Lalu
Prasad Yadav & ANR. Vs. State of Bihar & ANR. [2010] INSC 246 (1 April
2010)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 662
OF 2010 [Arising out of SLP (Crl.) No. 6563 of 2007] Lalu Prasad Yadav &
Anr. ....Appellants State of Bihar & Anr. ....Respondents WITH CRIMINAL
APPEAL NO. 670 OF 2010 [Arising out of SLP (Crl.) No. 6821 of 2007] Central
Bureau of Investigation ....Appellant State of Bihar & Ors. ....Respondents
R.M.
LODHA,J.
1.
Leave granted.
2.
Section 378 of Code of Criminal Procedure, 1973 (for short, `1973
Code') enacts the provision for appeal from an order of acquittal. The said
provision as it existed prior to 2005 amendment reads:
"S.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)."
3.
The main question presented, in light of the aforesaid provision
is, namely, as to whether the State Government (of Bihar) has competence to
file an appeal from the judgment dated 18th December, 2006 passed by Special
Judge, CBI (AHD), Patna, acquitting the accused persons when the case has been
investigated by the Delhi Special Police Establishment (CBI).
4.
Shri Lalu Prasad Yadav and Smt. Rabri Devi are husband and wife.
Both of them have held the office of Chief Minister of the State of Bihar.
These appeals concern the period from March 10, 1990 to March 28, 1995 and
April 4, 1995 to July 25, 1997 when Shri Lalu Prasad Yadav was the Chief
Minister, Bihar. Allegedly for acquisition of assets - both moveable and
immoveable - by corrupt or illegal means disproportionate to his known sources
of income during the aforesaid period, a first information report (FIR) was
lodged by CBI against Shri Lalu Prasad Yadav and also his wife. As a matter of
fact, lodgement of FIR was sequel to direction by the Patna High Court to CBI
to enquire and scrutinize all cases of excess drawls and expenditure in the
Animal Husbandry Department, Government of Bihar during the period 1977-78 to
1995-96. CBI investigated into the matter and on August 19, 1998, a chargesheet
was filed against Shri Lalu Prasad Yadav and Smt. Rabri Devi in the 3 Court of
Special Judge, CBI (AHD), Patna. The charges were framed against Shri Lalu
Prasad Yadav under Section 13(1)(e) read with Section 13(2) of the Prevention
of Corruption Act, 1988 (`PC Act') that during the said period, he acquired
assets which were disproportionate to his known sources of income and on 31st
March, 1997 he had been in possession of pecuniary resources of property in his
name and in the name of his wife and children to the extent of Rs. 46,26,827/-
which he could not satisfactorily account for. Smt.
Rabri
Devi was charged under Section 109 of Indian Penal Code (IPC) read with Section
13(1)(e) and 13(2) of the PC Act for abetting her husband in the commission of
the said offence. The Court of Special Judge, CBI (AHD), Patna, upon conclusion
of trial, vide its judgment dated December 18, 2006 acquitted the accused
holding that prosecution failed to prove the charges levelled against them.
5.
It is pertinent to notice here that 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 4 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 from this order that two appeals by special leave have been
preferred. One of the two appeals is by the accused and the other by CBI.
7.
We heard Mr. Ram Jethmalani, learned senior counsel (for accused)
and Mr. A. Mariarputham, learned senior counsel (for CBI) - appellants - and Mr.
L. Nageshwar Rao, learned senior counsel for the state government.
8.
Mr. Ram Jethmalani submitted that the competence of the state
government to file an appeal from the judgment and order of 5 acquittal is to
be determined by Section 378 of the 1973 Code as it existed prior to 2005; the
law in force on the date of the chargesheet.
He would
submit that the key words in Section 378(1) are : "Save as otherwise
provided in sub-section (2)" and by these words whatever is covered by
sub-section (2) is left outside the purview of sub-section (1). According to
him, the word "also" in sub-section (2) refers to the mode of
exercising substantive right of appeal; the word "also" in the
changed context means `likewise' and that means that the central government can
also instruct the public prosecutor to present an appeal; it does not have to
file vakalatnama signed by the President of India or for the State by the
Governor of the State. Learned senior counsel argued that the High Court by
giving undue weight to the word "also" in sub-section (2) has made
the opening key words in sub-section (1) of Section 378 wholly redundant and
useless thereby defeating the intention of the Legislature. He would, thus,
submit that the court has to adopt one of the two courses, namely, (i) assign
to the word another of its meanings which the word does carry and harmonise it
with the effect of the dominant words or (ii) reject the word as a useless
surplusage.
