Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 1553 (PAT)

State Of Bihar v. Lalu Prasad

2007-09-20

RAMESH KUMAR DATTA

body2007
Judgment 1. The present Government appeal has been filed under Sec. 378 of the Code of Criminal Procedure by the State of Bihar against the judgment and order of acquittal dated 18.12.2006 passed by Shri Munni Lai Paswan, Special Judge, CBI (AHD), Patna in Special Case No. 5 of 1998 by which the learned Special Judge has acquitted both the accused persons on the charge of possessing assets disproportionate to the known sources of income so far as the respondent no. 1 is concerned and on the charge of abetting the same with respect to respondent no. 2. The charges had been framed under Sec. 13(1)(e) read with Sec. 13(2) of the Prevention of Corruption Act, 1988 against the respondent no. 1, Lalu Prasad Yadav and under Sec. 109 of the Indian Penal Code read with Sec. 13(1)(e) read with Sec. 13(2) of the Prevention of Corruption Act, 1988 against respondent no. 2, Smt. Rabri Devi. 2. After hearing learned counsel for the appellant and learned counsel for the Central Bureau of Investigation (CBI) which has been arrayed as respondent no. 3 notices had been issued earlier to respondent nos. 1 and 2 to show cause as to why the leave to appeal be not granted. 3. Mr. Ram Jethmalani, learned Senior Counsel appearing for the respondent nos. 1 and 2 has, at the outset, raised a preliminary objection as to the maintainability of the appeal on behalf of the State of Bihar. Mr. Goolam E. Vahanvati, learned Solicitor General of India appearing for respondent no. 3, the CBI, supports the said contention. Mr. Surendra Singh, learned Senior Counsel appearing on behalf of the appellant, on the other hand, contends to the contrary submitting that the appeal is maintainable in view of the express language of Sec. 378 Cr.P.C. as interpreted by the Supreme Court in the case of Khemraj vs. State of Madhya Pradesh: (1976)1 SCC 385 and Eknath Shankarrao Mukkawar vs. State of Maharashtra: (1977)3 SCC 25 . 4. In support of his above stand, it is stated by Mr. Jethmalani that in the present matter the CBI under the directions of this Court has conducted the investigation and not on the basis of any request made by the State Government. It is submitted that the State Government had nothing to do with the investigation or conduct of the case before the trial Court. Jethmalani that in the present matter the CBI under the directions of this Court has conducted the investigation and not on the basis of any request made by the State Government. It is submitted that the State Government had nothing to do with the investigation or conduct of the case before the trial Court. After the order of acquittal was passed, the CBI approached the Central Government for filing an appeal and the matter was considered at the appropriate levels in the Central Government and thereafter a decision was taken not to file an appeal. It is submitted by learned counsel that in view of language of Sec. 378(1) and (2) of the Cr.P.C. the State Government under such circumstances, has no power or jurisidiction to file an appeal or seek leave to appeal. It is contended that even if it has technical competence then the party substantially concerned is the CBI and those having power of superintendence over CBI, namely, the Central Government: once they have applied their mind and decided not to file an appeal then this Court in exercise of judicial discretion must refuse leave to appeal to a party which is at best an interloper or busy body and at worst a political rival with normal ignoble motivation current in the world of politics. 5. It is submitted by learned counsel for the respondents that the reliance by the appellant upon Khemrajs case (supra) is of no avail. The said case, according to him was decided on the basis of the language used in Sec. 417(1) and (2) of the Code of Criminal Procedure, 1898 whereas the present matter is to be considered on the basis of the language of Section 378(1) and (2) of the 1973 Code, the provisions of which are not in pari materia. The relevant part of Sec. 417 of the 1898 Code and Sec. 378 of the present Code (prior to the 2005 Amendment Act) are reproduced below: "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. (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. 378. Appeal in case of acquittal. (1) Save as otherwise provided in subsection (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." 6. Learned counsel emphasises the fact that the present Section begins with the clause "Save as otherwise provided in sub-section (2)", which was not so in Sec. 417 of the previous Code. It is stated that the term "save" means "except" and the two words are synonymous. In this regard he relies upon the meaning of the word "save" as given in the "New International Websters Comprehensive Dictionary of the English Language", Encyclopedic Edition, 2004 where one of the meanings of the same has been given as "except". He also relies upon "A Dictionary of Modern Legal Usage" by Bryan A. Garner (1987 Edition) which states that "save" is an archaism when used for except and it is still common in legal prose. He also relies upon "A Dictionary of Modern Legal Usage" by Bryan A. Garner (1987 Edition) which states that "save" is an archaism when used for except and it is still common in legal prose. He also relies upon "The language of the Law" by David Mellinkoff, in Chapter-ll of which it has been stated that it is one of the common words with uncommon meaning and it is understood by the legal profession to mean "except": and it has also been shown as one of the bilingual synonyms coupled in the law as the phrase "save and except", (the two words being derived from French and Latin respectively). 