TaxTMI 
TaxTMI 
2010 (4) TMI 1073
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....olice Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3), to the High Court from the order of acquittal. (3) No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court. (4) 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. (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appea....
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....as per CBI, the central government after considering the conclusions and findings of the trial court took a conscious and considered decision that no ground whatsoever was made for filing an appeal against the judgment of the trial court. 6. On February 17, 2007 the state government, however, filed leave to appeal against the order of acquittal dated December 18, 2006 before the High Court of Judicature at Patna. The accused were arrayed as respondent nos. 1 and 2 respectively and the CBI was impleaded as respondent no. 3. The Single Judge of the High Court issued notice to the respondents to show cause as to why leave to appeal be not granted. In response thereto, on behalf of respondent nos. 1 and 2, a preliminary objection was raised with regard to maintainability of appeal by the state government. The preliminary objection about the maintainability of appeal raised by respondent nos. 1 and 2 was supported by respondent no. 3 (CBI). The learned Single Judge heard the arguments on the question of maintainability of appeal and vide his order dated September 20, 2007 overruled the preliminary objection and held that appeal preferred by the state government was maintainable. It is....
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....e (for short, `1898 Code') and the observations made in that case are neither ratio decidendi nor obiter dicta. 10. Lastly, Mr. Ram Jethmalani contended that if there is a conflict of exercise of executive powers by the state government and the central government, by virtue of the proviso to Article 162 of the Constitution of India, the decision of the latter will prevail. 11. Mr. A. Mariarputham, learned senior counsel for CBI, adopted the arguments of Mr. Ram Jethmalani. He further submitted that by addition of words "save as otherwise provided in sub-section (2)", in Section 378, the Legislature brought changes in erstwhile Section 417 of 1898 Code and made its intention clear to take class of cases covered by sub-section (2) out of purview of sub-section (1). 12. On the other hand, Mr. L. Nageshwar Rao, learned senior counsel for the state government, vehemently supported the view of the High Court to sustain the maintainability of appeal filed by the state government. He submitted that right of appeal is a creature of statute and the question whether there is right of appeal or not will have to be considered on an interpretation of the provision of the statute and no....
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....the said amendment, the state government is also competent to file an appeal in a case falling under Section 377(2). Learned senior counsel urged that inasmuch as the provisions of Section 377 and Section 378 are now in pari materia and the same interpretation needs to be accorded to Section 378 as well. 14. Mr. L. Nageshwar Rao, learned senior counsel, strenuously urged that the interpretation sought to be placed by the appellants would lead to absurdity inasmuch as (i) even in a case where the state government requests and permits investigation under Section 6 of the Delhi Special Police Establishment Act, 1946 (`1946 Act', for short) and prosecution is conducted by the public prosecutor appointed by the state government, the state government would not be entitled to file an appeal in case of acquittal, but would have to approach the central government for the purpose (which has no role or connection with the investigation or the case); and (ii) in view of the express amendment to Section 377 of 1973 Code so as to enable the state government to file an appeal even where investigation was conducted by the CBI or central agency, the state government would be competent to file an a....
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....ise provided in sub-section (2)", the phrase "in any case" in subsection (1) and the word "also" in sub-section (2). 17. Way back in 1766, Parker, C.B., in Robert Mitchell v. Soren Torup (1766) Parker 227 recognized the rule that in expounding Acts of parliament, where words are express, plain and clear, the words ought to be understood according to their genuine and natural signification and import, unless by such exposition a contradiction or inconsistency would arise in the Act by reason of some subsequent clause, from whence it might be inferred the intent of the Parliament was otherwise; and this holds with respect to penal, as well as other Acts. 18. Parke, B. in Becke v. Smith (1836) 2 Meeson and Welsby 191, stated the following rule: "It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further." 19 In The Attorney-Gene....