9.
Mr. Ram Jethmalani, learned senior counsel, referred to the
judgment of this Court in Eknath Shankarrao Mukkawar v. State 6 of
Maharashtra1, and submitted that the construction of Section 377 put by this
Court where similar words occur, must apply to the construction of Section 378
as well. He argued that the reliance placed by the High Court upon the decision
of this Court in the case of Khemraj vs. State of Madhya Pradesh2 was
misconceived as the said case has no application on construction of Section 378
as the controlling words "save as otherwise provided" did not exist
in Section 417 of Code of Criminal Procedure (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).
1 (1977)
3 SCC 25 2 (1976) 1 SCC 385 7
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 not on the ground of
propriety or any other consideration.
According
to him, when the language of statute is plain and unambiguous then literal rule
of interpretation has to be applied and the court must give effect to the words
used in the statute and it would not be open to the courts to adopt a
hypothetical construction on the ground that such construction is more
consistent with the alleged object and policy of the Act or to have
consideration of equity, public interest or to seek the intention of the
Legislature. He would submit that the use of the expressions "in any
case" in sub-section (1) and "also" in sub-section (2) clearly
indicates that Legislature intended that the general rule would be that the
state government may file an appeal in any and every case [including cases
covered by sub-section (2)] and the central government may additionally file an
appeal in a case covered by sub-section (2). Mr. L. Nageshwar Rao contended
that the interpretation to the expression "save as otherwise provided in
sub-section (2)", sought to be placed by the 8 appellants, is not in
accordance with the logic or the plain language of the provision and such
interpretation would result in rendering the expression "in any case"
in sub-section (1) and the word "also" in sub-section (2) redundant
and otiose. He emphasized that no word or expression used in any statute can be
said to be redundant or superfluous; that in matters of interpretation one
should not concentrate too much on one word and pay too little attention to
other words and no provision in the statute and no word in the section can be
construed in isolation and every provision and every word must be looked at
generally and in the context in which it is used.
13.
Relying upon the case of Eknath Shankarrao Mukkawar1, Mr. L.
Nageshwar Rao submitted that this Court has held that in the absence of use of
the word "also" in sub-section (2) of Section 377, as contained in
sub-section (2) of Section 378, the state government was incompetent to file an
appeal in a case falling under Section 377(2) and now in order to remedy the
lacuna pointed out by this Court, Parliament amended Section 377(2) by Act No.
45 of 1978 to include the word "also" therein and bring the same in
pari materia with the provisions of Section 378(2). He referred to the
Statement of Objects and Reasons for the said amendment and argued that after
the said amendment, the state government is also competent to file an appeal in
a case falling under Section 377(2). Learned senior 9 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 appeal in
case of award of inadequate sentence; but in a similar case that results in
acquittal then the state government would not be able to file an appeal under
Section 378.
15.
In the Code of Criminal Procedure, 1861, Section 407 prohibited an
appeal from acquittal. For the first time, the Code of Criminal Procedure, 1872
provided for an appeal by the government from an order of acquittal (Section
272). The said provision was re-enacted in Section 417 of the Code of Criminal
Procedure, 1882. The provision concerning an appeal in case of acquittal was
retained in Section 417 of 1898 Code. The provision relating to an appeal from
order of acquittal in 1898 Code (as amended by Amendment Act 26 of 1955) reads
as under:- "S. 417.- Appeal in case of acquittal.- (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 1 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)."
16.
In 1973 Code, appeal from an order of acquittal has been retained
with some modifications. Section 378, sub-section (1) opens with the words,
"save as otherwise provided in sub-section (2)". The main thrust of
the arguments by the learned senior counsel centered around the opening words,
"save as otherwise provided in sub-section (2)", the phrase "in
any case" in sub- section (1) and the word "also" in sub-section
(2).
17.
