The Petitioner herein was the Complainant on behalf of the
Bank. He was Auditor and in his capacity as being the Auditor, he had
lodged the First Information Report against Respondent No.2. Therefore,
though he is the author of the complaint as is understood under Section
2(d) of the Code of Criminal Procedure, he, as an individual, would not
fall within the definition of victim under Section 2(wa). Therefore, though
the right of the Petitioner to file a complaint or lodge an FIR can be
recognized, yet, insofar as preferring an appeal against the order of
acquittal is concerned, the right of the Petitioner as a Bank under the
proviso to Section 372 will have to be read within the scope of Section
378(3), (4) and (5) of the Code of Criminal Procedure.
36 In view of the above conclusion, the Petitioner could not have
preferred an appeal before the learned Additional Sessions Judge, Hingoli.
The Petitioner could have filed an appeal before this Court in its capacity
of being the Complainant/ victim by relying upon the proviso to Section
372 of the Code of Criminal Procedure.
37 At this juncture, the learned Advocate for the Petitioner
submits that the Petitioner be granted leave to convert this Criminal Writ
Petition into a Criminal Appeal and the Petitioner would prefer an
application for seeking leave of this Court to entertain the said appeal. The
Petitioner would also file an application making out a case for
condonation of delay in the light of the fact that the Petitioner has lost
precious time in it's Criminal Appeal dated 04.01.2013 erroneously filed
before the learned Additional Sessions Judge as well as time spent by the
Petitioner in this Court till the date of this order.
38 The learned Advocate for Respondent No.2 has opposed the
request put forth by the Petitioner as above.
39 However, considering the peculiar facts of this case and after
having concluded that the Petitioner was required to prefer an appeal
before this Court under the proviso to Section 372 r/w Section 378 of the
Code of Criminal Procedure, I am inclined to accept the request of the
Petitioner.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 968 OF 2013
Parbhani District Central Bank Ltd.,V The State of Maharashtra.
CORAM: RAVINDRA V. GHUGE, J.
DATE : 23rd June, 2016
Citation: 2016 ALLMR(CRI)4822
1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2 The Petitioner is aggrieved by the order dated 01.04.2013 by
which Miscellaneous Application No.1/2013, filed by the Petitioner
seeking condonation of delay in preferring an appeal, has been rejected by
the learned Additional Sessions Judge, Hingoli.
3 The Petitioner contends that pursuant to the complaint filed
by the Petitioner against Respondent No.2 alleging commission of offences
punishable under Sections 409, 468 and 420 of the Indian Penal Code,
Regular Criminal Case No.68/1999 was adjudicated upon by the learned
Judicial Magistrate First Class, Kalamnuri. By the judgment and order
dated 23.02.2011, Respondent No.2/ Accused was acquitted of the
offences.
4 The grievance is that pursuant to the said judgment, the State
did not prefer an appeal before the learned Additional Sessions Judge at
Hingoli. After the Petitioner got the knowledge of the judgment, it had
approached the Public Prosecutor with regard to the filing of an appeal.
After obtaining the certified copy of the judgment on 11.06.2012, legal
opinion was sought and upon confirming that no appeal was filed by the
Public Prosecutor, the Petitioner preferred Miscellaneous Application
No.1/2013 seeking condonation of delay of 18 months and 12 days in
preferring an appeal. By the impugned order, the said application has been
rejected.
5 Shri Deshmukh, learned Advocate for the Petitioner, submits
that the Petitioner is a victim and hence, a legal injury has been caused to
the Petitioner by the non filing of the appeal by the Public Prosecutor. It
was under the complaint of the Petitioner that the prosecution was
launched. Under the proviso to Section 372 of the Code of Criminal
Procedure, which has been inserted by Amendment Act No.5 of 2009
w.e.f. 31.12.2009, the victim was bestowed with a right to prefer an
appeal against the order passed by the Court acquitting the accused or
convicting for a lesser offence or imposing inadequate compensation.
According to Shri Deshmukh, limitation has not been specifically
prescribed under Section 372.
6 He further submits that an application for obtaining a
certified copy of the judgment was filed on 07.06.2012 and the same was
obtained on 11.06.2012. Thereafter, the Petitioner Bank sought a legal
opinion and consequent to the legal opinion, the appeal was preferred
along with an application for condonation of delay on 04.01.2013.
7 He, therefore, submits that if the limitation period of 90 days
is to be computed from the date of receipt of the certified copy, the delay
would be of a minor period. Notwithstanding the same, even if it is held
that the limitation period would start from the date of the judgment, the
delay of 18 months and 12 days can neither be termed as being inordinate
nor having been deliberately caused by the Petitioner. He submits that
neither any laches can be attributed to the conduct of the Petitioner nor
can it be said that the Petitioner would gain an undue advantage by
causing delay in the matter. He, therefore, prays for quashing of the
impugned order and seeks condonation of delay.
8 Shri Kakade, learned Advocate appearing on behalf of
Respondent No.2, strenuously opposes this petition. By relying on the
pleadings in the application for condonation of delay, Shri Kakade submits
that an untrue story has been narrated by the Petitioner in the said
application.
9 He submits that Respondent No.2 had entered an application
dated 10.02.2012 in the inward department of the Petitioner Bank
indicating that he has been acquitted of the offences and considering the
fact that the charge of misappropriation of money has not been proved
against him, he should be paid his retiral benefits taking into account that
he had attained the age of superannuation. Shri Kakade, therefore,
submits that by virtue of the application dated 10.02.2012, the Petitioner
was made aware of the judgment and despite the same, the Petitioner has
not preferred an appeal.
10 Shri Kakade further submits that though the Petitioner had
lodged the complaint levelling allegations against Respondent No.2, it was
the State which, under the scheme of law, has to prosecute Respondent
No.2. Having so done and in the light of the proceedings resulting in the
acquittal of Respondent No.2, the Petitioner is not competent to file an
appeal since the State has to prefer an appeal under Section 378 of the
Code of Criminal Procedure. He submits that Section 372 would have no
applicability in this backdrop. He, therefore, prays for the dismissal of this
petition.
11 The learned APP has supported the impugned order and has
prayed for the dismissal of the petition with costs.
