Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 295 (HP)

Ashwani Kumar v. State of H. P.

2014-03-28

MANSOOR AHMAD MIR

body2014
JUDGMENT Mansoor Ahmad Mir, ACJ (Oral) In this Criminal Revision Petition, the petitioners have thrown challenge to the order made by the Additional Sessions Judge (Fast Track), Kullu, H.P., in Criminal Appeal No. 06/2007, filed by the State against the acquittal order made by the Judicial Magistrate 1st Class, Manali, District Kullu, in Criminal Case No. 346- 1/2005, titled as State of H.P. versus Ashwani Kumar & another registered in terms of FIR No. 183/2005, dated 26.8.2005, Tehsil & Police Station Manali, District Kullu (H.P.), under Sections 323, 325, 341, & 506 read with Section 34 of the Indian Penal Code, whereby the order of the trial Magistrate was reversed and the petitioners stood convicted. 2. The moot point germane for consideration in this revision petition is whether the learned Sessions Judge, who made the impugned judgment and order dated 29.8.2007, in Criminal Appeal No. 06/2007, was within its power and competence and, having jurisdiction to make such an order? 3. The learned Counsel for the petitioners argued that the Appellate Court had no jurisdiction to entertain and hear the appeal and make order. 4. Mr. J.K. Verma, learned Deputy Advocate General frankly submitted that the offences, with which the petitioners were charged, are cognizable and bailable and not non-bailable. 5. In the aforesaid context, It is apt to reproduce Section 378 (1) (b) of the Code of Criminal Procedure: “378(1) (a) ..(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.]” 6.While going through the said provision, it is crystal clear that District Magistrate can direct the Public Prosecutor to present an appeal to the Court of sessionsfrom an order of acquittal passed by the Magistrate in respect of cognizable and non-bailable offences. The word “and” is used not “or”. So, the offences which are cognizable and non-bailable offences, that too, when FIR has been lodged, an appeal can lie to Sessions Court. The word “and” is used not “or”. So, the offences which are cognizable and non-bailable offences, that too, when FIR has been lodged, an appeal can lie to Sessions Court. Section 378 (2) (b) provides that in other cases appeal shall lie 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.]. 7. According to Mr. Verma, learned Deputy Advocate General if the case is only cognizable and bailable, also the appeal would lie. The argument is misconceived and not tenable for the following reasons. 8. It is necessary to trace out the womb which has given birth to the present amendment carried out in Section 378 of the Code (supra). 9. The matter had come up for consideration before the Legislature through the Law Commission and proposal was made to incorporate amendments in terms of Para 6.12 Cl. 37 occurring in 154th Amendment of the Law Commission of India, which has been reproduced, discussed and thrashed out in case titled as Subhash Chand versus State (Delhi Administration), reported in (2013) 2 SCC, 17. It is apt to reproduce paras 14, 15, 17 & 18 of the judgment herein: “14. Before we proceed to analyze the amended Section 378 of the Code, it is necessary to quote the relevant clause in the 1 54th Report of the Law Commission of India, which led to the amendment of Section 378 by Act 25 of 2005. It reads thus: “6.12. Clause 37.- In order to guard against the arbitrary exercise of power and to reduce reckless acquittals, Section 378 is sought to be amended providing an appeal against an order of acquittal passed by a Magistrate in respect of cognizable and non-bailable offence filed on a police report to the Court of Session as directed by the District Magistrate. In respect of all other cases filed on a police report, an appeal shall lie to the High Court against an order of acquittal passed by any other court other than the High Court, as directed by the State Government. In respect of all other cases filed on a police report, an appeal shall lie to the High Court against an order of acquittal passed by any other court other than the High Court, as directed by the State Government. The power to recommend appeal in the first category is sought to be vested in the District Magistrate and the power in respect of second category would continue with the State Government.”The Code of Criminal Procedure (Amendment) Bill, 1994 has the same note on Clause 37. 15. Though, the Law Commission’s 154th report indicated that Section 378 was 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 Sessions, the words “police report” were not included in the amended Section 378. In this connection, it is necessary to refer to the relevant extract from the Law Commission’s 221st report of April, 2009. After noting amendment made to Section 378 the Law Commission stated as under: “2.9 All appeals against orders of acquittal passed by Magistrates were being filed in High Court prior to amendment of Section 378 by Act 25 of 2005. Now, with effect from 23.06.2006, appeals against orders of acquittal passed by Magistrates in respect of cognizable and non-bailable offences in cases filed on police report are being filed in the Sessions Court, vide clause (a) of sub-section (1) of the said section. But, appeal against order of acquittal passed in any case instituted upon complaint continues to be filed in the High Court, if special leave is granted by it on an application made to it by the complainant, vide sub­section (4) of the said section. 