Way back in 1766, Parker, C.B., in Robert Mitchell v. Soren Torup3
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. 3 (1766) Parker 227 1
18.
Parke, B. in Becke v. Smith4, 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-General v. Lockwood5, the rule regarding
construction of statutes was expounded in the following words:
".....The
rule of law, I take it, upon the construction of all statutes, and therefore
applicable to the construction of this, is, whether they be penal or remedial,
to construe them according to the plain, literal, and grammatical meaning of
the words in which they are expressed, unless that construction leads to a
plain and clear contradiction of the apparent purpose of the act, or to some
palpable and evident absurdity....".
20.
In The Sussex Peerage6, the House of Lords, through Lord Chief
Justice Tindal, stated the rule for the construction of Acts of Parliament that
they should be construed according to the intent of the Parliament which passed
the Act. If the words of the statute are of themselves precise and unambiguous,
then no more can be necessary than to expound those words in their natural and
ordinary 4 (1836) 2 Meeson and Welsby 191 5 (1842) 9 Meeson and Welsby 378 6
(1844) XI Clark & Finnelly 85 1 sense. The words themselves do, in such
case, best declare the intention of the Legislature.
21.
A Constitution Bench of this Court in Union of India & Anr. v.
Hansoli Devi and Others7, approved the rule exposited by Lord Chief Justice
Tindal in The Sussex Peerage's case6 and stated the legal position thus:
"It
is a cardinal principle of construction of a statute that when the language of
the statute is plain and unambiguous, then the court must give effect to the
words used in the statute and it would not be open to the courts to adopt a
hypothetical construction on the ground that such construction is more
consistent with the alleged object and policy of the Act. In Kirkness v. John
Hudson & Co. Ltd., (1955) 2 All ER 345, Lord Reid pointed out as to what is
the meaning of "ambiguous" and held that:
"A
provision is not ambiguous merely because it contains a word which in different
contexts is capable of different meanings. It would be hard to find anywhere a
sentence of any length which does not contain such a word. A provision is, in
my judgment, ambiguous only if it contains a word or phrase which in that
particular context is capable of having more than one meaning."
It is no
doubt true that if on going through the plain meaning of the language of
statutes, it leads to anomalies, injustices and absurdities, then the court may
look into the purpose for which the statute 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 7 (2002) 7 SCC 273 1 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 intention of the legislature is found to be clear but the
unskilfulness of the draftsman in introducing certain words in the statute
results in apparent ineffectiveness of the language and in such a situation, it
may be permissible for the court to reject the surplus words, so as to make the
statute effective......"
22.
As noticed above, Section 378, sub-section (1), opens with the
words - "save as otherwise provided in sub-section (2)".
These
words are not without significance. The immediate question is as to what
meaning should be ascribed to these words. In Concise Oxford English Dictionary
(Tenth Edition, Revised), the word "save" is defined thus:
"save.-
formal or poetic/literary except; other than...."
23.
In Webster Comprehensive Dictionary (International Edition), the
word "save" is defined as follows:- 1 "save.- Except; but - 1.
Except; but 2. Archaic Unless".
24.
A Dictionary of Modern Legal Usage by Bryan A. Garner (1987)
states that "save" is an ARCHAISM when used for "except".
It should be eschewed, although, as the examples following illustrate, it is
still common in legal prose. e.g., `The law-of-the-circuit rule forbids one
panel to overrule another save [read except] when a later statute or Supreme
Court decision has changed the applicable law'.
25.
In Williams v. Milotin8, the High Court of Australia, while
construing the words "save as otherwise provided in this Act"
stated:- "....In fact the words "save as otherwise provided in this
Act" are a reflexion of the words "except" - or "save"
- "as hereinafter excepted".
26.
Section 378 is divided into six sub-sections. Sub-section (1)
provides that the state government may 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 High Court or an order of acquittal passed by
the court of session in revision. It opens with the words "save as
otherwise provided in sub-section (2)" followed by the words "and
subject to the provisions of sub-sections (3) and (5)". Sub-section (2)
refers to two class of cases, namely, (i) those cases where the offence has
been 8 97 C.L.R.465 1 investigated by the Delhi Special Police Establishment
constituted under 1946 Act and (ii) those cases where the offence has been
investigated by any other agency empowered to make investigation into an
offence under any Central Act other than 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 sub- section (3). Sub-section (3) provides that an appeal under sub-
sections (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 order of
acquittal is refused, 1 no appeal from that order of acquittal shall lie under
sub-section (1) or under sub-section (2). We have surveyed Section 378 in its
entirety to have complete conspectus of the provision.