12 Considering the conspectus of the matter, I called upon Shri
Shirish Gupte, the learned Senior Advocate, to assist the Court.
Coincidentally, Shri Gupte has been the counsel for one of the Appellants
in the reported judgment of the learned Division Bench of this Court in the
matter of Balasaheb Rangnath Khade vs. The State of Maharashtra and
others, 2013 ALL MR (Cri) 1153. Shri Gupte graciously agreed to assist
the Court on the point of law in this matter.
13 Shri Gupte contended that ChapterIX of the Code of Criminal
Procedure, 1973, pertains to appeals and the scope and jurisdiction of the
Appeal Court. He stated that in the light of the facts of this case, a
criminal revision application would not be maintainable considering the
fact that the learned Magistrate has delivered its judgment thereby,
acquitting the accused.
14 He submits that Section 372 along with the proviso, which
has been introduced by way of an amendment, cannot be read in
isolation. The appeal to be preferred is provided only in Section 378.
Section 372 is a prohibition on filing of any appeal except in accordance
with the provisions under the Code of Criminal Procedure. He, therefore,
submits that Section 372 will have to be read along with Section 378 and
the golden rule of interpretation as well as the test would be that the
proviso below Section 372 read with Section 378 leads to a harmonious
interpretation. He hastens to clarify that the proviso to Section 372 cannot
be interpreted in a manner which would do violence to the scheme under
Section 378.
15 In support of his contentions, he has relied upon the
judgment in the matter of CASIO India Company Private Limited vs. State
of Haryana, 2016 (3) Scale 441 : (Civil Appeal Nos.1410 and 1411/2007
and 5450/2013, decided on 29.03.2016). He specifically relies upon
paragraphs 19 and 20 of the said judgment, which read as under:
“19. We have reproduced the exemption notification above
and referred to the language employed. At this
juncture, it is absolutely necessary to understand
the language employed in the proviso to the
notification. If there was no proviso to the
notification there would have been no difficulty
whatsoever in holding that the exemption is qua
the goods manufactured and was not curtailed or
restricted to the sales made by the manufacturer
dealer and would not apply to the second or
subsequent sales made by a trader, who buys the
goods from the manufacturerdealer and sells the
same in the course of interstate trade or commerce.
It is pertinent to note that, clause (ii) of subrule
(n) refers to sale of finished products in the course
of interstate trade or commerce where the finished
products are manufactured by eligible industrial
unit. There is no stipulation that only the first sale
or the sale by the eligible industrial unit in Inter
State or Trade would be exempt. The confusion
arises, as it seems to us, in the proviso to the
notification which states that the manufacturerdealer
should not have charged tax. It needs no
special emphasis to mention that provisos can serve
various purposes. The normal function is to qualify
something enacted therein but for the said proviso
would fall within the purview of the enactment. It is
in the nature of exception. [See : Kedarnath Jute
Manufacturing Co. Ltd v. Commercial Tax Officer,
AIR 1966 SC 12]. Hidayatullah, J. (as his Lordship
then was) in Shah Bhojraj Kuverji Oil Mills and
Ginning Factory v. Subhash Chandra Yograj Sinha,
AIR 1961 SC 1596, had observed that a proviso is
generally added to an enactment to qualify or
create an exception to what is in the enactment, and
the proviso is not interpreted as stating a general
rule. Further, except for instances dealt with in the
proviso, the same should not be used for interpreting
the main provision/enactment, so as to exclude
something by implication. It is by nature of an
addendum or dealing with a subject matter which is
foreign to the main enactment. (See : CIT, Mysore
etc. v Indo Mercantile Bank Ltd, AIR 1959 SC
713). Proviso should not be normally construed
as nullifying the enactment or as taking away
completely a right conferred.
20. Read in this manner, we do not think the proviso
should be given a greater or more significant role in
interpretation of the main part of the notification,
except as carving out an exception. It means and
implies that the requirement of the proviso should be
satisfied i.e. manufacturing dealer should not have
charged the tax. The proviso would not scuttle or
negate the main provision by holding that the first
transaction by the eligible manufacturing dealer in
the course by way of interstate sale would be
exempt but if the interstate sale is made by
trader/purchaser, the same would not be exempt.
That will not be the correct understanding of the
proviso. Giving over due and extended implied
interpretation to the proviso in the notification will
nullify and unreasonably restrict the general and
plain words of the main notification. Such
construction is not warranted.”
16 He then submits that a proviso cannot be read beyond the
section. The proviso is aimed at either clarifying the position in law in
consonance with the specific section or would in itself be a substantive
provision without running counter to the meaning flowing from the
section. He, therefore, relied upon the judgment of the Honourable
Supreme Court (four Judges' Bench) in the matter of Dwarka Prasad vs.
Dwarka Das Saraf, (1976) 1 SCC 128 and especially on paragraphs 17
and 18, which read as under:
“17. While rulings and text books bearing on statutory
construction have assigned many functions for
provisos, we have to be selective, having regard to the
text and context of a statute. Nothing is gained by
extensive references to luminous classics or supportive
case law. Having explained the approach we make to
the specific 'proviso' situation in s. 2(a) of the Act,
what strikes us as meaningful here is that the
legislature by the amending Act clarified what was
implicit earlier and expressly carved out what
otherwise might be mistakenly covered by the main
definition. The proviso does not, in this case, expand,
by implication, the protected area of building
tenancies to embrace 'business' leases.
18. We may mention fairness to counsel that the
following, among other decisions, were cited at the
bar bearing on the uses of provisos in statutes:
Commissioner of Incometax v. IndoMercantile Bank
Ltd.; M/s. Ram Narain Sons Ltd. v. Asst.
Commissioner of Sales Tax; Thompson v. Dibdin; Rex
v. Dibdin and Tahsildar Singh v. State of U.P.. The
law is trite. 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' (1912 A.C. 544). 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.
"The proper course is to apply the broad
general rule of construction which is that a section or
enactment must be construed as a whole each portion
throwing light if need be on the rest.
The true principle undoubtedly is, that the
sound interpretation and meaning of the statute, on a
view of the enacting clause, saving clause, and
proviso, taken and construed together is to prevail.
