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2013 DIGILAW 1055 (BOM)

Sandhya Prafull Patil v. Ajay Jagdish Pande

2013-06-12

A.R.JOSHI, P.V.HARDAS

body2013
JUDGMENT P.V. HARDAS, J. This Appeal has been filed by the Appellant, wife of deceased Prafull Patil, challenging the order passed by the Special Judge (MCOCA) for Greater Bombay, at Exhibit 21, dated 7.10.2011, in MCOC Special Case No. 9 of 2011, discharging the Accused for offences punishable under the provisions of the Maharashtra Control of Organised Crime Act, 1999. 2. Criminal Appeal No. 722 of 2012 has been filed by the State of Maharashtra, questioning the same order passed by the Trial Judge. When these Appeals alongwith the other Misc. Applications were taken up for hearing, the learned Counsel for the parties submitted that the question of maintainability of Criminal Appeal No. 1325 of 2011 be decided first as according to the learned Counsel for the Respondents, the said Appeal is not maintainable. With the consent of the learned Counsel for the parties therefore, Criminal Appeal No. 1325 of 2011 is being decided first and particularly, the question regarding maintainability of the Appeal. Since the question of maintainability of the Appeal is being decided, none of the aspects touching the merits of the matter have been examined by us and we are only dealing with the question of the maintainability of the Appeal. 3. Mr. Amit Desai, learned Senior Counsel for the Appellant has urged before us that the Appeal filed by the Appellant i.e. the victim is maintainable in the light of the provisions of Section 372 of the Code of Criminal Procedure. It is also urged before us that once an order discharging the accused under the provisions of the MCOC Act is passed, the case would then be referred for trial to another Additional Sessions Judge and consequently, unless and until there is an appeal questioning the order of the Trial Court discharging the accused under the provisions of MCOC Act, the Additional Sessions Judge to whom the case may be allotted for trial would not have the jurisdiction to decide the question regarding the applicability of the provisions of the MCOC Act. Mr. Mr. Desai, learned Senior Counsel for the Appellant therefore submits that an order of the Trial Court holding that the provisions of the MCOC Act are not applicable, though in law, may be an order discharging the accused, the same would have the effect of acquittal of the accused under the MCOC Act and consequently, an Appeal at the behest of the victim under Section 372 of the Code of Criminal Procedure would certainly be maintainable. Mr. Desai, learned Senior Counsel for the Appellant has further urged before us that in the light of the present judicial trend of protecting the rights of the victim and giving the victim an opportunity of questioning orders of the Trial Court which may be adverse to the victim, the provisions of the MCOC Act will have to be read in that background and therefore, the victim would have a right to file an appeal. It is also urged by Mr. Desai, learned Senior Counsel for the Appellant that the provisions of the Code of Criminal Procedure are not excluded in their entirety and the right of the victim to file an Appeal would certainly be a right which would be protected and preserved under the provisions of the MCOC Act. 4. Mr. Subhash Jha, Mr. A.H.H. Ponda and Mr. Nilesh Ojha, learned Counsel for the Respondents have urged before us that an appeal is a creature of statute and therefore, unless a statute expressly provides the right to file an Appeal, the same cannot be inferred. It is further urged before us that Section 372 of the Code of Criminal Procedure would not be applicable in the present case particularly, in respect of the order impugned in the present Appeal as the said order does not acquit the accused but only discharges them of the provisions of the MCOC Act. It is, therefore, urged before us that the Appeal filed by the Appellant would not be maintainable and the Appeal therefore deserves to be dismissed. 5. In order to appreciate the submissions advanced before us by the learned Counsel for the parties, it would be useful to refer to the provisions of the Code of Criminal Procedure as well as the provisions of the MCOC Act. 5. In order to appreciate the submissions advanced before us by the learned Counsel for the parties, it would be useful to refer to the provisions of the Code of Criminal Procedure as well as the provisions of the MCOC Act. Section 372 of the Code of Criminal Procedure reads thus :- "No appeal to lie unless otherwise provided - 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 in force: [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]." The proviso to Section 372 of the Code of Criminal Procedure was added with effect from 31.12.2009. By virtue of the said proviso the victim is conferred with the right to file an appeal against the order of the Court acquitting the accused, or convicting the accused for a lesser offence or imposing inadequate compensation. Thus, it is only in respect of the three contingencies as are specified in the proviso that an Appeal at the behest of the victim would be maintainable. Section 12 of the Maharashtra Control of Organized Crime Act, 1999, (hereinafter referred to as a MCOC Act for the sake of brevity which provides the right of the Appeal, reads thus :- "Appeal :- (1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court. (2) Every appeal under this section shall be preferred within thirty days from the date of the judgment, sentence or order." It is thus clear that by virtue of Section 12 of the MCOC Act, an Appeal would lie from any Judgment, sentence or order, provided it is not an interlocutory order, to the High Court. Subsection 2 of Section 12 provides the limitation for tiling an Appeal. This Section opens with a non-obstante clause which states that notwithstanding anything contained in the Code. Subsection 2 of Section 12 provides the limitation for tiling an Appeal. This Section opens with a non-obstante clause which states that notwithstanding anything contained in the Code. Thus, the general provisions of the Code of Criminal Procedure relating to the filing of an Appeal in respect of following aspects has been excluded by the MCOC Act. According to us, under the Code, an Appeal is not maintainable against any order as an Appeal is maintainable only against the Judgment and order either convicting or acquitting an accused. Thus, the provisions of the Code of Criminal Procedure relating to the filing of an Appeal against any order, provided it is not an interlocutory order, is excluded. Section 12 further provides that every Appeal from an order of the Special Court would lie to the High Court. Thus, the provisions of the Code of Criminal Procedure relating to the forum where the Appeal is to be filed is excluded. Sub-Section 2 of the MCOC Act provides for limitation and therefore, the provisions relating to the limitation for filing of an Appeal under the Code of Criminal Procedure are excluded. Thus, Section 12 of the MCOC Act excludes the general provisions of the Code of Criminal Procedure in respect of the filing of an Appeal against an order of the Special Judge, provided it is not an interlocutory order. This Section also excludes the general dicta regarding the forum as it specifically states that against the order of the Special Court, an Appeal would lie to the High Court. This Section also excludes the general provisions relating to the limitation for filing an Appeal as it prescribes limitation of 30 days for filing an Appeal. 6. A bare perusal of Section 12 of the MCOC Act indicates that the parties as to who can file an Appeal is not specified. Section 12 of the Act does not specifically confer a right of Appeal to the victim. There is no provision akin to Section 372 of the Code of Criminal Procedure in the MCOC Act which confers any right on the victim to file an Appeal. The language of Section 12 also does not confer any right of Appeal to any person who may be aggrieved by any order which is passed, thereby restricting the right of Appeal to the parties to the case or lis. 7. Mr. The language of Section 12 also does not confer any right of Appeal to any person who may be aggrieved by any order which is passed, thereby restricting the right of Appeal to the parties to the case or lis. 7. Mr. Desai, learned Senior Counsel for the Appellant has urged before us that under Section 11 of the MCOC Act if the Special Court is of the opinion that the offence is not triable by it, the Special Court shall transfer the case for trial to any Court having jurisdiction under the Code of Criminal Procedure and the Court to which the case is transferred for trial may proceed with the trial of the offence as if it had taken cognizance of the offence. The submission of the learned Counsel for the Appellant, therefore, is that once an order of discharge has been passed by the Special Judge, by holding that the provisions of the MCOC Act are not applicable, the Court to whom the case is transferred, would not have the jurisdiction to enquire and determine if the provisions of MCOC Act are applicable. Thus, according to the learned Counsel for the Appellant, in the event for whatever reasons the State prefers not to challenge the order of discharge passed by the Special Court, no trial under the provisions of the MCOC Act would be held. In that background therefore, the learned Counsel for the Appellant has urged before us that the victim would certainly have a right to file an Appeal and in the peculiar facts of the present case, the order of discharge would, in reality, be an order of acquittal and therefore, an Appeal at the behest of the victim under Section 372 of the Code of Criminal Procedure would be maintainable. An order passed by the Special Judge holding that the provisions of the MCOC Act are not applicable in law is an order by which the accused are discharged from the provisions of the MCOC Act. It is true that once the Special Judge comes to a conclusion that the provisions of the MCOC Act are not applicable, the Court to which the case is transferred for trial does not have the jurisdiction to determine if the provisions of the MCOC Act are applicable. It is true that once the Special Judge comes to a conclusion that the provisions of the MCOC Act are not applicable, the Court to which the case is transferred for trial does not have the jurisdiction to determine if the provisions of the MCOC Act are applicable. The only forum is the High Court which can entertain a challenge to the order of the Special Judge discharging the accused. Though the order of the Special Judge is final if no Appeal is filed, yet the order of the Special Judge discharging the accused under the provisions of the MCOC Act does not in law become an order acquitting the accused under the MCOC Act. Since there is no trial in the sense that no evidence is recorded and no formal charge is framed, the order of the Special Judge discharging the accused under the provisions of the MCOC Act cannot in law be termed as an order of acquittal of the accused under the MCOC Act. The submission of the learned Senior Counsel for the Appellant therefore that the order of the Special Judge discharging the accused would in law be an order of acquittal and therefore, an Appeal would be maintainable under the proviso to Section 372 of the Code of Criminal Procedure by the victim is completely misconceived. 