State
(Delhi Administration) Vs. Dharampal
[2001] Insc 564 (19
October 2001)
K.T.Thomas,
S.N.Variava S. N. Variava, J.
Special Leave Petition (crl.) 1617 of 2001
Leave
granted.
Heard
parties.
These
appeals are against the Judgment of the Delhi High Court dated 20th November, 2000. By this Judgment a number of
appeals, filed by the appellants herein, have been dismissed. All these appeals
are against the said common Judgment. They are based on almost similar facts
and raise common question of law. They are, therefore, being disposed of by
this common Judgment.
It
must be mentioned that against the Judgment dated 20th November, 2000 other SLPs
had also been filed before this Court. Those were dismissed leaving the
questions of law open.
In
this Judgment the facts in Criminal Appeal No. . of 2001 [arising out of SLP (Crl.)
No. 1617 of 2001] are being set out. The facts of the other Appeals need not be
set out as they are more or less similar.
On 29th August, 1988 the Food Inspector purchased a
sample of Lal Mirch Kutti from M/s Vashno Panjabu Dhaba, H-1, Chander Nagar, Delhi.
The
Respondent was the person who had sold Lal Mirch to the Food Inspector. The
sample purchased was divided into three equal parts and put into bottles which
were sealed. One sample was sent to the Public Analyst, who, by his report
dated 6th August, 1988 found the same to be non-
confirming to the prescribed standards. On 4th May, 1989 after obtaining
sanction from the competent authority, under Section 20 of the Prevention of
Food Adulteration Act (hereinafter called the Act), a complaint was filed in
the Court of learned Metropolitan Magistrate. The Respondent exercised his
right under Section 13(2) of the Act. Accordingly a sample was sent to the
Director, Central Food Laboratory for analysis. A report was given by the
Director, Central Food Laboratory. He found the sample to contain moisture as
20.01 % and as insoluble in H.C.L. as 1.92 % as against the maximum standard of
12% and 1.3% respectively. He also found adulterating material, starches and colouring
material in the sample.
The
Respondent was after a trial convicted by the learned Metropolitan Magistrate
by his Judgment dated 23rd /26th February, 1991.
He was
sentenced to rigorous imprisonment for 1 1/2 years and to pay a fine of Rs.
5,000/- and in default of payment of fine to further undergo simple
imprisonment for six months.
The
Respondent filed an Appeal before the Sessions Judge, New Delhi. The Sessions Judge by his Judgment
dated 13th February,
1995 acquitted the
Respondent only on the ground that the trial Court, while recording the
statement of the Accused/Respondent under Section 313 of the Criminal Procedure
Code, did not read out the contents of the certificate of the Director, Central
Food Laboratory to the accused.
As
against this acquittal the appellants filed an appeal to the High Court of
Delhi. As on identical grounds i.e. that the contents of the certificate of the
Director, Central Food Laboratory had not been put to the accused while
recording his statement under Section 313 Cr.P.C. many other accused had also
been acquitted a number of other appeals had also been filed by the appellants.
All
those appeals came to be dismissed by the High Court by the impugned Order
dated 20th November,
2000. The High Court
dismissed all the appeals on two grounds (a) that non putting of the contents
of the certificate of the Director, Central Food Laboratory, to the accused,
whilst recording his statement under Section 313 Cr.P.C., was a vital omission
and that the conviction could not therefore be maintained and (b) that all the
appeals were barred by limitation as they were not filed within a period of 60
days as provided under by sub-section 5 of Section 378 Cr.P.C. Hence these
appeals. In these appeals we are only concerned with the abovementioned two
questions of law.
