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2001(8) Supreme 181
SUPREME COURT OF INDIA
(From Delhi High Court)
K.T. Thomas and S.N. Variava, JJ.
State (Delhi Administration) -Appellant
versus
Dharampal -Respondent
Criminal Appeal No. 1076 of 2001
(Arising out of SLP (Crl.) 1617 of 2001)
With
Criminal Appeal No. 1077 of 2001
(Arising out of SLP (Crl.) No. 1618 of 2001)
And
Criminal Appeal No. 1078 of 2001
(Arising out of SLP (Crl.) No. 2437 of 2001)
Decided on 19-10-2001
Counsel for the Parties :
For the Appearing Parties : B.A. Mohanty, U.R. Lalit, Sr. Advocates. Rajeev Sharma, Ms. Anita Verma, Ms. Mamta Tripathi, Ms. Usha Mann, D.S. Mahra, Randhir Singh Jain, D.B. Vohra, S.K. Sabhrawal, M. Qamaruddin, Mrs. M. Qamaruddin and Ambar Qamaruddin, Advocates.
Held (after referring case law) : Thus it is to be seen that where an omission, to bring the attention of the accused to an inculpatory material, has occurred that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further in the event of an inculpatory material not having been put to the accused, the appellate court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but not put to him. This being the law, in our view, both the Sessions Judge and the High Court were wrong in concluding that the omission to put the contents of the certificate of the Director, Central Food Laboratory, could only result in the accused being acquitted. The accused had to show that some prejudice was caused to him by the report not being put to him. Even otherwise, it was the duty of the Sessions Judge and/or the High Court, if they found that some vital circumstance had not been put to the accused, to put those questions to the counsel for the accused and get the answers of the accused. If the accused could not give any plausible or reasonable explanation it would have to be assumed that there was no explanation. Both the Sessions Judge and the High Court have overlooked this position of law and failed to perform their duties and thereby wrongly acquitted the accused. We further find that in all these cases, the copy of the certificate of the Director, Central Food Laboratory had been supplied to the accused. They were thus aware of the contents of the certificate. It has to be seen that under the Prevention of Food Adulteration Act the prosecution is based upon the contents of either the report of the Public Analyst or the certificate of the Director of Central Food Laboratory. During their examination, under Section 313 Cr.P.C. questions pertaining to the certificate were put to the accused. The explanation of the accused, in respect of the certificate, had been called for. In our view in such cases it is enough if the attention of the accused is brought to the report or the certificate as the case may be. It is not necessary that the contents of the report be also put to the accused. (Paras 13, 14 & 15)
Held on facts : Thus it is to be seen that the questions clearly indicated that what was being put to the accused were the contents of the certificate. It is also to be seen that the accused clearly understood that what was being put to them was the contents of the certificate. The accused Ashwani Kumar (in Criminal Appeal No. ................. of 2001) [arising out of SLP (Crl.) No. 2437 of 2001]) in fact answered that the certificate was erroneous and was a result of negligence committed by the Food Inspector in the sample proceedings. Similarly accused Dharampal (in Criminal Appeal No. .......... of 2001 [arising out of SLP (Crl.) No. 1617 of 2001]) answered that the report was a matter of record. The accused gave their answers to the contents of the certificate. Clearly no prejudice had been caused to them. Before us also it could not be shown that any prejudice had been caused to them. This aspect of the matter was completely overlooked by both the Sessions Judge and the High Court. In our view, neither the Judgment of the Sessions Judge not the reasoning of the High Court on this point can be sustained. (Para 19)
(ii) Criminal Procedure Code, 1973-Section 378(5)-Limitation of 60 days-Limitation Act, 1963-Art. 114-Limitation of 90 days-State s appeal against acquittal-Position under old Cr.P.C. Section 417(5) identical to Section 378(6) of new Cr.P.C.-High Court holding it is barred by limitation-Whether correct? (Neither on law nor in facts).