7. On the basis of the above accepted legal usage of the term "save", learned counsel submits that by using the said word in Sec. 378 of the new Code, sub-section (2) is sought to be made an exception to sub-section (1) of Section 378. It is further stated that the word "otherwise" means making a contrary or inconsistent provision. 8. It is thus submitted that the entire clause "save as otherwise provided in subsection (2)", with which sub-section (1) of Section 378 opens, means that an exception is carved out to the power of the State Government to file an appeal against acquittal by making a contrary provision in sub-section (2) exclusively in favour of the Central Government to file an appeal against acquittal where the matter has been investigated by the Delhi Special Police Establishment, i.e., the CBI. 9. With respect to the word also occuring in sub-section (2) learned counsel points out that Websters Dictionary gives its meaning as besides, in addition, in like manner, likewise. However, according to him, the use of the said word "also" in sub-section (2) makes no difference to the overwhelming and conclusive effect of the opening words "save as otherwise provided in sub-section (2)" occurring in sub-section (1) and thus, where a case is investigated by the CBI, the exclusive right of filing appeal vests with the Central Government and it is not open to the State Government to file an appeal or seek leave to appeal in such cases on its own. In the said context, learned counsel relies upon the observations of the Supreme Court in para-13 in Khemrajs case (supra) which is quoted below: "13. In the said context, learned counsel relies upon the observations of the Supreme Court in para-13 in Khemrajs case (supra) which is quoted below: "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." 10. Mr. Jethmalani, contends that there is jurisdictional basis in the aforesaid observations of the Supreme Court when it speaks of presentation of appeal by the State Government when moved by the Establishment and that the said basis is that the substantive right to appeal in a matter investigated by the CBI belongs to the CBI. The right to appeal, according to the learned counsel, is not a matter of procedure but is a substantive right as held long time back by the Privy Council in the case of Colonial Sugar Refining Co. Ltd. vs. Irving (A): 1905 AC 369 which was cited with approval by the Supreme Court in the case of Garikapati Veeraya vs. N. Subbiah Choudhry and Others: AIR 1957 SC 540 . It is further submitted by the learned counsel for the respondents that since the substantive right to appeal belongs to the CBI by moving the Central Government or the State Government, and the CBI having moved the Central Government and ultimately decision taken not to file appeal, it was not open to the State Government to have on its own filed the present appeal against acquittal when it had not even been moved for the said purpose by the CBI. 11. 11. Learned counsel also submits that no benefit can be taken of any favourable observations made in Khemrajs case (supra) since the Supreme Court had itself made it clear in para 10 of the said judgment that further changes have been introduced in the matter of appeal against acquittal by Sec. 378 of the Code of Criminal Procedure, 1973 with which the Court was not concerned since the said case was to be decided under the provisions of Sec. 417 of the Old Code. 12. With respect to reliance by the appellant on Eknath Shankarrao Mukkawars case (supra), it is submitted by learned counsel that the said matter arose under Sec. 377 Cr.P.C. relating to filing of appeal against inadequacy of sentence and not under Sec. 378. It is argued that the observations made in the said case, in fact, goes against the appellant and the said case was decided not on account of existence or lack of the word "also" but on a consideration of the effect of the opening words "save as otherwise provided in sub-section (2)" occurring in sub-section (1) of Sec. 377. Section 377(1) and (2) Cr.P.C. as it existed during that period is set out below: "377. (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, 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." 13. Learned counsel relies upon the law laid down in paras-11 and 12 of the decision of the Supreme Court in the case of Eknath Shankarrao Mukkawar (supra) which is as follows: "11. Sec. 377 Cr.P.C. introduces a new right of appeal which was not earlier available under the Old Code. Learned counsel relies upon the law laid down in paras-11 and 12 of the decision of the Supreme Court in the case of Eknath Shankarrao Mukkawar (supra) which is as follows: "11. Sec. 377 Cr.P.C. introduces a new right of appeal which was not earlier available under the Old Code. Under sub-section (1) of Sec. 377 Cr.P.C. the State Government has a right to appeal against inadequacy of sentence in all cases other than those referred to in sub-section (2) of that section. This is made clear under Sec. 377(1) by its opening clause "save as otherwise provided in sub-section (2)". Sub-section (2) of Sec. 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." 