Dealing
with the first question first. This Court has, in the case of Shivaji Sahabrao Bobade
v. State of Maharashtra reported in (1973) 2 SCC 793, held
as follows:
"It
is trite law, nevertheless fundamental, that the prisoner's attention should be
drawn to every inculpatory material so as to enable him to explain it. This is
the basic fairness of a criminal trial and failures in this area may gravely
imperil the validity of the trial itself, if consequential miscarriage of
justice has flowed. However, where such an omission has occurred it does not
ipso facto vitiate the proceedings and prejudice occasioned by such defect must
be established by the accused. In the event of evidentiary material not being
put to the accused, the Court must ordinarily eschew such material from
consideration. It is also open to the appellate Court to call upon the counsel
for the accused to show what explanation the accused has as regards the
circumstances established against him but not put to him and if the accused is
unable to offer the appellate Court any plausible or reasonable explanation of
such circumstances, the Court may assume that no acceptable answer exists and
that even if the accused had been questioned at the proper time in the trial
Court he would not have been able to furnish any good ground to get out of the
circumstances on which the trial Court had relied for its conviction. In such a
case, the Court proceeds on the footing that though a grave irregularity has
occurred as regards compliance with Section 342, Cr. P.C., the omission has not
been shown to have caused prejudice to the accused." (emphasis supplied)
The same view has been reiterated by this Court in the case of Basavaraj R. Patil
v. State of Karnataka reported in (2000) 8 SCC 740.
Thus
it is to be seen that where an omission, to bring the attention of the accused
to an inculpatory material, has occurred that does not ipso facto vitiate the
proceedings. The accused must show that failure of justice was occasioned by
such omission. Further, in the event of an inculpatory material not having been
put to the accused, the appellate court can always make good that lapse by
calling upon the counsel for the accused to show what explanation the accused
has as regards the circumstances established against the accused but not put to
him.
This
being the law, in our view, both the Sessions Judge and the High Court were
wrong in concluding that the omission to put the contents of the certificate of
the Director, Central Food Laboratory, could only result in the accused being
acquitted. The accused had to show that some prejudice was caused to him by the
report not being put to him. Even otherwise, it was the duty of the Sessions
Judge and/or the High Court, if they found that some vital circumstance had not
been put to the accused, to put those questions to the counsel for the accused
and get the answers of the accused. If the accused could not give any plausible
or reasonable explanation it would have to be assumed that there was no
explanation. Both the Sessions Judge and the High Court have overlooked this
position of law and failed to perform their duties and thereby wrongly
acquitted the accused.
We
further find that in all these cases, the copy of the certificate of the Director,
Central Food Laboratory had been supplied to the accused. They were thus aware
of the contents of the certificate. It has to be seen that under the Prevention
of Food Adulteration Act the prosecution is based upon the contents of either
the report of the Public Analyst or the certificate of the Director of Central
Food Laboratory. During their examination, under Section 313 Cr.P.C. questions
pertaining to the certificate were put to the accused. The explanation of the
accused, in respect of the certificate, had been called for. In our view in
such cases it is enough if the attention of the accused is brought to the
report or the certificate as the case may be. It is not necessary that the
contents of the report be also put to the accused.
Let us
now see what were the questions put to the accused in these cases. We have been
shown the statement of the accused, under Section 313 Cr.P.C. in only two of
the appeals. However, it is admitted that in other cases also the questions
were similar.
In
Criminal Appeal No. .. of 2001 [arising out of SLP (Crl.) No.1617 of 2001] the
question put to the accused and the answer obtained from him are as follows:
"Q:
It is further in evidence that on receipt of copy of P.A.'s and intimation
letter, you exercised your right under Section 13(2) and Director, CFL vide his
certificate Ex.PX declared the sample to be adulterated. What have you to say?
Answer: It is a matter of record." In Criminal Appeal No. .. of 2001
[arising out of SLP (Crl.) No.2437 of 2001] the question put and the answer
given are as follows:
"Q.
It is further in evidence that intimation letter alongwith copy of PA report
was served on you IO the Court and you exercised your right u/s 12(2) of the
PFA Act and certificate of director is Ex. PX. What have to say? Ans. The
certificate is erroneous and it is the result of the negligence committed by
the F.I. in the sample proceeding." Thus it is to be seen that the
questions clearly indicated that what was being put to the accused were the
contents of the certificate. It is also to be seen that the accused clearly
understood that what was being put to them was the contents of the certificate.