Held : A comparison of Section 378 with the old Section 417 shows that, whilst under the old Section no application for leave to appeal had to be made by the State Government or the Central Government, now by virtue of Section 378(3) the State Government or the Central Government have to obtain leave of the High Court before their appeal could be entertained. Sub-Section (4) of Section 378 is identical to Sub-Section (3) of Section 417. Thus a complainant desirous of filing an appeal against acquittal must still obtain special leave. Thus, Section 378 makes a distinction between an appeal filed by the State Government or the Central Government, who only need to obtain "leave", and an appeal by a complainant who needs to obtain "special leave". The limitation provided in sub-section (5) is only in respect of applications under sub-section (4) i.e. application for special leave to appeal by a complainant. A complainant may be either a public servant or a private party. If the complainant is a public servant then the period of limitation for an application for special leave is 6 months. If the complainant is a private party then the period of limitation for an application for special leave is 60 days. The periods of 6 months and/ or 60 days do not apply to appeals by the State Government [under sub-section (1)] or the Central Government [under sub-section (2)]. Appeals by the State Government or the Central Government continue to be governed by Article 114(a) of the Limitation Act. In other words, those appeals must be filed within 90 days from the date of the order appealed from. Needless to state if there is a delay in filing an appeal by the State Government or Central Government it would be open to them to file an application under Section 5 of the Limitation Act for condonation of such delay. That period can be extended if the court is satisfied that there was sufficient cause for not preferring the appeal within the period of 90 days. The High Court was thus wrong in concluding that the appeals had to be filed within 60 days as provided in Section 378(5). It must also be noted that sub-section (6) of Section 378 is identical to sub-section (5) of Section 417. Thus under Section 378 also the State Government cannot maintain an appeal if special leave to appeal is refused to the complainant. In this behalf there is no change. Section 417(1) specifically provided that it was subject to provisions of sub-section (5) . Section 317(1) similarly provide that it is subject to sub-sections (3) and (5) . Sub-section (3) is the newly added provision which now provides that an appeal by the State or Central Government cannot be entertained without leave of the High Court. However the reference to sub-section (6) in sub-section (1) is clearly an inadvertent mistake. As pointed out above sub-section (5) of Section 378 applies only to application for special leave by a complainant. Sub-section (5) of Section 378 has no application to an appeal by the State Government or to an application for leave under sub-section (3). What the Legislature clearly intended was to continue to provide that an appeal by the State Government would not be maintainable if special leave to appeal had been refused to a complainant. Thus sub-section (1) of Section 378 was to be subject to provisions of sub-section (6) and not sub-section (5) as inadvertently provided therein. Inadvertently the figure (5) in Section 417(1) was continued, without noticing that now under Section 378 the relevant provision was sub-section (6). In our view it is clear that the figure (5) in Section 378(1) is inadvertently retained. Thus in Section 378(1) the figure (6) will have to be read in place of the figure (5). There is one last fact which must be mentioned. We find that the main argument on the question of limitation was made before the High Court on behalf of Respondent Dharampal [i.e. the Respondent in Criminal Appeal No............... of 2001 (arising out of SLP (Crl.) No. 1617 of 2001)]. It had been argued on his behalf that the Appeal against his acquittal was barred by limitation as there was a delay of 95 days. The High Court accepted this contention. We however find from a copy of an Order produced before us that in his Appeal, before the High Court, the delay had already been condoned. The Order, which is available in this SLP Paper Book, reads as follows:
ORDER
21.5.96 Present: Mr. B.T. Singh for the Petitioner.
Crl. M. 2245/96
Leave granted.
This application is disposed of.
Crl. M. 2246/96
Delay in refiling the appeal is condoned.
This application is disposed of.
Crl. A. 92/96
Let the appeal be registered. Appeal is admitted.
Sd/-
Arun Kumar, J.
May 21, 1996. Sd/-
Mohd. Shamim, J.
