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2012 DIGILAW 696 (GAU)

Laimayum Premlata Sharma v. State of Tripura

2012-06-06

SUBHASIS TALAPATRA

body2012
ORDER 1. Heard Mr. C.S. Sinha, learned counsel appearing for the appellant-petitioner. Also heard Mr. A. Ghosh, learned Addl. Public Prosecutor for the State-respondent No.1 and Mr. S. Kar Bhowmik, learned counsel for the respondent No.2. This petition under Section 482 of Cr. P.C. has been filed for treating the Criminal Appeal No.23/2011, as directed against the judgment and order of acquittal dated 28.04.2011 as passed by the learned Addl. Sessions Judge, Khowai, West Tripura in S.T. No. 33 (WT/K) of 2010 as an appeal filed under Section 372 read with Section 378 of Cr. P.C. 2. On the basis of a complaint dated 24.08.2010 by the appellant-petitioner, Khowai P.S. Case No.57/2010 under Sections 342, 376(2)(b) and 506 of IPC was registered. The Addl. Sessions Judge, Khowai, West Tripura, on examination of the evidence as led by the prosecution, acquitted the respondent No.2 by the impugned judgment and order dated 28.04.2011. The State did not file any appeal against the said judgment and order of acquittal. To secure justice, the appellant-petitioner, as the victim has filed the appeal under Section 372 of Cr. P.C. against the judgment and order of acquittal. When the appeal was listed for admission it was pointed out that unless the leave is granted under Section 378(4) of Cr. P.C. against the order of acquittal, no appeal can be admitted. In view of this, the present petition has been filed for treating the appeal under Section 372 read with Section 378 of Cr. P.C. Along with this petition, a petition under Section 378(4) of Cr. P.C. for granting special leave for filing the appeal from the judgment and order of acquittal dated 28.04.2011, as passed by the learned Addl. Sessions Judge, Khowai, West Tripura, in S.T. No. 33 (WT/K)/2010 has also been filed, being Cr. M. Appl. No.352/2011. 3. From the order dated 18.11.2011 as passed by this Court in the connected appeal, being Crl. A. No.23/2011, it appears that Mr. S. Kar Bhowmik, learned counsel for the respondent No.2 contended that the appeal cannot be entertained unless a leave petition is filed and the leave is granted by this court. In support of this contention, Mr. Kar Bhowmik has relied a case of Punjab and Haryana High Court in Criminal Appeal No.205-DB of 2010 (Smt. Ram Kaur @ Jaswinder Kaur v. Jagbir Singh @ Jabi & other). On the prayer of Mr. In support of this contention, Mr. Kar Bhowmik has relied a case of Punjab and Haryana High Court in Criminal Appeal No.205-DB of 2010 (Smt. Ram Kaur @ Jaswinder Kaur v. Jagbir Singh @ Jabi & other). On the prayer of Mr. C.S. Sinha, learned counsel for the appellant, this court by the said order dated 18.11.2011 provided opportunity to take appropriate steps. On 07.12.2011 another order was passed by this court in the said appeal, where it was observed: Considered the rival contentions. It would be appropriate to fix the case on 13.12.2011, when there will be an endeavour for considering the question of maintainability in view of Section 372 of Cr. P.C. Meanwhile, the appellant shall be at liberty to take steps as contemplated. In this petition, it is to be determined whether there is any requirement to treat the Criminal Appeal No.23/2011 as an appeal filed under Section 372 read with Section 378 of Cr. P.C. A close scrutiny of the statutory provision would be expedient. 4. Legislative changes that has been made in Section 372 of Cr. P.C. by the Cr. P.C. (Amendment) Act, 2005 (25 of 2005) is that a proviso has been inserted after the extant provision of Section 372 Cr. P.C. The said provision reads as under:- Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. Section 374 of Cr. P.C. provides the right of appeal to the convict. Profitably the said Section 374 is extracted. S. 374 (1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court. (2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years [has been passed against him or against any person convicted at the same trial] may appeal to the High Court. (2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years [has been passed against him or against any person convicted at the same trial] may appeal to the High Court. (3) Save as otherwise provided in sub-section (2), any person:- (a) Convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class. (b) Sentenced under Section 325. (c) In respect of whom an order has been made or a sentence has been passed under Section 360 by any Magistrate, appeal to the Court of Session. Another important legislative change has occurred in Section 378 of Cr. P.C. by the Cr. P.C. (Amendment) Act, 2005 (25-2005), which is extracted. In Section 378 of the principal Act,- (1) For sub-section (1), the following sub-section shall be substituted namely:- (1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5):– (a) The District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by Magistrate in respect of a cognizable and non-bailable offence. (b) 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 an acquittal passed by any Court other than a High Court (not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision. (11) In sub-section(2), for the portion beginning with the words the Central Government may and ending with the words the order of acquittal, the following shall be substituted, namely:- The Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal:- (a) To the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence. (b) To the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court (not being an order under clause(a) or an order of acquittal passed by the Court of Session in revision. (b) To the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court (not being an order under clause(a) or an order of acquittal passed by the Court of Session in revision. (iii) In sub-section (3), for the words No appear, the words No appeal to the High Court shall be substituted. In order to guard against the arbitrary exercise of power and to reduce reckless acquittals, Section 378 is being amended to provide that an appeal against an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence filed on a police report would lie to the Court of Session, and the District Magistrate will be authorised to direct the Public Prosecutor to file such appeals. In respect of all other cases filed on a police report, an appeal against an order of acquittal passed by any Court other than the High Court should lie only to the High Court and the authority to direct the Public Prosecutor to present an appeal shall continue to be with the State Government. (Notes on Clauses, Clause 32). 