14. In view of the above enunciation of law in the said case it is submitted that the Supreme Court itself has interpreted the opening clause "save as otherwise provided in sub-section (2)" as creating a closed system for the CBI: and applying the same interpretation to the identical opening words in Sec. 378(1) the State Government has no power to exercise by filing an appeal in the cases investigated by the CBI. 15. Learned counsel for the respondents also laid emphasis on the term "the Public Prosecutor" used in Sec. 378. According to him, the use of the definite "the" means one who conducted the case. According to the learned counsel, it is he who has to be consulted and since he is not the subordinate of the State Government and thus cannot take instructions or directions of the State Government, the only inference can be that in a case conducted by the Public Prosecutor of the CBI, it is the Central Government and the CBI alone who can file the appeal by directing the Public Prosecutor concerned. 16. 16. Learned counsel for the respondents further submits that the word "investigation" as used in Sec. 378(2) has wide connotation and is not restricted to an investigation concluding by filing of the police report but extending right up to the conclusion of the appeal. 17. Lastly, learned counsel emphasises the Constitutional aspect of the issue involved by relying upon the provisions of Articles 73 and 162 of the Constitution of India. It is firstly pointed out that under Article 73, the Union Government has exclusive executive power in relation to the matters with respect to which the Parliament has exclusive power to make law, i.e.., matters governed by Entries contained in List I-Union List of the Vllth Schedule of the Constitution. Entry 8 of List I being "Central Bureau of Intelligence and Investigation", it is submitted that in matters where investigation is carried out by the CBI the exclusive power is to be exercised by the Union Government and the State Government does not have anything to do in such matters and, as a matter of fact, they are prohibited from exercising their executive power in such matters. It is further submitted by learned counsel that even if the provisions of the Code of Criminal Procedure are taken to be governed by Entry No. 2 of List Ill-Concurrent List, it would still not be open to the State Government to exercise powers where Parliament has conferred executive power upon the Union or its authorities under any law enacted by Parliament with respect to the Concurrent List. It is pointed out that the proviso to Article 162 makes it clear that where Parliament legislates with respect to the matters contained in the Concurrent List then executive power of the State shall be subject to and limited by the executive power specially conferred by the Constitution or by any law made by Parliament upon the Union or its authorities. It is contended that Sec. 378(2) confers powers upon the Central Government to direct the filing of an appeal against acquittal where the offence has been investigated by the CBI. In such circumstances, when the Central Government and its authorities including the CBI had decided not to appeal then the State Government cannot exercise the same power which must be subject to the exercise of powers by the Union Government. In such circumstances, when the Central Government and its authorities including the CBI had decided not to appeal then the State Government cannot exercise the same power which must be subject to the exercise of powers by the Union Government. Any such exercise of powers by the State Government as in the present matter is a violation of Constitutional provisions and thus any such appeal is not maintainable and ought not to be entertained. 18. Learned Solicitor General of India appearing for the CBI, while adopting the aforesaid submissions of Mr. Jethmalani, sought to emphasise the sequence of events in which the present case was filed and investigated by the CBI. In this regard he refers to various orders of this Court and the Supreme Court. It is pointed out by learned counsel that while hearing the writ petitions arising out of excess withdrawals of money in different offices of Animal Husbandry Department being investigated by the CBI, notices were issued to the Director, CBI by order dated 22.2.1996 of this Court and thereafter by order dated 11.3.19961while disposing of those writ petitions the CBI was directed to enquire and scrutinise all cases of excess drawals and expenditures in the Animal Husbandry Department in the State of Bihar during the period 1977-78 to 1995- 96 and lodge cases where the drawals were found to be fraudulent in character, and take the investigation in those cases to its logical ends. The State of Bihar challenged the said order by filing SLP before the Supreme Court and by order dated 19.3.1996,2 passed in Civil Appeal No. 5177/96 and analogous cases (State of Bihar & Another vs. Ranchi Zila Samta Party & Anr.) the Supreme Court took notice of the fact that parameters of the powers of the High Court under Article 226 of the Constitution to direct an investigation by the CBI, though without the consent of the concerned State, is the subject matter of a reference pending consideration of a Constitution Bench of five Judges of that Court and thereafter held that directions given by the High Court were just and proper and call for no real interference but to alleviate the apprehensions of the State about the