CRREF/5/2008 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REFERENCE No. 5 of 2008 For Approval and Signature: HONOURABLE MR. JUSTICE A. L. DAVE HON'BLE SMT. JUSTICE ABHILASHA KUMARI =============================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? =============================================== SUO MOTU. Versus STATE OF GUJARAT. =============================================== Appearance : Reference SUO MOTU. Mr KAMAL TRIVEDI, ADVOCATE GENERAL, for the State. =============================================== CORAM : HONOURABLE MR. JUSTICE A. L. DAVE and HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 24/10/2008 ORAL JUDGMENT :- (Per : A. L. DAVE, J.) CRREF/5/2008 2/15 JUDGMENT 1. Learned Single Judge, while hearing Criminal Appeal No.168 of 2007, has raised and referred the following question, giving rise to the present Reference :- “Whether in view of the amendment made in sub-section (1) of Section 378 of the Code of Criminal Procedure, 1973, specially in view of clause (a) of sub-section (1) of Section 378, appeals against acquittal recorded by a Magistrate pending consideration, after grant of leave, can be heard and decided by the High Court or are required to be sent back to the Sessions Court for their disposal in accordance with law and whether application for grant of leave wherein leave to file appeal is yet not granted or criminal appeals wherein leave under Section 378(3) has not been granted, would continue to be heard by this Court or such matters are required to be sent to the Sessions Court and in all such cases, whether leave to file appeal would not be required in view of language of Section 378(1)(a)?” 2. Thus, in this question, there are three questions that are required to be addressed to by this Court :- (i) Whether in view of the amendment made in sub-section (1) of Section 378 of the Code of Criminal Procedure, 1973, specially, in view of clause (a) of sub-section (1) of Section 378, appeals against acquittal recorded by a Magistrate, pending consideration after grant of leave, can be heard and decided by the High Court or are CRREF/5/2008 3/15 JUDGMENT required to be sent back to the Sessions Court for their disposal in accordance with law ? (ii) Whether application for grant of leave wherein leave to file appeal is yet not granted or criminal appeals, wherein leave under Section 378(3) has not been granted, would continue to be heard by the High Court or such matters are required to be sent to the Sessions Court ? And (iii) In all such cases, whether leave to file appeal would not be required in view of language of Section 378(1)(a) of the Code of Criminal Procedure ? 3. Since the question was of a vital importance, it was deemed proper to invite Advocates' views and, accordingly, following Advocates made their submissions :- (1) Mr. Kamal Trivedi, Advocate General. (2) Mr. K. J. Shethna, Senior Advocate. (3) Mr. A. D. Shah. (4) Mr. B. B. Naik. (5) Mrs. Ami Yagnik. (6) Mr. J. B. Pardiwala. 4. Learned Advocates put in their efforts, examined the CRREF/5/2008 4/15 JUDGMENT question from various angles and rendered appreciable assistance to the Court. 5. The question arises in the backdrop of amendment made in the Code of Criminal Procedure. Section 378 of the Code of Criminal Procedure came to be amended by Act 25 of 2005. The amendment came into force with effect from 23rd June, 2006. The said section, as it stood before amendment, runs as under :- “Section 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), 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 acquittal passed by any Court other than a High Court 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 also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3), to the High Court from the order of acquittal. (3) No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court. CRREF/5/2008 5/15 JUDGMENT (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 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).” Section 378, subsequent to the amendment, runs as under : “Section 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 CRREF/5/2008 6/15 JUDGMENT 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 sub-section (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 non-bailable 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 (1)] or any order of acquittal passed by the Court of Session in revision. (3) No appeal under sub-section (1) or sub-section (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 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 CRREF/5/2008 7/15 JUDGMENT 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).” 6. As can be seen from the comparison of Section 378, as it stood prior to the amendment and subsequent to the amendment, it is clear that sub-sections (3), (4), (5) and (6) have remained unamended. The amendments are made only in sub-sections (1) and (2) of the said Section. 