STATE OF GUJARAT v. HAJI MAHOMED HAJI ABDERAHIM — 1960 DIGILAW 77 (GUJ)

N. M. MIABHOY, J. ( 1 ) THIS is an acquittal appeal by the State. The appeal is directed against the order dated 1-12-1959 passed under section 247 Criminal Procedure Code by the learned Judicial Magistrate First Class Rajpipla acquitting respondent No. 1 Haji Mahomed Hussein Haji Abderahim (hereafter called the respondent) of the offence under sections 96 (5) and 155 of the Bombay District Municipal Act 1901 (hereafter called the (Act ). The complainant in the proceedings in which the acquittal order was passed was the Secretary of the Rajpipla District Municipality. The complainant has also filed against the aforesaid order of acquittal Criminal Application No. 35 of 1960 in which an order was passed by a Division Bench of the then Bombay High Court that the same be heard along with this criminal appeal which was in that Court numbered as Criminal Appeal No. 266 of 1960. ( 2 ) MR. Desai the learned Counsel for the respondent has raised a preliminary objection and before dealing with the merits of the appeal we propose to deal with that objection. The objection was that the State had no right to prefer an appeal from the impugned order of acquittal. The argument in support of this contention was built upon a three tiered submission which was founded upon section 5 (2) of the Code of Criminal Procedure and section 161 of the Act. It was contended that because of these two provisions the general right of preferring an appeal from an order of acquittal conferred upon the State by section 417 of the Criminal Procedure Code did not apply. Section 5 (1) of the Criminal Procedure Code provides that all offences under the Indian Penal Code shall be investigated inquired into tried and otherwise dealt with according to the provisions contained in the Criminal Procedure Code Section 5 (2) of the Code is as follows : ( 3 ) ALL offences under any other law shall be investigated inquired into tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into trying or otherwise dealing with such offences. ( 4 ) FROM these provisions it is quite clear that the procedure which is to be followed in respect of investigation inquiry trial etc. ( 4 ) FROM these provisions it is quite clear that the procedure which is to be followed in respect of investigation inquiry trial etc. of offences under enactments other than the Indian Penal Code is the same procedure as is provided for in the Criminal Procedure Code. This is the normal rule. But this rule is subject to the provisions contained in the special enactments which deal with those offences i. e. if these special enactments prescribe any special procedure in relation to the matters mentioned above then that procedure shall be followed in the investigation inquiry and trial of those offences. The second submission of Mr. Desai was that section 161 of the Act conferred an exclusive right upon the Municipality and in some cases upon the Chief Officer to direct prosecutions in relation to Municipal offences. The third submission was made as a consequence of the second submission. It was contended that as the Municipality and in some cases the Chief Officer alone had the right of directing prosecutions in relation to Municipal offences these were the only two authorities which had the right of preferring an appeal. Therefore it was contended that section 161 of the Act impliedly conferred a right upon the Municipality alone to prefer an appeal from a judgment acquitting a person of a Municipal offence and this being so the procedure prescribed in section 417 for the purpose of preferring an appeal from an acquittal order did not apply to the facts of the present case. It is not necessary in the present appeal to examine the validity of all the submissions made by Mr. Desai. Sections 5 (1) and 5 (2) do not expressly deal with the subject of the right to prefer an appeal. Mr. Desais contention was that this subject was included in the phrases otherwise dealt with and otherwise dealing with occurring in sub-section (2 ). It is not necessary to decide whether this submission is correct because the learned Assistant Government pleader conceded that for the purposes of the present appeal it may be assumed that sub-section (2) of section is included the question of the right to prefer an appeal. It is not necessary to decide whether this submission is correct because the learned Assistant Government pleader conceded that for the purposes of the present appeal it may be assumed that sub-section (2) of section is included the question of the right to prefer an appeal. Therefore the matter was argued before us on the hypothesis that if there was some provision in the Act itself which dealt with the right of preferring an appeal and the persons on whom such right was conferred then the pro visions of section 417 would not be applicable to the facts of the present case. Therefore in order to succeed Mr. Desai has to show that there was some provision in the Act which dealt with the question as to who had the right of preferring an appeal from a judgment in a case arising out of the prosecution of a Municipal