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Thursday, October 8, 2015

“whether the appellant herein, being the father of the deceased, has statutory right to prefer an appeal to the High Court against the order of acquittal under proviso to Section 372 of Cr.P.C. without obtaining the leave of the High Court as required under sub-Section (3) to Section 378 of Cr.P.C.”, this Court is of the view that the right of questioning the correctness of the judgment and order of acquittal by preferring an appeal to the High Court is conferred upon the victim including the legal heir and others, as defined under Section 2(wa) of Cr.P.C., under proviso to Section 372, but only after obtaining the leave of the High Court as required under sub-Section (3) to Section 378 of Cr.P.C. The High Court of M Adverting to another contention of the learned counsel on behalf of th.P. has failed to deal with this important legal aspect of the matter while passing the impugned judgment and order.e appellant regarding the failure on the part of the High Court to re- appreciate the evidence it is clear from a perusal of the impugned judgment and order passed by the High Court that it has dealt with the appeal in a very cursory and casual manner, without adverting to the legal contentions and evidence on record. The High Court in a very mechanical way has stated that after a perusal of the evidence on record it found no reason to interfere with the decision of the trial court as the prosecution has failed to establish the charges levelled against the accused beyond reasonable doubt and it has dismissed the appeal by passing a cryptic order. This Court is of the view that the High Court, being the Appellate Court, has to exercise its appellate jurisdiction keeping in view the serious nature of the charges levelled against the accused. The High Court has failed to exercise its appellate jurisdiction properly in the appeal filed by the appellant against the judgment and order of acquittal passed by the trial court. Hence, the impugned judgment and order of the High Court is not sustainable in law and the same is liable to be set aside by this Court and the case is required to be remanded to the High Court to consider for grant of leave to file an appeal by the appellant as required under sub-Section (3) to Section 378 of Cr.P.C. and thereafter proceed in the matter For the reasons stated supra, this appeal is allowed by setting aside the impugned judgment and order of the High Court.






                         IN THE SUPREME COURT OF INDIA
                        CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1315  OF 2015
     (Arising out of S.L.P. (Crl) NO. 7954 of 2014)


SATYA PAL SINGH                     …… APPELLANT

                                   VERSUS

STATE OF M.P. AND ORS.             …… RESPONDENTS

                               J U D G M E N T

V. GOPALA GOWDA, J.

    Leave granted.

This criminal appeal by special  leave  is  directed  against  the  impugned
judgment and order dated 04.03.2014 passed  in  Criminal  Appeal  No.547  of
2013 by the High Court of M.P. at Gwalior whereby the High Court has  upheld
the decision of the  Sessions  Court,  Bhind,  M.P.  (the  trial  court)  in
Sessions Case No. 293/2010 by acquitting all  the  accused  i.e.  respondent
nos. 2 to 6 herein.

The appellant herein made a written  complaint  dated  19.07.2010  regarding
the death  of  his  daughter,  Ranjana  (hereinafter  referred  to  as  “the
deceased”) to the Addl. Superintendent of Police, Bhind, M.P.  The  FIR  was
registered on 27.07.2010. The trial court after the examination of  evidence
on record passed the judgment and order dated 13.06.2013 acquitting all  the
accused of the charges levelled against them  for  the  offences  punishable
under Sections 498A and 304B of Indian Penal Code, 1860  (for  short  “IPC”)
and Section 4 of the Dowry Prohibition Act, 1961 and alternatively  for  the
offence punishable  under  Section  302  of  IPC.  Being  aggrieved  of  the
decision of the  trial  court,  the  appellant  approached  the  High  Court
against the order of acquittal of respondent nos. 2 to  6.  The  High  Court
vide its judgment and order dated 04.03.2014 has upheld  the  trial  court’s
decision of acquittal of all the accused  persons.   The  impugned  judgment
and order of the High Court is challenged in this appeal before  this  Court
questioning its correctness.

