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IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. VINOD CHANDRAN, M.R. ANITHA, JJ.
The State of Kerala Rep. by State Public Prosecutor, High Court of Kerala – Appellant
Versus
Saji @ Dada Saji S/o Lakshmanan – Respondent
Crl. M. Application No. 1 of 2020 In Unnumbered Crl. Appeal (Filing Nos. 13864, 15127, 15449, 17181 of 2020), C.M. Application No. 1363 of 2018, Crl. Appeal.....of 2018
Decided On : 08-02-2021
Public Prosecutor - Appeal against Acquittal - Section 378(1) of the Code of Criminal Procedure 1978 - Mohinder Singh vs. State of Punjab, 1985 (1) SCC 342, State of Kerala vs. Krishnan, 1982 Cri. L.J. 301, Benny P. Jacob and Another vs. Rajesh Kumar Unnithan, 2019 KHC 737, Central Bureau of Investigation vs. State of Bihar, 2010 (5) SCC 1, Union Territory of Tripura vs. Marfat Ali, 1958 Cri. L.J. 973, Harwari Lal vs. State, AIR 1959 Allahabad 751, State of Rajasthan vs. Pukh Ra, AIR 1965 Rajasthan 196, Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Prafulla Majhi, 1977 Cri. L.J. 853, Mohammed vs. State of Kerala, 1982 Cri. L.J. 1120, K. Ramachandran vs. N. Rajan, 2009 Cri. L.J. 4413 - The court discussed the requirement for a direction from the State Government to file an appeal against an order of acquittal, as mandated under Section 378(1) of the Code of Criminal Procedure 1978. The court referred to various precedents to emphasize the statutory mandate for the State Government to issue a direction for filing an appeal against an order of acquittal, and the role of the Public Prosecutor in this process.
Fact of the Case:
The unnumbered criminal appeals against the orders of acquittal passed by the Sessions Court, filed by the State with delay, are placed before the court for considering the applications for condonation of delay. The party respondents raised a preliminary objection regarding the Public Prosecutor not being specifically directed by the State Government to file an appeal as mandated under Section 378(1) of the Code of Criminal Procedure 1978.
Finding of the Court:
The court found the appeals to be incompetent due to the absence of a direction from the State Government to file an appeal against an order of acquittal, as mandated under Section 378(1) of the Code of Criminal Procedure 1978. The court kept the unnumbered appeals pending for consideration independently to ascertain whether there is a grave and gross miscarriage of justice.
Issues: The issues revolved around the requirement for a direction from the State Government to file an appeal against an order of acquittal, the role of the Public Prosecutor in this process, and the competency of the appeals filed by the State without such a direction.
Ratio Decidendi: The court emphasized the statutory mandate for the State Government to issue a direction for filing an appeal against an order of acquittal, as mandated under Section 378(1) of the Code of Criminal Procedure 1978. The court referred to various precedents to support the requirement for such a direction and the role of the Public Prosecutor in this process.
Final Decision: The court found the appeals to be incompetent due to the absence of a direction from the State Government to file an appeal against an order of acquittal, as mandated under Section 378(1) of the Code of Criminal Procedure 1978. The court kept the unnumbered appeals pending for consideration independently to ascertain whether there is a grave and gross miscarriage of justice.
Certainly. Based on the provided legal document, here are the key points:
Statutory Mandate for Filing Appeal: The Court emphasized that under Section 378(1) of the Criminal Procedure Code, the State Government must issue a formal direction to file an appeal against an order of acquittal. This requirement is a mandatory procedural step and cannot be bypassed or assumed based on opinions of Public Prosecutors or Investigating Officers (!) (!) .
Role of the Public Prosecutor: The Public Prosecutor's function is to conduct prosecutions and represent the State in court. However, the decision to appeal, especially against an acquittal, lies solely with the State Government, and the Public Prosecutor acts only under the instructions or directions issued by the Government (!) (!) .
Incompetence of Appeals Without Government Direction: Appeals filed by the State without a specific direction from the Government are considered legally incompetent. The absence of such a direction renders the appeals invalid, and the courts are required to keep such appeals pending or consider their validity independently (!) .
Procedural Rules and Executive Orders: The rules framed by the Government, including those pertaining to criminal matters, reinforce that the decision to appeal rests with the Government, and the process involves formal reports and opinions from designated Government officers, including the Advocate General, but always culminates in a formal order or direction from the Government itself (!) (!) .
Historical and Constitutional Context: The procedural requirement for a Government direction is rooted in the historical development of the law and the constitutional distribution of powers. The power to decide on appeals is an executive function that must be exercised with finality and clarity, ensuring protection of individual rights and preventing arbitrary or whimsical appeals (!) .
Rejection of Opinions as Substitutes for Formal Directions: Opinions or recommendations from Public Prosecutors, Investigating Officers, or Government Law Officers do not substitute for the formal, written direction from the Government. Orders or instructions must be issued in the name of the Governor and signed by authorized officers to be valid (!) (!) .