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....ute has been brought and would try to give a meaning, which would adhere to the purpose of the statute. Patanjali Sastri, C.J. in the case of Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC 369, had held that it is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute. In Quebec Railway, Light Heat & Power Co. Ltd. v. Vandry, AIR 1920 PC 181, it had been observed that the legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. Similarly, it is not permissible to add words to a statute which are not there unless on a literal construction being given a part of the statute becomes meaningless. But before any words are read to repair an omission in the Act, it should be possible to state with certainty that these words would have been inserted by the draftsman and approved by the legislature had their attention been drawn to the omission before the Bill had passed into a law. At times, the intent....
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.... 1973 Code and provides that the central government may also direct the public prosecutor to present an appeal to the High Court from an order of acquittal. Such an appeal by the central government in the aforesaid two types of cases is subject to the provisions contained in subsection (3). Sub-section (3) provides that an appeal under subsections (1) and (2) shall not be entertained without leave of the High Court. Where the order of acquittal has been passed in a case instituted upon complaint, sub-section (4) provides that the complainant may apply for special leave to appeal from the order of acquittal and if such leave is granted, an appeal be presented by him to the High Court. The limitation is prescribed in sub-section (5). Insofar as the cases covered by sub-section (4) are concerned, where the complainant is a public servant, limitation prescribed is six months from the date of an order of acquittal and in all other cases, including the cases covered by sub-sections (1) and (2), a period of sixty days from the date of the order of acquittal. Sub-section (6) makes a provision that if an application under sub-section (4) for the grant of special leave to appeal from an ord....
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....ndering the exception (clause) reflected in the opening words - "save as otherwise provided in sub-section (2)" - redundant, meaningless and unnecessary. If the Legislature had intended to give the right of appeal under Section 378(1) to the state government in all cases of acquittal including the class of cases referred to in sub-section (2), it would not have been necessary to incorporate the exception (clause) in the opening words. This objective could have been achieved without use of these words as erstwhile Section 417 of 1898 Code enabled the state government to appeal from all cases of acquittal while in two types of cases mentioned in sub-section (2) thereof, appeal from the order of acquittal could be filed under the direction of central government as well. 28. In The Bengal Immunity Company Limited v. The State of Bihar and others (1955) 2 SCR 603 Venkatarama Ayyar, J. observed : ".....It is a well-settled rule of construction that when a statute is repealed and re-enacted and words in the repealed statute are reproduced in the new statute, they should be interpreted in the sense which had been judicially put on them under the repealed Act, because the Legislature is p....
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....d under Section 3 of the Delhi Act. Under Section 4 of the Act the superintendence of the Delhi Special Police Establishment vests in the Central Government and administration of the Special Police Establishment vests in an officer appointed by the Central Government who exercises powers exercisable by an Inspector General of Police as the Central Government may specify. Under Section 5 the powers and the jurisdiction of the Establishment can be extended by the Central Government to other areas in a State although not a Union territory. Once there is an extension of the powers and jurisdiction of the members of the Establishment, the members thereof while discharging such functions are deemed to be members of the police force of the area and are vested with the powers, functions and privileges and are subject to the liabilities of a police officer belonging to that force. The police officer also subject to the orders of the Central Government exercises the powers of the officer-incharge of a police station in the extended area. Under Section 6 consent of the State Government is necessary to enable the officer of the Establishment to exercise powers and jurisdiction in any area in t....
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....Parliament in 1973 Code re-enacted the provision for appeal from order of acquittal with certain modifications. It changed the language by addition of words - "save as otherwise provided in sub-section (2)". The alteration in language by addition of these words gives rise to an inference that the Legislature made conscious changes in Section 378 (1973 Code). We are afraid, the addition of words in Section 378(1) by way of exception (clause) cannot be set at naught by giving same interpretation which has been given to Section 417 (1898 Code). As a matter of fact, in Khemraj2, this Court did notice that changes have been introduced in the matter of appeals against acquittal under Section 378 of the 1973 Code, but the Court did not deal with these changes as it was not concerned with that provision. In our opinion, the decision of this Court in Khemraj cannot be applied as the language used in Section 417 (1898 Code) and Section 378 (1973 Code) is not in pari materia. 32. Much emphasis, however, has been placed on the word "also" in sub-section (2) of Section 378 by learned senior counsel for the state government. It has been urged that by use of the word "also", competence of the s....