6.1 Sub-section (1), as it stood prior to the amendment provided that 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 acquittal passed by any Court other than High Court or an order of acquittal passed by the Court of Sessions in revision. By virtue of the amendment in sub-section (1), now it is provided that, where an order of acquittal is passed by a Magistrate in respect of a cognizable and non-bailable offence, the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Sessions and where an original or appellate order of acquittal is passed by any Court other than High Court, not being an order under clause (a) or an order of acquittal passed by Court of Sessions in revision, the State Government may CRREF/5/2008 8/15 JUDGMENT direct the Public Prosecutor to present an appeal to the High Court. 7. Thus, by virtue of the amendment, the forum of appeal against order of acquittal is changed. The amended section provides that when the acquittal order is by a Magistrate in respect of a cognizable and non-bailable offence, the appeal would lie to the Court of Sessions whereas in cases where an order of acquittal is recorded by a Court other than the High Court either in its original or appellate jurisdiction or by a Court of Sessions in revision, an appeal can be preferred before the High Court. 8. As stated above, this change was made by virtue of an amendment brought in by Amending Act No.25 of 2005, which has come into force on 23rd June, 2006. 9. There are a number of appeals, which are admitted by granting leave as contemplated under the unamended provision and are awaiting final hearing. Similarly, there are number of appeals which are pending, where the question of grant or refusal of such leave is yet to be decided. The pending appeals may belong to either of the categories stated above, which may have been filed before or after 23rd June, 2006 and, therefore, the question and reference. In order to understand why the amendment is effected, it would be appropriate to go to the statement of reasons and objects. What is found therein can be quoted thus :- CRREF/5/2008 9/15 JUDGMENT “In order to guard against the arbitrary exercise of power and to reduce reckless acquittals, section 378 has been amended to provide that an appeal against an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence filed on a police report would lie to the Court of Session, and the District Magistrate will be authorised to direct the Public Prosecutor to file such appeals. In respect of other cases filed on a police report, an appeal against an order of acquittal passed by any Court other than the High Court should lie only to the High Court and the authority to Direct the Public Prosecutor to present an appeal shall continue to be with the State Government.” 10. We have also examined Amending Act 25 of 2005 to check up if there is any provision making the applicability of the amended section retrospectively and we find none. 10.1 We have also checked up the Amending Act to find out whether there is any provision for transfer of appeals pending against acquittal orders passed by Magisterial Court as on the date of the new section coming into force and we find none. 10.2 We also find that the amending law has not made any saving provisions expressly saving the pending proceedings to be taken care of by the High Court in the manner in which it came to be provided by Section 484 of the Code of Criminal Procedure for continuation and disposal of the proceedings which had commenced under the old Code. CRREF/5/2008 10/15 JUDGMENT 11. In view of the above situation, we are of the view that when the Amending Act does not make any provision for its retrospective applicability, it would not be proper to read so and, thereby, transfer the cases presented to the High Court before 23rd June, 2006, the day on which the amended provision came into force. The amending provision also does not provide for transfer of such pending proceedings from the High Court to the Court of Sessions from the date of the amended section coming into force. 12. The date on which the amended provision came into force would be of vital relevance for answering the questions. So far as the matters where the acquittal is recorded by a Magistrate, the appeals against which are filed before 23rd June, 2006 before the High Court, where leave to appeal is granted or that question is not decided by the High Court are concerned, as the amended provision is not made applicable retrospectively, it cannot be held that such appeals which are preferred prior to the amending law coming into force would be governed by the amended provision. If a contrary view is taken, it would amount to reading something which is not provided in the Amending Act. 12.1 Similarly, if those appeals, which are filed prior to cut off date, i.e. 23rd June, 2006, the day on which the amended provision came into force, are ordered to be transferred to the CRREF/5/2008 11/15 JUDGMENT Court of Sessions, in absence of any specific provision for transfer of such pending appeals, it would amount to reading something in the Amending Act or in the amended provision in absence of such a provision. 12.2 It also requires consideration that there is no provision in the Amending Act 25 of 2005 or in the amended provisions of the Code which takes away the powers of the High Court of hearing such appeals. 12.3 The amendment would only mean that from the date it came into force, appeals against order of acquittal by a Magistrate, in case of cognizable and non-cognizable offence, can be preferred before the Sessions Court. Differently put, the amendment invests the Sessions Court with such powers prospectively. The legislature can reasonably be inferred to have intended that the appeals preferred before the stipulated date to be heard and decided by the High Court. 