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2014 DIGILAW 497 (AP)

State of A. P. v. Syed Mohamood Saeed

2014-04-01

U.DURGA PRASAD RAO

body2014
ORDER U. Durga Prasad Rao, J. 1. The points that arise for determination in this case are: 1) What is the period of limitation for filing an appeal by the State against the acquittal? 2) Is there any period of limitation to apply for "leave" under Section 378(3) Cr.P.C. by the State for filing appeal before High Court against acquittal? 3) Whether there are two different periods of limitation-- one for obtaining leave and another for filing appeal and if so, which one will prevail over the other? 4) Having regard to the answers to the points 1 to 3, whether the instant criminal appeal preferred against acquittal by the state is barred by limitation and hence no leave can be granted under Section 378(3) Cr.P.C.? 2. The factual matrix of the case is thus: a) The respondent is the Accused Officer (A.O.) in C.C. No. 5 of 2004 on the file of learned Special Judge for CBI cases, Hyderabad. He was charged for the offences under Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 (for short "P.C. Act") on the accusation that he being Executive Engineer (Construction Cell) Central Warehousing Corporation, Hyderabad demanded bribe of Rs. 20,000/- from the complainant (P.W. 1) Civil Contractor, Hyderabad for releasing payment of final bills submitted towards contract works executed by him. On the complaint lodged by P.W. 1 with S.P., CBI, an F.I.R. was registered and trap was laid against AO and after investigation, charge sheet was laid against him for the aforesaid offences and trial was conducted. The trial Court ultimately found him not guilty of the charges levelled against him and acquitted him of the charges as per its judgment dated 22.10.2010. b) Hence the appeal by the State of Andhra Pradesh, represented by C.B.I. Hyderabad. 3. Grounds of appeal were filed on 04.06.2011. However it appears, the State has not filed mandatory petition under Section 378(3) Cr.P.C. seeking leave of the High Court to prefer appeal along with grounds of appeal. Hence the appeal was returned on 20.06.2011 by the Registry with an endorsement "all requirements to be complied". Ten days time was granted for compliance. While so, the appellant kept silent till 23.12.2011 and complied the file on 23.12.2011 with a delay of 176 days. He filed Crl.A.M.P. No. 42 of 2012 to condone the delay of 176 days in representing the appeal. Ten days time was granted for compliance. While so, the appellant kept silent till 23.12.2011 and complied the file on 23.12.2011 with a delay of 176 days. He filed Crl.A.M.P. No. 42 of 2012 to condone the delay of 176 days in representing the appeal. Subsequently, he filed Crl.A.M.P. No. 105 of 2012 in terms of Section 378(3) Cr.P.C. on 20.01.2012 seeking leave of this Court for filing appeal. 4. The docket shows that Crl.A.M.P. No. 42 of 2012 was allowed on 18.01.2012 and delay was condoned. Subsequently on 23.01.2012 Crl.A.M.P. No. 105 of 2012 was allowed and leave was granted. Aggrieved by the above two orders on the ground that no notice was served and he was not heard, the respondent/A.O. preferred Criminal Appeal Nos. 964 and 965 of 2013 before Hon'ble Supreme Court. By its judgment dated 16.07.2013, the Apex Court allowed the said two appeals with the observation that High Court ought to have issued notice to the appellant/A.O. on the application under Section 378 Cr.P.C. and thereafter it could have proceeded with the matter. Hence the matter was remitted back to the High Court for fresh consideration of the application filed on behalf of the Investigating Agency (appellant) under Section 378(3) Cr.P.C. upon giving notice to the A.O. Hence Crl.A.M.P. No. 105 of 2012 was heard afresh. 5. Heard Sri P. Keshava Rao, learned Special Standing Counsel for CBI/appellant (Spl. S.C.) and Sri P. Vishnu Vardhan Reddy, learned counsel for respondent/A.O. In view of the importance in the matter, Sri R. Ramachandra Reddy, learned Special Public Prosecutor for A.C.B. cases was also heard. 6. POINT Nos. 1 and 2: The substance of argument of learned Spl. S.C. is that the Cr.P.C. has not imposed any period of limitation for filing appeal by the State against acquittal except providing period of limitation for obtaining leave to file appeal under Section 378 Cr.P.C. He would submit that as per Section 378(4) Cr.P.C., if the order of acquittal is passed in any case instituted upon a complaint, such complainant has to seek special leave from the High court to present an appeal and as per sub-Section (5) if the complainant happens to be a public servant, he has to seek leave within six months and in other cases within 60 days. He would further argue that a CBI/ACB officer who registers FIR and files charge-sheet also fits into the status of a "complainant" within the meaning of Section 378(5) Cr.P.C. and as such he can avail six months period for obtaining leave. Expatiating it, he submitted that in trap cases a