5. The decision of the State Government to prefer or not to prefer an appeal against acquittal is an administrative venture. When there is a clear direction to the Government to the Public Prosecutor to file an appeal, the High Court shall not go deep in the matter to see the extent of the direction. The law restricting the right of appeal against a judgment of acquittal prevents personal vindictiveness from seeking to call in question judgments of acquittal by way of appeal. The Government will interfere only where there is a grave miscarriage of justice. The power of appeal is one that should be exercised sparingly by the Government, and though the discretion to exercise that power appertains to the Government, yet the High Court may, in its discretion, refuse to grant leave. The State Government have the same right of appeal against an acquittal, as a person convicted has, of appealing, against his conviction and sentence, and there is no distinction between the mode of procedure and the principles upon which both classes of appeals are to be decided. The Code makes no difference in the power of the appellate Court, namely, the High Court, between appeals filed by the State or by other persons. The Code makes no difference in the power of the appellate Court, namely, the High Court, between appeals filed by the State or by other persons. Definitely the appeal against acquittal filed under Section 378(1) and (2) of Cr. P.C. is subject to grant of leave as provided in sub-sections (3) and (4) of Section 378 of Cr. P.C. 6. The judgment as relied by Mr. S. Kar Bhowmik, learned counsel for the respondent No.2 in Smt. Ram Kaur @ Jaswinder Kaur (supra) has propounded as under:- In our view, the complainant in the instant case is not the 'victim' who can prefer an appeal under Section 372 of the Code against the order/judgment of acquittal passed by the Court of Session. Only the State has a right to file an appeal along with an application for grant of leave to appeal. Therefore, she cannot prefer an appeal under Section 372 of the Code in the police case. Even otherwise, if the appellant is supposed to be covered by the definition of "victim" under sub-section (wa) of Section 2 of the Code, having right to prefer an appeal against the order of acquittal, in our opinion, she is required to file an application for grant of leave to appeal from the order of acquittal and if the High Court considers the case as a fit case for grant of leave, then his appeal will be entertained. Section 372 of the Code only provides that no appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force. Section 378 of the Code deals with the appeals in cases of acquittal. Sub- section (1)(b) of Section 378 provides that 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 an acquittal passed by any Court other than a High Court, and sub-section (3) further provides that no appeal to the High Court under sub-section (1) or subsection (2) shall be entertained except with the leave of the High Court. Even against an order of acquittal passed in a case instituted upon a complaint, the complainant has been provided the right to appeal, and he can file such an appeal with an application for grant of special leave to appeal from the order of acquittal. Thus, under the Code, the appeal against acquittal could have been preferred only with the permission of the High Court on an application filed for grant of leave to appeal against the order in appeal. By Proviso to Section 372 of the Code, a right has been conferred upon the victim to prefer an appeal against the order of acquittal being sufferer from the act or omission of the offender. But such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. The main provision of Section 372 provides that no appeal shall lie from the order of acquittal except as provided for by this Code or by any other law for the time being in force. So, by the Proviso, a right to file an appeal has been conferred on the victim against the order of acquittal, but the procedure for filing such appeal will be the same as provided under Section 378 of the Code. Therefore, even if the victim has a right to prefer an appeal against the order of acquittal, he has to seek the leave of the High Court to prefer such appeal. He cannot directly file the appeal against the order of acquittal as a first appeal. In the instant case, the complainant has filed the appeal, though, which, in our opinion, is not maintainable, without any application for grant of leave. Therefore, in our opinion, without first fully complying with the provisions contained in Section 378 of the Code, the instant appeal, which has been directly filed by the victim, without any application for grant of leave, cannot be entertained. On the basis of Smt. Ram Kaur @ Jaswinder Kaur (supra), Mr. Kar Bhowmik had contended that unless leave is granted, the appeal cannot be admitted inasmuch as the appeal by the victim is an appeal against acquittal and it has colour of categories of the appeals as referred in Section 378(1) & (2) of Cr. P.C. 7. The other decisions as relied by Mr. Kar Bhowmik, viz. judgment and order dated 14.06.2011 in Crl. P.C. 7. The other decisions as relied by Mr. Kar Bhowmik, viz. judgment and order dated 14.06.2011 in Crl. L.P. No.04/2010, In Crl. A. No.29/2010 (The State of Tripura vs. Sri Krishna Pada Das & other) as passed by this Court and Arulvelu & another vs. State, Represented by the Public Prosecutor & another, as reported in (2009)10 SCC 206 , centre around the different factual and legal matrix. It is apparent that in one case the appeal was filed by the State against the judgment and order of acquittal and in the other, the basic principles of consideration of the appeal against the judgment and order of acquittal are enunciated. Those decisions are in no way applicable for