27.
The opening words - "save as otherwise provided in sub-
section (2)" - are in the nature of exception intended to exclude the
class of cases mentioned in sub-section (2) out of operation of the body of
sub-section (1). These words have no other meaning in the context but to
qualify the operation of sub-section (1) and take out of its purview two types
of cases referred in sub-section (2), namely, (i) the cases in which offence
has been investigated by the Delhi Special Police Establishment constituted
under 1946 Act and (ii) the cases in which the offence has been investigated by
any other agency empowered to make investigation into an offence under any
Central Act other than 1973 Code. By construing Section 378 in a manner that
permits appeal from an order of acquittal by the state government in every
case, except two class of cases mentioned in sub-section (2), full effect would
be given to the exception (clause) articulated in the opening words. As noticed
above, the words - "save as otherwise provided in sub-section (2)" -
were added in 1973 Code; Section 417 of 1898 Code did not have these words. It
is familiar rule of construction that all changes in wording and phrasing may
be presumed to have been deliberate and with the purpose to 1 limit, qualify or
enlarge the pre-existing law as the changes of the words employ. Any
construction that makes exception (clause) with which section opens unnecessary
and redundant should be avoided.
If we
give to Section 378, sub-sections (1) and (2), the interpretation which the
state government claims; we would have to say that no matter that complaint was
not lodged by the state government or its officers; that investigation was not
done by its police establishment;
that
prosecution was neither commenced nor continued by the state government; that
public prosecutor was not appointed by the state government; that the state
government had nothing to do with the criminal case; that all steps from
launching of prosecution until its logical end were taken by the Delhi Police
Special Establishment and yet the state government may file an appeal from an
order of acquittal under Section 378(1). That would be rendering 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 1
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
others9 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 presumed to be acquainted
with the construction which the Courts have put upon the words, and when they
repeat the same words, they must be taken to have accepted the interpretation
put on them by the Court as correctly reflecting the legislative
mind......"
29.
However, if the latter statute does not use the same language as
in the earlier one, the alteration must be taken to have been made
deliberately. In his classic work, Principles of Statutory Interpretation by
G.P. Singh, 12th Edition, 2010 at page 310, the following statement of law has
been made:
"Just
as use of same language in a later statute as was used in an earlier one in
pari materia is suggestive of 9 (1955) 2 SCR 603 2 the intention of the
Legislature that the language so used in the later statute is used in the same
sense as in the earlier one, change of language in a later statute in pari
materia is suggestive that change of interpretation is intended."
The
learned author also refers to the observations of Lord MacMillan in D.R. Fraser
& Co. Ltd. v. The Minister of National Revenue10:
"When
an amending Act alters the language of the principal Statute, the alteration
must be taken to have been made deliberately".
30.
It is important to bear in mind that this Court in Khemraj2 , has
put the following construction to Section 417 of 1898 Code:
"10.
Section 417 Criminal Procedure Code, prior to the Amendment Act XXVI of 1955
provided for presentation of appeals by the Public Prosecutor on the direction
of the State Government. The 1955 Amendment introduced several changes and
provided for appeals at the instance of the complainant as also on the
direction of the Central Government in cases investigated by the Delhi Special
Police Establishment. Further changes were introduced in the matter of appeals
against acquittal under Section 378 of the Code of Criminal Procedure, 1973,
with which we are not concerned in this appeal in view of the repeal provisions
under Section 484(1), CrPC.
11. The
Delhi Special Police Establishment (briefly "the Establishment"), a
central police force, is constituted under the Delhi Special Police Establishment
Act, 1946 (Act XXV of 1946) (briefly the Delhi Act).
Under Section 2 of the Act, the Central Government may constitute a special
police force, called the Delhi Special Police Establishment, for investigation
of certain offences or class of offences as notified 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 10 AIR 1949 PC 120 2 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-in- charge 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 the State not
being a Union territory or railway area.