The delay already having been condoned there was no question of the High Court subsequently entertaining and upholding an argument on delay. This does not seem to have been brought to the notice of the High Court. (Paras 26, 27 & 28)
Held consequently : In any view of the matter, the impugned Order cannot be sustained. The Orders of the Sessions Judge dismissing the Appeals also cannot be sustained. Therefore, the impugned Judgment dated 20th November, 2000 as well as the Orders of the Sessions Judge in the above mentioned three cases are set aside. The appeals which had been filed by the respondents in the Court of Additional District and Sessions Judge are hereby restored to the file of the Additional District & Sessions Judge, New Delhi. They shall now be disposed of on merits, in accordance with law. These appeals stand disposed of accordingly. There will be no Order as to costs. (Paras 29 & 30)
JUDGMENT
S.N. Variava, J.-Leave granted.
2. Heard parties.
3. These appeals are against the Judgment of the Delhi High Court dated 20th November, 2000. By this Judgment a number of appeals, filed by the appellants herein, have been dismissed. All these appeals are against the said common Judgment. They are based on almost similar facts and raise common question of law. They are, therefore, being disposed of by this common Judgment.
4. It must be mentioned that against the Judgment dated 20th November, 2000 other SLPs had also been filed before this Court. Those were dismissed leaving the questions of law open.
5. In this Judgment the facts in Criminal Appeal No ......... of 2001 (arising out of SLP (Crl.) No. 1617 of 2001) are being set out. The facts of the other Appeals need not be set out as they are more or less similar.
6. On 29th August, 1988 the Food Inspector purchased a sample of Lal Mirch Kutti from M/s. Vashno Panjabu Dhaba, H-1, Chander Nagar, Delhi. The Respondent was the person who had sold Lal Mirch to the Food Inspector. The sample purchased was divided into three equal parts and put into bottles which were sealed. One sample was sent to the Public Analyst, who, by his report dated 6th August, 1988 found the same to be non-confirming to the prescribed standards. On 4th May, 1989 after obtaining sanction from the competent authority, under Section 20 of the Prevention of Food Adulteration Act (hereinafter called the Act), a complaint was filed in the Court of learned Metropolitan Magistrate. The Respondent exercised his right under Section 13(2) of the Act. Accordingly a sample was sent to the Director, Central Food Laboratory for analysis. A report was given by the Director, Central Food Laboratory. He found the sample to contain moisture as 20.01 and as insoluble in H.C.L. as 1.92 as against the maximum standard of 12 and 13 respectively. He also found adulterating material, starches and colouring material in the sample.
7. The Respondent was after a trial convicted by the learned Metropolitan Magistrate by his Judgment dated 23rd/26th February, 1991. He was sentenced to rigorous imprisonment for 1½ years and to pay a fine of Rs. 5,000/- and in default of payment of fine to further undergo simple imprisonment for six months.
8. The Respondent filed an Appeal before the Sessions Judge, New Delhi. The Sessions Judge by his Judgment dated 13th February, 1995 acquitted the Respondent only on the ground that the trial Court, while recording the statement of the Accused/Respondent under Section 313 of the Criminal Procedure Code, did not read out the contents of the certificate of the Director, Central Food Laboratory to the accused.
9. As against this acquittal the appellants filed an appeal to the High Court of Delhi. As on identical grounds, i.e. that the contents of the certificate of the Director, Central Food Laboratory had not been put to the accused while recording his statement under Section 313 Cr.P.C. many other accused had also been acquitted a number of other appeals had also been filed by the appellants.
10. All those appeals came to be dismissed by the High Court by the impugned Order dated 20th November, 2000. The High Court dismissed all the appeals on two grounds (a) that non putting of the contents of the certificate of the Director, Central Food Laboratory, to the accused, whilst recording his statement under Section 313 Cr.P.C., was a vital omission and that the conviction could not therefore be maintained and (b) that all the appeals were barred by limitation as they were not filed within a period of 60 days as provided under by sub-section 5 of Section 378 Cr. P.C. Hence these appeals. In these appeals we are only concerned with the abovementioned two questions of law.
11. Dealing with the first question first. This Court has, in the case of Shivaji Sahabrao Bobade v. State of Maharashtra reported in (1973) 2 SCC 793, held as follows:
"It is trite law, neverthel
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