consideration whether a leave to file an appeal against the judgment and order of acquittal would be required if the appeal is preferred by a victim under Section 372 of Cr. P.C. 8. The provisions of sub-sections (3) and (4) of Section 376 of Cr. P.C. may closely be read to understand the legislative intent properly. Section 378(3) of Cr. P.C. provides that no appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court. It implies in no uncertain terms that this provision of leave as provided in Section 378(3) of Cr. P.C. is only applicable to the categories of appeal, covered by sub-section (1) or sub-section (2) of Section 378. The categories of appeals as provided under sub-section (1) are extracted:- S. 378. (1) (a) The District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence. (b) 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 an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision. (b) 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 an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision. In sub-section(2), the categories of appeal as mentioned are from an order of acquittal as 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, subject to the provisions of sub-section(3), also direct the Public Prosecutor to present an appeal - (a) To the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence. (b) To the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause(a) or an order of acquittal passed by the Court of Session in revision. 9. Amongst the categories of appeals against the judgment and order of acquittal, those which will be filed in the Court of Session, no leave is required to be taken from the said court. But when such appeal would be presented to the High Court the leave would be required to be taken under Section 378(3) of Cr. P.C. Section 378(5) of Cr. P.C. prescribes the limitation of filing such appeal. In any case an appeal filed by a public servant, the period of limitation would be six months and no application under sub-section (3) for the grant of special leave to appeal from an order of acquittal shall be entertained after the expiry of six months and in other cases the period would be sixty days from the date of acquittal. The other cases would definitely include only those cases as referred in Section 378(4) of Cr. The other cases would definitely include only those cases as referred in Section 378(4) of Cr. P.C., which stipulates that "If such an order of acquittal is passed in any case instituted upon complainant 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". Except the categories of cases as referred in subsection(1) and sub-section(2) of Section 378 of Cr. P.C. and in sub-Section(4) of Section 378 of Cr. P.C. statute does not provide that the leave is required for preferring an appeal against the order of acquittal. If these provisions were read with sub-section(6) of Section 378 of Cr. P.C. it would be further envisioned that "If, in any case, the application under subsection(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 subsection(1) or under sub-section(2). 10. These provisions categorically imply that in an appeal from an order of acquittal as passed in a case instituted upon complaint, meaning thereby not from a police report, if the leave to the appeal is disallowed no appeal could be preferred by the State under sub-sections(1) and (2) of Section 378 Cr. P.C. Section 378 though underwent the legislative changes but the legislature as it appears quite consciously did not make any provision for leave to file an appeal for the appeals covered by the proviso to Section 372 Cr. P.C. If closely read, it would be apparent that the right to appeal as provided under Section 374 of Cr. P.C. has used the words 'may appeal to the High Court' and thus 'may' has been interpreted as creation of a specific right to appeal and that right is not fettered by any sanction. But the words used in proviso to Section 372 do not leave any space for interpretation to understand the legislative intent. The proviso to Section 372 used the words that "the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court'. If compared with the clauses and the words that have been brought into the provisions of Section 378 by way of legislative change, it would be apparent that for purpose of appeal the separate forums have been provided but in proviso to Section 372 though the forums have been provided but it has not made any conjunction to the provisions of Section 378 Cr. P.C., on the contrary, reference to the forums has been made differently, in semblance to Section 374, Cr. P.C. by engrafting the provision therefrom, where an appeal ordinarily lies against the order of conviction of such court. The legislative intent is thereby manifest without any ambiguity. The proviso to Section 372 has created a right to appeal unfettered of any leave or sanction and it shall automatically lie to the forum where an appeal ordinarily lies against the order of conviction of such court if the said appeal against the judgment and order of acquittal is filed by the victim as defined in Section 2(wa) of Cr. P.C. This definition of 'victim' under Section 2(wa) of Cr. P.C. is a legislative change as brought by Cr. P.C. Amendment Act, 2008 (5 of 2009). The 'victim' has been defined in the said clause as under: 2(wa) Victim means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heirs. Unusually, the proviso has consciously been imported to Section 372, Cr. P.C. by the said legislative charges for providing a comprehensive provision for appeal against the acquittal by the victim. Consequence of the proviso or its interpretation was subjected to consideration on several occasions. A brief encounter thereof might essentially scaffold the construct of the proviso as developed. 11. In Commissioner of Stamp Duties vs. Atwill & other, as reported in (1973)1 ALL ER 576, the Privy Council held:- The decisions of the majority of the High Court was thus based on the view that the proviso was a true proviso limiting or qualifying what preceded it. Their Lordships are not able to agree with this conclusion. 