The accused Ashwani Kumar (in Criminal Appeal No. .. of 2001 [arising out of
SLP (Crl.) No. 2437 of 2001]) in fact answered that the certificate was
erroneous and was a result of negligence committed by the Food Inspector in the
sample proceedings.
Similarly
accused Dharampal (in Criminal Appeal No. .. of 2001 [arising out of SLP (Crl.)
No. 1617 of 2001]) answered that the report was a matter of record. The accused
gave their answers to the contents of the certificate. Clearly no prejudice had
been caused to them. Before us also it could not be shown that any prejudice
had been caused to them. This aspect of the matter was completely overlooked by
both the Sessions Judge and the High Court. In our view, neither the Judgment
of the Sessions Judge nor the reasoning of the High Court on this point can be
sustained.
The
second question had only been urged before the High Court. The submission made
before the High Court was that the appeal had not been filed by a public
servant and therefore the limitation for filing such an appeal was 60 days.
This submission found favour with the High Court. In all fairness, to counsel
appearing for the respondents before us, it must be stated that such a
contention was not canvassed before this Court, as it is clearly an untenable
contention. Before us it was submitted by Mr. Lalit, that the appeals should
have been filed within 90 days from the date of the Order as provided in
Article 114 of the Limitation Act.
To
understand what the periods of limitation under Section 378 of the Cr.P.C. are
one must first look at Section 417 as it stood in the Criminal Procedure Code,
1898. Section 417, as it then stood, read as follows:
"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, 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.
(5)
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)." Thus it is to be seen
that, under Section 417 of the Criminal Procedure Code, 1898, an appeal against
acquittal could be filed by the State Government or by the Central Government.
An appeal against acquittal could in cases instituted upon complaint, be filed
by the complainant provided the complainant obtained special leave to appeal
from the High Court. Under Section 417(4) no application for grant of special
leave could be entertained by the High Court after an expiry of 60 days from
the order of acquittal.
Thus,
under Section 417 an application for special leave to appeal had to be made
only by the complainant. If the State Government or the Central Government
filed an Appeal then no application for special leave to appeal had to be made.
It is
because of this that Article 114(a) of the Limitation Act provided that an
appeal, by the State Government or the Central Government under sub-sections
(1) or (2) of Section 417 of the Criminal Procedure Code, 1898, was to be filed
within 90 days from the date of the Order. Article 114 (b) provides that an
Appeal under sub-section 3 of Section 417 of the Criminal Procedure Code, 1898;
must be filed within 30 days from date of grant of special leave.
Thus
under Section 417 of the Criminal Procedure Code, 1898 no application for
special leave to appeal had to be made by the State Government or the Central
Government, if they filed an appeal against acquittal. The period of 60 days
provided in Section 417(4) did not apply to an appeal by the State Government
or the Central Government. The period of limitation for the State Government or
the Central Government was only under Article 114 (a) of the Limitation Act.
Also
to be noted that the right of the State Government to file an Appeal under
Section 417(1) was subject to provisions of sub-section (5).
Sub-section
(5) provided that if special leave to appeal had been refused to a complainant
then the State Government could not maintain an appeal.
In the
Criminal Procedure Code, 1973, Section 417 has been substituted by Section 378,
which reads as follows:
"378.
Appeal in case of acquittal. –
(1)
Save as otherwise provided in sub-section (2) and subject to the provisions of
sub- sections (3) and (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 [or an
order of acquittal passed by the Court of session in revision].
(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 (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 appeal from that
order of acquittal shall lie under sub-section (1) or under sub-section
(2)." A comparison of Section 378 with the old Section 417 shows that,
whilst under the old Section no application for leave to appeal had to be made
by the State Government or the Central Government, now by virtue of Section
378(3) the State Government or the Central Government have to obtain leave of
the High Court before their appeal could be entertained.