police officer registers the FIR not merely on the strength of the report given by a complainant, but he will make preliminary enquiry on the antecedents of the complainant and A.O. and then registers the FIR. Therefore, though it is a police case, still he can be called as a complainant within the meaning of Section 378(5) Cr.P.C. Similarly in Disproportionate Assets cases (DA cases), the police officer registers the FIR not on the strength of any report given by any complainant but on the source information only. So in trap cases or in DA cases the police officer is practically the complainant though sometimes a different complainant gives the report. In this regard, he relied upon the decision reported in the case of A.R. Antulay vs. Ramdas Sriniwas Nayak and another AIR 1984 Supreme Court 718 (1). Thus he argued that though CBI/ACB cases are police cases, still they can be treated as complaint cases for the purpose of Section 378(5) Cr.P.C., since in some cases they directly lodge the report on source information and in some cases they conduct preliminary enquiry and register FIR. Hence appeal can be filed within six months by obtaining leave. 7. a) Per contra, learned counsel for respondent/A.O argued that it is not correct to say that no period of limitation is prescribed for filing appeal against acquittal. In fact, limitation is prescribed under Article 114 of Limitation Act, 1963 where under limitation for filing an appeal against acquittal by the State is 90 days and the limitation for filing appeal against acquittal in a complaint cases is 30 days. Therefore, in the instant case, the State ought to have filed appeal within 90 days from the date of judgment. b) Regarding the leave under Section 378 Cr.P.C., learned counsel submitted that it is of two types-"leave" and "special leave". Central/State Government shall obtain "leave" under Section 378(3) Cr.P.C. for preferring an appeal in a High Court against an order of acquittal. b) Regarding the leave under Section 378 Cr.P.C., learned counsel submitted that it is of two types-"leave" and "special leave". Central/State Government shall obtain "leave" under Section 378(3) Cr.P.C. for preferring an appeal in a High Court against an order of acquittal. Whereas in a private complaint case, a complainant has to obtain "special leave" under Section 378(5) Cr.P.C. for preferring an appeal in a High Court against an order of acquittal. He further argued that if the complainant is a public servant, for instance in Food Adulteration cases, Drugs and Cosmetics Act cases etc., he shall obtain "special leave" within six months and in other cases i.e., if the complainant is a private person, he shall obtain "special leave" within sixty days. He argued that Central/State Government is concerned Section 378(3) Cr.P.C. has not prescribed any time limit for obtaining leave unlike Section 378(5) Cr.P.C. concerning to private complaint cases. Therefore, he argued, Central/State Government if intends to prefer an appeal before the High Court against an order of acquittal, it shall present the appeal within 90 days following Article 114(a) of Limitation Act and while filing the appeal it can also submit leave petition along with the grounds of appeal. However, CBI/ACB Police Officer cannot seek shelter under Section 378(5) Cr.P.C. to claim six months period for filing leave petition, as Section 378(5) Cr.P.C. has no application to leave petition filed in police cases. On this point, he relied upon the following decisions: 1) State (Delhi Administration) vs. Dharampal AIR 2001 Supreme Court 2924. 2) The State of Rajasthan vs. Ramdeen and others AIR 1977 Supreme Court 1328 (supra). 3) The State vs. D.N. Bhuyan 1984 Cri.LJ 40 (1). He submitted that in the instant case, the State ought to have filed the appeal within 90 days from the date of judgment but it preferred the appeal beyond that period and there was enormous delay. Hence, no leave can be granted to it. 8. On hearing the above respective arguments and perusing the concerned law on the subject, I agree with the respondent/A.O. It is not as though no limitation at all was prescribed by law for the State Government to prefer an appeal against acquittal. Article 114 of Limitation Act, 1963 governs the field. It reads as follows: Sl. No. Description of suit Period of limitation Time from which period begins to run 114. Article 114 of Limitation Act, 1963 governs the field. It reads as follows: Sl. No. Description of suit Period of limitation Time from which period begins to run 114. Appeal from an order of acquittal- (a) under sub-section (2) of Section 417 of the Code of Criminal Procedure, 1898 (5 of 1898) Ninety days The date of the order appealed from (b) under Sub-Section (3) of 417 of the Code Thirty days The date of the grant of Special Leave. 