8. The learned Senior Counsel for the Appellant has further urged before us that since a remedy is provided to the victim of filing an Appeal, no doubt in certain contingencies only, the right to file an Appeal under Section 372 of the Code of Criminal Procedure can also be extended to an Appeal filed under Section 12 of the MCOC Act. Learned Senior Counsel for the Appellant has placed reliance on the Judgment of the Supreme Court in Prithvi Raj and Others v/s. Kamlesh Kumar and Anr. [AIR (2004) SC 4401] : [2004 ALL MR (Cri) 3139 (S.C.)] to urge before us that though language of Section 12 does not specifically provided an Appeal at the behest of the victim, yet an Appeal at the behest of the victim would be maintainable as the language of Section 12 does not specifically exclude the right of the victim to file an appeal. 9. 9. In the aforesaid Judgment of the Supreme Court, the provisions of Section 11(2) of the Probation of Offenders Act fell for consideration before the Supreme Court and the question was as to whether a de-facto complainant could prefer an Appeal under Section 2 of Section 11 of the Probation of Offenders Act though the provision only referred to the forum to which an Appeal could be filed without specifying as to who could file an Appeal. The Supreme Court, at paragraphs 9 and 10 has held thus :- "9. The language of Section 11(2) is unrestricted as to the person who can prefer an appeal. Therefore, there is no justification for confining the right only with the convicted person or even to the State. The issue can be looked at from another angle. Under the revisional jurisdiction the High Court in an appropriate case can direct re-trail though it cannot convert the order of acquittal to any order of conviction. When an application in revision is allowed by the Court against the conviction. When an application in revision is allowed by the Court against the order of acquittal at the instance of the private party, the High Court is obliged in law to remand the appeal. But in all other circumstances the High Court is competent to pass any order that may be passed by a Court of appeal. 10. It is to be noted that sub-section (2) of Section 11 commences with the expression notwithstanding anything contained in the Code and provides in unqualified terms that an appeal shall lie to the Court. Under the Code the appeal proceedings are concerned only with orders of acquittal or conviction. While the provisions in Section 11 (2) of the Act deal with something distinct from the fact of conviction or acquittal. The appeal under Section 11 (2) of the Act is not against acquittal or conviction but the propriety of the order passed under Section 3 or Section 4 of the Act. The intention of the legislature apparently is to confer such a right both on the prosecution and the accused. The interest of the complainant is not totally lost sight of by the legislature. It is statutorily provided that revision application can be filed by the complainant against an order of acquittal. The intention of the legislature apparently is to confer such a right both on the prosecution and the accused. The interest of the complainant is not totally lost sight of by the legislature. It is statutorily provided that revision application can be filed by the complainant against an order of acquittal. That being so, the complainant can prefer an appeal under Section 11(2) of the Act questioning propriety of the order passed under Section 3 or 4 of the Act. The view expressed by the Patna and Orissa High Courts is the correct view and that of the Calcutta High Court is not correct. The said view is nullified." 10. The Judgment of the Supreme Court in Prithvi Raj and Others v/s. Kamlesh Kumar and Anr., [2004 ALL MR (Cri) 3139 (S.C.)] (Supra), in our opinion, would not assist the Appellant in advancing a submission that the Appeal at the behest of the victim under Section 372 of the Code of Criminal Procedure would be maintainable. The Supreme Court in this case was dealing with the right of the defacto complainant in filing an Appeal. The defacto complainant in that sense of the term is the person who sets the law in motion by filing the First Information Report. A victim in all cases is not necessarily a de-facto complainant and vice-a-versa. In the present Appeal we have examined the question as to whether a victim could file an Appeal and not if a de-facto complainant can file an Appeal under Section 372 of the Code of Criminal Procedure. Undisputedly, Section 372 of the Code of Criminal Procedure confers a right of a victim to file an Appeal only if the Judgment appealed from acquits the accused