offence. Mr. Desai conceded that there was no direct and specific provision in the Act itself on this subject. But as already stated his contention was based upon sec. 161 of the District Municipal Act. Sub-section (1) of that section is as follows : ( 5 ) THE Municipality may direct any prosecution for any public nuisance whatever and may order proceedings to be taken for the recovery of any penalties and for the punishment of any persons offending against the provisions of this Act or of any by-law thereunder and may order the expenses of such prosecutions or either proceedings to be paid out of the municipal fund. ( 6 ) THE first premise of Mr. Desais contention was that this section conferred a special and exclusive right upon the Municipality and in some cases upon the Chief Officer to direct prosecutions in the case of Municipal offences. It is not necessary for us to decide in the present appeal whether this contention is correct. For the purpose of examining the validity of the present submission we may assume that the aforesaid contention of Mr. Desai is correct. But does it follow from the fact that the Municipality has been given a special and exclusive right to direct prosecutions in relation to Municipal offences that that body has necessarily the right to prefer an appeal from an order of acquittal in regard to such offences ? Desai is correct. But does it follow from the fact that the Municipality has been given a special and exclusive right to direct prosecutions in relation to Municipal offences that that body has necessarily the right to prefer an appeal from an order of acquittal in regard to such offences ? There is a clear distinction between a right to initiate prosecution and a right to prefer an appeal. In our Judgment sec. 161 deals only with the right to initiate prosecutions in relation to Municipal offences. It does not deal with the right to prefer appeals. The mere fact that a right of initiating prosecution is conferred upon the Municipality or the Chief Officer does not necessarily mean that the right of preferring an appeal is also conferred upon those authorities. It is well-known that a right of appeal is a creature of statute law and before any person can claim a right to prefer an appeal from an order of any Court the person must be able to point out a statute or some other provision of the law under which that right is obtained. In our Judgment there is nothing in sec. 161 which bears out the contention of Mr. Desai that a right of preferring an appeal is conferred upon the Municipality under sec. 161 of the Act. Therefore in our judgment there is nothing in that section which confers a special right upon the Municipality to prefer an appeal from an order of acquittal recorded in a prosecution relating to a Municipal offence. It is undoubtedly true that the Municipality would have a right of appeal under sub-sec. (3) of the sec. 417 if special leave is granted by the High Court to the Municipality in any case in which it is the complainant. But that does not in itself deprive the State from preferring an appeal from an order of acquittal recorded in a prosecution arising out of a Municipal offence. Sub-section (1) of sec. 417 confers a general right upon the State Government to prefer an appeal from any order of acquittal passed by any Court other than a High Court. That right is subject only to the provisions of sub-sec. (5) and sub-sec. (5) comes into operation only when the High Court has refused to grant special leave to a party entitled to ask for it under sub-sec. (3) of sec. 417. That right is subject only to the provisions of sub-sec. (5) and sub-sec. (5) comes into operation only when the High Court has refused to grant special leave to a party entitled to ask for it under sub-sec. (3) of sec. 417. Therefore reading sub-secs. (1) and (5) of sec. 417 together it is crystal clear that the State has a right of preferring an appeal from all orders of acquittal original or appellate and that right is abridged only in those cases where the High Court has refused to grant leave to a complainant under sub-sec. (3) of sec. 417 of the Criminal Procedure Code. These provisions impliedly negative the contention of Mr. Desai that an exclusive right of appeal is given to the Municipality in relation to Municipal offences. If there is nothing in the Act itself which gives any such right then it follows that the Municipality can prefer an appeal from an order of acquittal only after taking special leave from the High Court and sub-sec. (5) of sec. 417 implies that the State has the right of preferring an appeal even in Municipal cases except where special leave has been refused to the Municipality under sub-sec. (3 ). Under the circumstances in our judgment there is nothing in the Act which confers a special right upon the Municipality to prefer appeals from order of acquittal in Municipal cases. Nor is there anything in sec. 417 which takes away the right of the State Government to prefer appeals from such orders. Under the circumstances in our Judgment there is no merit in the contention raised by Mr. Desai and we propose to consider the appeal on its own merits. .