11. In Commissioner of Stamp Duties vs. Atwill & other, as reported in (1973)1 ALL ER 576, the Privy Council held:- The decisions of the majority of the High Court was thus based on the view that the proviso was a true proviso limiting or qualifying what preceded it. Their Lordships are not able to agree with this conclusion. While in many cases that is the function of a proviso, it is the substance and content of the enactment, not its form, which has to be considered, and that which is expressed to be a proviso may itself add to and not merely limit or qualify that which precedes it. In Jennings vs. Kelly (1939)4 ALL ER 464, Viscount Maugham said: In coming to his conclusion, ANDREWS, L.C.J., was influenced by his view that the first part of the section was the operative portion of it, and that the proviso could not properly be used to explain the words as to increase of population in the operative part. He therefore relied on the principle of construction to be found in the case of West Derby Union v. Metropolitan Life Assurance Society (1897) AC 647. The principle is thus stated by Lord Watson: "... I am perfectly clear that if the language of the enacting part of the statute does not contain the provisions which are said to occur in it, you cannot derive these provisions by implication from a proviso." I am sure that none of your Lordships would desire to depart from this principle where it is applicable - namely, where the enacting part of the section is unambiguous and complete and is followed by a true proviso (that is, a qualification or an exception out of it). In my view that is not the case here, and, as LORD HERSCHELL pointed out in the West Derby Union Case : (1897) AC at 655 "Of course a proviso may be used to guide you in the selection of one or other of two possible constructions of the words to be found in the enactments, and show when there is doubt about its scope, when it may reasonably admit of doubt as to its having this scope or that, which is the proper view to take of it..." My Lords, that is precisely the method of construction which, in my view, is applicable in the present case. I will add that the words beginning "Provided that" are, in my opinion, additional and explanatory words, necessary for the purpose of giving a more definite meaning to the preceding words namely, for the purpose of giving a more definite meaning to the preceding words - namely, for the purpose of removing doubt as to its scope - and they might easily have been incorporated in the earlier part of the section, at the risk of making it rather more cumbrous than it is. We are not dealing here with a true proviso, or, at any rate, not with such a proviso as this House was considering in the West Derby Union Case. It cannot, I think, be disputed that in construing a section of an Act of Parliament, it is constantly necessary to explain the meaning of the words by an examination of the purport and effect of other sections in the same Act.... This principle is equally applicable in the case of different parts of a single section, and none the less so because the latter part is introduced by the words "provided that," or like words. There can, I think, be no doubt that the view expressed in KENT's COMMENTA RIES ON AMERICAN LAW (cited with approval in MAXWELL ON THE INTERPRETATION OF STATUTES), is correct: "The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together, is to prevail. In the same case Lord Wright said: It is said that, where there is a proviso, the former part, which is described as the enacting part, must be construed without reference to the proviso. No doubt there may be cases in which the first part is so clear and unambiguous as not to admit in regard to the matters which are there clear any reference to any other part of the section. The proviso may simply be an exception out of what is clearly defined in the first part, or it may be some qualification not inconsistent with what is expressed in the first part. In the present case, however, not only is the first part of the section deficient in express definition, but the second part is complementary and necessary in order to ascertain the full intention of the legislature. In the present case, however, not only is the first part of the section deficient in express definition, but the second part is complementary and necessary in order to ascertain the full intention of the legislature. The proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light, if need be, on the rest. I do not think that there is any other rule, even in the case of a proviso in the strictest or narrowest sense, and still less where, as here, the introduction of the second part by the word "provided" is, in a strict sense, inapt. In a strict sense the use of the words 'Provided that' in s I02 (2) (a) may also be disregarded as inapt. The meaning of that provision and the proviso would be the same if instead of the words 'Provided that' there had appeared the word and or the words 'in which case' and to ascertain the true effect of the provision the second part, that is to say, the proviso, is complementary and necessary in order to ascertain the full intention of the legislature. In Rhondda Urban District Council vs. Taff Vale Railway Co the House of Lords had to consider the effect of a section which was framed as a proviso on preceding sections. In that case Lord Loreburn LC said: But it is also true that the latter half of it, though in form a proviso, is in substance a fresh enactment, adding to and not merely qualifying that which goes before. Other examples of such provisos are to be found in the Stamp Act itself in the first proviso to s I02 (2) (ba) where the commissioner is given power to reduce the value of any property in certain circumstances; in the first proviso to s I02 (2) (l) and to s I02 (2B) where the commissioner is given a similar power. In each of these instances the proviso contained what is called a substantive enactment (see also the Wheat Marketing Act 1920, s II (I), and the Workmen's Compensation (Amendment) Act 1920 of New South Wales, s4. 12. In Madras and Southern Mahratta Rly. Co. In each of these instances the proviso contained what is called a substantive enactment (see also the Wheat Marketing Act 1920, s II (I), and the Workmen's Compensation (Amendment) Act 1920 of New South Wales, s4. 