, the High Court
grants special leave to appeal from the order of acquittal, the complainant
could present such an appeal to the High Court. Sub-section (5) of Section 378
of the Code provided for a period of limitation. Sub-section (6) of Section 378
of the Code stated that if in any case, the application under sub-section (4)
for the grant of special leave to appeal from an order of acquittal is refused,
no appeal from that order of acquittal shall lie under sub-sections (1) or (2).
Thus, if the High Court refused to grant special leave to appeal to the
complainant, no appeal from that order of acquittal could be filed by the State
or the agency contemplated in Section 378(2). It is clear from these provisions
that earlier an appeal against an order of acquittal could only lie to the High
Court. Sub-section (4) was aimed at giving finality to the orders of acquittal.
12. Before we proceed to analyze the
amended Section 378 of the Code, it is necessary to quote the relevant clause
in the 154th Report of the Law Commission of India, which led to the amendment
of Section 378 by Act 25 of 2005. It reads thus:
“6.12. Clause 37: In order to guard
against the arbitrary exercise of power and to reduce reckless acquittals,
Section 378 is sought to be amended providing an appeal against an order of
acquittal passed by a Magistrate in respect of cognizable and non-bailable offence
filed on a police report to the Court of Session as directed by the District
Magistrate. In respect of all other cases filed on a police report, an appeal
shall lie to the High Court against an order of acquittal passed by any other
court other than the High Court, as directed by the State Government. The power
to recommend appeal in the first category is sought to be vested in the
District Magistrate and the power in respect of second category would continue
with the State Government.”
The Code of Criminal Procedure
(Amendment) Bill, 1994 has the same note on Clause 37.
13. Though, the Law Commission’s
154th report indicated that Section 378 was being amended to provide that an
appeal against an order of acquittal passed by a Magistrate in respect of a cognizable
and non-bailable offence filed on a police report would lie to the court of
Sessions, the words “police report” were not included in the amended Section
378. In this connection, it is necessary to refer to the relevant extract from
the Law Commission’s 221st report of April, 2009. After noting amendment made
to Section 378 the Law Commission stated as under: “2.9 All appeals against
orders of acquittal passed by Magistrates were being filed in High Court prior
to amendment of Section 378 by Act 25 of 2005. Now, with effect from
23.06.2006, appeals against orders of acquittal passed by Magistrates in
respect of cognizable and non-bailable offences in cases filed on police report
are being filed in the Sessions Court, vide clause (a) of sub-section (1) of
the said section. But, appeal against order of acquittal passed in any case
instituted upon complaint continues to be filed in the High Court, if special
leave is granted by it on an application made to it by the complainant, vide
sub-section (4) of the said section.
2.10 Section 378 needs change with a
view to enable filing of appeals in complaint cases also in the Sessions Court,
of course, subject to the grant of special leave by it.”
These two extracts of the Law
Commission’s report make it clear that though the words ‘police report’ are not
mentioned in Section 378(1) (a), the Law Commission noted that the effect of
the amendment was that all appeals against an order of acquittal passed by a
Magistrate in respect of a cognizable and non-bailable offence in cases filed
on police report are being filed in the Sessions Court. The Law Commission
lamented that there is no provision enabling filing of appeal in complaint
cases in the Sessions Court subject to the grant of special leave by it. Thus, the
Law Commission acknowledged that there is no provision in the Code under which
appeals in complaint cases could be filed in the Sessions Court. We agree with
this opinion for reasons which we shall now state.
14. Having analysed un-amended
Section 378 it is necessary to have a look at Section 378 of the Code, as
amended by Act 25 of 2005. It reads as under:
“378. Appeal in case of acquittal.
[(1) Save as otherwise provided in
sub-section (2) and subject to the provisions of subsections (3) and (5), -
(a) the District Magistrate may, in
any case, direct the Public Prosecutor to present an appeal to the Court of
Session from an order of acquittal passed by a Magistrate in respect of a
cognizable and non- bailable offence;
(b) the State Government may, in any
case, direct the Public Prosecutor to present 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].
(2) If such an order of acquittal is
passed in any case in which the offence has been investigated by the Delhi
Special Police Establishment constituted under the Delhi Special Police
Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make
investigation into an offence under any Central Act other than this Code. [the
Central Government may, subject to the provisions of sub- section (3), also
direct the Public Prosecutor to present an appeal-
(a) to the Court of Session, from an
order of acquittal passed by a Magistrate in respect of a cognizable and
non-bailable offence;
(b) to the High Court from an
original or appellate order of an 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.]
(3)[No appeal to the High Court]
under subsection (1) or subsection (2) shall be entertained except with the
leave of the High Court.