Being aggrieved of the impugned judgment and order the appellant  being  the
legal heir of the deceased filed an  appeal  before  the  High  Court  under
proviso to Section 372 of the Code of Criminal Procedure,  1973  (for  short
“the Cr.P.C.”). The High Court, however, has mechanically  disposed  of  the
appeal by passing a cryptic order without examining as to whether the  leave
to file an appeal filed by the appellant as provided under  sub-Section  (3)
to Section 378 of Cr.P.C. can be granted or  not.  The  correctness  of  the
same is questioned by  the  appellant  in  this  appeal  inter  alia  urging
various grounds.

Mr. Prashant Shukla, the learned counsel on behalf of the  appellant  placed
strong reliance upon the judgment rendered by Delhi High Court in  Ram  Phal
v. State & Ors.[1] wherein the Full Bench, after  interpreting  the  proviso
to Section 372 read with Section 2(wa) of the Cr.P.C.,  has  held  that  the
father of the victim has locus standi to prefer an appeal, being  a  private
party coming under the definition of  victim  under  Section  2(wa)  of  the
Cr.P.C. It was contended by him that in the  instant  case,  the  appellant,
being father of the deceased, has locus standi to file an appeal before  the
High Court against the order of  acquittal  under  proviso  to  Section  372
without seeking the leave of the High Court as  required  under  sub-Section
(3) of Section 378 of Cr.P.C. Thus, the appeal filed by  the  appellant  was
maintainable before the High Court of M.P. under  the  abovesaid  provisions
of Cr.P.C. He further urged that undoubtedly, the said legal aspect  of  the
matter has not been dealt with by the High Court and the appeal was  decided
on merits but without examining as to whether the leave to  file  an  appeal
by the  appellant  is  required  to  be  granted  or  not  under  the  above
provisions of Cr.P.C.

The learned counsel for the appellant  drew  the  attention  of  this  Court
towards the decision rendered by Delhi High Court in the  case  referred  to
supra, wherein it has elaborately adverted to the definition  of  victim  as
defined under Section 2(wa)  of  Cr.P.C.  and  proviso  to  Section  372  of
Cr.P.C. and has examined them in the light of their legislative history.  It
has also adverted to 154th Law Commission Report of 1996 in connection  with
the said legal provision of Cr.P.C. and has succinctly held that  where  the
victim is unable to prefer an appeal then the appeal  can  be  preferred  by
persons - such as relatives, foster children, guardians, fiancé  or  live-in
partners, etc. of the victim, who are in a position  to  do  so  in  his/her
behalf. He urged that in  the  instant  case,  there  is  no  need  for  the
appellant, being the father of the deceased,  to  seek  leave  of  the  High
Court as provided under  sub-Section  (3)  to  Section  378  of  Cr.P.C.  to
maintain the appeal before it as it is his  statutory  right  to  prefer  an
appeal against the order of acquittal of all  accused  persons  in  view  of
proviso to Section 372 of Cr.P.C.

It was further urged by him that the High Court ought to  have  granted  the
leave to the appellant to file an appeal by the appellant as required  under
sub-Section (3) of Section 378 of Cr.P.C. and thereafter it  ought  to  have
examined and disposed of the appeal on merits.

He further vehemently contended that the appeal before the  High  Court  was
filed by the appellant challenging the acquittal order passed by  the  trial
court but the High Court has concurred with the decision of the trial  court
mechanically without re-appreciating the  evidence  on  record.  He  further
submitted that the decision of the High Court suffers from error in  law  as
the High Court, being the Appellate Court,  was  required  to  re-appreciate
the evidence on record to exercise its appellate jurisdiction in the  appeal
filed by the appellant with reference to the legal contentions urged in  the
memorandum of appeal but it has failed to do so. The High Court  in  a  very
cursory and casual manner has held that  after  a  perusal  of  evidence  on
record it found no reason to interfere with the decision of the trial  court
as the prosecution has failed to establish beyond reasonable doubt that  the
charges levelled against all the accused are proved  and  it  has  dismissed
the appeal by passing a cryptic order,  which  amounts  to  non-exercise  of
appellate jurisdiction properly  by  the  High  Court.  Thus,  the  impugned
judgment and order of the High Court is vitiated in law and  therefore,  the
same is required to be set aside by this Court. He  further  requested  this
Court to remand the matter to the High  Court  for  re-appreciation  of  the
evidence on record and pass appropriate order on merits of  the  case  after
hearing both the parties.