(Maxwell on Interpretation of Statutes, 10th
Edn. P. 162)”
17 In support of his submission that Section 372 cannot be
applied in isolation and that it should be read along with Section 378, he
has placed reliance upon the observations of the Honourable Supreme
Court in paragraphs 15 and 16 of it's judgment in the matter of Satya Pal
Singh vs. State of M.P., 2016(1) Supreme Court Journal 691, which read
as under:
“15. Thus, from a reading of the abovesaid 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 subSection
(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..
16. 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 subSection (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 subSection (3) to Section 378 of Cr.P.C. The
High Court of M.P. has failed to deal with this
important legal aspect of the matter while passing the
impugned judgment and order.”
18 He has placed reliance upon the judgment of the Honourable
Supreme Court (a three judges' Bench) in the matter of S.Sundaram Pillai
vs. V.R.Pattabiraman, (1985) 1 SCC 591. Paragraph 43 of the said
judgment reads as under:
“43. We need not multiply authorities after authorities on
this point because the legal position seems to be
clearly and manifestly well established. To sum up, a
proviso may serve four different purposes:
(1) qualifying or excepting certain provisions from the
main enactment;
(2) it may entirely change the very concept of the
intendment of the enactment by insisting on certain
mandatory conditions to be fulfilled in order to make
the enactment workable;
(3) it may be so embedded in the Act itself as to become
an integral part of the enactment and thus acquire the
tenor and colour of the substantive enactment itself;
and
(4) it may be used merely to act as an optional addenda
to the enactment with the sole object of explaining the
real intendment of the statutory provision.”
19 He, therefore, submitted that in the peculiar facts of this case,
that as the State has not preferred an appeal against the judgment of
acquittal, the victim could not have filed the criminal revision application,
which was rightly not considered as the application for condonation of
delay was rejected. The Petitioner has no option, but to prefer an appeal in
this Court along with an application for condonation of delay and an
application for seeking leave of this Court for filing an appeal.
20 He has then placed reliance upon the judgment of the
Honourable Supreme Court in the matter of Subhash Chand vs. State
(Delhi Administration), (2013) 2 SCC 17. Paragraphs 17, 18, 19 and 23 of
Subhash Chand judgment (supra) read as under:
“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 nonbailable 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. SubSection (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 subsection(1) except that here
the words ‘State Government’ are substituted by the
words ‘Central Government’.
18. If we analyse 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 nonbailable offence because of the
categorical bar created by Section 378(1)(b). Such
appeals, that is appeals against orders of acquittal
passed by a Magistrate in respect of a cognizable and
nonbailable 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 nonbailable 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.
19. SubSection (4) of Section 378 makes provision for
appeal against an order of acquittal passed in case
instituted upon complaint. It states that in such case if
the complainant makes an application to the High
Court and the High Court grants special leave to
appeal, the complainant may present such an appeal
to the High Court. This subsection speaks of ‘special
leave’ as against subsection (3) relating to other
appeals which speaks of ‘leave’. Thus, complainant’s
appeal against an order of acquittal is a category by
itself. The complainant could be a private person or a
public servant. This is evident from subsection (5)
which refers to application filed for ‘special leave’ by
the complainant. It grants six months period of
limitation to a complainant who is a public servant
and sixty days in every other case for filing
application. Sub Section (6) is important. It states
that if in any case complainant’s application for
‘special leave’ under subSection (4) is refused no
appeal from order of acquittal shall lie under subsection
(1) or under sub section (2). Thus, if ‘special
leave’ is not granted to the complainant to appeal
against an order of acquittal the matter must end
there. Neither the District Magistrate not the State
Government can appeal against that order of
acquittal. The idea appears to be to accord quietus to
the case in such a situation.
23. In view of the above, we conclude that a complainant
can file an application for special leave to appeal
against an order of acquittal of any kind only to the
High Court. He cannot file such appeal in the Sessions
Court. In the instant case the complaint alleging
offences punishable under Section 16(1)(1A) read
with Section 7 of the PFA Act and the Rules is filed by
complainant Shri Jaiswal, Local Health Authority
through Delhi Administration. The appellant was
acquitted by the Metropolitan Magistrate, Patiala
House Courts, New Delhi. The complainant can
challenge the order of acquittal by filing an
application for special leave to appeal in the Delhi
High Court and not in the Sessions Court. Therefore,
the impugned order holding that this case is not
governed by Section 378(4) of the Code is quashed
and set aside. In the circumstances the appeal is
allowed.”
21 He, therefore, submits that the last word of the Honourable
Supreme Court on the right of the complainant, complainantvictim or the
victim, is found in it's judgments delivered in Subhash Chand and Satya
Pal Singh (supra).
22 He further adds that though the Criminal Writ Petition before
this Court is not maintainable, the Petitioner can request this Court for
converting this Criminal Writ Petition into a criminal appeal and can file
applications for condonation of delay and for seeking leave of this Court
to entertain such an appeal.
23 I have considered the submissions of the learned Advocates.
24 Section 372 of the Code of Criminal Procedure reads as
under:
“372. 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 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.”
25 Section 378 of the Code of Criminal Procedure reads as
under:
“378. Appeal in case of acquittal.
(1) Save as otherwise provided in subsection (2), and
subject to the provisions of subsections (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 nonbailable
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 subsection (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
nonbailable 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 subsection (1) or
subsection (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.
(5) No application under subsection (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 subsection (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 subsection (1) or under subsection
(2).”
26 It is apparent from the impugned order that the Petitioner has
invoked Section 372 in support of it's contention that the victim can prefer
an appeal. The learned Additional Sessions Judge, Hingoli has come to the
conclusion that the State or Authority concerned can alone direct the
Public Prosecutor to present an appeal under subsections (1) and (2) of
Section 378. Unless such direction is issued, the Petitioner claiming to be
the victim, cannot prefer an appeal.
27 I find that if the State or the District Magistrate does not
direct the Public Prosecutor to prefer an appeal, a victim could be said to
have been aggrieved by the failure to lodge an appeal and as such, would
be in a position to invoke the proviso to Section 372 and file an appeal
with the Court before which such an appeal would ordinarily lie against
the order of acquittal. However, whether, this could be done dehors
Section 378(4), is the issue.
