2011 Supreme(Bom) 1120

In the High Court of Bombay at Aurangabad
A.V. POTDAR, J.
Balasaheb Satbhai Merchant Co-op Bank Ltd.
Versus
State of Maharashtra & Others
CRIMINAL APPLICATION NO.3362 OF 2009
Decided on: 21-09-2011

Headnote:CRIMINAL PROCEDURE CODE, 1973 - Section 372 - Appeal against acquittal.

       An appeal against acquittal of accused, is to be filed by victim within reasonable time.

       CRIMINAL PROCEDURE CODE, 1973 - Section 372, Proviso - Appeal against acquittal.

       Requirement to obtain prior leave of High Court, not takes away valuable right conferred on victim of crime by 2009 Amendment. - Undoubtedly, there has been change in the approach towards the rights of victim and there has been a recognition of the victim’s suffering which, at times, are not redressed at the hands of the State. Therefore a right has been rightly created in favour of the victim which victim can exercise where the State machinery does not act in a proper manner and does not file an appeal even when the acquittal would be unmerited. The question of conferring right on the victim arose only because it was felt that the State machinery, at times, does not file an appeal even when the acquittal would be unmerited. If the victim is given a right to approach the High Court that would take care of the grievance of the victim and it is not necessary that the scrutiny by the High Court which is implicit in the matter of granting leave should be dispensed with for protecting the right of the victim.

       At the cost of repetition, it may be observed that a genuine victim or appeal having merit can never be thrown out by the High Court by refusing to grant leave. It is not possible to hold that scrutiny of the matter at this stage by the High Court would create some difficulties for the victim or that it would be oppressive or it would amount to taking away right of the victim. The requirement of leave does not take away the right given to the victim. Even if the right is conditioned by some procedural requirement before it is effectively exercised, it would not negative the right.

       CRIMINAL PROCEDURE CODE, 1973 - Section 372, Proviso - Appeal against acquittal.

       Right of victim of crime as conferred by 2009 Amendment, not changed position of State as in-charge of prosecution. - The scheme of the provisions of the Code would indicate that the position that State is incharge of the prosecutions has remained uncharged. At the stage of trial, the State will have primacy. A reference to some of the provisions in the Code would remove the doubt, if any, in the regard. First of all, ordinarily, prosecutions are to be conducted by the Public Prosecutor and not by private counsel. Under Section 225, in the Court of Sessions, prosecution shall always be conducted by Public Prosecutor. In the Magistrates’ Court, prosecution by private counsel can be conducted only with the permission of the Magistrate. It has been held that the role assigned to the private counsel would ordinarily be of assisting the Public Prosecutor and permission to a private counsel can be given by the Magistrate only in exceptional cases where there would be reason to believe that the Public Prosecutor in charge of the matter would be unable to discharge his function efficiently, properly or honestly. Even otherwise, that the Legislature wanted to change the basic concepts of criminal jurisprudence cannot be lightly accepted.

       The claim that the legislative intent was to weaken the control of the State over prosecutions, or at any rate, give a stronger and more effective role to the victim than that of State, in the Criminal Justice System cannot stand in the face of the subordinate role ascribed to the Advocate engaged by the victim by the same Act which added the proviso to Section 372. The subordinate role of the Advocate engaged by the victim cannot be reconciled with the proposition that the rights of the victim were to be more clear and uncontrolled than the rights conferred upon the State.

       CRIMINAL PROCEDURE CODE, 1973 - Section 372, Proviso - Appeal by victim of crime.

       Right conferred upon victim by proviso to Section 372 cannot be considered as a complete code in itself and not deals with only appeals against acquittal. - If the proviso is to be construed as the provision creating and dealing with such appeals and as a complete code in itself, then it becomes superfluous and its insertion below the main portion of Section 372 becomes meaningless.

       The proviso, just recognizes a right of the victim to file three types of appeals and lays down that such appeals would be maintainable, even though the various provisions in the Code dealing with appeals, do not expressly provide for such appeals.

