9911796707
TMI Blog2014 (2) TMI 1319X X X X Extracts X X X X X X X X Extracts X X X X ..... by it by common disposal or under Section 381 Cr.P.C. the High Court by special order transmit the appeal before it to the Court of session where other appeal is pending for common disposal, the power of the High Court under section 482 Cr.P.C. in this regard also enables to subserve the ends of Justice and to avoid conflicting findings; like, in case and counter case, and for no such provision even specifically provided like in Section 210 Cr.P.C. of police case and private complaint case. Time limitation to file appeal for the offence under Section 138 of N.I.Act - Held that: - the period of limitation provided for conviction to appeal under Section 374 Cr.P.C. equally to apply to appeal against acquittal, in case of any confusion from Article 114 and 115 of the Indian Limitation Act regarding different periods of limitation for appeal against conviction and acquittal. Coming to decide what is the procedure to be adopted for an appeal against acquittal before the Court of Session for not specifically provided for by any of the amended provisions of Cr.P.C., the proviso to Section 372 Cr.P.C. itself by a close reading clarifies to adopt the procedure for appeal against conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes irrespective of what is contained in Sections 260, 261, 461, 464 and 465 Cr.P.C. are competent to try summarily the cases covered by Section 138 of the Negotiable Instruments Act, 1881 without any specific empowerment from the High Court because of the statutory mandate and empowerment by Section 143(1) of the N.I. Act. 2. Against said acquittal judgment the complainant preferred the appeal before this High Court under Section 378(4) Cr.P.C. with leave that was granted on 11.07.2005 as per the Law as on that date (since Section 372 Cr.P.C. came into force from 31.12.2009). The criminal appeal No. 1043 of 2005 was later admitted and ordered issue of summons to the 1st respondent (accused before lower Court) and also notice to the State represented by the public prosecutor. It was on dated 13.03.2012 this Court permitted the counsel for the appellants to take personal notice to the respondents by registered post with acknowledgement due and to file proof. 3. The said order for summons with appeal grounds to send by post is for the reason that as per the Negotiable Instruments Act, 1881 by amended Act 1981 covered by Act 66 of 1988 which came into force with effect from 01.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 88 Cr.P.C. It is needless to say the difference in taking of bonds as per Sections 81, 88 and 89 Cr.P.C. to suit the contingency and as per the form to be kept in mind. 4. Coming to the appeal against acquittal with leave under Section 378(4) Cr.P.C. as per Section 384 read with 385 Cr.P.C. where the appeal is not dismissed summarily but admitted, notice shall be issued to the accused (or his advocate/pleader if already, appearance is there on record, while granting leave or while hearing for admission), with copy of grounds of appeal and call for record of the trial Court (if not already called for admission under Section 384(2) Cr.P.C.) for hearing and disposal on merits under Section 386 Cr.P.C. It is to say, in case of appeal against acquittal under Section 378 Cr.P.C (same procedure that applies even to Section 372 Cr.P.C) as per Section 386 Cr.P.C. after perusing the record and hearing the appellant or his pleader if he appears; the public prosecutor if he appears; besides the respondent (accused) if he appears and otherwise to decide on merits. By such merits disposal, the appellate Court may either dismiss the appeal or reverse order of acquittal and direct further e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities. Inherent powers of the High Court is not one conferred by the code; but one which the High Court already has in it and it is preserved by the Court. 6. It is to be made clear to leave no scope for ambiguity including from the combined reading of the above expressions till date that even an appeal is admitted under Section 385(1) Cr.P.C to decide on merits; as it arises to decide on merits under Section 386 Cr.P.C. only after causing service of notice on the respondent (more particularly in appeal against private complaint cases and further in particular (appeal against acquittal), if the appellant fails to take notice to respondent ordered, the Court can dismiss the appeal for such default and need not keep the matter pending with no progress for years together, since at that stage deciding on merits without service of notice to other party does not arise. 7. Now, coming back to the appeal case on hand, it was on 13.03.2012 even ordered serving of summons/notice by post by personal servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out making arrangement to receive, it can be presumed as duly served. Apart from the fact of the accused herein is no other than manager of the cinema theatre at Alipuram, Visakhapatnam by name Geeth Sangeeth, having appeared before the trial court with same address, the question of incorrect address even to believe any postal endorsement to that extent does not arise, but for if at all to show he is no longer manager to serve and the other two endorsements as left; that once he left without making arrangement it has to be taken for all purposes as duly served. Apart from it, there was by substituted service as an abundant caution (though not provided like in civil matter under Order V Rule 20 C.P.C in the Cr.P.C. in this regard) also ordered and published twice in the newspaper for appearance that was not even complied with by respondent-accused. 