control of the investigation by ihe CBI, it was directed that it should be under the overall control and supervision of the Chief Justice of the Patna High Court who may post the matter for directions before a Bench presided over by him or constitute any other appropriate Bench. The investigation by the State police in cases already instituted which were suspended by the orders of the High Court were also entrusted to the CBI by the said order. It is further pointed out that thereafter by order dated 23.8.1996 passed by this Court during the course of monitoring by the Division Bench of the AHD scam cases, the CBI was directed to file an affidavit, inter alia, as to why in view of the nature of the materials already collected by them, separate case with respect to the offence prescribed under sec. 13(1)(e) of the Prevention of Corruption Act, 1988, has not been instituted against the concerned persons. 19. Thereafter by its order dated 20.3.19983 this Court took note of the fact that after 23.8.1996, two cases under Sec. 13(1)(e) of the Prevention of Corruption Act, 1988 have been instituted but not much headway was made on account of some misunderstanding as to the import of the orders of this Court and accordingly, it was observed that the case having been instituted in the light of the materials collected during the course of investigation, it is the duty of the CBI to take the aforesaid cases to their logical end. The CBI was directed to do the needful and to conclude investigation of those cases too at the earliest. 20. The CBI was directed to do the needful and to conclude investigation of those cases too at the earliest. 20. It is submitted by the learned Solicitor General on the basis of the aforesaid facts and circumstances that the cases have been lodged on the orders of the High Court and the State Government had no role to play in the matter. It was never associated with the investigation or the prosecution of the case at any stage. That being the position, it cannot have any right to file an appeal against the order of acquittal recorded at the conclusion of the trial. In this regard, he refers to the decision of the Supreme Court in the case of Maniyeri Madhavan vs. SubInspector of Police and Others: (1994)1 SCC 536 , in para-9 of which it was held by the Supreme Court as follows: "As regards jurisdiction of the members of the Delhi Special Police Establishment, we do not think the procedure under Sec. 6 need be followed where this Court exercises jurisdiction under Article 142 of the Constitution." 21. It is submitted that in matters where the CBI investigates under the directions of this Court, the State Government does not come to the picture at all and cannot exercise any right by filing an appeal against acquittal in such matters. 22. Mr. Surendra Singh, learned Senior Counsel for the appellant-State of Bihar, on the other hand, contends that the State Government has been granted statutory powers to file an appeal against the acquittal under Sec. 378(1) of the Cr.P.C. whether the matter is investigated by the local police or by any other investigating agency, including the CBI. 23. In answer to the contention that the investigation has been made in this case without the consent of the State Government, it is submitted by learned counsel for the appellant that when this Court had passed the order directing the CBI to investigate the present matter, it must be deemed to be an order passed very much by the State of Bihar itself to investigate the matter since the Judiciary is also a wing of the State of Bihar just like the Executive Government. In such circumstances, the investigation must be treated to have been ordered by and on behalf of the State of Bihar itself and the ensuing litigation was one between the accused persons and the State of Bihar. In such circumstances, the investigation must be treated to have been ordered by and on behalf of the State of Bihar itself and the ensuing litigation was one between the accused persons and the State of Bihar. It is submitted that the said position has also been recognised by the Supreme Court in a collateral matter which arose in the case of Rajiv Ranjan Singh Lalan (VIII) and Another vs. Union of India and Others: (2006)6 SCC 613 , in para-21 of which the Apex Court with respect to the present matter, which was then pending at the stage of trial, observed as follows: "It may be noticed that Special Case No. 5 of 1998 has been filed against Respondents 4 and 5 alleging that they had amassed wealth disproportionate to their known sources of income while holding the post of Chief Minister of the State of Bihar. Both the petitioners are not in any way connected with this case. They are not de facto complainants in this case. It is for the prosecution to prove its case and Respondents 4 and 5 to deny that the allegations are not true and they did not have the disproportionate income as alleged by the prosecution. It is a criminal litigation exclusively between Respondents 4 and 5 and the State." 