Implication for Filing Appeals and Revisions: Appeals that are filed without the requisite Government direction are deemed invalid and cannot be converted into revisions or other proceedings. The jurisdiction of courts to entertain such appeals is limited, and in cases of doubt, appeals should be treated as pending or considered for possible reclassification (e.g., as revisions) only if proper procedural steps are followed (!) (!) .
Legal Consequences of Non-Compliance: Filing an appeal without the proper formalities, including a valid Government order, results in the appeal being legally incompetent. Courts are obligated to scrutinize whether the procedural requirements have been met before proceeding with the case on merits (!) (!) .
Would you like a more detailed explanation of any specific point?
ORDER :
1. The above unnumbered criminal appeals against the orders of acquittal passed by the Sessions Court, filed by the State with delay, are placed before us for considering the applications for condonation of delay. The party respondents who appeared in such applications raise a preliminary objection insofar as the Public Prosecutor not having been specifically directed by the State Government to file an appeal as mandated under Section 378(1) of the Code of Criminal Procedure 1978. It is the argument of the learned Counsel that an appeal to the Court of Sessions from an order of acquittal passed by a Magistrate, in respect of cognizable and non-bailable offences can be filed by the Public Prosecutor only if it is so directed by the District Magistrate as is provided in Section 378(1)(a). Similarly as per Section 378(1)(b) the Public Prosecutor can present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than High Court, not being an order under clause (a), only if the State Government so directs. The Public Prosecutor appointed under Section 24 is so appointed for conducting any prosecution, appeal or other proceedings on behalf of the appropriate Government in the High Court. The power is only to conduct the cases and not to take a decision to file an appeal under Section 378(1) which decision has to be taken by the Government itself. Admittedly there is no such direction issued by the Government to institute the captioned appeals. But the Public Prosecutor who conducted the trial and in some cases the Investigating Officer, has expressed opinion that an appeal should be filed from the order of acquittal on the basis of which the above appeals have been instituted.
2. We heard the learned Public Prosecutor Sri. S.U. Nazer and Sri. Nicholas Joseph, Special Government Pleader (Criminal) for the State and from among the Counsel for the party respondents Sri. Dheerendra Krishnan and Sri. Dinesh Mathew Murikan argued. Sri. Dheerendra Krishnan placed before us the following decisions Mohinder Singh vs. State of Punjab, 1985 (1) SCC 342, State of Kerala vs. Krishnan, 1982 Cri. L.J. 301, Benny P. Jacob and Another vs. Rajesh Kumar Unnithan, 2019 KHC 737 and Central Bureau of Investigation vs. State of Bihar, 2010 (5) SCC 1 and Sri. Dinesh Mathew Murikan relied on Union Territory of Tripura vs. Marfat Ali, 1958 Cri. L.J. 973, Harwari Lal vs. State, AIR 1959 Allahabad 751, State of Rajasthan vs. Pukh Ra, AIR 1965 Rajasthan 196, Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Prafulla Majhi, 1977 Cri. L.J. 853, Mohammed vs. State of Kerala, 1982 Cri. L.J. 1120 and K. Ramachandran vs. N. Rajan, 2009 Cri. L.J. 4413. It is argued that the decision of the Punjab and Haryana High Court reported in State of Punjab vs. Mohinder Singh, 1983 Cri. L.J. 466 was reversed by the Hon'ble Supreme Court. But the decision of the Hon'ble Supreme Court would also indicate that there is requirement for a direction from the State Government to institute an appeal. The Hon'ble Supreme Court only interfered with the roving enquiry conducted by the High Court to verify whether the direction issued was proper or not.
3. It is pointed out that the principle laid down by a Full Bench of the very same High Court in Lal Singh vs. State of Punjab, 1981 Cri. L.J. 1069 followed in Mohinder Singh by a Division Bench of that Court, stands undisturbed. It is also pointed out that Section 417 of the erstwhile Cr.P.C. as also Section 378 of the 1973 Code, mandated every appeal from an order of acquittal to be instituted only on directions issued by the State Government. Even when the provision stood amended by Cr.P.C. Amendment Act, 2005, those appeals from an original or appellate order of acquittal passed by any Court other than a High Court or an order of acquittal passed by Court of Sessions in revision, has to be filed only if the State Government so directs; leaving the decision to file appea
The main legal point established in the judgment is the statutory mandate for the State Government to issue a direction for filing an appeal against an order of acquittal, as mandated under Section 3....
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Public Prosecutor must have explicit governmental direction to appeal against acquittal under Section 378 of the Cr.P.C.
The High Court cannot convert an acquittal into a conviction under Section 401(3) of the CrPC without following due process, violating the principles of natural justice.
Once an appeal against acquittal is dismissed on merits, a subsequent revision against the same judgment cannot be entertained.
(1) No revision shall be entertained at instance of victim against order of acquittal in a case where no appeal is preferred and victim is to be relegated to file appeal.(2) Right provided to victim ....
A victim has a statutory right to appeal against an acquittal under Section 372 of the Cr.P.C., and a revision petition is not maintainable if the victim has not pursued that appeal.
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