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IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
U. Durga Prasad Rao, J.
The State of A.P. - Appellants
Vs.
Syed Mohamood Saeed - Respondent
Crl. A. M.P. No. 105 of 2012 in Criminal Appeal (SR) No. 16258 of 2011
Decided On : 01.04.2014
Criminal Procedure Code, 1973 – Section 378 –Prevention of Corruption Act, 1988 - Sections 7 and 13 – Demand of Bribe – Appeal – On accusation that he being Executive Engineer Central Warehousing Corporation, Hyderabad demanded bribe of from the complainant Civil Contractor, Hyderabad for releasing payment of final bills submitted towards contract works executed by him. On the complaint lodged by P.W. 1 with S.P., CBI, an F.I.R. was registered and trap was laid against AO and after investigation, charge sheet was laid against him for the aforesaid offences and trial was conducted. The trial Court ultimately found him not guilty of the charges against him and acquitted him of charges as per its judgment dated – Substance of argument of learned is that has not imposed any period of limitation for filing appeal by the State against acquittal except providing period of limitation for obtaining leave to file appeal under Section 378 – He would submit that as per Section 378 if order of acquittal is passed in any case instituted upon a complaint, such complainant has to seek special leave from the High court to present an appeal and as per sub-Section complainant happens to be a public servant, he has to seek leave within six months and in other cases within 60 days. He would further argue that a CBI/ACB officer who registers FIR and files charge-sheet also fits into the status of a "complainant" within the meaning of Section 378 and as such he can avail six months period for obtaining leave it he submitted that in trap cases a police officer registers the FIR not merely on the strength of the report given by a complainant, but he will make preliminary enquiry on the antecedents of the complainant and A.O. and then registers FIR – Held, Leave is concerned, Section 378 Cr.P.C. can be conveniently divided into two parts for the purpose of leave. Sub-section govern the leave to be obtained by the State/Central Government from the High Court whereas sub-sections (4) and (5) govern the leave to be obtained by a complainant - be a public servant or a private complainant. Sub-sections only tell us that State/Central Government have to obtain leave from the High Court without prescribing any time limit whereas sub-sections and tell us that if complainant is a public servant, he shall secure the leave within six months and in other cases, the complainant shall secure leave within 60 days. So summing up the legal position, State/Central Government have to prefer an appeal to the High Court against acquittal under Article 114(a) of Limitation Act within 90 days from the date of judgment but for entertaining the appeal, they shall obtain leave of High Court for which no time limit is prescribed. Therefore, in practical situation – Central Government have to file grounds of appeal along with leave petition within 90 days from the date of judgment. The above legal position is clarified in the following cited decisions – 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 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 period of 6 months and or 60 days do not apply to appeals by the State Government (under sub-section (1)) Appeals by the State Government or the Central Government continue to be governed by Art. 114(a) of the Limitation Act. In other words, those appeals must be filed within 90 days from the date of the orders appealed from – Application is dismissed.
U. Durga Prasad Rao, J.
1. The points that arise for determination in this case are:
1) What is the period of limitation for filing an appeal by the State against the acquittal?
2) Is there any period of limitation to apply for "leave" under Section 378(3) Cr.P.C. by the State for filing appeal before High Court against acquittal?
3) Whether there are two different periods of limitation-- one for obtaining leave and another for filing appeal and if so, which one will prevail over the other?
4) Having regard to the answers to the points 1 to 3, whether the instant criminal appeal preferred against acquittal by the state is barred by limitation and hence no leave can be granted under Section 378(3) Cr.P.C.?
2. The factual matrix of the case is thus:
a) The respondent is the Accused Officer (A.O.) in C.C. No. 5 of 2004 on the file of learned Special Judge for CBI cases, Hyderabad. He was charged for the offences under Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 (for short "P.C. Act") on the accusation that he being Executive Engineer (Construction Cell) Central Warehousing Corporation, Hyderabad demanded bribe of Rs. 20,000/- from the complainant (P.W. 1) Civil Contractor, Hyderabad for releasing payment of final bills submitted towards contract works executed by him. On the complaint lodged by P.W. 1 with S.P., CBI, an F.I.R. was registered and trap was laid against AO and after investigation, charge sheet was laid against him for the aforesaid offences and trial was conducted. The trial Court ultimately found him not guilty of the charges levelled against him and acquitted him of the charges as per its judgment dated 22.10.2010.
b) Hence the appeal by the State of Andhra Pradesh, represented by C.B.I. Hyderabad.
3. Grounds of appeal were filed on 04.06.2011. However it appears, the State has not filed mandatory petition under Section 378(3) Cr.P.C. seeking leave of the High Court to prefer appeal along with grounds of appeal. Hence the appeal was returned on 20.06.2011 by the Registry with an endorsement "all requirements to be complied". Ten days time was granted for compliance. While so, the appellant kept silent till 23.12.2011 and complied the file on 23.12.2011 with a delay of 176 days. He filed Crl.A.M.P. No. 42 of 2012 to condone the delay of 176 days in representing the appeal. Subsequently, he filed Crl.A.M.P. No. 105 of 2012 in terms of Section 378(3) Cr.P.C. on 20.01.2012 seeking leave of this Court for filing appeal.
4. The docket shows that Crl.A.M.P. No. 42 of 2012 was allowed on 18.01.2012 and delay was condoned. Subsequently on 23.01.2012 Crl.A.M.P. No. 105 of 2012 was allowed and leave was granted. Aggrieved by the above two orders on the ground that no notice was served and he was not heard, the respondent/A.O. preferred Criminal Appeal Nos. 964 and 965 of 2013 before Hon'ble Supreme Court. By its judgment dated 16.07.2013, the Apex Court allowed the said two appeals with the observation that High Court ought to have issued notice to the appellant/A.O. on the application under Section 378 Cr.P.C. and thereafter it could have proceeded with the matter. Hence the matter was remitted back to the High Court for fresh consideration of the application filed on behalf of the Investigating Agency (appellant) under Section 378(3) Cr.P.C. upon giving notice to the A.O. Hence Crl.A.M.P. No. 105 of 2012 was heard afresh.
5. Heard Sri P. Keshava Rao, learned Special Standing Counsel for CBI/appellant (Spl. S.C.) and Sri P. Vishnu Vardhan Reddy, learned counsel for respondent/A.O. In view of the importance in the matter, Sri R. Ramachandra Reddy, learned Special Public Prosecutor for A.C.B. cases was also heard.
6. POINT Nos. 1 and 2: The substance of argument of learned Spl. S.C. is that the Cr.P.C. has not imposed any period of limitation for filing appeal by the State against acquittal except p
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