(4) If such an order of' acquittal
is passed in any case instituted upon Complaint and the High Court, on an
application made to it by the complainant in this behalf, grants, special leave
to appeal from the order of acquittal, the complainant may present such an
appeal to the High Court.
(5) No application under subsection
(4) for the grant of special leave to appeal from an order of acquittal shall
be entertained by the High Court after the expiry of six months, where the
complainant is a public servant, and sixty days in every other case, computed
from the date of that order of acquittal.
(6) If in any case, the application
under sub-section (4) for the grant of special leave to appeal from an order of
acquittal is refused, no appeal from that order of acquittal shall lie under
sub- section (1) or under subsection (2).”
15. 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’.
16. If we analyse Section 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.
17. 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, 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 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.
18. 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. 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.
19. Mr. Malhotra is right in
submitting that it is only when Section 417 of the Criminal Procedure Code,
1898 was amended in 1955 that the complainant was given a right to seek special
leave from the High Court to file an appeal to challenge an acquittal order.
Section 417 was replaced by Section 378 in the Code. It contained similar
provision. But, Act No.25 of 2005 brought about a major amendment in the Code.
It introduced Section 378(1)(a) which permitted the District Magistrate, in any
case, to direct the Public Prosecutor to present an appeal to the Court of
Session from an order of acquittal passed by a Magistrate in respect of a
cognizable and non-bailable offence. For the first time a provision was
introduced whereunder an appeal against an order of acquittal could be filed in
the Sessions Court. Such appeals were restricted to orders passed by a
Magistrate in cognizable and non-bailable offences. Section 378(1)(b)
specifically and in clear words placed a restriction on the State’s right to
file such appeals. It states that the State Government may, in any case, direct
the Public Prosecutor to present 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 Sessions
Court in revision. Thus, the State Government cannot present an appeal against
an order of acquittal passed by a Magistrate in respect of a cognizable and
non-bailable offence. We have already noted Clause 37 of the 154th Report of
the Law Commission of India and Clause 37 of the Code of Criminal Procedure
(Amendment) Bill, 1994 which state that in order to guard against the arbitrary
exercise of power and to reduce reckless acquittals Section 378 was sought to
be amended to provide appeal against an order of acquittal passed by a
Magistrate in respect of cognizable and non-bailable offence. Thus, this step
is taken by the legislature to check arbitrary and reckless acquittals. It
appears that being conscious of rise in unmerited acquittals, in case of
certain acquittals, the legislature has enabled the District Magistrate to
direct the Public Prosecutor to present an appeal to the Sessions Court,
thereby avoiding the tedious and time consuming procedure of approaching the
State with a proposal, getting it sanctioned and then filing an appeal.
20. It is true that the State has an
overall control over the law and order and public order of the area under its
jurisdiction. Till Section 378 was amended by Act 25 of 2005 the State could
prefer appeals against all acquittal orders. But the major amendment made in
Section 378 by Act 25 of 2005 cannot be ignored. It has a purpose. It does not
throw the concern of security of the community to the winds. In fact, it makes
filing of appeals against certain types of acquittal orders described in
Section 378(1)(a) easier, less cumbersome and less time consuming. The
judgments cited by Mr. Malhotra pertain to Section 417 of the Criminal
Procedure Code, 1898 and Section 378 prior to its amendment by Act 25 of 2005
and will, therefore, have no relevance to the present case.
21. In view of the above, we
conclude that a complainant can file an application for special leave to appeal
against an order of acquittal of any kind only to the High Court. He cannot
file such appeal in the Sessions Court. In the instant case the complaint
alleging offences punishable under Section 16(1)(1A) read with Section 7 of the
PFA Act and the Rules is filed by complainant Shri Jaiswal, Local Health
Authority through Delhi Administration. The appellant was acquitted by the
Metropolitan Magistrate, Patiala House Courts, New Delhi. The complainant can
challenge the order of acquittal by filing an application for special leave to
appeal in the Delhi High Court and not in the Sessions Court. Therefore, the
impugned order holding that this case is not governed by Section 378(4) of the
Code is quashed and set aside. In the circumstances the appeal is allowed.
……………………………………………..J.
(AFTAB
ALAM)
……………………………………………..J.
(RANJANA
PRAKASH DESAI)
NEW
DELHI,
JANUARY
8, 2013.
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[1]
1976 (1) SCC 385
[2]
2001(10) SCC 372
[3]
1973(2) SCC 583
[4]
1970 AWR 288
[5]
1988 (2) KLT 205
[6]
1959 AIR (Kant) 106
[7]
1976 (Mah.) LJ 475
[8]
1986 (90) PLR 466
[9]
1987 Cri.L.J. 612
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