24. It is thus, submitted that there can hardly be any doubt that the present matter relates to amassing of wealth disproportionate to the known sources of income by the respondents by holding the post of Chief Minister of the State of Bihar and the litigation is between them and the State of Bihar and it does not matter that the investigation or even the prosecution has been carried out on its behalf by the CBI. 25. It is next submitted by learned counsel that Sec. 2(r) of the Cr.P.C. which defines report forwarded by the Police Officer to a Magistrate under subsection (2) of Sec. 173 does not make any distinction between different categories of police officers. It is argued that when the CBI files charge-sheet it is like any other police report and all police report cases necessarily get prosecuted by or on behalf of the State by the concerned Public Prosecutor. It is argued that when the CBI files charge-sheet it is like any other police report and all police report cases necessarily get prosecuted by or on behalf of the State by the concerned Public Prosecutor. In this regard, learned counsel also refers to the observations made by the Supreme Court in Khemrajs case (supra), in para-11 of which it has been observed that the members of the Delhi Special Police Establishment while discharging function under the Act in the State are deemed to be members of the Police Force of the area and are vested with the powers, functions and privi- leges and are subject to the liabilities of a Police Officer belonging to that force. It is also pointed out by the learned Counsel that all such cases on a police report are by the State of Bihar against the accused persons and it is the State of Bihar which is the prosecutor and not the CBI and the prosecution is conducted on behalf of the State of Bihar by the Public Prosecutor who may have been appointed by the CBI. In this regard reference is made to the judgment of the court below where the nomenclature of the case has been given as "The State through the CBI..... Prosecutor vs. (1) Lalu Prasad (2) Rabri Devi.... Accused persons." 26. It is in the aforesaid context, according to learned counsel, that when the matter is investigated by the CBI, since it is a Central Agency functioning under the direction and control of the Chief Vigilance Commissioner and the Central Government, that dual right has been given to the Central Government to file an appeal against acquittal but even in such circumstances the matter will always be "The State of Bihar vs. Lalu Prasad Yadav and another" since they are essentially the litigating parties. 27. It is further contended by learned counsel that from a plain reading of subsections (1) and (2) of Sec. 378, it is evident that the deliberate use of the word "also" in sub-section (2) can only point towards the existence of additional right in the Central Government to also direct the Public Prosecutor to file an appeal. Thus, as per the said provisions both the Central Government and the State Government equally have the right to file an appeal in terms of that Section. Thus, as per the said provisions both the Central Government and the State Government equally have the right to file an appeal in terms of that Section. In this regard, learned counsel relies upon para 14 of the judgment in Khemrajs case, which reads as follows: "The word also in sub-section (2) of Sec. 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." 28. Learned counsel also refers to the fact that from its very inception the Code of 1898 exclusively provided the right of filing an appeal against acquittal to the State Government. He points out that the Delhi Special Police Establishment Act was enacted in 1946, yet for 9 years thereafter until the amendment was brought in the 1898 Code there was no provision for the Central Government to file an appeal against acquittal. For the first time subsection (2) introduced by the amendment Act, 1955 conferred such right upon the Central Government but expressly used the word "also" to make it clear that an additional right was being created in favour of the Central Government without in any way affecting the principal right of the State Government to file such an appeal in each and every case. It is submitted by learned counsel that the present provision of Sec. 378 of the new Code also follow the same philosophy and mere use of the opening words "save as otherwise provided in sub-section (2)" does not affect the essence of the dual right created under the said Sections. It is submitted by learned counsel that the present provision of Sec. 378 of the new Code also follow the same philosophy and mere use of the opening words "save as otherwise provided in sub-section (2)" does not affect the essence of the dual right created under the said Sections. It is contended that there is no express word or provision under Sec. 378 so as to take away the right of the State to file an appeal even in cases investigated by the CBI and if that had been the intention of Parliament, it could have been easily taken away by express words or by not using the word "also" in sub-section (2). 29. Learned counsel, in support of the above propositions, relies upon the decision of the Supreme Court in the case of Eknath Shankarrao Mukkawar (supra), particularly on paragraph nos. 8 to 10 of the said decision which is set out below: "8. Mr. Tarkunde emphasised upon the difference of language in Section 377(2) and Sec. 378(2) Cr.P.C. In the latter section the word "also" appears making provision for both the State Government and the Central Government to appeal against acquittal. 9. On the other hand it is urged on behalf of the State that the word "also" may be read in Sec. 377(2) Cr.P.C. in the context of the scheme of the two provisions in Sec. 377 and Section 378 Cr.P.C. 10. It is true that Sec. 378(2) follows the pattern of Sec. 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 Sec. 