TMI Blog2010 (4) TMI 1073X X X X Extracts X X X X X X X X Extracts X X X X ..... in the commission of the said offence. The Court of Special Judge, CBI (AHD), upon conclusion of trial, vide its judgment dated December 18, 2006 acquitted the accused holding that prosecution failed to prove the charges levelled against them. It is pertinent to notice here that as per CBI, the central government after considering the conclusions and findings of the trial court took a conscious and considered decision that no ground whatsoever was made for filing an appeal against the judgment of the trial court. On February 17, 2007 the state government, however, filed leave to appeal against the order of acquittal dated December 18, 2006 before the High Court of Judicature. HELD THAT:- In our opinion, the Legislature has maintained a mutually exclusive division in the matter of appeal from an order of acquittal inasmuch as the competent authority to appeal from an order of acquittal in two types of cases referred to in sub-section (2) is the central government and the authority of the state government in relation to such cases has been excluded. As a necessary corollary, it has to be held, and we hold, that the State Government (of Bihar) is not competent to direct its public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsection (2). 3. The main question presented, in light of the aforesaid provision is, namely, as to whether the State Government (of Bihar) has competence to file an appeal from the judgment dated 18th December, 2006 passed by Special Judge, CBI (AHD), Patna, acquitting the accused persons when the case has been investigated by the Delhi Special Police Establishment (CBI). 4. Shri Lalu Prasad Yadav and Smt. Rabri Devi are husband and wife. Both of them have held the office of Chief Minister of the State of Bihar. These appeals concern the period from March 10, 1990 to March 28, 1995 and April 4, 1995 to July 25, 1997 when Shri Lalu Prasad Yadav was the Chief Minister, Bihar. Allegedly for acquisition of assets both moveable and immoveable by corrupt or illegal means disproportionate to his known sources of income during the aforesaid period, a first information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned Single Judge heard the arguments on the question of maintainability of appeal and vide his order dated September 20, 2007 overruled the preliminary objection and held that appeal preferred by the state government was maintainable. It is from this order that two appeals by special leave have been preferred. One of the two appeals is by the accused and the other by CBI. 7. We heard Mr. Ram Jethmalani, learned senior counsel (for accused) and Mr. A. Mariarputham, learned senior counsel (for CBI) appellants and Mr. L. Nageshwar Rao, learned senior counsel for the state government. 8. Mr. Ram Jethmalani submitted that the competence of the state government to file an appeal from the judgment and order of acquittal is to be determined by Section 378 of the 1973 Code as it existed prior to 2005; the law in force on the date of the chargesheet. He would submit that the key words in Section 378(1) are : Save as otherwise provided in sub-section (2) and by these words whatever is covered by sub-section (2) is left outside the purview of sub-section (1). According to him, the word also in sub-section (2) refers to the mode of exercising substantive right of appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintainability of appeal filed by the state government. He submitted that right of appeal is a creature of statute and the question whether there is right of appeal or not will have to be considered on an interpretation of the provision of the statute and not on the ground of propriety or any other consideration. According to him, when the language of statute is plain and unambiguous then literal rule of interpretation has to be applied and the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act or to have consideration of equity, public interest or to seek the intention of the Legislature. He would submit that the use of the expressions in any case in sub-section (1) and also in sub-section (2) clearly indicates that Legislature intended that the general rule would be that the state government may file an appeal in any and every case [including cases covered by sub-section (2)] and the central government may additionally file an appeal in a case covered by sub-section (2). Mr. L. Nageshwar Rao c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or the case); and (ii) in view of the express amendment to Section 377 of 1973 Code so as to enable the state government to file an appeal even where investigation was conducted by the CBI or central agency, the state government would be competent to file an appeal in case of award of inadequate sentence; but in a similar case that results in acquittal then the state government would not be able to file an appeal under Section 378. 15. In the Code of Criminal Procedure, 1861, Section 407 prohibited an appeal from acquittal. For the first time, the Code of Criminal Procedure, 1872 provided for an appeal by the government from an order of acquittal (Section 272). The said provision was re-enacted in Section 417 of the Code of Criminal Procedure, 1882. The provision concerning an appeal in case of acquittal was retained in Section 417 of 1898 Code. The provision relating to an appeal from order of acquittal in 1898 Code (as amended by Amendment Act 26 of 1955) reads as under:- S. 417.