Chobban Mallick vs State of W. Ben.

Tapen Sen, J.—In all these appeals which have been filed under the proviso appended to section 372 of the Code of Criminal Procedure, a point pertaining to limitation has attained significance. An amendment was sought to be brought by the legislature Vide Act 5 of 2009 with effect from 31.12.2009 inserting a proviso to section 372 of the Code of Criminal Procedure, 1973 (hereinafter referred to for the sake of brevity as the Code) conferring therein a right upon the "victim" to prefer an appeal "against any Order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation" with a rider that "such an appeal shall lie to the Court to which an appeal ordinarily lies against the Order of conviction of such Court". The provisions of section 372 (as it now stands after the amendment) reads as follows:-

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.]

The right to prefer an appeal in case of acquittal was already provided for by the legislature under the provisions of section 378 of the Code subject to section 378(5) thereof but, the same pertained/pertains to cases arising out of a Complaint. Under the provisions of that section, the period of limitation has been prescribed u/s 378(5) of the Code read with Article 114 of the Limitation Act 1963. Before we proceed further, we would like to observe that it is high time that the legislature should find some time to amend the Limitation Act, 1963 itself because Article 114 is so archaic that even today, it refers to the new provisions of section 378 of the Code as section 417 of the Code of Criminal Procedure, 1898.

For the convenience of parties, the provisions of section 378 of the Code and the provisions of Article 114 of the Limitation Act are quoted below:-

Appeal is 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 acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by 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 (a)] or an order of acquittal passed by the Court of Session in revision.]

(3) [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.

(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).

It was indeed laudable on the part of the central legislature to have provided a right of appeal to the "Victim" by reason of the aforesaid amending Act 5 of 2009 with effect from 31.12.2009 but it appears that the same was done in extreme haste without providing for or prescribing a time limit for preferring such appeals. In our opinion, by not providing a time limit to the Victim would have serious repercussions and could mean that an appeal can be filed by the victim or his/her guardian or legal heir at any point of time. If this be so, then it would create a monstrous situation for people/accused ho have been acquitted or for those who may have faced a false accusation leading to a protracted trial and finally being acquitted from such false charges. There may be risks that the informants may even blackmail such people or, having been frustrated in their attempts to falsely accuse somebody, wreak vengeance by filing an appeal at any point of time and as per their own agenda/convenience. This cannot be the intention of either the legislature, the lawmakers or of a reasonable interpretation to be made by a Court of law. We have therefore agreed to suo motu decide this issue.

Before we proceed further we would briefly like to refer to the definition of the word victim at this stage which has been given in section 2(wa) of the Code and which speaks as follows:-

[(wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir;]

Upon a perusal of the definition of the word "Victim", we would like to assert that since "Victim" means and includes his or her guardian or legal heirs, a means is provided to them to always reopen any matter which has reached finality by a judgment of acquittal. In other words, even upon completion of a trial by acquittal, the "Sword of Damocles" continues to hang over them.

It is in this background that we would like to ask ourselves as to whether, we can pass a Judgement, which would have the effect of legislating and curing a defect, and/or filling up a void created by the legislature? We feel that when such a difficulty appears, we as Judges having taken oath under our Constitution, cannot keep silent nor can we simply fold our hands and blame the draftsman. We draw strength for such observations from the Judgement of Lord Denning passed in the case of Seaford Court Estates vs. Asher reported in (1949) 2 All ER at page 164 in which his Lordship has observed as follows:-

"... When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament......and then he must supplement the written word so as to give "force and life" to the intention of the Legislature......A judge should ask himself the question how, if the makers of the Act had themselves come across, this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A Judge must not alter the materiel of which the Act is woven, but he can and should iron out the creases" (see this part quoted para 42 of the Judgement passed in the case of Jnan Prakash Agarwala Vs. State of West Bengal,

Taking our thoughts further we would now briefly advert to the concept of "judicial draftsmanship".

We have the power to reasonably interpret legislative blunders in such a way that would be reasonable and fair to all. This becomes necessary when we find that such an exercise becomes essential in view of a serious lapse or defect created by the makers of the law. It becomes our bounden duty then, to visualise and endeavour to use our "judicial draftsmanship" to clarify those lapses/defects and/or errors. The concept of "judicial draftsmanship" can be found in the Judgement of the Supreme Court passed in the case of State of Tamil Nadu Vs. Kodaikanal Motor Union (P) Ltd., wherein, while drawing inspiration from the observations of Lord Denning (supra), the Supreme Court observed as follows:-

The Courts must always seek to find out the intention of the Legislature. Though the Courts must find out the intention of the statute from the language used, but language more often than not is an imperfect instrument of expression of human thought. As Lord Denning said it would be idle to expect every statutory provision to be drafted with divine prescience and perfect clarity. As Judge Learned Hand said, we must not make for trees out of dictionary but remember that statutes must have some purpose or object, whose imaginative discovery is judicial craftsmanship. We need not always cling to literalness and should seek to endeavour to avoid an unjust or absurd result. We should not make a mockery of legislation. To make sense out of an unhappily worded provision where the purpose is apparent to the judicial eye "some" violence to language is permissible. (see K.P. Varghese Vs. Income Tax Officer, Ernakulam and Another, and Luke vs. Inland Revenue Commissioners, (1964) 54 ITR 692).