       The right which has been conferred upon victim by proviso to Section 372 cannot be considered as a complete code in itself and does not deal with only the appeals against acquittal. As already observed, there would be three types of appeal which the victim can bring. This would be the right of the victim generally. So far as the right to bring appeal against acquittal is concerned, the same would be governed by the provisions of Section 378 of the Code and when such appeal lies to the High Court, requirement of leave must be read into it.

       CRIMINAL PROCEDURE CODE, 1973 - Section 372, Proviso - Constitution of India, Schedule VII, List III, Item 2.

       Appeal against acquittal. - Sovereign right of State to file appeal against acquittal of accused is not taken away by 2009 Amendment.

       CRIMINAL PROCEDURE CODE, 1973 - Sections 372, Proviso and 378 - Appeal against acquittal.

       It is not necessary for victim of crime to obtain prior leave of High Court for filing an appeal against acquittal. - In a present case the proviso which is an insertion to main Section 372 was to create a substantive right of appeal in favour of the victim in three categories of cases and, secondly, to also create an exception to the general rule which is enunciated in Section 372 which states that no appeal shall be filed except as laid down in the said Chapter under the Code. It is apparent, therefore, that by virtue of the proviso, procedure as laid down in Section 378, Cr PC is not required to be followed in respect of an appeal against acquittal by a victim. If the Legislature wanted that the rights of the victim to file appeals in these three cases should be circumscribed by further fetter or procedural provision, it could have made a consequential amendment in Section 378. The fact that no such consequential amendment has been made itself clearly discloses the intention of the Legislature that the said appeals were not subjected to the limitations which were imposed on the other categories of appeals.

       The provisions of Section 378 clearly contemplates that in respect of cases filed under sub-sections (1) and (2) leave has to be obtained under sub-section (3) of the said section and in cases where complainant wishes to file appeal against acquittal he has to seek special leave to appeal. The provisions of this section, therefore, cannot be read into the proviso to Section 372. It is well-settled position in law that while interpreting the proviso, it is not open for the Court to add or subtract something from the proviso.

       Reading the requirement of leave in the appeal filed by a victim against acquittal which lies to the High Court is not in any manner inconsistent or contrary to the well accepted principles of interpretation of Statutes. On the contrary, saying that ’leave is not necessary ’because the Proviso which speaks of such appeal does not mention so’, would be, in effect, a refusal to interpret the relevant statutory provisions in accordance with the well-settled principles of interpretation.

       It cannot be seriously suggested that other provisions in the Code will not be applicable to the appeals filed by the victim, purportedly ’under proviso to Section 372’. Once an appeal filed by the victim is entertained, the procedure which the High Court would be required to follow would be the same as in case of other types of appeals against acquittal, even though the relevant provisions would speak only of appeals by State, or by a complainant and not of an appeal by victim. In fact, powers of the appellate Court and even the provision as to how the memorandum of appeal should be drafted would all be applicable to the appeals filed by the victim also. It cannot be urged that the provisions regarding appeals, as are found in the Code, will not be applicable to an appeal filed by a victim and that such appeal would be governed only by the provisions of the proviso to Section 372.

       Once it is accepted that the proviso would not be exclusive with respect to all the matters arising out of appeals filed by the victim, reference to the provisions of Section 378, so far as the appeal against acquittal is concerned, becomes inevitable and it is not possible to hold that the Legislature wanted to give a gobye to those provisions.

       So far as the right to bring appeal against acquittal is concerned, the same would be governed by the provisions of Section 378 of the Code and when such appeal lies to the High Court, requirement of leave must be read into it. This, in no way, would offend the language used in the proviso as the language cannot be construed as laying down that such right would not be subject to any scrutiny. It would also not lead to any unjust or absurd result. On the country, it would prevent the anomaly that would occur if the other interpretation, namely, that leave is not required, is accepted. Thus, when an appeal against acquittal is filed by the victim in the High Court, leave of the High Court similar to the leave mentioned in the provisions of sub-sections (3) and (4) of Section 378 would be required before the appeal is entertained.