28 The proviso to Section 372 has been introduced by
Amendment Act No.5 of 2009 w.e.f. 31.12.2009 with the sole purpose of
enabling the victim to have a right to prefer an appeal against any order
passed by the Court, either acquitting the accused or convicting him for a
lesser offence or imposing inadequate compensation. The phraseology of
the proviso by which the right to prefer an appeal has been given to the
victim, cannot be ignored in view of the fact that the words "shall have a
right to prefer an appeal" find place in the proviso. I am, therefore, of the
view that since the State did not prefer an appeal, the Petitioner can
invoke the proviso to Section 372 in it's capacity of being a complainant/
victim.
29 The Honourable Supreme Court in the matter of Satya Pal
Singh vs. State of M.P., 2016(1) Supreme Court Journal 691, has
extensively dealt with the scope, purpose and ambit of the proviso to
Section 372 in the light of subsection (3) of Section 378 of the Code of
Criminal Procedure. It has been held that where an appeal to the High
Court against an order of acquittal can be preferred under Section 378(3),
it was necessary to obtain leave of the High Court. Section 372 clearly
indicates that no appeal shall lie against the judgment or order of the
Criminal Court except as is provided for by the Code of Criminal
Procedure. The Apex Court, therefore, concluded that the proviso to
Section 372, if involves a right to file an appeal before the High Court,
leave of the High Court as envisaged under Section 378(3) will have to be
obtained.
30 It would be apposite to refer to paragraphs 9, 10, 11, 12 and
13 of Satya Pal Singh judgment (supra) as under:
“9. 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.
10. 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 warrantcases,
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.
11. 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 subSection (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, subSection (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
subjectmatter 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, (1976) 1 SCC 128, the relevant para 18 of
which reads thus:
“18. … A proviso must be limited to the
subjectmatter 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 subjectmatter 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.”
12. Further, a three Judge Bench of this Court by majority
of 2:1 in the case of S. Sundaram Pillai v. V.R.
Pattabiraman, (1985) 1 SCC 591, 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 294295 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
subjectmatter 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.”
Thus, from a reading of the abovesaid 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 subSection (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.
13. 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 subSection (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 subSection (3) to Section
378 of Cr.P.C. The High Court of M.P. has failed
to deal with this important legal aspect of the matter
while passing the impugned judgment and order.”
31 In the instant case, the Petitioner claims to be a victim of the
offences allegedly committed by Respondent No.2 and, therefore, have the
right to prefer an appeal and more so in the backdrop of the State having
failed in filing such an appeal against the order of acquittal.
32 The learned Advocates for the respective sides were not in a
position to submit as to whether, any limitation in filing an appeal under
the proviso to Section 372 is prescribed or not, on the lines of the
limitation period in filing such an appeal as is prescribed under subsection
(5) of Section 378. It is, however, submitted that Article 114(1) of
the Limitation Act, 1963 can be read into the proviso to Section 372.
33 Notwithstanding the same, the learned Advocates submitted
that there are no judicial pronouncements on the issue of limitation in
relation to the filing of an appeal under the proviso to Section 372. It is
further submitted that the Petitioner has proceeded on the premise that
the limitation of 90 days is applicable to the Petitioner while filing an
appeal.
34 In the fact situation as above, I am inclined to accept the
submissions of Shri Gupte considering the ratio laid down by the
Honourable Supreme Court in the cases of Casio India Company Private
Limited, Dwarka Prasad, Subhash Chand and Satya Pal Singh (supra), that
it is the only District Magistrate who can direct the filing of an appeal
under Section 378(1) and the proviso to Section 372 will have to be read
along with Section 378(4) and (5).
35 The Petitioner herein was the Complainant on behalf of the
Bank. He was Auditor and in his capacity as being the Auditor, he had
lodged the First Information Report against Respondent No.2. Therefore,
though he is the author of the complaint as is understood under Section
2(d) of the Code of Criminal Procedure, he, as an individual, would not
fall within the definition of victim under Section 2(wa). Therefore, though
the right of the Petitioner to file a complaint or lodge an FIR can be
recognized, yet, insofar as preferring an appeal against the order of
acquittal is concerned, the right of the Petitioner as a Bank under the
proviso to Section 372 will have to be read within the scope of Section
378(3), (4) and (5) of the Code of Criminal Procedure.
36 In view of the above conclusion, the Petitioner could not have
preferred an appeal before the learned Additional Sessions Judge, Hingoli.
The Petitioner could have filed an appeal before this Court in its capacity
of being the Complainant/ victim by relying upon the proviso to Section
372 of the Code of Criminal Procedure.
37 At this juncture, the learned Advocate for the Petitioner
submits that the Petitioner be granted leave to convert this Criminal Writ
Petition into a Criminal Appeal and the Petitioner would prefer an
application for seeking leave of this Court to entertain the said appeal. The
Petitioner would also file an application making out a case for
condonation of delay in the light of the fact that the Petitioner has lost
precious time in it's Criminal Appeal dated 04.01.2013 erroneously filed
before the learned Additional Sessions Judge as well as time spent by the
Petitioner in this Court till the date of this order.
38 The learned Advocate for Respondent No.2 has opposed the
request put forth by the Petitioner as above.
39 However, considering the peculiar facts of this case and after
having concluded that the Petitioner was required to prefer an appeal
before this Court under the proviso to Section 372 r/w Section 378 of the
Code of Criminal Procedure, I am inclined to accept the request of the
Petitioner.
40 As such, after having concluded that the Petitioner has
erroneously filed Miscellaneous Criminal Application No.1/2013 before
the learned Additional Sessions Judge, Hingoli, I hereby permit the
Petitioner to convert this Criminal Writ Petition into a criminal appeal.
While doing so, the Petitioner shall have to file an application for seeking
leave of this Court to entertain the appeal and file another application for
seeking condonation of delay.
41 Needless to state, this Court has not dealt with the merits of
the appeal.
kps (RAVINDRA V. GHUGE, J.)