8. No doubt Section 144 of N.I.Act regarding service of summons before the trial Magistrate discussed supra is not extended specifically by any provision for the appeals either against acquittal or against conviction, particularly against acquittal for service of notice on the accused for appearance and for execution of bond under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other Court till end of trial, in now the provision saying after end of trial against acquittal for undertaking to validate the bond for six months to appear before any higher court whenever required to appear. 10. It is needless to say, but for contextually in connection with Section 437-A Cr.P.C. supra-that, the appeals for admission against acquittal of a cheque dishonour case till Cr.P.C. amended Act 5 of 2009 came into force is with leave of the High Court only under Section 378(4) Cr.P.C. and as against conviction the provision governed is Section 374(3) Cr.P.C. (subject to Sections 375 and 376 Cr.P.C.). 11. It is now by virtue of the Cr.P.C. amended Act 5 of 2009 incorporating the proviso to Section 372 Cr.P.C. which came into force with effect from 31.12.2009 by providing as an independent right. Section 372 Cr.P.C. proviso speaks that : 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. This proviso in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 378(4) Cr.P.C. to invoke the conditional statutory right and the other without even leave to invoke the absolute statutory right. The same are no way in conflict, with any irreconcilability. However, it cannot be readily presumed to say gives concurrent jurisdiction to approach having the option to the appellant for selecting one among them as observed by this Court earlier in G.Baswaraj V. State of Andhra Pradesh 2011(1) ALD (Crl.) 201 (AP) at para 12 middle that 'in case the victim is also the complainant in a case instituted by way of a private complaint, then such person has got two options to file appeal against an order of acquittal recorded by the trial Court, either to the High Court under Section 378(4) Cr.P.C. or to the Sessions Court/High Court under proviso to Section 372 Cr.P.C. It is open to that person who is a victim as well as a complainant to choose one of the two remedies available in law and to approach the appellate Court of his choice depending upon the trial Court which recorded order of acquittal---------------'. It is for the following reasons that were fallen for consideration to above conclusion: 14. It is also to say Article 20(1) of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay said right of the accused in future of remedy to approach the High Court in such event and one way interfering with such right. It is for the reason that any right of revision or approaching by invoking Section 482 Cr.P.C. or writ jurisdiction no way substitute to the right of appeal. Thereby also, it is the duty of the appellant-complainant rather than approaching the high court for filing appeal with leave under Section 378(4) Cr.P.C.; to approach the Court of Session where no leave is required to file such appeal there. Needless to say by virtue of the amended provision without invoking the Court of Session for filing appeal against acquittal, approaching the High Court by saying concurrent right and there from, granting leave by the Court by exercise of discretion since amounts to interference with such right of accused and taking away another future right of appeal in such contingency to approach the High Court and as the discretion is to be exercised judiciously within the canons of law, and this is when taken into consideration, this Court under Section 378(4) Cr.P.C. must be slow for grant of such leave but for any special reasons and for any exceptional circumstances to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd limitations, on interpretation of statutes at para-8 observed that the intention of the legislature as per the settled principle, must be found by reading the statute as a whole in order to ascertain the meaning of a clause, at what precedes and what succeeds also and not merely the clause itself to look into. In another earlier expression of Shashikant Laxman Kale V. Union of India (1990) 4 SCC 366 in interpreting the provisions of the tax legislation (I.T. Act) observed at paras 15 to 18 that there is a distinction between the legislative intention and the purpose or object of the legislation in providing a remedy for malady and meaning or exposition of the remedy and for so determining it is permissible to look into the circumstances which prevailed when the law was passed and which necessitated the passing of the law and for the limited purpose of appreciating the background leading to the legislation it is permissible to look into the statement of objects and reasons of the bill which actuated the step to provide a remedy for the then existing malady. It is indicating there from that, while interpreting any particular provision or proviso, it is necessary to consider what w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The Courts must look the object which the Statute seeks to achieve while interpreting any of the provisions of the Act and a purposive approach is then necessary to adopt (vide decision S.Gopal Reddy V. State of A.P. AIR 1996 SC 2184) 22. It is said that every statute is an edict of the legislature. The elementary principle of interpreting any word while considering a statute is to gather the means or sentence legis of the legislature. 