       CRIMINAL PROCEDURE CODE, 1973 - Sections 372, Proviso and 378 - Appeal against acquittal by victim.

       If victim files an appeal against acquittal without obtaining prior Leave of High Court, it would lead to several anamolies and absurdities. - In a present case the view that no leave is necessary when a victim files appeal against acquittal, would lead to several anamolies and absurdities. The intention of the Legislature (which is to be ascertained in accordance with the well-settled and accepted principles relating to Interpretation of Statutes) while inserting proviso to Section 372 could not have been to do away of the requirement of leave in case of an appeal by victim to the High Court against acquittal.

       If the interpretation that the victim under proviso to Section 372 need not obtain any leave from the High Court for filing an appeal against acquittal is accepted, it would lead absurdity inasmuch as if the complainant files an appeal as ’the complainant’, he would be required to obtain leave under Section 378(4). But the complainant, if he describes himself as a ’victim’, can straight away avoid the scrutiny which is expected to be done by the High Court at the initial stage. This would be plainly anomalous and unreasonable.

       Secondly, if the view that the victim’s appeal would not require the leave of the High Court is to be accepted, it would mean that the victim can even thereafter file an appeal, which will have to be entertained even though previously leave under Section 378 had been refused to the State to file such an appeal. The absurdity of such a consequence is obvious and does not require any further elucidation, but such a consequence is inevitable if the view against requirement of leave is to be accepted.

       Further, if the requirement to obtain leave as provided under Section 378 is not read into proviso to Section 372, then the action under Section 390 of the Code also cannot be taken in as appeal filed by the victim in as much as the said section refers only to an appeal presented under Section 378.

       Apart from the difficulty of resorting to the provisions of Section 390 if such view is taken, there would be other complications also as the opening part of Section 386 and sub- section (1) of Section 394 also refers to appeals under Section 378; and if the appeal against acquittal filed by the victim is to be taken out of the purview of the applicability of the provisions of Section 378, then even the provisions of Section 386 or 394 cannot be applied to such appeals.

       It is strenuously urged that there is no provision for the arrest or action which is normally taken under Section 390 in case of appeal against acquittal as is provided under Section 378(5) & (6). The said submission cannot be accepted. Perusal of the Amendment Act clearly reveals that in order to ensure that person who is acquitted does not abscond and his presence is properly secured, apart from inserting proviso to Section 372, new section has been added viz. Section 437-A. The intention, obviously, was to ensure that if a victim files appeal, the Appellate Court can, thereafter, if it finds that the appeal has to be entertained, can impose fresh conditions on the acquitted accused.

       It is also contended that if a victim is permitted to file appeal, it would open floodgates and it would put a heavy burden on the Court and the pendency of cases would increase. This aspect cannot be taken into consideration while interpreting the provision or proviso in a Statute and only the intention of the Legislature has to be ascertained. No doubt, if the plain language of a provision in the statute leads to contradiction or absurdity then Courts, in such cases, would frown upon literal rule of interpretation. However, in the instant case, no such absurdity, or anomaly or incompatibility can be noticed which is apparent on the plain reading of Section 372. It would not be appropriate to read into the section possible anomaly, absurdities or incompatibility which are based on the views and opinion of the Court. To do so would be a clear transgression to the salutary role of the Courts in interpreting the statute based on sound judicial principles and will amount to interpreting the statute on one’s own perception and opinion. The Court while interpreting a statute should try to sustain its validity and give such meaning to the provisions which advance the object sought to be achieved by the amendment. The Court cannot approach the enactment with a view to pick holes or to search for any defects of drafting which make its working impossible and efforts should be made in construing different provisions so that each provision will have its play and in the event of any conflict a harmonious construction should be given.

       Criminal Procedure Code, 1973 - Section 439(2) - Cancellation of bail. Where accused allegedly committing offences under Sections 409, 418 read with Section 120-B of IPC was granted bail by JMFC and accused not misused liberty granted to them therefore application for cancellation of bail rejected.