Print Page
Bank. He was Auditor and in his capacity as being the Auditor, he had
lodged the First Information Report against Respondent No.2. Therefore,
though he is the author of the complaint as is understood under Section
2(d) of the Code of Criminal Procedure, he, as an individual, would not
fall within the definition of victim under Section 2(wa). Therefore, though
the right of the Petitioner to file a complaint or lodge an FIR can be
recognized, yet, insofar as preferring an appeal against the order of
acquittal is concerned, the right of the Petitioner as a Bank under the
proviso to Section 372 will have to be read within the scope of Section
378(3), (4) and (5) of the Code of Criminal Procedure.
36 In view of the above conclusion, the Petitioner could not have
preferred an appeal before the learned Additional Sessions Judge, Hingoli.
The Petitioner could have filed an appeal before this Court in its capacity
of being the Complainant/ victim by relying upon the proviso to Section
372 of the Code of Criminal Procedure.
37 At this juncture, the learned Advocate for the Petitioner
submits that the Petitioner be granted leave to convert this Criminal Writ
Petition into a Criminal Appeal and the Petitioner would prefer an
application for seeking leave of this Court to entertain the said appeal. The
Petitioner would also file an application making out a case for
condonation of delay in the light of the fact that the Petitioner has lost
precious time in it's Criminal Appeal dated 04.01.2013 erroneously filed
before the learned Additional Sessions Judge as well as time spent by the
Petitioner in this Court till the date of this order.
38 The learned Advocate for Respondent No.2 has opposed the
request put forth by the Petitioner as above.
39 However, considering the peculiar facts of this case and after
having concluded that the Petitioner was required to prefer an appeal
before this Court under the proviso to Section 372 r/w Section 378 of the
Code of Criminal Procedure, I am inclined to accept the request of the
Petitioner.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 968 OF 2013
Parbhani District Central Bank Ltd.,V The State of Maharashtra.
CORAM: RAVINDRA V. GHUGE, J.
DATE : 23rd June, 2016
Citation: 2016 ALLMR(CRI)4822
consent of the parties.
2 The Petitioner is aggrieved by the order dated 01.04.2013 by
which Miscellaneous Application No.1/2013, filed by the Petitioner
seeking condonation of delay in preferring an appeal, has been rejected by
the learned Additional Sessions Judge, Hingoli.
3 The Petitioner contends that pursuant to the complaint filed
by the Petitioner against Respondent No.2 alleging commission of offences
punishable under Sections 409, 468 and 420 of the Indian Penal Code,
Regular Criminal Case No.68/1999 was adjudicated upon by the learned
Judicial Magistrate First Class, Kalamnuri. By the judgment and order
dated 23.02.2011, Respondent No.2/ Accused was acquitted of the
offences.
4 The grievance is that pursuant to the said judgment, the State
did not prefer an appeal before the learned Additional Sessions Judge at
Hingoli. After the Petitioner got the knowledge of the judgment, it had
approached the Public Prosecutor with regard to the filing of an appeal.
After obtaining the certified copy of the judgment on 11.06.2012, legal
opinion was sought and upon confirming that no appeal was filed by the
Public Prosecutor, the Petitioner preferred Miscellaneous Application
No.1/2013 seeking condonation of delay of 18 months and 12 days in
preferring an appeal. By the impugned order, the said application has been
rejected.
5 Shri Deshmukh, learned Advocate for the Petitioner, submits
that the Petitioner is a victim and hence, a legal injury has been caused to
the Petitioner by the non filing of the appeal by the Public Prosecutor. It
was under the complaint of the Petitioner that the prosecution was
launched. Under the proviso to Section 372 of the Code of Criminal
Procedure, which has been inserted by Amendment Act No.5 of 2009
w.e.f. 31.12.2009, the victim was bestowed with a right to prefer an
appeal against the order passed by the Court acquitting the accused or
convicting for a lesser offence or imposing inadequate compensation.
According to Shri Deshmukh, limitation has not been specifically
prescribed under Section 372.
6 He further submits that an application for obtaining a
certified copy of the judgment was filed on 07.06.2012 and the same was
obtained on 11.06.2012. Thereafter, the Petitioner Bank sought a legal
opinion and consequent to the legal opinion, the appeal was preferred
along with an application for condonation of delay on 04.01.2013.
7 He, therefore, submits that if the limitation period of 90 days
is to be computed from the date of receipt of the certified copy, the delay
would be of a minor period. Notwithstanding the same, even if it is held
that the limitation period would start from the date of the judgment, the
delay of 18 months and 12 days can neither be termed as being inordinate
nor having been deliberately caused by the Petitioner. He submits that
neither any laches can be attributed to the conduct of the Petitioner nor
can it be said that the Petitioner would gain an undue advantage by
causing delay in the matter. He, therefore, prays for quashing of the
impugned order and seeks condonation of delay.
8 Shri Kakade, learned Advocate appearing on behalf of
Respondent No.2, strenuously opposes this petition. By relying on the
pleadings in the application for condonation of delay, Shri Kakade submits
that an untrue story has been narrated by the Petitioner in the said
application.
9 He submits that Respondent No.2 had entered an application
dated 10.02.2012 in the inward department of the Petitioner Bank
indicating that he has been acquitted of the offences and considering the
fact that the charge of misappropriation of money has not been proved
against him, he should be paid his retiral benefits taking into account that
he had attained the age of superannuation. Shri Kakade, therefore,
submits that by virtue of the application dated 10.02.2012, the Petitioner
was made aware of the judgment and despite the same, the Petitioner has
not preferred an appeal.
10 Shri Kakade further submits that though the Petitioner had
lodged the complaint levelling allegations against Respondent No.2, it was
the State which, under the scheme of law, has to prosecute Respondent
No.2. Having so done and in the light of the proceedings resulting in the
acquittal of Respondent No.2, the Petitioner is not competent to file an
appeal since the State has to prefer an appeal under Section 378 of the
Code of Criminal Procedure. He submits that Section 372 would have no
applicability in this backdrop. He, therefore, prays for the dismissal of this
petition.
11 The learned APP has supported the impugned order and has
prayed for the dismissal of the petition with costs.