12.
Investigation under the Delhi Act is, therefore, a central investigation and
the officers concerned are under the superintendence of the officer appointed
by the Central Government. The superintendence of the Establishment is also
under the Central Government.
The
Central Government, therefore, is concerned with the investigation of the cases
by the Establishment and its ultimate result. It is in that background that in
1955, Section 417 was amended by adding sub-section (2) to the section to
provide for appeal against acquittal in cases investigated by the Establishment
also on the direction of the Central Government. In view of the provisions of
the Delhi Act it was necessary to introduce sub-section (2) in Section 417 so
that this Central agency which is solely and intimately connected with the
investigation of the specified offences may also approach the Central
Government for direction to appeal in appropriate cases.
13. This,
however, does not bar the jurisdiction of the State Government also to direct
presentation of appeals when it is moved by the Establishment. The
Establishment can move either the Central Government or the State Government.
It will be purely a matter of procedure whether it moves the State Government
directly or through the Central Government or in a given case moves the Central
Government alone. It will again be a matter of procedure when the Central
Government decides to appeal it requests the State Government to do the needful
through the Public Prosecutor appointed under the Code.
14. The
word `also' in sub-section (2) of Section 417 is very significant. This word
seems not to bar the jurisdiction of the State Government to direct the Public
Prosecutor to present an appeal even in cases investigated by the
Establishment. Sub-section (1) of Section 417 is in general terms and would
take in its purview all types of cases since the expression used in that
sub-section is "in any case". We do not see any limitation on the
power of the State Government to direct institution of appeal with regard to
any particular type of cases. Sub-section (1) of Section 417 being in general
terms is as such of wider amplitude. Sub- section (2) advisedly uses the word
`also' when power is given to the Central Government in addition to direct the
Public Prosecutor to appeal."
31.
The 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 2 changes as it was not concerned with that provision. In our opinion,
the decision of this Court in Khemraj2 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 state government in directing the public
prosecutor to file an appeal from an order of acquittal in the two types of
cases covered by sub-section (2) is not taken away and rather the word "also"
suggests that central government may also direct the public prosecutor to file
an appeal from an order of acquittal in the class of cases mentioned in
sub-section (2). Does the word "also" carry the meaning as contended
by the learned senior counsel for the state government? One of the rules of
construction of statutes is that language of the statute should be read as it
is and any construction that results in rejection of words has to be avoided;
the effort should be made to give meaning to each and every word used by the
Legislature. However, such rule of construction of statutes is not without
exceptions. In Stone v. Yeovil Corp.11, Brett J. observed :
11
(1875-76) L.R. 1 CPD 691 2 "The word "such" in the second branch
of that clause would seem at first sight to apply to lands purchased or taken;
but, if so read, it is insensible. It is a canon of construction that, if it be
possible, effect must be given to every word of an Act of Parliament or other
document; but that, if there be a word or a phrase therein to which no sensible
meaning can be given, it must be eliminated. It seems to me, therefore, that
the word "such" must be eliminated from this part of the
clause."
Archibald,
J. concurred with Brett J. thus :
"But
I agree with my Brother Brett that it is a true canon of construction, that,
where a word is found in a statute or in any other instrument or document which
cannot possibly have a sensible meaning, we not only may, but must, eliminate
it in order that the intention may be carried out."
33.
In Salmon v. Duncombe and Others12, Privy Council speaking through
Lord Hobhouse stated :
"It
is, however, a very serious matter to hold that when the main object of a
statute is clear, it shall be reduced to a nullity by the draftsman's
unskilfulness or ignorance of law. It may be necessary for a Court of Justice
to come to such a conclusion, but their Lordships hold that nothing can justify
it except necessity or the absolute intractability of the language used. And
they have set themselves to consider, first, whether any substantial doubt can
be suggested as to the main object of the legislature; and, secondly, whether
the last nine words of 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- 12 (1886)
11 AC 627 2 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 sub- section
(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 much more unsatisfactory to deprive the words -
"save as otherwise provided in sub-section (2)" - of their true and
plain meaning. In order that the exception (clause) expressly stated in the
opening words of sub-section (1) might be preserved, it is necessary that word
"also" in sub-section (2) is treated as immaterial and we hold
accordingly.
