State Of Bombay v. N.G Tayawade

Badkas, J.:— The opponent Purushottamdas, son of Kanhayalal, was proseeued for offences under ss. 93(1) and 98(1) of the C.P and Berar Municipalities Act. The trial Court acquitted the accused. Thereafter the Municipal Committee, Warud, through its prosecutor filed an application under s. 435, Criminal Procedure Code, to the Court of the Sessions Judge, Amravati. The learned Sessions Judge after having called for the record has recommended that under s. 439, Criminal Procedure Code, the acquittal of the accused should be set aside. This reference is opposed by the learned Government Pleader on the ground that under s. 439 revision proceedings are incompetent at the instance or a private party in view of sub-s. (5) of s. 439. In case it is held that such a revision under s. 439 is incompetent the reference will have to be rejected. The learned counsel appearing for the opponent Purushottamdas has supported tile objection of the learned Government Pleader.

2. This question was also raised before the learned Sessions Judge and he has dealt with it in para, 6 of his order. The learned Sessions Judge has taken the view that s. 417, Criminal Procedure Code, regulates the procedure of appeal against acquittal and differentiates between the procedure to be followed by the State Government and a private party, that under s. 417 a private party challenging an acquittal has to obtain special leave to appeal and that an appeal lies only if such leave is granted. According to the learned Sessions Judge, s. 417 thus grants a discretionary right to a private complainant and that under sub-s. (3) of s. 417 what lies is not an appeal but an application for grant of special leave to appeal. In this view, the learned Sessions Judge has held that it cannot be said that an appeal lies against an order of acquittal in terms of s. 439 in the case of a private complainant and therefore this contention which was presumably raised on behalf of the accused was rejected.

3. Section 439, Criminal Procedure Code, provides:—

“439. (1) In the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by sections 423,426,427 and 428 or on a Court by section 338, and may enhance the sentence; and when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429.

(2) ..

(3) ..

(4) ..

(5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.

(6) ..”

4. What sub-s. (5) of s. 439 provides is that where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. What has, therefore, to be considered is whether an appeal lies in the instant case and whether the complainant (opponent) could have filed such appeal. If it can be held that an appeal lies at the instance of a private party in a case of a type before me, necessarily it will have to be held that this revision is not competent.

5. Chapter 31 of the Criminal Procedure Code deals with appeals. Section 417 provides:

“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) ..

(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) ..”

6. It is dear from the fair reading of s. 417 that sub-s. (1) enables the State Government to file an appeal, sub-section (3) provides that if 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. Sub-section (3), therefore, enables a private complainant to file an appeal to the High Court against the order of acquittal. Sub-section (4) provides that no application under sub-s. (3) for the grant of special leave to appeal shall be entertained by the High Court after the expiry of sixty days from the date of the order of acquittal. Thus it is possible for a complainant to present an appeal to the High Court if he has obtained special leave as provided in sub-s. (3) of s. 417. It cannot, therefore, be said that an appeal does not lie to the High Court. If an appeal against the acquittal at the instance of a private party did not lie to the High Court, then at no stage and by no procedure it should be possible for the High Court to interfere with the order of acquittal in an appeal at the instance of a private party, sub-section (3) does provide for an appeal at the instance of a private party against the order of acquittal, and, therefore, it can be said that an appeal lies against the order of acquittal at the instance of a private party, sub-section (3) provides that after obtaining special leave the complainant may present such an appeal to the nigh Court. It means that the complainant can present such an appeal only because such an appeal lies to the High Court. Previous to this amendment of the Criminal Procedure Code, appeals against the acquittals were possible only at the instance of the State, sub-section (3) of s. 417 has now given a new right to a private complainant and has enabled him to seek justice by filing an appeal if he feels that as a result of acquittal injustice has happened in the administration of criminal law. At the same time the law has taken precaution that no frivolous or vexatious appeal should be allowed to be filed at the instance of a private prosecutor. It is from that view point that the Criminal Procedure Code has provided for obtaining special leave before a private party can present an appeal against the order of acquittal. Section 439 only says that “where an appeal lies and no appeal is brought” proceedings by way of revision shall not be entertained. What has to be seen is whether it was possible for a private complainant to pursue his right of appeal and whether he could file such an appeal before the High Court. In the instant case if the complainant had approached the High Court for a special leave it may have become possible for him after obtaining special leave to present an appeal, as contemplated by sub-s. (3) of s. 417. It cannot be said that an appeal could not lie. He has not applied for special leave and the same has not been rejected. Such provisions for taking permission or obtaining certificate of fitness before an appeal can be presented are found in case of appeals to the Supreme Court under the Constitution or in case of Letters Patent appeals under the Letters Patent. In all these cases appeal lies to the proper superior Court, but only after obtaining permission or obtaining certificate of fitness. It is because a party has got such a right of appeal that he is allowed to apply for leave to appeal. Such provisions of obtaining prior leave before presenting an appeal by themselves connote that the party has a right of appeal and obtaining of permission is only one procedural step in the pursuit of that right of presenting an appeal. It cannot, therefore, be said that in the instant case an appeal did not lie to the High Court as contemplated by sub-s. (5) of s. 439. If provisions of sub-s. (5) of s. 439 were to be interpreted as contended for by the applicant, the salutary provision enshrined in sub-s. (5) of s. 439 will prove nugatory. In such a view it would mean that a private complainant could always proceed in revision under s. 439 without approaching the High Court for special leave to appeal and without pursuing his remedy by filing an appeal after obtaining such special leave. When the law has given this facility and this right to a private complainant which did not exist before the amendment of the Criminal Procedure Code, this right has been given for being exercised and not for circumventing the provisions of s. 439, Criminal Procedure Code.

7. It is not, therefore, possible to accept the view of the learned Sessions Judge that in this case appeal did not lie at the instance of the complainant and that he could file a revision petition under s. 435 read with s. 439, Criminal Procedure Code.

8. In this view, therefore, as appeal lay and the complainant not having taken requisite steps for filing the appeal, the revision proceedings at the instance of the complainant are incompetent. In this view, therefore, the reference cannot be accepted. It is not necessary in view of what I have held to go into the merits of the case.

9. In the result, therefore, the reference is rejected and the revision shall stand rejected.

10. Reference rejected.