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, Sec. 377 and Section 378 Cr.P.C. 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. 30. The two sections, Sec. 377 and Section 378 Cr.P.C. 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. 30. It is submitted by learned counsel that although the matter in question arose under Sec. 377(1) and (2) Cr.P.C. but the fact that the provisions of Section 378 Cr.P.C. were at the relevant time couched in the same terms except that in sub-section (2) of Sec. 377, the word "also" was not there, led to the two provisions being compared by the Apex Court and it was only on account of absence of the word "also" in Sec. 377(2) that the conclusion was arrived at by the Supreme Court that the Legislature has maintained a water-tight dichotomy while dealing with the matter of appeal against inadequacy of sentence vis-a-vis that in the matter of an appeal against acquittal. It is submitted that the clause "save as otherwise provided in sub-section (2)" in sub-section (1) was interpreted keeping in view the absence of the word "also" in sub-section (2) of Sec. 377 and not de hors the same. 31. Learned counsel for the appellant further states that the issue has been treated as settled by the Courts and in this regard he relies upon a decision of the Orissa High Court in the case of State of Orissa vs. Sapneswar Thappa: 1987 Cri.L.J. 612, in para-11 of which, relying upon Khemrajs case (supra), it was held by Justice G.B. Patnaik (as his Lordship then was) as follows: "Another contention of Mr. Ghose, the learned counsel for the respondent also need be noted. Mr. Ghose submits that the investigation in the present case being done by the C.B.I, authorities and the prosecution having been launched on the complaint of the CBI people against the order of acquittal, the State is not the competent authority to file the appeal and therefore, the appeal is incompetent. This question no longer remains res integra. Mr. Ghose submits that the investigation in the present case being done by the C.B.I, authorities and the prosecution having been launched on the complaint of the CBI people against the order of acquittal, the State is not the competent authority to file the appeal and therefore, the appeal is incompetent. This question no longer remains res integra. It has already been held by the Supreme Court in the case of Khemraj vs. State of Madhya Pradesh, AIR 1976 SC 173 : (1976 Cri.LJ 192) that no objection can be taken about the competence of the appeal against an order of acquittal in a case by the Establishment being filed by the Public Prosecutor under the direction of the State Government." 32. On a consideration of the rival submission, I am not inclined to accept the contention of learned counsel for the respondents that the opening clause "save as otherwise provided in sub-section (2)" as introduced in Sec. 378 by the 1973 Code has made any substantial difference to the interpretation of the said provision vis-a-vis what was interpreted in the context of Sec. 417(1) and (2) of the 1898 Code by the Supreme Court in Khemrajs case (supra). For a correct interpretation of the provisions of Sec. 378 Cr.P.C. in respect of an appeal in case of acquittal the two sub-sections have to be conjointly read and the two crucial terms to be considered for the harmonious reading of the sub-sections are the phrase "in any case" in sub-section (1) and the word "also" in sub-section (2) as pointed out by the Apex Court in Khemrajs case (supra) the expression "in any case" could take in its purview all types of cases without any limitation on the power of the State Government to direct institution of appeal with regard to any particular type of cases. The fact that sub-section (2) while empowering the Central Government to file an appeal against the order of acquittal deliberately uses the words "may also direct" makes it clear that the power has been conferred upon the Central Government in addition besides likewise or in like manner as the State Government to direct the presenting of an appeal by the Public Prosecutor in cases where the investigation has been made by the Delhi Special Police Establishment or any other similarly empowered agency under any Central Enactment. 33. 33. The clause "save as otherwise provided in sub-section (2)" must be read in the context of the aforesaid two terms occurring in the two sub-sections as clarifying the fact that the powers being conferred by sub-section (1) upon the State Government with respect to each and every case is not an exclusive power where offence has been investigated by the CBI or any other empowered central agency as referred to in sub-section (2) in which case the power directing presentation of an appeal may also be exercised by the Central Government without a reference to the State Government. In no case, the phrase "save as otherwise provided in subsection (2)" can be so read as to make otiose the use of the word "also" in subsection (2), so as to debar or completely exclude the State Government from directing presentation of an appeal by the Public Prosecutor in such cases also as are covered by sub-section (2). 