35.
The phrase "in any case" in sub-section (1) of Section
378, without hesitation, means "in all cases", but the opening words
2 in the said Section put fetters on the state government in directing appeal
to be filed in two types of cases mentioned in sub-section (2).
36.
Section 2(u) of 1973 Code defines "public prosecutor"
which
means any person appointed under Section 24 and includes any person acting
under the directions of a public prosecutor.
Section
24 reads as follows:
"S.24.
- Public Prosecutors.-(1) For every High Court, the Central Government or the
State Government shall, after consultation with the High Court, appoint a
Public Prosecutor and may also appoint one or more Additional Public
Prosecutors, for conducting in such Court, any prosecution, appeal or other
proceeding on behalf of the Central Government or State Government, as the case
may be.
(2) The
Central Government may appoint one or more Public Prosecutors for the purpose
of conducting any case or class of cases in any district, or local area.
(3) For
every district, the State Government shall appoint a Public Prosecutor and may
also appoint one or more Additional Public Prosecutors for the district:
Provided
that the Public Prosecutor or Additional Public Prosecutor appointed for one
district may be appointed also to be a Public Prosecutor or an Additional
Public Prosecutor, as the case may be, for another district.
(4) The
District Magistrate shall, in consultation with the Sessions Judge, prepare a
panel of names of persons, who are, in his opinion, fit to be appointed as
Public Prosecutors or Additional Public Prosecutors for the district.
(5) No
person shall be appointed by the State Government as the Public Prosecutor or
Additional Public Prosecutor for the district unless his name 2 appears in the
panel of names prepared by the District Magistrate under sub-section (4).
(6)
Notwithstanding anything contained in sub-section (5), where in a State there
exists a regular Cadre of Prosecuting Officers, the State Government shall
appoint a 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 sub-
section (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 sub- section (I) or sub-section (2) or sub-section (3) or
sub-- section (6), only if he has been in practice as an advocate for not less
than seven years.
(8) The
Central Government or the State Government may appoint, for the purposes of any
case or class of cases, a person who has been in practice as an advocate for
not less than ten years as a Special Public Prosecutor.
Provided
that the Court may permit the victim to engage an advocate of his choice to
assist the prosecution under this sub-section.
2 (9) For
the purposes of sub-section (7) and sub-section (8), the period during which a
person has been in practice as a pleader, or has rendered (whether before or
after the commencement of this Code) service as a Public Prosecutor or as an
Additional Public Prosecutor or Assistant Public Prosecutor or other
Prosecuting Officer, by whatever name called, shall be deemed to be the period
during which such person has been in practice as an advocate."
37.
A perusal of Section 24 would show that the central government
appoints its public prosecutors for conducting prosecution, appeal or other
proceedings on its behalf and a state government appoints its public
prosecutors in conducting prosecution, appeal or other proceedings on its behalf.
One has no control over the other. The central government or the state
government, as the case may be, may appoint a special public prosecutor for the
purpose of any case or class of cases. Under Section 378(1) the state
government may direct its public prosecutor to file an appeal from an order of
acquittal while under Section 378(2) the central government may direct its
public prosecutor to file an appeal from an order of acquittal. The public
prosecutor, thus, has to be associated in an appeal from an order of acquittal.
The 1946 Act provides for constitution of a special police establishment for
investigation of certain offences or class of offences as notified under
Section 3 of the 1946 Act. A close look to the provisions of 1946 Act 2 would
show that investigation thereunder is a central investigation and the officers
concerned are under the superintendence of the officer appointed by the central
government. It is the central government that has the superintendence over
Delhi Special Police Establishment. What is, therefore, important to notice is
that it is the central government which is concerned with the investigation of
the case by Delhi Special Police Establishment and its ultimate result. It is
for this reason that sub-section (2) 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 Mukkawar1, the construction of Section 377 (appeal against
inadequacy of sentence) fell for consideration. Section 377 (1) and (2) of 1973
3 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 sub- section (2), the State Government may,
in any case of conviction on a trial held by any court other than a High Court,
direct the Public Prosecutor to present an appeal to the High Court against the
sentence on the ground of its inadequacy.