We have carefully examined the above mentioned  provisions  of  Cr.P.C.  and
the Full Bench decision of Delhi High Court referred  to  supra  upon  which
strong reliance is placed by the learned counsel for  the  appellant.  There
is no doubt that the appellant, being the father of the deceased, has  locus
standi to prefer an appeal before the High Court under  proviso  to  Section
372 of Cr.P.C. as he falls within the definition of victim as defined  under
Section 2(wa) of Cr.P.C. to question the correctness  of  the  judgment  and
order of acquittal passed by the trial court in favour of respondent nos.  2
to 6 in Sessions Case No. 293/2010.
The proviso to Section 372 of Cr.P.C. was amended by Act No.5 of  2009.  The
said proviso confers a statutory right upon the  victim,  as  defined  under
Section 2(wa) of Cr.P.C. to prefer an appeal against an order passed by  the
trial court either acquitting  the  accused  or  convicting  him/her  for  a
lesser offence or imposing inadequate  compensation.  In  this  regard,  the
Full  Bench  of  Delhi  High  Court  in  the  case  referred  to  supra  has
elaborately dealt with the legislative history of insertion of  the  proviso
to Section 372 of Cr.P.C. by Act No. 5 of 2009 with effect from  31.12.2009.
The relevant provision of Section 372 of Cr.P.C. reads thus:

“372. 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:

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 said amendment to the provision of Section 372 of Cr.P.C.  was  prompted
by  154th  Law  Commission  Report.  The  said  Law  Commission  Report  has
undertaken a comprehensive review of Cr.P.C. and  its  recommendations  were
found to be  very  appropriate  in  amending  the  Cr.P.C.  particularly  in
relation to provisions concerning arrest, custody and remand,  procedure  to
be followed in  summons  and  warrant-cases,  compounding  of  offences  and
special protection in respect of women and inquiry and trial of  persons  of
unsound mind. Further, the Law  Commission  in  its  report  has  noted  the
relevant aspect of  the  matter  namely  that  the  victims  are  the  worst
sufferers in  a  crime  and  they  do  not  have  much  role  in  the  Court
proceedings. They need to be given certain rights and compensation  so  that
there is no distortion of the criminal justice system. The  said  report  of
the Law Commission has also taken note of the views  of  the  criminologist,
penologist and reformers of  criminal  justice  system  at  length  and  has
focused on victimology, control  of  victimization  and  protection  of  the
victims of crimes and the issues of compensation to be awarded in favour  of
them. Therefore, the Parliament on the basis of the aforesaid Report of  the
Law Commission, which is victim oriented in approach,  has  amended  certain
provisions of the Cr.P.C. and in that amendment the proviso to  Section  372
of Cr.P.C. was added to confer  the  statutory  right  upon  the  victim  to
prefer an appeal before the High Court against acquittal order, or an  order
convicting the accused for the lesser offence or against the order  imposing
inadequate compensation.