12. In Madras and Southern Mahratta Rly. Co. Ltd. vs. Bezwada Municipality, as reported in AIR 1944 PC 71, it was held:- The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case. Where, as in the present case, the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it by implication what clearly falls within its express terms. 13. In Ram Narain Sons Ltd. & other vs. Assistant Commissioner of Sales Tax & other, as reported in AIR 1955 SC 765 , it was held:- 10. Apart from the construction thus put upon the several Clauses of Art. 286 by the majority of the Judges in 'The Bengal Immunity Co.'s Appeal (D)' as above, the terms of the proviso itself make it abundantly clear that the proviso is meant only to lift the ban under Article 286(2) and no other. It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. 14. In Dwarka Prasad vs. Dwarka Das Saraf, as reported in (1976)1 SCC 128 , the Apex Court held:- 16. If, on a fair construction, the principal provision is clear, a proviso cannot expand or limit it. Sometimes a proviso is engrafted by an apprehensive draftsman to remove possible doubts, to make matters plain, to light up ambiguous edges. Here, such is the case. In a country where factories and industries may still be in the developmental stage, it is not unusual to come across several such units which may not have costly machinery or plant or fittings and superficially consist of bare buildings plus minor fixtures. Here, such is the case. In a country where factories and industries may still be in the developmental stage, it is not unusual to come across several such units which may not have costly machinery or plant or fittings and superficially consist of bare buildings plus minor fixtures. For example, a beedi factory or handicraft or carpentry unit-a few tools, some small contrivances or collection of materials housed in a building, will superficially look like a mere 'accommodation' but actually be a humming factory or business with a goodwill as business, with a prosperous reputation and a name among the business community and customers. Its value is qua business, al-though it has a habitation or building to accommodate it. The personality of the thing let out is a going concern or enterprise, not a lifeless edifice. The legislature, quite conceivably, thought that a marginal, yet substantial, class of buildings, with minimal equipments may still be good businesses and did not require protection as in the case of ordinary building tenancies. So, to dispel confusion from this region and to exclude what seemingly might be leases only of buildings but in truth might be leases of businesses, the legislature introduced the exclusionary proviso. 17. While rulings and text books bearing on statutory construction have assigned many functions for provisos, we have to be selective, having regard to the text and context of a statute. Nothing is gained by extensive references to luminous classics or supportive case-law. Having explained the approach we make to the specific 'proviso' situation in Section 2(a) of the Act, what strikes us as meaningful here is that the legislature by the amending Act clarified what was implicit earlier and expressly carved out what otherwise might be mistakenly covered by the main definition. The proviso does not, in this case, expand, by implication, the protected area of building tenancies to embrace 'business' leases. 18. We may mention in fairness to counsel that the following, among other decisions, were cited at the bar bearing on the uses of provisos in statutes: C.I.T. v. Indo-Mercantile Bank Ltd. 1959 2 SCR 256; M/s Ram Narain Sons Ltd. v. Assistant C.S.T. (1955)2 SCR 483 ; Thompson vs. Dibdin, 1912 AC 533; Rex vs. Dibdin 1910 Pro Div 57 and Tahsildar Singh vs. State of U.P. 1959 Supp 2 SCR 875. The law is trite. The law is trite. A proviso must be limited to the subject-matter of the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. 'Words are dependent on the principal enacting words, to which they are tacked as a proviso. They cannot be read as divorced from their context 1912 A.C. 544. If the rule of construction is that prima facie a proviso should be limited in its operation to the subject-matter of the enacting clause, the stand we have taken is sound. To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction. 15. In Motiram Ghelabhai vs. Jagan Nagar & other, as reported in (1985)2 SCC 279 , the Apex Court held:- 9. Bearing in mind the aforesaid legislative amendments we shall proceed to consider the question as to what is the true nature and scope of the proviso. For that purpose it will be necessary to read as a whole the entire provision, namely, the substantive part of Section 50, the proviso thereto and the new paragraph added at the end of the proviso. So read, two aspects stand out very clearly. In the first place, it is clear that under the substantive part of Section 50 on the coming into force of the Act (the 1947 Act) the two earlier enactments (the 1939 Act and the 1944 Act) stand repealed. If nothing more was said then Section 7 of the Bombay General Clauses Act, 1904 would have come into play and would have had the effect of saving the legal proceedings or remedies in respect of any right, privilege, obligation or liability acquired, accrued or incurred under the repealed enactments. If nothing more was said then Section 7 of the Bombay General Clauses Act, 1904 would have come into play and would have had the effect of saving the legal proceedings or remedies in respect of any right, privilege, obligation or liability acquired, accrued or incurred under the repealed enactments. In other words, all suits and proceedings including execution proceedings and appeals arising therefrom which were pending on the relevant date and which were governed by the provisions of these respective repealed Acts would have been saved and the rights and obligations of the parties thereto would have been worked out under the relevant provisions of the repealed Acts. But here a clear intention to deviate from the normal rule which applies to the repeal of enactments is clearly evinced by the Legislature by the manner in which the proviso was enacted initially or as it now stands after the amendments. Either under the proviso as it originally stood or under the new separate paragraph enacted by way of an amendment the legislative intent