12 Considering the conspectus of the matter, I called upon Shri
Shirish Gupte, the learned Senior Advocate, to assist the Court.
Coincidentally, Shri Gupte has been the counsel for one of the Appellants
in the reported judgment of the learned Division Bench of this Court in the
matter of Balasaheb Rangnath Khade vs. The State of Maharashtra and
others, 2013 ALL MR (Cri) 1153. Shri Gupte graciously agreed to assist
the Court on the point of law in this matter.
13 Shri Gupte contended that ChapterIX of the Code of Criminal
Procedure, 1973, pertains to appeals and the scope and jurisdiction of the
Appeal Court. He stated that in the light of the facts of this case, a
criminal revision application would not be maintainable considering the
fact that the learned Magistrate has delivered its judgment thereby,
acquitting the accused.
14 He submits that Section 372 along with the proviso, which
has been introduced by way of an amendment, cannot be read in
isolation. The appeal to be preferred is provided only in Section 378.
Section 372 is a prohibition on filing of any appeal except in accordance
with the provisions under the Code of Criminal Procedure. He, therefore,
submits that Section 372 will have to be read along with Section 378 and
the golden rule of interpretation as well as the test would be that the
proviso below Section 372 read with Section 378 leads to a harmonious
interpretation. He hastens to clarify that the proviso to Section 372 cannot
be interpreted in a manner which would do violence to the scheme under
Section 378.
15 In support of his contentions, he has relied upon the
judgment in the matter of CASIO India Company Private Limited vs. State
of Haryana, 2016 (3) Scale 441 : (Civil Appeal Nos.1410 and 1411/2007
and 5450/2013, decided on 29.03.2016). He specifically relies upon
paragraphs 19 and 20 of the said judgment, which read as under:
“19. We have reproduced the exemption notification above
and referred to the language employed. At this
juncture, it is absolutely necessary to understand
the language employed in the proviso to the
notification. If there was no proviso to the
notification there would have been no difficulty
whatsoever in holding that the exemption is qua
the goods manufactured and was not curtailed or
restricted to the sales made by the manufacturer
dealer and would not apply to the second or
subsequent sales made by a trader, who buys the
goods from the manufacturerdealer and sells the
same in the course of interstate trade or commerce.
It is pertinent to note that, clause (ii) of subrule
(n) refers to sale of finished products in the course
of interstate trade or commerce where the finished
products are manufactured by eligible industrial
unit. There is no stipulation that only the first sale
or the sale by the eligible industrial unit in Inter
State or Trade would be exempt. The confusion
arises, as it seems to us, in the proviso to the
notification which states that the manufacturerdealer
should not have charged tax. It needs no
special emphasis to mention that provisos can serve
various purposes. The normal function is to qualify
something enacted therein but for the said proviso
would fall within the purview of the enactment. It is
in the nature of exception. [See : Kedarnath Jute
Manufacturing Co. Ltd v. Commercial Tax Officer,
AIR 1966 SC 12]. Hidayatullah, J. (as his Lordship
then was) in Shah Bhojraj Kuverji Oil Mills and
Ginning Factory v. Subhash Chandra Yograj Sinha,
AIR 1961 SC 1596, had observed that a proviso is
generally added to an enactment to qualify or
create an exception to what is in the enactment, and
the proviso is not interpreted as stating a general
rule. Further, except for instances dealt with in the
proviso, the same should not be used for interpreting
the main provision/enactment, so as to exclude
something by implication. It is by nature of an
addendum or dealing with a subject matter which is
foreign to the main enactment. (See : CIT, Mysore
etc. v Indo Mercantile Bank Ltd, AIR 1959 SC
713). Proviso should not be normally construed
as nullifying the enactment or as taking away
completely a right conferred.
20. Read in this manner, we do not think the proviso
should be given a greater or more significant role in
interpretation of the main part of the notification,
except as carving out an exception. It means and
implies that the requirement of the proviso should be
satisfied i.e. manufacturing dealer should not have
charged the tax. The proviso would not scuttle or
negate the main provision by holding that the first
transaction by the eligible manufacturing dealer in
the course by way of interstate sale would be
exempt but if the interstate sale is made by
trader/purchaser, the same would not be exempt.
That will not be the correct understanding of the
proviso. Giving over due and extended implied
interpretation to the proviso in the notification will
nullify and unreasonably restrict the general and
plain words of the main notification. Such
construction is not warranted.”
16 He then submits that a proviso cannot be read beyond the
section. The proviso is aimed at either clarifying the position in law in
consonance with the specific section or would in itself be a substantive
provision without running counter to the meaning flowing from the
section. He, therefore, relied upon the judgment of the Honourable
Supreme Court (four Judges' Bench) in the matter of Dwarka Prasad vs.
Dwarka Das Saraf, (1976) 1 SCC 128 and especially on paragraphs 17
and 18, which read as under:
“17. While rulings and text books bearing on statutory
construction have assigned many functions for
provisos, we have to be selective, having regard to the
text and context of a statute. Nothing is gained by
extensive references to luminous classics or supportive
case law. Having explained the approach we make to
the specific 'proviso' situation in s. 2(a) of the Act,
what strikes us as meaningful here is that the
legislature by the amending Act clarified what was
implicit earlier and expressly carved out what
otherwise might be mistakenly covered by the main
definition. The proviso does not, in this case, expand,
by implication, the protected area of building
tenancies to embrace 'business' leases.
18. We may mention fairness to counsel that the
following, among other decisions, were cited at the
bar bearing on the uses of provisos in statutes:
Commissioner of Incometax v. IndoMercantile Bank
Ltd.; M/s. Ram Narain Sons Ltd. v. Asst.
Commissioner of Sales Tax; Thompson v. Dibdin; Rex
v. Dibdin and Tahsildar Singh v. State of U.P.. The
law is trite. 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' (1912 A.C. 544). 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.
"The proper course is to apply the broad
general rule of construction which is that a section or
enactment must be construed as a whole each portion
throwing light if need be on the rest.
The true principle undoubtedly is, that the
sound interpretation and meaning of the statute, on a
view of the enacting clause, saving clause, and
proviso, taken and construed together is to prevail.