Sub-Section
(4) of Section 378 is identical to Sub-Section (3) of Section 417. Thus a
complainant desirous of filing an appeal against acquittal must still obtain
special leave. Thus, Section 378 makes a 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
or a private party. If the complainant is 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 periods of 6 months and/or 60 days do not apply to
appeals by the State Government [under sub-section (1)] or the Central
Government [under sub-section (2)]. Appeals by the State Government or the
Central Government continue to be governed by Article 114(a) of the Limitation
Act. In other words, those appeals must be filed within 90 days from the date
of the order appealed from. Needless to state if there is a delay in filing an
appeal by the State Government or Central Government it would be open to them
to file an application under Section 5 of the Limitation Act for condonation of
such delay. That period can be extended if the court is satisfied that there
was sufficient cause for not preferring the appeal within the period of 90
days. The High Court was thus wrong in concluding that the appeals had to be
filed within 60 days as provided in Section 378(5).
It
must also be noted that sub-section (6) of Section 378 is identical to
sub-section (5) of Section 417. Thus under Section 378 also the State
Government cannot maintain an appeal if special leave to appeal is refused to
the complainant. In this behalf there is no change. Section 417(1) specifically
provided that it was "subject to provisions of sub-section (5)".
Section
317(1) similarly provide that it is "subject to sub-sections (3) and
(5)". Sub-section (3) is the newly added provision which now provides that
an appeal by the State or Central Government cannot be entertained without
leave of the High Court. However the reference to sub-section (5) in sub-
section (1) is clearly an inadvertant mistake. As pointed out above sub-
section (5) of Section 378 applies only to application for special leave by a
complainant. Sub-section (5) of Section 378 has no application to an appeal by
the State Government or to an application for leave under sub-section (3).
What
the Legislature clearly intended was to continue to provide that an appeal by
the State Government would not be maintainable if special leave to appeal had
been refused to a complainant. Thus sub-section (1) of Section 378 was to be
subject to provisions of sub-section (6) and not sub- section (5) as inadvertantly
provided therein. Inadvertantly the figure (5) in Section 417(1) was continued,
without noticing that now under Section 378 the relevant provision was
sub-section (6). In our view it is clear that the figure (5) in Section 378(1)
is inadvertantly retained. Thus in Section 378(1) the figure (6) will have to
be read in place of the figure (5).
There
is one last fact which must be mentioned. We find that the main argument on the
question of limitation was made before the High Court on behalf of Respondent Dharampal
[i.e. the Respondent in Criminal Appeal No. .. of 2001 (arising out of SLP (Crl.)
No. 1617 of 2001)].
It had
been argued on his behalf that the Appeal against his acquittal was barred by
limitation as there was a delay of 95 days. The High Court accepted this
contention. We however find from a copy of an Order produced before us that in
his Appeal, before the High Court, the delay had already been condoned. The
Order, which is available in this SLP Paper Book, reads as follows:
O R D
E R 21.5.96 Present: Mr. B.T. Singh for the Petitioner Crl. M. 2245/96.
Leave
granted.
This
application is disposed of. Crl. M. 2246/96.
Delay
in refiling the appeal is condoned.
This
application is disposed of. Crl. A. 92/96.
Let
the appeal be registered. Appeal is admitted.
Sd/- Arun
Kumar, J.
Sd/- May 21, 1996. Mohd. Shamim, J."
The
delay already having been condoned there was no question of the High Court
subsequently entertaining and upholding an argument on delay. This does not
seem to have been brought to the notice of the High Court.
In any
view of the matter, the impugned Order cannot be sustained.
The
Orders of the Sessions Judge dismissing the Appeals also cannot be sustained.
Therefore, the impugned Judgment dated 20th November, 2000 as well as the Orders of the
Sessions Judge in the above mentioned three cases are set aside. The appeals
which had been filed by the respondents in the Court of Additional District and
Sessions Judge are hereby restored to the file of the Additional District &
Sessions Judge, New
Delhi. They shall now
be disposed of on merits, in accordance with law.
These
appeals stand disposed of accordingly. There will be no Order as to costs.
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