9. Section 417 of the Code of Criminal Procedure, 1898 corresponds to Section 378 of Code of Criminal Procedure, 1973. For convenient reference, those two sections are extracted hereunder. Section 417 of the Code of Criminal Procedure, 1898 - Appeal in case of acquittal: (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 (35 of 1946), the Central Government may also direct the Public Prosecutor to present, an appeal to the High Court from the order of acquittal. (3) If such an order of acquittal is passed in any case instituted upon complaint 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. (4) No application under sub-section (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. (5) If, in any case, the application under sub-section (3) 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 sub-section (1). (5) If, in any case, the application under sub-section (3) 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 sub-section (1). Section 378 of the Code of Criminal Procedure, 1973 - Appeal in case of acquittal: (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 a Magistrate in respect of a cognizable and non-cognizable 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,] (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, 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.] (3) 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. (4) If such an order of acquittal is passed in any case instituted upon complaint 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. (4) If such an order of acquittal is passed in any case instituted upon complaint 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. (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If, in any case, the application under sub-section (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 sub-section (1) or under sub-section (2). 10. So a perusal of Article 114 of Limitation Act, with reference to Section 417 of Cr.P.C., 1898 gives an understanding that the time limitation for a State/Central Government to prefer an appeal before the High Court against the order of acquittal is 90 days. With the amendment of Cr.P.C. in 1973, Section 378 replaced Section 417 of the old Code. A comparison of Section 378with the old Section 417 shows that whilst under the old section, State or Central Government need not obtain leave of the High Court for filing an appeal, now by virtue of Section 378(3) Cr.P.C. such a leave has to be obtained by them. This is one of the main differences. Again under Section 417(4) of old Code, in case of an appeal against acquittal passed in complaint cases, the time for applying leave is 60 days where as under Section 378(5) Cr.P.C. time for applying leave in case the complainant is a public servant is six months and in other cases 60 days. This is another difference between the two sections. Be that it may, Article 114 was not amended with the amendment of Cr.P.C. in 1973. Therefore, Article 114(a) shall be studied in conjunction with Section 378 Cr.P.C. It tells us that Article 114 mutatis mutandis applies to Section 378 Cr.P.C. Therefore, as rightly submitted by learned counsel for respondent/A.O., the State/Central Government has to file appeal within 90 days from the date of judgment. 11. Therefore, Article 114(a) shall be studied in conjunction with Section 378 Cr.P.C. It tells us that Article 114 mutatis mutandis applies to Section 378 Cr.P.C. Therefore, as rightly submitted by learned counsel for respondent/A.O., the State/Central Government has to file appeal within 90 days from the date of judgment. 11. Then leave is concerned, Section 378 Cr.P.C. can be conveniently divided into two parts for the purpose of leave. Sub-sections (1) to (3) govern the leave to be obtained by the State/Central Government from the High Court whereas sub-sections (4) and (5) govern the leave to be obtained by a complainant - be a public servant or a private complainant. Sub-sections (1) to (3) only tell us that State/Central Government have to obtain leave from the High Court without prescribing any time limit whereas sub-sections (4) and (5) tell us that if the complainant is a public servant, he shall secure the leave within six months and in other cases, the complainant shall secure leave within 60 days. So summing up the legal position, State/Central Government have to prefer an appeal to the High Court against acquittal under Article 114(a) of Limitation Act within 90 days from the date of judgment but for entertaining the appeal, they shall obtain leave of High Court for which no time limit is prescribed. Therefore, in practical situation, State/Central Government have to file grounds of appeal along with leave petition within 90 days from the date of judgment. The above legal position is clarified in the following cited decisions: i) In State (Delhi Administration) vs. Dharampal AIR 2001 Supreme Court 2924, it was held thus: Limitation Act (36 of 1963), Art. 114. S. 378 makes a distinction between an appeal filed by the State Government or the Central Government who only need to obtain 'leave', and an appeal by a complainant who needs to obtain 'special leave'. The limitation provided in sub-section (5) is only in respect of applications under sub-section (4) i.e., application for special leave to appeal by a complainant. A complainant may be either a public servant then the period of limitation for an application for special leave is 6 months. If the complainant is a private party then the period of limitation for an application for special leave is 60 days. A complainant may be either a public servant then the period of limitation for an application for special leave is 6 months. If the complainant is a private party then the period of limitation for an application for special leave is 60 days. The period of 6 months and or 60 days do not apply to appeals by the State Government (under sub-section (1)) Appeals by the State Government or the Central Government continue to be governed by Art. 114(a) of the Limitation Act. In other words, those appeals must be filed within 90 days from the date of the orders appealed from. ii) In The State of Rajasthan vs. Ramdeen and others AIR 1977 Supreme Court 1328, it was held thus: 9. Besides under Art. 114 of the Limitation Act, in an appeal from an order of acquittal by the State, the period of limitation is ninety days from the date of the order appealed from, whereas in an appeal from an order of acquittal, in any case instituted upon complaint, the period is thirty days from the date of the grant of special leave. Thus there is a clear distinction between the two types of appeals with regard to terminus a quo under Art. 114. It is, therefore, not necessary to wait until the grant of leave by the High Court to present a memorandum of appeal against acquittal at the instance of the State. Thus, appeal can be filed by the State within ninety days from the date of the order of acquittal and a prayer may be included in that appeal for entertaining the appeal under sub-s. (3) of S. 378 Cr.P.C. If the leave sought for is not granted by the High Court, the appeal is not entertained and stands dismissed. iii) In The State vs. D.N. Bhuyan 1984 Cri.LJ 40 (1) (supra), it was held thus: The period of limitation for filing application for "special leave" to appeal under sub-section (5) of Section378 governs only the complaint cases where the applicant for a special leave is the complainant and/or the State Government or the Central Government. However, the provisions of sub-section (5) are not attracted where an appeal from an order of acquittal is made under sub-section (3) in a case instituted otherwise than by the complainant. However, the provisions of sub-section (5) are not attracted where an appeal from an order of acquittal is made under sub-section (3) in a case instituted otherwise than by the complainant. The period of limitation for preferring such an appeal is 90 days, as provided in Art. 114 of the Limitation Act, 1977 Cri LJ 997 (SC) and 1976 Cri.LJ 192 (SC), Rel. on. 12. In view of law being clear on the subject, the submission of learned Special Standing Counsel that there is no period of limitation for filing an appeal against acquittal by the State/Central Government and that it can avail six months period as provided under Section 378(5) Cr.P.C. cannot be accepted. Consequently, the cited decision reported in A.R. Antulay's case AIR 1984 Supreme Court 718 (1) has no application to the present case. Thus points 1 and 2 are concerned, it is held that the period of limitation for filing an appeal to the High Court against acquittal by the State is 90 days under Article 114(a) of Limitation Act, 1963 and it is further held that no period of limitation to apply for 'leave' by the State is prescribed under Section 378(3) Cr.P.C. and it cannot avail the period of six months or two months prescribed under Section 378(5) Cr.P.C. 13. POINT No. 3: In view of the findings in points 1 and 2, this point is concerned, it is held that there are no two different periods of limitation - one for obtaining leave by the State and another for filing appeal. It is made clear that there is only one period of limitation for filing appeal prescribed under Article 114(a) of Limitation Act, 1963 which is 90 days. 14. POINT No. 4: In view of the findings in points 1 to 3, it is held that the instant appeal preferred by the State is barred by limitation. The relevant dates are as follows: Date of Judgment in C.C. No. 5 of 2004 = 22.10.2010 Date of certified copy ready = 06.11.2010 Date of filing of appeal = 04.06.2011 In view of Article 114(a) of Limitation Act, the instant appeal ought to have been filed within 90 days from 06.11.2010. However the appeal was filed on 04.06.2011. Hence the appeal is time barred. 15. In the result, this Crl.A.M.P. No. 105 of 2012 is dismissed. However the appeal was filed on 04.06.2011. Hence the appeal is time barred. 15. In the result, this Crl.A.M.P. No. 105 of 2012 is dismissed. Consequently, the Registry is directed to return the appeal file to the appellant. If the appeal is represented with a delay condonation petition and fresh leave petition after giving notice to other side, the same will be considered on merits in accordance with law.