- 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further. 19 In The Attorney-General v. Lockwood (1842) 9 Meeson and Welsby 378, the rule regarding construction of statutes was expounded in the following words: ..The rule of law, I take it, upon the construction of all statutes, and therefore applicable to the construction of this, is, whether they be penal or remedial, to construe them according to the plain, literal, and grammatical meaning of the words in which they are expressed, unless that construction leads to a plain and clear contradiction of the apparent purpose of the act, or to some palpable and evident absurdity . . 20. In The Sussex Peerage (1844) XI Clark Finnelly 85, the House of Lords, through Lord Chief Justice Tindal, stated the rule for the construction of Acts of Parliament that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are of themselves precise and unambiguous, then no mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore any words are read to repair an omission in the Act, it should be possible to state with certainty that these words would have been inserted by the draftsman and approved by the legislature had their attention been drawn to the omission before the Bill had passed into a law. At times, the intention of the legislature is found to be clear but the unskilfulness of the draftsman in introducing certain words in the statute results in apparent ineffectiveness of the language and in such a situation, it may be permissible for the court to reject the surplus words, so as to make the statute effective ... 22. As noticed above, Section 378, sub-section (1), opens with the words - save as otherwise provided in sub-section (2) . These words are not without significance. The immediate question is as to what meaning should be ascribed to these words. In Concise Oxford English Dictionary (Tenth Edition, Revised), the word save is defined thus: save.- formal or poetic/literary except; other than . 23. In Webster Comprehensive Dictionary (International Edition), the word save is defined as follows:- save.- Except; but - 1. Except; but 2. Archaic Unless . 24. A Diction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the date of an order of acquittal and in all other cases, including the cases covered by sub-sections (1) and (2), a period of sixty days from the date of the order of acquittal. Sub-section (6) makes a provision that if an 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). We have surveyed Section 378 in its entirety to have complete conspectus of the provision. 27. The opening words save as otherwise provided in subsection (2) are in the nature of exception intended to exclude the class of cases mentioned in sub-section (2) out of operation of the body of sub-section (1). These words have no other meaning in the context but to qualify the operation of sub-section (1) and take out of its purview two types of cases referred in sub-section (2), namely, (i) the cases in which offence has been investigated by the Delhi Special Police Establishment constituted under 1946 Act and (ii) the cases in which the offence has been investigated by any other agency empowered to make investigation into an offence under any Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Ayyar, J. observed : ..It is a well-settled rule of construction that when a statute is repealed and re-enacted and words in the repealed statute are reproduced in the new statute, they should be interpreted in the sense which had been judicially put on them under the repealed Act, because the Legislature is presumed to be acquainted with the construction which the Courts have put upon the words, and when they repeat the same words, they must be taken to have accepted the interpretation put on them by the Court as correctly reflecting the legislative mind ... 29. However, if the latter statute does not use the same language as in the earlier one, the alteration must be taken to have been made deliberately. In his classic work, Principles of Statutory Interpretation by G.P. Singh, 12th Edition, 2010 at page 310, the following statement of law has been made: Just as use of same language in a later statute as was used in an earlier one in pari materia is suggestive of the intention of the Legislature that the language so used in the later statute is used in the same sense as in the earlier one, change of language in a later statute in pari materia is suggestive that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to that force. The police officer also subject to the orders of the Central Government exercises the powers of the officer-incharge of a police station in the extended area. Under Section 6 consent of the State Government is necessary to enable the officer of the Establishment to exercise powers and jurisdiction in any area in the State not being a Union territory or railway area. 12. Investigation under the Delhi Act is, therefore, a central investigation and the officers concerned are under the superintendence of the officer appointed by the Central Government. The superintendence of the Establishment is also under the Central Government. The Central Government, therefore, is concerned with the investigation of the cases by the Establishment and its ultimate result. It is in that background that in 1955, Section 417 was amended by adding sub-section (2) to the section to provide for appeal against acquittal in cases investigated by the Establishment also on the direction of the Central Government. In view of the provisions of the Delhi Act it was necessary to introduce sub-section (2) in Section 417 so that this Central agency which is solely and intimately connected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Khemraj cannot be applied as the language used in Section 417 (1898 Code) and Section 378 (1973 Code) is not in pari materia. 