9911796707
TMI Blog2014 (4) TMI 1202X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under S. 378(4) to challenge an order of acquittal passed in a case instituted upon complaint. Before the amendment, in a case instituted on police report, the victim could challenge the order of acquittal only by filing are vision under S. 397 of the Code of Criminal Procedure. After the introduction of the definition of 'victim' in S. 2(wa), the victim in a case instituted on police report can prefer an appeal to the Sessions Court against any order passed by the Court acquitting the accused or convicting the accused for a lesser offence or imposing inadequate compensation. No special leave to appeal is required in the case of an appeal filed under the proviso to S. 372. The expression 'victim' requires an interpretation in the context of the provisions in Sections 372 and 378 to exclude the complainant in a complaint case, who is also the victim, from the purview of the definition of victim under S. 2(wa). The principles of harmonious construction and the principle that one section in a statute cannot be used to defeat the provision in another section would enable the Court to come to such a conclusion alone. Such an interpretation would make the textual interpretation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... When these Criminal Revision Petitions came up before the learned single Judge who decided Sree Gokulam Chit's case, the Revisions were referred to the Division Bench as per the order dated 9.12.2013. 2. In the present Criminal Revision Petitions, the complaint cases under S. 138 of the Negotiable Instruments Act were disposed of by the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam and the accused were acquitted. On appeal by the complainants before the Sessions Court, the acquittal was confirmed. The complainants in the cases have filed the Criminal Revision Petitions. 3. The contention that an appeal would lie against an order of acquittal in a case under S. 138 of the Negotiable Instruments Act is taken on the basis of the insertion of the definition of victim in S. 2(wa) and insertion of the proviso to S. 372 of the Code of Criminal Procedure, both by the Code of Criminal Procedure Amendment Act 2008 (Act 5 of 2009). The expression 'victim' is defined in S. 2(wa) of the Code of Criminal Procedure, as follows: 2. Definitions.- In this Code, unless the context otherwise requires,- .... .... .... .... .... .... (wa) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2). (After amendment) S. 378. Appeal in case of acquittal.--(1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5),- (a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable 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 acqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 378, appeal against acquittal lies before High Court, even after the amendment. c) Similar changes have been brought out by Act 25 of 2005 in sub-section (2) of Section 378 also. d) Section 378, before its amendment by Act 25 of 2005, provided for an appeal against an order of acquittal passed by a Court of Session in Revision. That appellate power is now in clause (b) of sub-section (1) of Section 378, as substituted by Amendment Act 25 of 2005. e) After the amendment of sub-section (3) of Section 378, an appeal to the High Court under sub-section (1) or sub-section (2) of Section 378 shall not be entertained except with the leave of the High Court. But such leave is not required in the case of an appeal filed before a Court of Session under clause (a) of sub-section (1) or clause (a) of sub-section (2). f) Sub-sections (4), (5) and (6) remain the same even after Act 25 of 2005. In other words, no change was made to those sub-sections. 8. The Code of Criminal Procedure was further amended by Code of Criminal Procedure Amendment Act 2008 (Act 5 of 2009) which came into force on 31.12.2009. The relevant provisions of the Amendment Act 5 of 2009 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons had no remedy earlier against acquittal and they had no role to play in the proceedings. It was felt that the victims were the most affected persons in a crime, and in the absence of any provision in the Cr.P.C. for them to participate in the proceedings or to agitate the matter when they feel aggrieved by the final decision, it was thought necessary that they should be provided with some remedies, and it is with that object and purpose that the amendments have been introduced. Heydon's Rule of Interpretation was invoked in support of this contention. It was also pointed out that as far as the complainants in a private complaint are concerned, there already existed a remedy by way of appeal by Special Leave under S. 378(4) Cr.P.C. and the amendment to S. 372 Cr.P.C. and the introduction of the definition under S. 2(wa) Cr.P.C. is not intended to cover them as they were already conferred with statutory remedies....... 7. The rival contention is that when the Statute provides a remedy, it is not for the Court, by an interpretative exercise, to limit the scope of the provision and to deny the benefit of the provision to those who are entitled to the same. If the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s where the judgments are rendered after 31/12/2009. (e) In case of acquittal in a private complaint by the Sessions Court, if the complainant is also the victim, he has a statutory right of appeal as per proviso to S. 372 Cr.P.C. and the stipulation in S. 378(4) Cr.P.C. to obtain special leave may not apply in such a case. 13. In Sree Gokulam Chit and Finance Co. (P). Ltd. Kasaragod v. Damodaran N. Anr. 2013 (4) KLT 547 : 2013 (4) KHC 395), the learned Judge held: 35. In the light of the aforesaid discussions, I find that the context under which the expression 'victim' employed under S. 372 of the Cr.P.C. is that of 'victim' who has suffered injury or loss in a case instituted on a police report and who stood remedy less at the mercy of State Government or Central Government as the case may be or the District Magistrate alone, for preferring appeal against acquittal of the accused. The complainant in a case instituted on a private complaint under S. 190(a) read with S. 200 of the Cr.P.C. though, can be claimed to be a 'victim', does not come under the proviso to S. 372 of the Cr.P.C., since the context under S. 378(4) of the Cr.P.C. require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tem.......There is an urgent need to provide relief to women, particularly victims of sexual offences, and provide fair-trial to persons of unsound mind who are not able to defend themselves..... 