The Full Bench of the High Court  of  Delhi  after  examining  the  relevant
provisions under Section 2(wa) and proviso to Section  372  of  Cr.P.C.,  in
the light of their legislative history has held that the right to prefer  an
appeal conferred upon the victim or relatives of the  victim  by  virtue  of
proviso to Section 372 is an independent statutory right. Therefore, it  has
held that there is no need for the  victim  in  terms  of  definition  under
Section 2(wa) of Cr.P.C. to seek the leave of the  High  Court  as  required
under sub-Section (3) of Section 378 of Cr.P.C. to prefer  an  appeal  under
proviso to Section 372 of Cr.P.C. The said view of the  High  Court  is  not
legally correct for the reason that the  substantive  provision  of  Section
372 of Cr.P.C. clearly provides that no appeal shall lie from  any  judgment
and order of a Criminal Court except as provided  for  by  Cr.P.C.  Further,
sub-Section (3) to Section 378 of Cr.P.C. provides that  for  preferring  an
appeal to the High Court against an order of acquittal it  is  necessary  to
obtain its leave. We have  to  refer  to  the  rules  of  interpretation  of
statutes to find out what is the effect of the proviso  to  Section  372  of
Cr.P.C., it is well established that the proviso of a statute must be  given
an interpretation limited to the subject-matter of the  enacting  provision.
Reliance is placed on the decision of this  Court  rendered  by  four  Judge
Bench in Dwarka Prasad v. Dwarka Das  Saraf[2],  the  relevant  para  18  of
which reads thus:
“18. … 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”  (Thompson  v.
Dibdin, 1912 AC 533). 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.”
          (emphasis laid by this Court)
 Further, a three Judge Bench of this Court by majority of 2:1 in  the  case
of S. Sundaram Pillai v. V.R. Pattabiraman[3] has elaborately  examined  the
scope of proviso to the substantive provision of the Section  and  rules  of
its interpretation. The relevant paras are reproduced hereunder:
“30. Sarathi in Interpretation of Statutes at pages  294-295  has  collected
the following principles in regard to a proviso:
(a)When one finds a proviso to a section the natural  presumption  is  that,
but for the proviso, the enacting part of the section  would  have  included
the subject-matter of the proviso.

(b)A proviso must be construed with reference to the preceding parts of  the
clause to which it is appended.

(c)Where the proviso is directly repugnant to a section, the  proviso  shall
stand and be held a repeal of the section as the proviso speaks  the  latter
intention of the makers.

(d)Where the section is doubtful, a proviso may be used as a  guide  to  its
interpretation: but when it is clear, a proviso cannot imply  the  existence
of words of which there is no trace in the section.

(e)The proviso is subordinate to the main section.

(f)A proviso does not enlarge an enactment except for compelling reasons.

(g)Sometimes an unnecessary proviso is inserted by way of abundant caution.

(h)A construction placed  upon  a  proviso  which  brings  it  into  general
harmony with the terms of section should prevail.

(i)When a proviso is repugnant to the enacting part, the  proviso  will  not
prevail over the absolute terms of a  later  Act  directed  to  be  read  as
supplemental to the earlier one.

(j)A proviso may sometimes contain a substantive provision.

 XXX            XXX                 XXX

32. In Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai it was  held  that
the main object of a proviso is merely to qualify  the  main  enactment.  In
Madras and Southern Mahrata Railway Co. Ltd. v.  Bezwada  Municipality  Lord
Macmillan observed thus:

“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.”

33. The above case was approved by this Court  in  CIT  v.  Indo  Mercantile
Bank Ltd. where Kapur, J. held that the proper function  of  a  proviso  was
merely to qualify the generality of  the  main  enactment  by  providing  an
exception and taking out, as it were, from  the  main  enactment  a  portion
which, but for the proviso, would fall within the main  enactment.  In  Shah
Bhojraj Kuverji Oil Mills and Ginning  Factory  v.  Subbash  Chandra  Yograj
Sinha Hidayatullah, J., as he then was, very aptly and succinctly  indicated
the parameters of a proviso thus:

“As a general rule, a proviso is added to an enactment to qualify or  create
an exception to what is in the enactment, and ordinarily, a proviso  is  not
interpreted as stating a general rule.”

XXX               XXX                XXX

36. While interpreting a proviso care must be  taken  that  it  is  used  to
remove special cases  from  the  general  enactment  and  provide  for  them
separately.