23. It is not just to conclude with, for the reason that the right of victim under the proviso to Section 372 Cr.P.C. is an independent, absolute and unfettered right from the intention of the Legislature based on Government of India, report (which was based to some extent of the Law Commission of India 154th report Chapter-15): Committee on draft National policy on Criminal Justice (Ministry of Home Affairs, 2007) - which recommended for empowering the victim with the right to plead themselves as a party, right to be represented by the counsel, right to produce independent evidence and cross-examine witnesses with leav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal under Section 372 Cr.P.C. (against acquittal or conviction of accused for a lesser offence or for inadequate compensation), but for at best to say when against same acquittal two appeals filed one by other than victim under Section 378(4) and one by the victim under Section 372 Cr.P.C. the proper course is to withdraw and call for the matter before the Court of Session to the High Court to decide both at a time by it by common disposal or under Section 381 Cr.P.C. the High Court by special order transmit the appeal before it to the Court of session where other appeal is pending for common disposal, the power of the High Court under section 482 Cr.P.C. in this regard also enables to subserve the ends of Justice and to avoid conflicting findings; like, in case and counter case, and for no such provision even specifically provided like in Section 210 Cr.P.C. of police case and private complaint case. 25. When such is the case, even any leave granted so far and any appeal admitted so far after the appeal provision with absolute statutory right provided from dated 31.12.2009, this Court no way a functus officio for return to present before the Court of Session to proceed with or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r direct. This is apart from the power of this Court under Section 482 Cr.P.C. discussed supra. It is thus to say, in matters already leave granted and admitted even under Section 378 Cr.P.C. against acquittal in N.I.Act cases, this Court can and otherwise for sub-serving ends of justice has to direct the Sessions Judge or Additional Sessions Judge by specifically so ordering to hear and dispose of the appeal on merits by made over. In Crl.P.No.5987 and 9726 of 2009 dated 21.10.2010 this Court in answering the query raised by filing a quash proceedings of the appeal entertained by the Court of Session against the acquittal few days prior to coming into force of the Amended Act 5 of 2009, Section 372 proviso as if under Section 372 instead of not entertaining appeal by then as only from the available provision before the High Court is Section 378(4) Cr.P.C.; instead of quashing it was answered as just to call for by transfer of the record from the Court of Session to the High Court to cure the defect and to sub serve the ends of Justice. It was specifically observed that the statutory right of appeal after the amended Act 5 of 2009 against acquittal before a Magistrate lies to the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late Court of Sessions. To be more elaborate regarding applicability of Section 386, 390, 393 and 394 Cr.P.C. to read for Section 378 as also of Section 372 Cr.P.C. (till specific procedure, if any, is provided by the State or Central Legislature) from the legislative silence concerned: 30. In addition to what is discussed supra, it is to recollect that, legislative silence conveys signals and thus it is the duty of the interpreter to interpret the meaning and for that the interpretation and construction have same effect by identifying the legislative intent as part of duty of the Court since the legislative authorities are functuous officio after the legislation is passed. 31. Justice Frankfurter of U.S. Supreme Court observed in his article published in (47 Columbia Law Reports 527) titled as some reflections on the reading of statutes that 'legislation has an aim, it seeks to obviate some mischief, to supply an adequacy, to effect a change of policy, to formulate a plan of Government. That aim that policy is not drawn, like nitrogen, out of the air; it is evidenced in the language of the statute, as read in the light of other external manifestations of purpose . 32. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to be respected and where the words are clear, plain and unambiguous literal construction be given, otherwise the Statute must be read as a whole with reference to the labelling definition, referential definition, inclusive definition, exclusive definition, comprehensive definition, informed determination/approach to be saying in ambiguity existence or not and the statutory contextual interpretation from the text to context as required with reference to compelling rule, settled rule and the like. 40. It indicates the statutory provisions may be extended to situations which although they do not fall within the language of the statute, do fall within the general principle or social purpose envisaged by the statute. 