was and is quite clear that only suits and original proceedings between a landlord and a tenant (of the description or categories specified therein) which were pending on the relevant date are required to be decided and disposed of by applying the provisions of the 1947 Act while execution proceedings and appeals arising out of decrees or orders passed before the coming into operation of the Act are denied the benefits of the provisions of the Act and have been directed to be decided and disposed of as if this Act had not been passed, that is to say, such execution proceedings and appeals would be continued to be governed by and shall be disposed of in accordance with the law that was then applicable to them, In other words, it is clear that the proviso was and has been enacted to provide for special savings which suggests that it has not been introduced merely with a view to qualify or create exceptions to what is contained in the substantive part of Section 50. Secondly, it does appear that the Legislature while framing the Act (the 1947 Act) was enacting certain provisions for the benefit of tenants which conferred larger benefits on them than were in fact conferred by the earlier enactments which were repealed, (and this would be clear if regard be had to the wider definition of the expression 'tenant' adopted in Section 5(11) of the Act) and therefore, the legislature thought it advisable that in regard to pending suits and original proceedings also (of course of the description or categories specified therein) in which the 1 decrees and orders were not passed the provisions of the Act should be made applicable. It is with this intention that the proviso to Section 50 has been enacted in the manner it has been done. What is more, while so extending the larger benefits of the Act (the 1947 Act) to tenants the Legislature has used a very wide expression, namely, "all suits and proceedings between a landlord and a tenant" so as to include within that category suits and proceedings filed under the repealed Acts as also under the general law or Transfer of Property Act. Deliberate use of such wide expression clearly shows that the benefit of the Act was intended to be given to all tenants who were parties to all suits and proceedings filed either under the repealed Acts or under the general law or Transfer of Property Act and were pending at the relevant date. It is therefore, clear that the proviso read with the separate paragraph added thereto will have to be regarded as an independent provision enacting a substantive law of its own by way of providing for special savings and Counsel's contention that the same has been added merely with a view to qualify or to create an exception to what is contained in the main provision of Section 50 has to be rejected, We might refer to a Bombay High Court decision in Shankarlal Ramratan vs. Pandharinath Vishnu Pathak (1951)53 Bom LR 319, where a similar view of the proviso to Section 50 of the Act has been taken and we approve the same. 16. In Kerala State Housing Board & other vs. Ramapriya Hotels (P) Ltd. & other, as reported in (1994)5 SCC 672 , the Apex Court held:- 6. 16. In Kerala State Housing Board & other vs. Ramapriya Hotels (P) Ltd. & other, as reported in (1994)5 SCC 672 , the Apex Court held:- 6. In Tribhovandas Haribhai Tamboli vs. Gujarat Revenue Tribunal (1991)3 SCC 442 , this Court held that the proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment and its effect is to be confined to that case. Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms. The scope of the proviso, therefore, is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. It has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says, nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect. 17. In Rishabh Agro Industries Ltd. vs. P.N.B. Capital Services Ltd., as reported in (2000)5 SCC 515 , the Apex Court held:- 6. Such a grievance may be justified and the submission having substance but in view of the language of Sections 15 and 16 of the Act particularly the Explanation to Section 16 inserted by Act 12 of 1994, this Court has no option but to adhere to its earlier decision taken in Real Value Appliances (1990) 67 Comp Cas 412 (All). While interpreting, this Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it by having recourse to appropriate procedure, if deemed necessary. 18. In V. Jaganadha Rao & other vs. State of A.P. & other, as reported in (2001)10 SCC 401 , the Apex Court held:- 18. No provision or word in a statute has to be read in isolation. In fact, the statute has to be read as a whole. 18. In V. Jaganadha Rao & other vs. State of A.P. & other, as reported in (2001)10 SCC 401 , the Apex Court held:- 18. No provision or word in a statute has to be read in isolation. In fact, the statute has to be read as a whole. A statute is an edict of the legislature. It cannot be said that without any purpose the distinction was made in para 5(1) between transfer and promotion and such distinction was not intended to be operative in para 5(2). The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid as to what has been said as also to what has not been said. (See Mohd. All Khan vs. CWT (1997)3 SCC 511 and Institute of Chartered Accountants of India v. Price Waterhouse (1997)6 SCC 312 ). As a consequence a construction which requires for its support addition or substitution of words or which resorts to rejection of words as meaningless, has to be avoided. As stated by the Privy Council in Robert Wigram Crawford vs. Richard Spooner (1846)6 Moore PCC 1 "We cannot aid the legislature's defective phrasing of an Act, we cannot add or mend and, by construction make deficiencies which are left there." The aforesaid decision was referred to by this Court in State of Gujarat vs. Dilipbhai Nathjibhai Patel (1998)3 SCC 234 . It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. [See Stock vs. Frank Jones (Tipton) Ltd. (1978) 1 ALL ER 948 (HL) Similarly, it is wrong and dangerous to proceed by substituting some other words for words of the statute. (See Pinner vs. Everett (1969)3 ALL ER 257 (HL). In other words, there should be no attempt to substitute or paraphrase of general application. Attention should be confined to what is necessary for deciding a particular case. Much trouble is made by substituting other phrases assumed to be equivalent, which then are reasoned from as if they were in the Act. In Union of India vs. Deoki Nandan Aggarwal 1992 Supp (1) SCC 323 it was observed that the court cannot reframe the legislation for the very good reason that it has no power to legislate. Much trouble is made by substituting other phrases assumed to be equivalent, which then are reasoned from as if they were in the Act. In Union of India vs. Deoki Nandan Aggarwal 1992 Supp (1) SCC 323 it was observed that the court cannot reframe the legislation for the very good reason that it has no power to legislate. It is incumbent on the court to avoid the construction if reasonably permissible on the language which would render a part of the statute devoid of any meaning or application. In the interpretation of statutes, the courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have an effect. 