37. In short, generally  speaking,  a  proviso  is  intended  to  limit  the
enacted provision so as to except something which would have otherwise  been
within it or in some measure to modify  the  enacting  clause.  Sometimes  a
proviso may be embedded in the main provision and becomes an  integral  part
of it so as to amount to a substantive provision itself.”
                      (emphasis supplied)

Thus, from a reading of the above said legal  position   laid  down  by  this
Court in the cases referred to  supra,  it  is  abundantly  clear  that  the
proviso to Section  372  of  Cr.P.C.  must  be  read  along  with  its  main
enactment i.e., Section 372 itself and  together  with  sub-Section  (3)  to
Section 378 of Cr.P.C. otherwise the substantive provision  of  Section  372
of Cr.P.C. will be rendered nugatory, as it clearly states  that  no  appeal
shall lie from any judgment or order of a Criminal Court except as  provided
by Cr.P.C.

Thus, to conclude on the legal issue:
“whether the appellant  herein,  being  the  father  of  the  deceased,  has
statutory right to prefer an appeal to the High Court against the  order  of
acquittal under proviso to Section 372  of  Cr.P.C.  without  obtaining  the
leave of the High Court as required under sub-Section (3) to Section 378  of
Cr.P.C.”, this Court is of the  view  that  the  right  of  questioning  the
correctness of the judgment and order of acquittal by preferring  an  appeal
to the High Court is conferred upon the victim including the legal heir  and
others, as defined under Section 2(wa) of Cr.P.C., under proviso to  Section
372, but only after obtaining the leave of the High Court as required  under
sub-Section (3) to Section 378 of  Cr.P.C.   The  High  Court  of  M

Adverting to another contention of the learned  counsel  on  behalf  of  th.P.  has
failed to deal with this important legal aspect of the matter while  passing
the impugned judgment and order.e
appellant regarding the failure on  the  part  of  the  High  Court  to  re-
appreciate the evidence it is clear from a perusal of the impugned  judgment
and order passed by the High Court that it has dealt with the  appeal  in  a
very cursory and casual manner, without adverting to the  legal  contentions
and evidence on record. The High Court in a very mechanical way  has  stated
that after a perusal of the  evidence  on  record  it  found  no  reason  to
interfere with the decision of  the  trial  court  as  the  prosecution  has
failed  to  establish  the  charges  levelled  against  the  accused  beyond
reasonable doubt and it has  dismissed  the  appeal  by  passing  a  cryptic
order. This Court is of the view that the High Court,  being  the  Appellate
Court, has to exercise  its  appellate  jurisdiction  keeping  in  view  the
serious nature of the charges levelled against the accused. The  High  Court
has failed to exercise its appellate jurisdiction  properly  in  the  appeal
filed by the appellant against the judgment and order  of  acquittal  passed
by the trial court.

  Hence,  the  impugned  judgment  and  order  of  the  High  Court  is  not
sustainable in law and the same is liable to be set aside by this Court  and
the case is required to be remanded to the High Court to consider for  grant
of leave to file an appeal by the appellant as  required  under  sub-Section
(3) to Section 378 of Cr.P.C. and thereafter proceed in the matter

 For the reasons stated supra, this appeal is allowed by setting  aside  the
impugned judgment and order of the High Court. The case is remanded  to  the
High Court to hear the appellant with regard to grant of leave  to  file  an
appeal as the appellant is  legal  heir  of  the  victim  as  defined  under
Section 2(wa) of Cr.P.C. and dispose of the appeal in  accordance  with  law
in the light  of  observations  made  in  this  order  as  expeditiously  as
possible.
                                         …………………………………………………………J.
                             [T.S. THAKUR]


                             …………………………………………………………J.
          [V. GOPALA GOWDA]
New Delhi,
October 6, 2015




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[1]
      [2]  221 (2015) DLT 1
[3]
      [4]  (1976) 1 SCC 128
[5]
      [6]  (1985) 1 SCC 591

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|REPORTABLE        |





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