(Maxwell on Interpretation of Statutes, 10th
Edn. P. 162)”
17 In support of his submission that Section 372 cannot be
applied in isolation and that it should be read along with Section 378, he
has placed reliance upon the observations of the Honourable Supreme
Court in paragraphs 15 and 16 of it's judgment in the matter of Satya Pal
Singh vs. State of M.P., 2016(1) Supreme Court Journal 691, which read
as under:
“15. Thus, from a reading of the abovesaid 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 subSection
(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..
16. 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 subSection (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 subSection (3) to Section 378 of Cr.P.C. The
High Court of M.P. has failed to deal with this
important legal aspect of the matter while passing the
impugned judgment and order.”
18 He has placed reliance upon the judgment of the Honourable
Supreme Court (a three judges' Bench) in the matter of S.Sundaram Pillai
vs. V.R.Pattabiraman, (1985) 1 SCC 591. Paragraph 43 of the said
judgment reads as under:
“43. We need not multiply authorities after authorities on
this point because the legal position seems to be
clearly and manifestly well established. To sum up, a
proviso may serve four different purposes:
(1) qualifying or excepting certain provisions from the
main enactment;
(2) it may entirely change the very concept of the
intendment of the enactment by insisting on certain
mandatory conditions to be fulfilled in order to make
the enactment workable;
(3) it may be so embedded in the Act itself as to become
an integral part of the enactment and thus acquire the
tenor and colour of the substantive enactment itself;
and
(4) it may be used merely to act as an optional addenda
to the enactment with the sole object of explaining the
real intendment of the statutory provision.”
19 He, therefore, submitted that in the peculiar facts of this case,
that as the State has not preferred an appeal against the judgment of
acquittal, the victim could not have filed the criminal revision application,
which was rightly not considered as the application for condonation of
delay was rejected. The Petitioner has no option, but to prefer an appeal in
this Court along with an application for condonation of delay and an
application for seeking leave of this Court for filing an appeal.
20 He has then placed reliance upon the judgment of the
Honourable Supreme Court in the matter of Subhash Chand vs. State
(Delhi Administration), (2013) 2 SCC 17. Paragraphs 17, 18, 19 and 23 of
Subhash Chand judgment (supra) read as under:
“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 nonbailable 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. SubSection (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 subsection(1) except that here
the words ‘State Government’ are substituted by the
words ‘Central Government’.
18. If we analyse 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 nonbailable offence because of the
categorical bar created by Section 378(1)(b). Such
appeals, that is appeals against orders of acquittal
passed by a Magistrate in respect of a cognizable and
nonbailable 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 nonbailable 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.
19. SubSection (4) of Section 378 makes provision for
appeal against an order of acquittal passed in case
instituted upon complaint. It states that in such case if
the complainant makes an application to the High
Court and the High Court grants special leave to
appeal, the complainant may present such an appeal
to the High Court. This subsection speaks of ‘special
leave’ as against subsection (3) relating to other
appeals which speaks of ‘leave’. Thus, complainant’s
appeal against an order of acquittal is a category by
itself. The complainant could be a private person or a
public servant. This is evident from subsection (5)
which refers to application filed for ‘special leave’ by
the complainant. It grants six months period of
limitation to a complainant who is a public servant
and sixty days in every other case for filing
application. Sub Section (6) is important. It states
that if in any case complainant’s application for
‘special leave’ under subSection (4) is refused no
appeal from order of acquittal shall lie under subsection
(1) or under sub section (2). Thus, if ‘special
leave’ is not granted to the complainant to appeal
against an order of acquittal the matter must end
there. Neither the District Magistrate not the State
Government can appeal against that order of
acquittal. The idea appears to be to accord quietus to
the case in such a situation.
23. In view of the above, we conclude that a complainant
can file an application for special leave to appeal
against an order of acquittal of any kind only to the
High Court. He cannot file such appeal in the Sessions
Court. In the instant case the complaint alleging
offences punishable under Section 16(1)(1A) read
with Section 7 of the PFA Act and the Rules is filed by
complainant Shri Jaiswal, Local Health Authority
through Delhi Administration. The appellant was
acquitted by the Metropolitan Magistrate, Patiala
House Courts, New Delhi. The complainant can
challenge the order of acquittal by filing an
application for special leave to appeal in the Delhi
High Court and not in the Sessions Court. Therefore,
the impugned order holding that this case is not
governed by Section 378(4) of the Code is quashed
and set aside. In the circumstances the appeal is
allowed.”
21 He, therefore, submits that the last word of the Honourable
Supreme Court on the right of the complainant, complainantvictim or the
victim, is found in it's judgments delivered in Subhash Chand and Satya
Pal Singh (supra).
22 He further adds that though the Criminal Writ Petition before
this Court is not maintainable, the Petitioner can request this Court for
converting this Criminal Writ Petition into a criminal appeal and can file
applications for condonation of delay and for seeking leave of this Court
to entertain such an appeal.
23 I have considered the submissions of the learned Advocates.
24 Section 372 of the Code of Criminal Procedure reads as
under:
“372. 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 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.”
25 Section 378 of the Code of Criminal Procedure reads as
under:
“378. Appeal in case of acquittal.
(1) Save as otherwise provided in subsection (2), and
subject to the provisions of subsections (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 nonbailable
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 subsection (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
nonbailable 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 subsection (1) or
subsection (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.
(5) No application under subsection (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 subsection (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 subsection (1) or under subsection
(2).”
26 It is apparent from the impugned order that the Petitioner has
invoked Section 372 in support of it's contention that the victim can prefer
an appeal. The learned Additional Sessions Judge, Hingoli has come to the
conclusion that the State or Authority concerned can alone direct the
Public Prosecutor to present an appeal under subsections (1) and (2) of
Section 378. Unless such direction is issued, the Petitioner claiming to be
the victim, cannot prefer an appeal.
27 I find that if the State or the District Magistrate does not
direct the Public Prosecutor to prefer an appeal, a victim could be said to
have been aggrieved by the failure to lodge an appeal and as such, would
be in a position to invoke the proviso to Section 372 and file an appeal
with the Court before which such an appeal would ordinarily lie against
the order of acquittal. However, whether, this could be done dehors
Section 378(4), is the issue.