(2) If
such conviction is in a 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 direct the Public Prosecutor to present an appeal to the
High Court against the sentence on the ground of its inadequacy."
This
Court with reference to the aforesaid provision held:
"10.
It is true that Section 378(2) follows the pattern of Section 417(2) of the old
Code and the right to appeal is conferred upon both the State Government and
the Central Government in express terms in Section 378(2).
It is
clear that the legislature has maintained a water- tight dichotomy while
dealing with the matter of appeal against inadequacy of sentence. We agree that
in the absence of a similar word "also" in Section 377(2) it is not
possible for the court to supply a casus omissus.
The two
sections, Section 377 and Section 378 CrPC being situated in such close
proximity, it is not possible to hold that omission of the word
"also" in Section 377(2) is due to oversight or per incuriam.
11.
Section 377 CrPC introduces a new right of appeal which was not earlier
available under the old Code.
Under
sub-section (1) of Section 377 CrPC the State Government has a right to appeal
against inadequacy of sentence in all cases other than those referred to in 3
sub-section (2) of that section. This is made clear under Section 377(1) by its
opening clause "save as otherwise provided in sub-section (2)".
Sub-section (2) of Section 377, on the other hand, confers a right of appeal on
the Central Government against a sentence on the ground of its inadequacy in
two types of cases:
(1) Those
cases where investigation is conducted by the Delhi Special Police
Establishment constituted under the Delhi Special Police Establishment Act, 1946.
(2) Those
other cases which are investigated by any other agency empowered to make
investigation under any Central Act not being the Code of Criminal Procedure.
12. There
is no difficulty about the first type of cases which are investigated by the
Delhi Special Police Establishment where, certainly, 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 others13. 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 sub-
section (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, it 13 AIR 1968 SC 647
3 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 also
competent to file an appeal in a case falling under Section 377(2). We are not
persuaded by the submission of Mr. L. Nageshwar Rao for more than one reason.
In the first place, the observations in Eknath Shankarrao Mukkawar1, in
relation to Section 378 do not operate as binding precedent as construction of
Section 378 was neither under consideration nor in issue in that case.
Secondly, and more importantly, although sub-section (2) of Section 377 came to
be amended by Act 45 of 1978 to include the word "also" therein, but
the Statement of Objects and Reasons relating to that amendment is of no
relevance insofar as construction of Section 378 (1) and (2) is concerned.
Insofar as Section 378 is concerned, the word "also"
occurring
in sub-section (2) cannot be accorded a meaning that would result in wiping out
the effect of controlling words in sub- section (1) - "save as otherwise
provided in sub-section (2)" - which are indicative of legislative intent
to exclude two types of cases 3 mentioned in sub-section (2) out of operation
of the body of sub- section (1).
40.
In our opinion, the Legislature has maintained a mutually
exclusive division in the matter of appeal from an order of acquittal inasmuch
as the competent authority to appeal from an order of acquittal in two types of
cases referred to in sub-section (2) is the central government and the
authority of the state government in relation to such cases has been excluded.
As a necessary corollary, it has to be held, and we hold, that the State
Government (of Bihar) is not competent to direct its public prosecutor to
present appeal from the judgment dated December 18, 2006 passed by the Special
Judge, CBI (AHD), Patna.
41.
In view of what we have discussed above, it is not necessary to
consider the contention of Mr. Ram Jethmalani founded on the proviso to Article
162 of the Constitution that in case of conflict of exercise of executive
powers by the state government and the central government, the decision of the
latter shall prevail.
42.
For the aforesaid conclusions, the reasons given by the High Court
are not correct and the impugned order cannot be sustained.
43.
The result is, both appeals are allowed, the order dated September
20, 2007 passed by the High Court is set aside and the 3 Govt. Appeal No. 1 of
2007 - State of Bihar v. Lalu Prasad and others - presented before the High
Court of Judicature at Patna is rejected as not maintainable.
....................................CJI
.....................................J. [R.M. LODHA]
....................................J. [DR. B.S. CHAUHAN]
NEW DELHI,
APRIL 1, 2010.
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