19. In Illachi Devi & other vs. Jain Society, Protection of Orphans India & other, as reported in (2003)8 SCC 413 , the Apex Court held:- 39. We have delineated above the requisite fiduciary character of an administrator of the estate of the deceased, who must be accountable not only to the directions of the testator, as expressed in the testament, but also to the interests of the beneficiaries and the Court. The legislature has, in its wisdom, chosen to exclude unincorporated associations of persons from the purview of eligible grantees of letters of administration; it is not, then, for the Court to legislate judicially by turning the plain meanings of the provisions on their head. Interpretation must remain interpretation, and not descend into interpolation. 40. It is well settled principles of law that a plain meaning must be attributed to the Statute. Also, a statute must be construed according to the intention of the legislature. The golden rule of interpretation of a statute is that it has to be given its literal and natural meaning. The intention of the legislature must be found out from the language employed in the statute itself. The question is not what is supposed to have been intended but what has been said. [See Dayal Singh vs. Union of India (2003)2 SCC 5931 41. In Padma Sundara Rao vs. State of T.N. (2002)3 SCC 533 , it was held: (SCC p.542, para 12) 12. The rival pleas regarding rewriting of statute and casus omissus need careful consideration. It is well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. In Padma Sundara Rao vs. State of T.N. (2002)3 SCC 533 , it was held: (SCC p.542, para 12) 12. The rival pleas regarding rewriting of statute and casus omissus need careful consideration. It is well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed, not as theorems of Euclid", Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lenigh Valley Coal Co. vs. Yensavage 218 FR 547). The view was reiterated in Union of India vs. Filip Tiago De Gama of Vedem Vasco De Gama (1990)1 SCC 277 ). 42. This Court again in Harbhajan Singh vs. Press Council of India (2002)3 SCC 722 stated the law thus (SCC pp. 726-27, para 7 & 9) 7. Clearly, the language of Sub-section (7) of Section 6 abovesaid, is plain and simple. There are two manners of reading the provision. Read positively, it confers a right on a retiring member to seek renomination. Read in a negative manner, the provision speaks of a retiring member not being eligible for renomination for more than one term. The spell of ineligibility is cast on renomination of a member who is "retiring". The event determinative of eligibility or ineligibility is "renomination", and the person, by reference to whom it is to be read, is "a retiring member". "Retiring member" is to be read in contradistinction with a member/person retired sometime in the past, and so, would be called a retired or former member. "Re" means again, and is freely used as a prefix. It gives colour of "again" to the verb with which it is placed. "Renomination" is an act or process of being nominated again. Any person who had held office of member sometime in the past, if being nominated now, cannot be described as being "again nominated". It is only a member just retiring who can be called ''being again nominated" or ''re-nominated". "Renomination" is an act or process of being nominated again. Any person who had held office of member sometime in the past, if being nominated now, cannot be described as being "again nominated". It is only a member just retiring who can be called ''being again nominated" or ''re-nominated". No other meaning can be assigned except by doing violence to the language employed. The legislature does not waste its words. Ordinary, grammatical and full meaning is to be assigned to the words used while interpreting a provision to honour the rule - the legislature chooses appropriate words to express what it intends, and therefore, must be attributed with such intention as is conveyed by the words employed so long as this does not result in absurdity or anomaly or unless material - intrinsic or external - is available to permit a departure from the rule. 9. Cross on Statutory Interpretation (3rd Edition, 1995) states The governing idea here is that if a statutory provision is intelligible in the context of ordinary language, it ought, without more, to be interpreted in accordance with the meaning an ordinary speaker of the language would ascribe to it as its obvious meaning, unless there is sufficient reason for a different interpretation. Thus, an 'ordinary meaning' or 'grammatical meaning' does not imply that the Judge attributes a meaning to the words of a statute independently of their context or of the purpose of the statute, but rather that he adopts a meaning which is appropriate in relation to the immediately obvious and unresearched context and purpose in and for which they are used. By enabling citizens (and their advisers) to rely on ordinary meanings, unless notice is given to the contrary, the legislature contributes to legal certainty and predictability for citizens and to greater transparency in its own decisions, both of which are important values in a democratic society. 