34. In this regard reliance by the learned counsel for the respondents on the observations made in para-13 of the order in Khemrajs case (supra), that jurisdiction of the State Government also to direct presentation of appeal is not barred when it is moved by the Establishment, cannot be of much avail since the said observations have clearly been made in the factual context of that case before the Supreme Court, wherein as a matter of fact, the CBI had moved the State Government for filing appeal against acquittal and accordingly the appeal was filed by the State of Madhya Pradesh. The said observations, thus cannot be taken to mean a general laying down of the law that the statutory power conferred on the State Government under Sec. 378(1) of the Cr.P.C. is subject to the CBI approaching it in cases investigated by the CBI. It is clear from the provisions of Section 378 that the substantive right of appeal is vested either in the State Government or the Central Government and not in the investigating agency or in the prosecuting agency. It is for the prosecuting agency to act on the directions of the State Government or the Central Government and not other way round. If such a submission is accepted then it means that neither the State Government nor the Union of India can file an appeal unless approached by the CBI. It is for the prosecuting agency to act on the directions of the State Government or the Central Government and not other way round. If such a submission is accepted then it means that neither the State Government nor the Union of India can file an appeal unless approached by the CBI. Such an interpretation can only amount to turning Sec. 378 on its head. 35. In fact the following observations of the Supreme Court in para 16 of Khemrajs case (supra) also show that independent powers of directing the Public Prosecutor to present an appeal are vested in the State Government and the Central Government, which powers can be exercised without reference to and without impleading either as party to the appeal. "As a matter of procedure it will be even permissible for the appeal against acquittal to be filed by the Public Prosecutor under the direction of the State Government or the Central Government without impleading either as a party." 36. There can hardly be any disagreement with respect to the submission of learned counsel for the respondents concerned that the right of appeal is a substantive right. The said proposition is by now well established but this Court cannot agree to the submission that the substantive right to file an appeal against the order of acquittal is vested by the Cr.P.C. in the CBI, when the provisions of Section 378 clearly state that such rights belong to the State Government and the Central Government. Once it is held that the substantive right of appeal is vested in the State Government in any case, then the said right cannot be taken away merely on account of action of the other party, namely, the Central Government, which also has been vested with the same substantive right of appeal in cases where the matter has been investigated by the CBI. 37. 37. I am also unable to agree with the submission of learned counsel for the respondent that the judgment in Eknath Shankarrao Mukkawar (supra) has no application to the interpretation of Section 378 since the matter arose in a case under Sec. 377 Cr.P.C. From a consideration of the relevant paragraphs of the said judgment it is evident that the clear distinction between the provisions of Sec. 377(1) and (2) as it then existed and Section 378(1) and (2), were noticed by the Supreme Court solely on account of the absence of the word "also" in Section 377(2). Reliance upon the opening clause "save as otherwise provided in sub-section (2)" was made in that context. Under the provisions of Sec. 377(2), as they then existed in cases investigated by the CBI or other empowered central agency the power was conferred upon the Central Government to file an appeal without using the word "may also direct". It was thus clear that sub-section (2) conferred exclusive power on the Central Government to direct presentation of an appeal against inadequacy of sentence where investigation had been made by the CBI or any other empowered central agency. Subsection (2) of Sec. 377 as it then stood, by not using the word "also" did not leave any scope for an interpretation that in such matters the State Government could also file the appeal. That being the position with respect to sub-section (2) then the use of the clause "save as otherwise provided in sub-section (2)" in Section 377(1) would clearly lead to the conclusion that the right of the State Government to file an appeal in such cases stood excluded. 38. The same would not be the position with respect to Sec. 378 since no exclusive power is provided to the Central Government by sub-section (2) of Section 378. The opening clause saves or excepts only to the extent of what is provided in sub-section (2). If sub-section (2) does not confer exclusive power on Central Government then the saving or exception provided in sub-section (1) would also be to that extent. The opening clause saves or excepts only to the extent of what is provided in sub-section (2). If sub-section (2) does not confer exclusive power on Central Government then the saving or exception provided in sub-section (1) would also be to that extent. Hence, it cannot be held on the basis of the law laid down in the Eknath Shankarrao Mukkawars case (supra) that the opening words of subsection (1) "save as otherwise provided in sub-section (2)" has been read by the Supreme Court to mean the complete exclusion of the power of the State Government in all cases irrespective of what is actually provided in sub-section (2) otherwise there would have been no occasion for the Supreme Court to observe that the legislature had maintained a water-tight dichotomy in the matters of appeal against acquittal and appeal against inadequacy of sentence. 