Upon a perusal of both the observations quoted above, we are, therefore, convinced that we do have a right to interpret and/or deliver a Judgement that would be acted upon as if it is a Rule under the Statute so that it would act as a remedy for the ills that may have arisen due to the malaise created by the central legislature which, in the instant case, has appeared by not providing a period of limitation in the proviso to section 372 of the Code.

Having answered the aforementioned questions, we would now like to hold that the proviso appended to section 372 of the Code must provide a reasonable period of limitation. However, what would be the period of limitation is the next question that has now to be decided.

In this context, we would once again like to advert to section 378 read with Article 114 of the Limitation Act which prescribes a time of sixty days for all appeals and ninety days to those appeals which are filed by the State. Therefore, the question that would now fall for consideration before us is as to what should be the period of limitation in so far as a "Victim" is concerned and who had initiated the prosecution on the basis of an FIR and which ended in acquittal of the accused?

We are conscious of the provisions of Article 137 of the Limitation Act, 1963 which provides that in the matter of any application for which no time limit is provided, the period of limitation would be three years. In our opinion, the period of three years, if granted to the "Victim" would be highly discriminatory because in a complaint case, the time limit granted for preferring an appeal against acquittal is sixty days and in the case where the appeal is by a public servant, it is six months. In a complaint case, the State conducts the prosecution on behalf of the complainant and therefore, if they have been given the benefit of sixty days or six months then, in our opinion, the "Victim" in a case initiated on the basis of an FIR should also be placed on the same category as a normal Complainant/Informant. Therefore, in our opinion, the period of sixty days should be taken as a reasonable period for preferring an appeal under the provisions of the proviso appended to section 372 of the Code. In other words, we hold that there shall be a period of limitation in all Appeals against acquittal filed under the provisions of the proviso appended to section 372 and that period of limitation shall be sixty days.

When should the period of limitation start? This is the next question that has to be considered. We are aware of the fact that in a diverse country like India, inequality in finance and the economic differences between the "haves" and the "have nots", the rich and the not so rich, cannot be forgotten. The informant in a rural background may have initiated a case whereafter the State is supposed to continue his or her case in the capacity of Prosecutor. Normally, a poor person who may have instituted an FIR may simply like to continue to strive for attaining two square meals a day after having been satisfied that his case is being looked after by the State. In such a case, such a person may not even know the date when the accused may have been acquitted. In such cases what is to be done? Should we leave it to the Public Prosecutor to ensure that the informant is informed or should we devise some other means to ensure that the informant comes to learn about the Judgement acquitting those persons against whom he had instituted the case? In answering this question, we would like to draw inspiration from section 365 of the Code which casts an obligation upon the Court of Sessions or a Chief Judicial Magistrate or other trying Magistrate to forward a copy of its or his finding and sentence (if any) to the District Magistrate within whose local jurisdiction the trial was held.

We wish to adopt this procedure in appeals against acquittal filed u/s 372 of the Code also and we hold that as soon as an accused/the accused persons are acquitted the Court of Sessions or a Chief Judicial Magistrate or other trying Magistrate to forward a copy of its or his finding and sentence (if any) to the District Magistrate within whose local jurisdiction the trial was held. After all, the District Magistrate has the machinery and all the infrastructure to take necessary steps so that the victim is informed about the acquittal and told about his/her right of appeal.

Once the information is given to the victim, the District Magistrate concerned shall obtain receipt of such information and that date shall be construed to be the date of knowledge of the victim. We, accordingly, decide this issue. We further hold that all appeals filed thereafter will also be guided by the principles of section 5 of the Limitation Act, 1963.

We direct that a copy of this Judgement be sent to the Secretary, Judicial Department for circulation to all Courts subordinate to the High Court for strict compliance hereafter. We direct the Registrar General of this Court to co-ordinate so that the Judicial Secretary takes immediate steps as directed.

While concluding, this Court would like to further clarify that this Judgement shall have prospective effect and all those appeals which have been filed before this date shall be treated to be proper appeals. Since this Judgement has been delivered in CRA No. 176 of 2013, it will govern all other cases which have been listed together but hearing of all those cases will be taken up separately and individually.

Let xerox copy of this Judgment, if applied for, be delivered to the learned Counsel for the parties upon compliance of all usual formalities.

This Judgement is approved for reporting.

Tapen Sen, J.

I agree.