43. Yet again in Grasim Industries Ltd. vs. Collector of Customs (2002)4 SCC 297 , it is stated (SCC p.303, para 10) 10. No words or expressions used in any statute can be said to be redundant or superfluous. In matters of interpretation one should not concentrate too much on one word and pay too little attention to other words. No provision in the statute and no word in any section can be construed in isolation. No words or expressions used in any statute can be said to be redundant or superfluous. In matters of interpretation one should not concentrate too much on one word and pay too little attention to other words. No provision in the statute and no word in any section can be construed in isolation. Every provision and every word must be looked at generally and in the context in which it is used. It is said that every statute is an edict of the legislature. The elementary principle of interpreting any word while considering a statute is to gather the mens or sentential legis of the legislature. Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to take upon itself the task of amending or altering the statutory provisions. 44. It is equally well settled that when the legislature has employed a plain and unambiguous language, the Court is not concerned with the consequences arising therefrom. Recourse to interpretation of statutes may be resorted only when the meaning of the statute is obscure. The Court is not concerned with the reason as to why the Legislature thought it fit to lay emphasis on one category of suitors than the others. A statute must be read in its entirety for the purpose of finding out the purport and object thereof. The Court, in the event of its coming to the conclusion that a literal meaning is possible to be rendered, would not embark upon the exercise of judicial interpretation thereof and nothing is to be added or taken from a statute unless it is held that the same would lead to an absurdity or manifest injustice. It is well-established that a disabling legislation must be characterized by clarity and precision. In the present instance, the prohibitions laid down by Sections 223 and 236 of the Act are categorical and comprehensive, and leave no scope for creative interpretation. 45. The Court, it is trite, cannot supply casus omissus. Reference in this regard may be made to Baliram Waman Hiray (Dr) vs. Justice B. Lentin (1988)4 SCC 419 , wherein it was observed (SCC p.443, para 27) 27. Law must be definite, and certain. 45. The Court, it is trite, cannot supply casus omissus. Reference in this regard may be made to Baliram Waman Hiray (Dr) vs. Justice B. Lentin (1988)4 SCC 419 , wherein it was observed (SCC p.443, para 27) 27. Law must be definite, and certain. If any of the features of the law can usefully be regarded as normative, it is such basic postulates as the requirement of consistency in judicial decision -making. It is this requirement of consistency that gives to the law much of its rigour. At the same time, there is need for flexibility. Professor H.L.A. Hart regarded as one of the leading thinkers of our time observes in his influential book The Concept of Law, depicting the difficult task of a Judge to strike a balance between certainty and flexibility where there is obscurity in the language of a statute, it results in contusion and disorder. No doubt the Courts so frame their judgments as to give the impression that their decisions are the necessary consequence of predetermined rules. In very simple cases it may be so but in the vast majority of cases that trouble the Courts, neither statute nor precedents and which the rules are legitimately contained allow of only one result. In most important cases there is always a choice. The judge has to choose between alternative meanings to be given to the words of a statute or between rival interpretations of what a precedent amounts to. It is only the tradition that judges 'find' and do not 'make' law that conceals this, and presents their decisions as if they were deductions smoothly made from clear pre-existing rules without intrusion of the judge's choice. (See also Kanta Devi vs. Union of India (2003)4 SCC 753 ) 46. In Tarulata Shyam vs. CIT (1977)3 SCC 305 , it was held that if there be a casus, omissus, the defect can be remedied only by legislation and not by judicial interpretation. 20. It is apparent that the proviso to Section 372, Cr. P.C. has excepted to what has been provided in the principal Section as well as it emerged as comprehensive provision for creating a right for the victims to prefer an appeal against the order of acquittal. 21. 20. It is apparent that the proviso to Section 372, Cr. P.C. has excepted to what has been provided in the principal Section as well as it emerged as comprehensive provision for creating a right for the victims to prefer an appeal against the order of acquittal. 21. The interpretation as given by the Punjab & Haryana High Court in Smt. Ram Kaur @ Jaswinder Kaur (supra), is amounting to legislating and the same is contrary to the scheme of the Cr. P.C. which has undergone a legislative change as referred hereinabove. The interpretation of the Punjab & Haryana High Court as extracted has sought to operate a provision similar to Section 378(3) or Section 378(4) of Cr. P.C. which according to this court is overstepping the limit and legislating under garb of interpretation which is a forbidden province for any court of law. As such, this court cannot be persuaded by such interpretation as provided by the Punjab & Haryana High Court in Smt. Ram Kaur @ Jaswinder Kaur (supra). For the reasons as stated above, this court is of the view that even though the right to appeal for the victim has been created by the proviso to Section 372 of Cr. P.C., the said proviso itself is a comprehensive provision, not fettered by any leave or sanction as required for the categories of appeals as depicted in Section 378(1), 378(2) and 378(4) of Cr. P.C. No leave is required for the victim to file an appeal as against the order of acquittal under the proviso to Section 372 of Cr. P.C. It is an unfettered right of the victim to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. As such, this Court does not find any basis or requirement to convert the appeal as filed under Section 372 to an appeal under Section 372 read with Section 378 of Cr. P.C. as prayed. Accordingly the prayer for conversion stands rejected.