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IN THE HIGH COURT OF ALLAHABAD
Raghubar Dayal and James, JJ.
DULAN DAYAL SINGH - Appellant
Versus
PRASADI - Respondents
Misc. Leave Appln. 2 Of 1956
Decided On : 02/07/1956
CRIMINAL PROCEDURE CODE - SECTION 417(3) - APPLICABILITY - RIGHT TO APPEAL AGAINST ACQUITTAL - COMPLAINANT WHOSE COMPLAINT INSTITUTED PRIOR TO AMENDMENT BUT ENDED IN ACQUITTAL AFTER AMENDMENT - RIGHT AVAILABLE.
Fact of the Case:
The applicant, Dulan Dayal Singh, filed an application for leave to appeal against an order of acquittal passed by a Magistrate I Class Faizabad on 31-10-1955. The application was filed on 25-1-1956, after the amendment of Section 417(3) of the Criminal Procedure Code (CrPC) by the Code of Criminal Procedure (Amendment) Act, 1955 (Act 26 of 1955). The question arose whether the right to appeal under Section 417(3) was available to complainants whose complaints were instituted prior to the amendment but ended in acquittal after the amendment.
Finding of the Court:
The court held that the right to appeal under Section 417(3) CrPC was available to complainants whose complaints were instituted prior to the amendment but ended in acquittal after the amendment. The court relied on Section 116 of Act 26 of 1955, which provided that the amendments made by the Act would apply to all proceedings pending in any criminal court on the date of commencement of the Act.
Issues: Whether the right to appeal under Section 417(3) CrPC was available to complainants whose complaints were instituted prior to the amendment but ended in acquittal after the amendment.
Ratio Decidendi: The court held that the right to appeal under Section 417(3) CrPC was available to complainants whose complaints were instituted prior to the amendment but ended in acquittal after the amendment because: * Section 116 of Act 26 of 1955 provided that the amendments made by the Act would apply to all proceedings pending in any criminal court on the date of commencement of the Act. * The amended Section 417 applied to the cases which were pending on the enforcement of that Act and that, therefore, any right which is conferred under the amendments would be available to the parties concerned even though such a right was not available to them prior to the amendments that is, on the date of the institution of the complaints.
Final Decision: The court answered the question referred to it in the affirmative, holding that the right given by Section 417(3) CrPC as amended could be availed of by a complainant whose complaint, though filed prior to the commencement of Act 26 of 1955, ended in acquittal subsequent to the enforcement of that act.
( 1 ) THIS is an application under Section 417, Sub-section (3) Criminal P. C. , as in force from 1-1-1956, in view of the Central Government Notification No. 1/11/ 55- Judl (R), dated 1-12-1955, published in India Gazette, dated 10-12-1955.
( 2 ) DULAN Dayal Singhs complaint was dismissed and the accused were acquitted of the various offences by a Magistrate I Class Faizabad, on 31-10-1955. He filed this application for leave to appeal on 25-1-1956. The application would be in time in case the applicant was given the benefit of Section 12, Limitation Act.
( 3 ) THE learned single Judge referred a point for decision to this Bench, and the point formulated by him is: "whether the right given by Section 417 (3), Cr. P. C. , would apply to cases filed in which the proceedings in the Magistrates Court are started before the Act came into force or would apply only to those cases which are initiated after the coming in of this Act. " another application under Section 417 (3), Criminal P. C. , instituted by Kedar Nath Bhargava has also been referred to this Bench by the learned single Judge. Kedar Nath Bhargava seeks leave to ap peal against an order of acquittal, dated 17-1-1956, in the case instituted on his complaint prior to 1-1-1956.
( 4 ) SECTION 417, Criminal P. C. , as amended, is:
"417. (1) Subject to the provisions of Sub-section (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. 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 (35 of 1946), the Central Government may also direct the Public prosecutor to present an appeal to the High Court from the order of acquittal. 3. 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. 4. No application under Sub-section (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. 4a. If, in any case, the application under Sub- section (3) 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 ). "
( 5 ) THE relevant portions of Section 116, Code of Criminal Procedure (Amendment) Act, 1955 (No. XXVI of 1955) are:
"notwithstanding that all or any of the provisions of this Act have come into force in any State, (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (d ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . but, save as aforesaid, the provisions of this Act and the amendments made thereby shall apply to all proceedings instituted after the commencement of this Act and also to all proceedings pending in any Criminal Court on the date of such commencement. "
The contention for Dulan Dayal Singh is that he has instituted the application for leave to appeal subsequent to the enforcement of the Amending Act and that therefore the Amended Act would apply to it as it applies to all proceedings instituted after the commencement of that Act. The contention does not appeal to us as sound. Proceedings instituted by a person who is entitled to institute them will be governed by the provisions of the Amending Act in case they are instituted subsequent to its enforcement. It is a condition precedent for the institution of a proceeding that the person concerned should have a ri
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