32. Much emphasis, however, has been placed on the word also in sub-section (2) of Section 378 by learned senior counsel for the state government. It has been urged that by use of the word also , competence of the state government in directing the public prosecutor to file an appeal from an order of acquittal in the two types of cases covered by sub-section (2) is not taken away and rather the word also suggests that central government may also direct the public prosecutor to file an appeal from an order of acquittal in the class of cases mentioned in sub-section (2). Does the word also carry the meaning as contended by the learned senior counsel for the state government? One of the rules of construction of statutes is that language of the statute should be read as it is and any construction that results in rejection of words has to be avoided; the effort should be made to give meaning to each and every word used by the Legislature. However, such rule of construction of statutes is not without exceptions. In Stone v. Yeovil Corp. (1875-76) L.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it is not possible to harmonise the word also occurring in sub-section (2) with that, it appears to us that no sensible meaning can be given to the word also and the said word has to be treated as immaterial. We are not oblivious of the fact that to declare also enacted in sub-section (2) immaterial or insensible is not very satisfactory, but it is much more unsatisfactory to deprive the words save as otherwise provided in sub-section (2) of their true and plain meaning. In order that the exception (clause) expressly stated in the opening words of sub-section (1) might be preserved, it is necessary that word also in sub-section (2) is treated as immaterial and we hold accordingly. 35. The phrase in any case in sub-section (1) of Section 378, without hesitation, means in all cases , but the opening words in the said Section put fetters on the state government in directing appeal to be filed in two types of cases mentioned in sub-section (2). 36. Section 2(u) of 1973 Code defines public prosecutor which means any person appointed under Section 24 and includes any person acting under the directions of a public prosecutor. Section 24 reads as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code.] (7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under subsection (I) or sub-section (2) or sub-section (3) or sub-- section (6), only if he has been in practice as an advocate for not less than seven years. (8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor. Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section. (9) For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Section 377 (appeal against inadequacy of sentence) fell for consideration. Section 377 (1) and (2) of 1973 Code with which this Court was concerned in Eknath Shankarrao Mukkawar1, reads as follows:- S.- 377.- Appeal by the State Government against sentence.- (1) Save as otherwise provided in subsection (2), the State Government may, in any case of conviction on a trial held by any court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. (2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (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 direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. This Court with reference to the aforesaid provision held: 10. It is true that Section 378(2) follows the pattern of Section 417(2) of the old Code and the right to ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (2) of Section 377, i was held by this Court that the state government was incompetent to file an appeal in a case falling under Section 377(2). But now the lacuna pointed out by this Court has been remedied; Parliament amended by Act 45 of 1978 to include the word also therein and bring the same in pari materia with the provisions of Section 378(2) and the Statement of Objects and Reasons for the said amendment makes it clear that the state government is also competent to file an appeal in a case falling under Section 377(2). We are not persuaded by the submission of Mr. L. Nageshwar Rao for more than one reason. In the first place, the observations in Eknath Shankarrao Mukkawar, in relation to Section 378 do not operate as binding precedent as construction of Section 378 was neither under consideration nor in issue in that case. Secondly, and more importantly, although sub-section (2) of Section 377 came to be amended by Act 45 of 1978 to include the word also therein, but the Statement of Objects and Reasons relating to that amendment is of no relevance insofar as construction of Section 378 (1) and (2) is concerned. Insofar as Section 378 is concerned, the word also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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