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....sect. 1 are so cogent and so limit the rest of the statute as to nullify its effect either entirely or in a very important particular." 34. The main object and legislative intent by the opening words - "save as otherwise provided in sub-section (2)" - in sub- section (1) of Section 378 being clear i.e., to fetter the general power given to the state government in filing appeal from the order of acquittal in two types of cases stated in sub-section (2), the use of word "also" in sub-section (2) does not make any sense. The word "also" in sub-section (2), if construed in the manner suggested by the state government, may result in reducing the opening words in subsection (1) a nullity and will deny these words their full play. Since exception (clause) in the beginning of sub-section (1) has been expressly added in Section 378 and it is not possible to harmonise the word "also" occurring in sub-section (2) with that, it appears to us that no sensible meaning can be given to the word "also" and the said word has to be treated as immaterial. We are not oblivious of the fact that to declare "also" enacted in sub-section (2) immaterial or insensible is not very satisfactory, but it is muc....
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....Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre: Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government, may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under subsection (4). Explanation.--For the purpose of this sub-section,-- (a) "regular Cadre of Prosecuting Officers" means a Cadre of Prosecuting Officers which includes therein the post of a Public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutors, by whatever name called, to that post; (b) "Prosecuting Officer" means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code.] (7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under subsection (I) or sub-section (2) or sub-section (3) or sub-- section (6), only if he has been in practice as an advocate for....
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....of Section 378 provides for appeal against acquittal in two types of cases mentioned therein on the direction of the central government by its public prosecutor. The opening words in sub-section (1), thus, qualify the general power given to the state government in filing appeal from an order of acquittal so that the central agency, which is solely and intimately connected with the investigation of cases referred in sub-section (2), may approach the central government for direction to appeal in appropriate cases. 38. The decision of this Court in Eknath Shankarrao Mukkawar1, has been referred to and relied upon by Mr. Ram Jethmalani as well as Mr. L. Nageshwar Rao. We may appropriately consider the said decision now. In Eknath Shankarrao Mukkawar, the construction of Section 377 (appeal against inadequacy of sentence) fell for consideration. Section 377 (1) and (2) of 1973 Code with which this Court was concerned in Eknath Shankarrao Mukkawar1, reads as follows:- "S.- 377.- Appeal by the State Government against sentence.- (1) Save as otherwise provided in subsection (2), the State Government may, in any case of conviction on a trial held by any court other than a High Court, dire....
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....ly, the Central Government is the competent authority to appeal against inadequacy of sentence." 39. The essence in a decision is its ratio and not every observation found therein, as stated by this Court in State of Orissa v. Sudhansu Sekhar Misra and others AIR 1968 SC 647. The ratio of decision in Eknath Shankarrao Mukkawar1 is that the Legislature has maintained a watertight dichotomy in the matter of appeal against inadequacy of sentence; the competent authority to appeal against inadequacy of sentence in two types of cases referred to in subsection (2) of Section 377 is the central government. However, Mr. L. Nageshwar Rao submitted that in Eknath Shankarrao Mukkawar1, in the absence of use of word "also" in sub-section (2) of Section 377, i was held by this Court that the state government was incompetent to file an appeal in a case falling under Section 377(2). But now the lacuna pointed out by this Court has been remedied; Parliament amended by Act 45 of 1978 to include the word "also" therein and bring the same in pari materia with the provisions of Section 378(2) and the Statement of Objects and Reasons for the said amendment makes it clear that the state government is a....