or convicts the accused for a lesser offence or awards inadequate compensation. The victim does not get a right to file an Appeal against any order but the right is restricted only in respect of the aforesaid three contingencies. The victim does not get a right to file an Appeal against any order but the right is restricted only in respect of the aforesaid three contingencies. In the present case we have already held that an order by which the Special Court holds that the provisions of the MCOC Act are not applicable cannot be construed as an order acquitting the accused under the provisions of the MCOC Act, and an Appeal cannot therefore be filed by the victim under Section 372 of the Code of Criminal Procedure as the order Appealed from does not have the effect of acquittal of the accused or convicting the accused for a lesser offence or sentencing him for inadequate compensation. The said Judgment referred to by the learned Counsel for the Appellant, therefore, in our opinion, would not assist the case of the Appellant. Section 372 of the Code of Criminal Procedure states that no Appeal shall lie from any Judgment or order of a Criminal Court except as provided for by the provisions of the Criminal Procedure Code or by any other law for the time being in force. Section 12 of the MCOC Act does not state as to who can file an appeal. Section 12 of the MCOC Act also does not state or confers any right on the victim/complainant to file an Appeal. In the absence of such a right being conferred either by virtue of Section 12 of the MCOC Act or being spelt out under Section 372 of the Code of Criminal Procedure in respect of filing of an Appeal against the order impugned in the present Appeal, no Appeal can be filed by the victim unless specifically provided for. Neither Section 12 of the MCOC Act, nor Section 372 of the Code of Criminal Procedure provides any Appeal being filed by the victim in respect of an order by which the Trial Court discharges the accused from the provisions of the MCOC Act. 11. A reference at this juncture may usefully be made to the Judgment of the Supreme Court in Garikapati Veeraya v/s. N. Subiah Choudhry and Ors. [AIR (1957) SC 540]. The Supreme Court at paragraph 23 has held thus :- "23. 11. A reference at this juncture may usefully be made to the Judgment of the Supreme Court in Garikapati Veeraya v/s. N. Subiah Choudhry and Ors. [AIR (1957) SC 540]. The Supreme Court at paragraph 23 has held thus :- "23. From the decisions cited above the following principles clearly emerge: (i) That the legal pursuit of a remedy, suit appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. (ii) The right of appeal is not a mere matter of procedure but is a substantive right. (iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. (iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. (v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise." 12. The Judgment of the Supreme Court in Garikapati Veeraya v/s. N. Subiah Choudhry (Supra) was considered by the Supreme Court in Tirumala Chemicals Limited v/s. Union of India and Ors. [ (2011) 6 SCC 739 ] : [2011 ALL SCR 1301] and Dilip Dahanukar v/s. Kotak Mahindra Co. Ltd. And Anr. [ (2007) 6 SCC 528 ] : [2007 ALL MR (Cri) 1775 (S.C.)]. 13. We are, therefore, of the opinion that the order by which the Trial Court discharges the accused from the provisions of the MCOC Act is not an order which would amount to acquittal. The order is an order of discharge and consequently, the said order cannot be construed as an order by which the accused are acquitted though in the absence of any challenge to it by way of an Appeal the order may become final. The order is an order of discharge and consequently, the said order cannot be construed as an order by which the accused are acquitted though in the absence of any challenge to it by way of an Appeal the order may become final. Once it is held that the order discharging the accused is not an order by which the accused are acquitted of the provisions of the MCOC Act, an Appeal under Section 372 of the Code of Criminal Procedure by a victim cannot be filed. Section 12 of the MCOC Act does not specify as to who can file an Appeal. In the absence of the express language of the statute conferring a right of Appeal, it has to be inferred that the right of an Appeal is available only to the parties to the lis. The language of Section 12 of MCOC Act is therefore clear that the right of Appeal is available to the parties to the proceedings or lis. A right in favour of the victim cannot be inferred that the victim has a right to file an Appeal. This Court cannot read any words into the statute to imply that even the victim has a right of Appeal under Section 12 of the MCOC Act. On a plain reading of the provisions of Section 12 of the MCOC Act, it is clear that the right of Appeal is available only to the parties to the proceedings/lis and not to any other person even a victim. 14. In the light of what has been held by us above, according to us, this Appeal which is filed by the victim under Section 372 of the Code of Criminal Procedure is not maintainable and is therefore, liable to be dismissed. We make it clear that we have only examined the limited question of maintainability of the Appeal and have not examined the merits of the Appeal. 15. Accordingly, this Appeal is dismissed as not maintainable. Appeal dismissed.