16. In the 154th Report of the Law Commission, recommendation was made for, comprehensive amendments to the Code of Criminal Procedure including the insertion of the proviso to S. 372, the definition of 'victim', and insertion of a provision for 'victim compensation' etc. After the Amendment Act 5 of 2009 was enacted, in the 221st Report of the Law Commission, it was noted in clause 2.9 as follows: 2.9. All appeals against orders of acquittal passed by Magistrates were being filed in High Court prior to amendment of S. 378 by Act 25 of 2005. Now, with effect from 23.6.2006, appeals against orders of acquittal passed by Magistrates in respect of cognizable and non-bailable offences in cases filed on police report are being filed in the Sessions Court, vide clause (a) of sub-section (1) of the said section. But, appeal against order of acquittal passed in any case instituted upon complaint continues to be filed in the High Court, if Special Leave is granted by it on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e utilized for the purpose of restricting and controlling the plain meaning of the language employed by the legislature in drafting a statute and excluding from its operation such transactions which it plainly covers. (See Principles of Statutory Interpretation by Justice G.P. Singh, 8th Edn., 2001, pp. 206-09.) 20. In Mithilesh Kumari Anr. v. Prem Behari Khare AIR 1989 SC 1247), the Supreme Court held that where a particular enactment or amendment is the result of recommendation of the Law Commission of India, it may be permissible to refer to the relevant report. What importance can be given to it will depend upon the facts and circumstances of each case. The Law Commission's Reports may be referred to as external aid to the construction of the provisions of a statute. However, the Court has to interpret the language used in the Act and when the language is clear and unambiguous, it must be given effect to. 21. In Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and others AIR 1987 SC 1023), the Supreme Court held: 33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the tex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was held that the object of interpreting a statute is to ascertain the intention of the Legislature enacting it. 25. In Union of India v. Elphinstone Spinning and Weaving Co. Ltd. and others AIR 2001 SC 724), a Constitution Bench of the Supreme Court held: The duty of judges is to expound and not to legislate is a fundamental rule. There is no doubt a marginal area in which the Courts mould or creatively interpret legislation and they are thus finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further processing (See: Corocraft Ltd. v. Pan American Airways Inc. ((1968) 3 WLR 714), p. 732, State of Haryana v. Sampuran Singh (1975) 2 SCC 810 : AIR 1975 SC 1952). But by no stretch of imagination a Judge is entitled to add something more than what is there in the Statute by way of a supposed intention of the legislature. It is, therefore, a cardinal principle of construction of statute that the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he word to have a somewhat different meaning in different sections of the Act depending upon the subject or the context. That is why all definitions in statutes generally begin with the qualifying words similar to the words used in the present case, namely, unless there is anything repugnant in the subject or context. Therefore in finding out the meaning of the word insurer in various sections of the Act, the meaning to be ordinarily given to it is that given in the definition clause. But this is not inflexible and there may be sections in the Act where the meaning may have to be departed from on account of the subject or context in which the word has been used and that will be giving effect to the opening sentence in the definition section, namely, unless there is anything repugnant in the subject or context. In view of this qualification, the court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words under the circumstances...... 30. In Subhash Chand v. State (Delhi Administration) (2013) 2 SCC 17), the complaint was fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 S. 378(4) of the Code is quashed and set aside.... 31. Of course, In Subhash Chand v. State (Delhi Administration) (2013) 2 SCC 17), the scope of the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009) did not come up for consideration. 32. Before the amendment of the Code of Criminal Procedure, the remedy of the complainant in a case instituted on complaint against the order of acquittal of the accused was to file an appeal before the High Court under S. 378(4) provided special leave to appeal was granted by the High Court. S. 378(4) continues in the Code even after the amendment brought out by Act 5 of 2009, by which the definition of 'victim' and a proviso to S. 372 of the Code were inserted. Drastic changes were made in S. 378 by Act 25 of 2005 and even at that time, S. 378(4) was not amended. It cannot be assumed that the Parliament w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e such a remedy to the complainant in a complaint case, who is also a victim. It is not a case where the law makers provided concurrent remedies to the complainant in a complaint case to file appeal either before the Sessions Court or before the High Court. If that is so, a provision similar to sub-section (3) of S. 397 of the Code of Criminal Procedure would have been found a place either in S. 372 or in S. 378. Sub-section (3) of S. 397 bars further revision by the same person who has already filed a revision either before the High Court or before the Sessions Court. Absence of such a provision like S. 397(3) either in S. 372 or in S. 378 would also give an indication that the law makers did not provide concurrent jurisdiction on the Sessions Court and the High Court to entertain an appeal against acquittal, by the victim in a complaint case. 33. The expression unless the context otherwise requires occurring in S. 2 would be a helpful tool for the interpretation of the proviso to S. 372 to resolve the question whether the context requires an interpretation to the term 'victim' taking out of its purview, a complainant in a complaint case. On a consideration of the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