2.10 Section 378 needs change with a view to enable filing of appeals in complaint cases also in the Sessions Court, of course, subject to the grant of special leave by it.” These two extracts of the Law Commission’s report make it clear that though the words ‘police report’ are not mentioned in Section 378(1) (a), the Law Commission noted that the effect of the amendment was that all appeals against an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence in cases filed on police report are being filed in the Sessions Court. The Law Commission lamented that there is no provision enabling filing of appeal in complaint cases in the Sessions Court subject to the grant of special leave by it. Thus, the Law Commission acknowledged that there is no provision in the Code under which appeals in complaint cases could be filed in the Sessions Court. We agree with this opinion for reasons which we shall now state. 16. .. . 17. At the outset, it must be noted that as per Section 378(3) appeals against orders of acquittal which have to be filed in the High Court under Section 378(1)(b) and 378(2)(b) of the Code cannot be entertained except with the leave of the High Court. Section 378(1)(a) provides that, in any case, if an order of acquittal is passed by a Magistrate in respect of a cognizable and non-bailable offence the District Magistrate may direct the Public Prosecutor to present an appeal to the court of Sessions. Sub- Section (1)(b) of Section 378 provides that, in any case, the State Government may direct the Public Prosecutor to file an appeal to the High Court from an original or appellate order of 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. Sub-Section(2) of Section 378 refers to orders of acquittal passed in any case 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 the Code. This provision is similar to sub-section (1) except that here the words ‘State Government’ are substituted by the words ‘Central Government’. 18. If we analyze Section 378(1)(a) & (b), it is clear that the State Government cannot direct the Public Prosecutor to file an appeal against an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence because of the categorical bar created by Section 378(1)(b). Such appeals that are appeals against orders of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence can only be filed in the Sessions Court at the instance of the Public Prosecutor as directed by the District Magistrate. Such appeals that are appeals against orders of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence can only be filed in the Sessions Court at the instance of the Public Prosecutor as directed by the District Magistrate. Section 378(1)(b) uses the words “in any case” but leaves out orders of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence from the control of the State Government. Therefore, in all other cases where orders of acquittal are passed appeals can be filed by the Public Prosecutor as directed by the State Government to the High Court.” 10.Thus, the power which has been given to the District Magistrate to direct the Pubic Prosecutor to file an appeal is only in respect of the offences which are cognizable and non-bailable offences and in the order of acquittal which is outcome of FIR lodged by the Police. 11.The word “and” has definite meaning. It is 3rd Ed.: apt to reproduce the definition of word “and” given In Stroud’s Judicial Dictionary, “It is stated at page 135 that “and” has generally cumulative sense, requiring the fulfillment of all the conditions that it joins together, and herein it is the anti-thesis of “or”. Sometimes, however, even in such a connexion, it is, by force of a context, read as “or”. Similarly, in Maxwell on Interpretation of Statutes, 11th Ed. ., it has been accepted that “to carry out the intention of the Legislature it is occasionally found necessary to read the conjunction ‘or’ and ‘and’ one for the other”- Ishwar Singh Bindra v. State of U.P., AIR 1968 SC 1450 at p.1454 : 1969) Cr.L.J. 19 at p.19. The intention of the Parliament is to read the word “and” as “o” in Sec. 32(1), State Financial Corporation Act.....It is a well known canon of construction of statutes. In ordinary usage “and” in conjunctive and “or: disjunctive. But to carry out the intention of the Legislature it may be necessary to read “and: in place of the conjunction “or” and vice versa-See Maxwell on Interpretation of Statutes, 12th Ed., p. 232; Mysore State Financial Corporation v. Kshetrapala Rice and Flour Mills, A.I.R. 1974 Knt. 26 at p. 28; Municipal Council, Raipur v. Bishandas Nathumal, A.I.R. 1969 M.P. 147 at p. 149 Cr. 26 at p. 28; Municipal Council, Raipur v. Bishandas Nathumal, A.I.R. 1969 M.P. 147 at p. 149 Cr. L.J. 19 at p. 19; Coimbatore Municipality v. K. Thiruvenkataswami, (1973) 26 FLR 189 at p. 197 (Mad.) : (1973) 87 LW. 462.” 12.While going through the aim and object of the amendment and 154th report of the Law Commission of India, one comes to an inescapable conclusion that both the ‘words’ must co-exist, i.e., the offence should be cognizable and non-bailable. In this case, the appeal was directed against the offences which are bailable and cognizable, thus the Sessions Judge had no power, authority or jurisdiction to entertain the appeal. 13.As a corollary to the aforesaid observations, the impugned judgment and order is set aside and the appeal is dismissed. However, the State is at liberty to seek appropriate remedy and the period spent, shall not come in their way. 14.The Revision petition alongwith pending applications, if any, stands accordingly disposed of. Send down the records.