39. In this context, it is interesting to note that immediately after the decision in Eknath Shankarrao Mukkawars case (supra) Sec. 377(2) as amended by Act 45 of 1978 with effect from 18.12.1978 by introducing the word "also" in between the words "may" and "direct" therein, for making Sec. 377 in pari materia to Section 378. It is thus, evident that Parliament also expressed a clear intention with respect to Sec. 377 also to empower the State Government in all cases to file appeal with respect to inadequacy of sentence. 40. This Court also does not find any substance in the contention on behalf of the respondents regarding the constitutional aspect with reference to Articles 73 and 162 proviso of the Constitution of India. It is evident that the maintainability of the present matter is to be seen with respect to what is provided in Sec. 373 of the Cr.P.C. Thus, the exclusive power of the Parliament to legislate with respect to Entry 8 of List I does not in any way come into picture in the present matter. So far as the proviso to Article 162 is concerned, it is evident from the scheme of the distribution of executive powers that the exclusive executive power of the Union is confined to List I of Schedule VII. So far as the proviso to Article 162 is concerned, it is evident from the scheme of the distribution of executive powers that the exclusive executive power of the Union is confined to List I of Schedule VII. Similarly, the State has exclusive executive power with respect to the State List: it also has exclusive executive power with respect to matters enumerated in the Concurrent List subject to any enactment by Parliament on a subject-matter in the Concurrent List by which the executive power is expressly conferred upon the Union or its authorities (apart from express executive power conferred upon them by the Constitution with which aspect we are not concerned). It will thus be seen that the argument based on Constitutional aspect would ultimately depend upon the fact as to what executive power has been expressly conferred upon the Union or its authorities by Parliament by Sec. 378 (1) and (2) of the Cr.P.C. Thus, the Constitutional aspect of the argument comes back to and hinges upon the interpretation of Sec. 378 Cr.P.C. The Union or its authorities cannot claim any power in the present matter apart from what Parliament has conferred upon them by the provisions of the Cr.P.C. If, as has been held above, the Central Government has been conferred only an additional power, apart from the general power possessed in all cases by the State Government, to file an appeal against an order of acquittal then there cannot be any question of violation of the Constitutional Scheme, if the State chooses to exercise its executive powers in such matters, under the law made by Parliament even where the Central Government has chosen not to exercise its right to file an appeal. In case the Cr. PC. itself does not make the exercise of power by the State Government dependent upon or subservient to exercise of power by the Central Government, no such limitation on the exercise of executive power by the State can be read by this Court. Thus, the submissions made on the basis of Constitutional aspect by learned counsel for the respondents must also fail. 41. The further submission that the investigation has been ordered by the High Court and at any stage of the investigation the State Government had no role to play, must only be noticed to be rejected for the reason that the substantive right conferred by the Cr. 41. The further submission that the investigation has been ordered by the High Court and at any stage of the investigation the State Government had no role to play, must only be noticed to be rejected for the reason that the substantive right conferred by the Cr. P.C. under Section 378 is not governed by or dependent upon the investigation or prosecution itself having been carried out by the State or its agencies. When no such limitation is imposed by the Statute upon the powers of the State, this Court cannot lay down the same merely on account of the fact that investigation had been ordered by the High Court and not on the basis of any consent of the State Government under Section 6 of the Delhi Special Police Establishment Act. 42. So far as the submission of the learned counsel for the respondents that the judicial discretion should not be exercised in favour of the present appellant on account of alleged political rivalry and ig noble motives, the same has no relevance on the question of maintainability or on the question of exercise of power to grant leave to appeal by this Court. The discretion to grant leave to appeal is to be exercised by this Court on the basis of the well settled judicial principles and precedents and the motivations of the parties for filing an appeal or not filing the same can have no relevance for such exercise. 43. Thus on the basis of the discussion made above, this Court does not find any force in the submission of learned counsel for the respondents that the appeal filed by the State of Bihar is not maintainable. It is accordingly held that the present appeal by the State of Bihar is maintainable. 44. Put up on 24th September, 2007 under the heading For Admission.