12.4 Therefore, in our view, the appeals, which are filed before this High Court before 23rd June, 2006, where leave to appeal is granted or where that question yet not decided, will have to be decided by this Court and are not required to be sent or transferred to the Sessions Court. We may refer to a decision in the case of R. Kapilnath (dead) Through LR v. Krishna, (2003) 1 CRREF/5/2008 12/15 JUDGMENT SCC 444, where the Supreme Court has observed thus:- “4.........The correct approach to be adopted in such cases is that a new law bringing about a change in forum does not affect pending actions, unless a provision is made in it for changeover of proceedings or there is some other clear indication that pending actions are affected.” The situation before the Apex Court was that the Amending Act did not provide for any retrospective operation nor was there anything in the Act to infer retrospectivity by necessary implication, which is exactly the situation that is posed before us and, therefore, the view that the pending cases before this Court are not required to be transferred. Similar view is taken by the High Court of Bombay in Criminal Application No.2937 of 2006 decided on 17.11.2006 in the matter of State of Maharashtra v. Hanmant Prabhakar Waidande & Ors. 13. So far as the second part of the question is concerned, if the appeals are preferred prior to 23rd June, 2006, as discussed earlier, whether leave to file appeal is yet not granted, the same will have to be heard and decided by the High Court. Where leave under Section 378(3) has not been granted, there is no question of entertaining the appeal. 13.1 However the situation would be different in cases CRREF/5/2008 13/15 JUDGMENT where appeals are preferred after 23rd June, 2003, where the leave to file appeal is granted or yet not granted. In view of the amendment coming into force prospectively, as discussed earlier, the jurisdiction in the Sessions Court to hear such appeals would be invested prospectively. The statute empowers only the Sessions Court to entertain such appeals and not other Courts. We are, therefore, of the view that such appeals preferred on or after 23rd June, 2006 will have to be heard by respective Sessions Courts. In case of such appeals, which are pending before this Court, where leave to appeal is granted or not or where the question whether to grant leave to appeal is yet not decided, cannot be heard by this Court. Such appeals will have to be heard and decided by appropriate Sessions Court and, therefore, they will have to returned to the appellant for presentation before appropriate Court. 14. So far as the 3rd part of the question raised by the learned Single Judge is concerned, a plain reading of Section 378(1)(a), as amended by the Amending Act, would make it clear that right to prefer an appeal before the Sessions Court is not a qualified right, i.e. subject to a permission from the Court as is the case with the High Court, as contemplated under sub-section (3) of Section 378, which specifically provides that no appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court. Therefore, reading clause CRREF/5/2008 14/15 JUDGMENT (a) of sub-section (1) and sub-section (3) of Section 378 together, it would be clear that clause (a) of sub-section (1) does not contemplate any restriction on right to appeal in the form of leave of the Court and, therefore, leave to file an appeal would not be required in cases where appeals are preferred against acquittal by the Magistrate after the cut off date, i.e. 23rd June, 2006. This would apply to cases which are filed before this Court after 23rd June, 2006 and required to be presented before the Sessions Court. 15. In view of the above discussion, we answer the questions as under :- (1) Appeals against acquittal recorded by the Magistrate, pending consideration after grant of leave, can be and are required to be heard and decided by High Court in view of amendment made in sub-section (1) of Section 378 and are not required to be sent to the Court of Sessions for disposal, if they are filed before 23rd June, 2006. There is no question of hearing those appeals which are filed before 23.06.2006, where the applications for grant of leave to file appeal are not granted. Those Criminal Appeals wherein leave under Section 378(3) is yet not granted are required to be heard and decided by this Court, if they are preferred before 23rd June, 2006 and leave to file appeal would not be required in cases where appeals are preferred before Sessions Court or are transferred to Sessions Court. CRREF/5/2008 15/15 JUDGMENT 16. In view of the questions answered by us as above, a corollary would follow that all appeals which are preferred on or after 23rd June, 2006 against acquittal recorded by a Magistrate in respect of cognizable and non-bailable offences cannot be entertained by this Court. The appeals, therefore, will have to be returned to the appellants along with certified copies, if any, for presentation before appropriate forum. The reference stands disposed of accordingly. [ A. L. DAVE, J. ] [ SMT. ABHILASHA KUMARI, J. ] gt