28 The proviso to Section 372 has been introduced by
Amendment Act No.5 of 2009 w.e.f. 31.12.2009 with the sole purpose of
enabling the victim to have a right to prefer an appeal against any order
passed by the Court, either acquitting the accused or convicting him for a
lesser offence or imposing inadequate compensation. The phraseology of
the proviso by which the right to prefer an appeal has been given to the
victim, cannot be ignored in view of the fact that the words "shall have a
right to prefer an appeal" find place in the proviso. I am, therefore, of the
view that since the State did not prefer an appeal, the Petitioner can
invoke the proviso to Section 372 in it's capacity of being a complainant/
victim.
29 The Honourable Supreme Court in the matter of Satya Pal
Singh vs. State of M.P., 2016(1) Supreme Court Journal 691, has
extensively dealt with the scope, purpose and ambit of the proviso to
Section 372 in the light of subsection (3) of Section 378 of the Code of
Criminal Procedure. It has been held that where an appeal to the High
Court against an order of acquittal can be preferred under Section 378(3),
it was necessary to obtain leave of the High Court. Section 372 clearly
indicates that no appeal shall lie against the judgment or order of the
Criminal Court except as is provided for by the Code of Criminal
Procedure. The Apex Court, therefore, concluded that the proviso to
Section 372, if involves a right to file an appeal before the High Court,
leave of the High Court as envisaged under Section 378(3) will have to be
obtained.
30 It would be apposite to refer to paragraphs 9, 10, 11, 12 and
13 of Satya Pal Singh judgment (supra) as under:
“9. 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.
10. 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 warrantcases,
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.
11. 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 subSection (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, subSection (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
subjectmatter 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, (1976) 1 SCC 128, the relevant para 18 of
which reads thus:
“18. … A proviso must be limited to the
subjectmatter 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 subjectmatter 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.”
12. Further, a three Judge Bench of this Court by majority
of 2:1 in the case of S. Sundaram Pillai v. V.R.
Pattabiraman, (1985) 1 SCC 591, 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 294295 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
subjectmatter 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.”
Thus, from a reading of the abovesaid 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 subSection (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.
13. 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 subSection (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 subSection (3) to Section
378 of Cr.P.C. The High Court of M.P. has failed
to deal with this important legal aspect of the matter
while passing the impugned judgment and order.”
31 In the instant case, the Petitioner claims to be a victim of the
offences allegedly committed by Respondent No.2 and, therefore, have the
right to prefer an appeal and more so in the backdrop of the State having
failed in filing such an appeal against the order of acquittal.
32 The learned Advocates for the respective sides were not in a
position to submit as to whether, any limitation in filing an appeal under
the proviso to Section 372 is prescribed or not, on the lines of the
limitation period in filing such an appeal as is prescribed under subsection
(5) of Section 378. It is, however, submitted that Article 114(1) of
the Limitation Act, 1963 can be read into the proviso to Section 372.
33 Notwithstanding the same, the learned Advocates submitted
that there are no judicial pronouncements on the issue of limitation in
relation to the filing of an appeal under the proviso to Section 372. It is
further submitted that the Petitioner has proceeded on the premise that
the limitation of 90 days is applicable to the Petitioner while filing an
appeal.
34 In the fact situation as above, I am inclined to accept the
submissions of Shri Gupte considering the ratio laid down by the
Honourable Supreme Court in the cases of Casio India Company Private
Limited, Dwarka Prasad, Subhash Chand and Satya Pal Singh (supra), that
it is the only District Magistrate who can direct the filing of an appeal
under Section 378(1) and the proviso to Section 372 will have to be read
along with Section 378(4) and (5).
35 The Petitioner herein was the Complainant on behalf of the
Bank. He was Auditor and in his capacity as being the Auditor, he had
lodged the First Information Report against Respondent No.2. Therefore,
though he is the author of the complaint as is understood under Section
2(d) of the Code of Criminal Procedure, he, as an individual, would not
fall within the definition of victim under Section 2(wa). Therefore, though
the right of the Petitioner to file a complaint or lodge an FIR can be
recognized, yet, insofar as preferring an appeal against the order of
acquittal is concerned, the right of the Petitioner as a Bank under the
proviso to Section 372 will have to be read within the scope of Section
378(3), (4) and (5) of the Code of Criminal Procedure.
36 In view of the above conclusion, the Petitioner could not have
preferred an appeal before the learned Additional Sessions Judge, Hingoli.
The Petitioner could have filed an appeal before this Court in its capacity
of being the Complainant/ victim by relying upon the proviso to Section
372 of the Code of Criminal Procedure.
37 At this juncture, the learned Advocate for the Petitioner
submits that the Petitioner be granted leave to convert this Criminal Writ
Petition into a Criminal Appeal and the Petitioner would prefer an
application for seeking leave of this Court to entertain the said appeal. The
Petitioner would also file an application making out a case for
condonation of delay in the light of the fact that the Petitioner has lost
precious time in it's Criminal Appeal dated 04.01.2013 erroneously filed
before the learned Additional Sessions Judge as well as time spent by the
Petitioner in this Court till the date of this order.
38 The learned Advocate for Respondent No.2 has opposed the
request put forth by the Petitioner as above.
39 However, considering the peculiar facts of this case and after
having concluded that the Petitioner was required to prefer an appeal
before this Court under the proviso to Section 372 r/w Section 378 of the
Code of Criminal Procedure, I am inclined to accept the request of the
Petitioner.
40 As such, after having concluded that the Petitioner has
erroneously filed Miscellaneous Criminal Application No.1/2013 before
the learned Additional Sessions Judge, Hingoli, I hereby permit the
Petitioner to convert this Criminal Writ Petition into a criminal appeal.
While doing so, the Petitioner shall have to file an application for seeking
leave of this Court to entertain the appeal and file another application for
seeking condonation of delay.
41 Needless to state, this Court has not dealt with the merits of
the appeal.
kps (RAVINDRA V. GHUGE, J.)
No comments:
Post a Comment