41. In interpreting an Act the proper course is the first instance to examine the language of the Statute and to ask what is the natural meaning influenced by the considerations derived from the previous state of the law and not to start with inquiring how the law previously stood, and then assuming that it was probably intended to leave it unaltered to see if the words of the enactment will bear an interpretation in conformity with the view. 42. The Heydons Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a lex is thus to mean, regard for public welfare is the highest law. That is why Lord Cardozo also quoted 'the final cause of law is the welfare of the Society'. 45. It is thus, where a new combination of facts or circumstances arise, it is incumbent upon the Court to apply the rule of law which could be derived from the general principles in furtherance of Justice and in the common good. 46. Max-well on interpretation of Statutes stated that where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts or employing such means, as are essentially necessary. 47. The Division Bench of this Court in M.V.V.S.Chowdary V. State AIR 1980 AP 154 at para 7 observed that economics without value, aesthetics without expression, ethics without duty, logic without the concept and right without remedy are inconceivable. 48. Thus, even no specific procedure provided for the appeal under Section 372 Cr.P.C. the procedure applicable to appeal against acquittal generally provided in the chapter XXIX Cr.P.C. that is applicable automatically, so also the period of limitation. 49. It is because every right must have a remedy is the dogms of the E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers of the appellate Court though not specifically stated the appellate Court got same powers, it is by implication from reading of said provision. It is apart from the basic principle that appeal is continuation of the trial Court proceeding either civil or criminal by applying the doctrine of merger to prevail the appeal judgment indicating in the judgment operative and result portion, any modification or alteration or setting aside, as the case may be, and in criminal case i.e., the conviction or acquittal or modification of sentence in different forms of sentence specified in Section 53 I.P.C. 53. Thus, this Court rightly invoked Section 144 of N.I.Act in this appeal in ordering notice by registered post to the accused-1st respondent for appearance and the same since appears prima facie from the endorsements as of left unclaimed as on a sufficient service and even thereafter the Court as an abundant caution though not specifically provided under the Cr.P.C. provisions for substituted service by paper publication like the one specifically provided under Order V Rule 20 C.P.C within the power under Section 482 Cr.P.C. which is the inherent power that inheres on this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act of securing the presence of the accused on execution of the warrant (bailable or non-bailable as the case may be as per the direction of said warrant) for police not executing for want of men to entrust to any other person for its execution. The word 'ordinarily' and the word 'no police officer is immediately available' cannot be rigidly considered to say in the entire State there are police stations everywhere and the question of non-availability does not arise at all forever, but for what the learned Public Prosecutor represented of immediate non-availability of men to construe and once the police are not able to spare their men to execute the warrants more particularly in N.I.Act and other private complaint cases by keeping the warrants in cold storage or by misplacing and not responding, that causes an acute delay in proceeding with the dishonour of cheque cases without progress for the warrants pending for pretty long time and in most of the cases that defeats the very purpose of the provision to achieve the objects for interpreting the word from non-availability of men to spare is nothing but no police officer is immediately available. Thereby at the reque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by directing the learned Magistrate or the first appellate Court of session to cause direct the accused to appear before this Court and any violation to the compliance of the bond not only entitles to proceed under Section 446 and 446-A Cr.P.C. but also prone to legal consequences under Section 229A I.P.C. covered by Amended Act 25 of 2005 with effect from 23.06.2006; besides the power of Court to exercise for deciding on merits by appointing an amicus curie to defend such accused or to dismiss for default said appeal as per the context as laid down in Surya Baksh Singh (supra). 56. Having regard to the above, coming back to the factual matrix of the case, with reference to above propositions, it is the submission by learned counsel for the appellant that as the appeal is pending in the High Court from the year 2005 with no progress to secure the appearance of the accused-1st respondent and because the appeal if decided by a Court of Session either under Section 372 Cr.P.C. which is beneficial to the accused from what is discussed supra or even by this Court by special order made over and direct the Court of Session to decide within the power under Section 381 Cr.P.C., it can b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
